Friday, April 28, 2006

Living Under Government Means Ceding All Your Rights?: A Reply to Tali Satele's 'Tragedy of the Taxes'

Stuart K. Hayashi

This post is a reply to Tali Satele's answer to me in the comments for his post "Tragedy of the Taxes."

Dear Tali,

In your reply to my first comment, you wrote that

if individuals want to be members of the government institution they can go and sign a contract to do so.

To this, the Social Contract peddler replies that every adult living under a democratic government already has signed a contract stipulating that he or she consents to following every single democratically-ratified law, no matter how immoral he or she perceives it to be.

Many libertarians reply that they do not ever recall seeing such a contract saying it, nor have they ever taken a pen to sign such a document. This argument fails because it makes the false assumption that a contract must be written and signed in ink to be legally binding. The fact of the matter is that the vast majority of contractual agreements made in the United States are done so without the contract being written.

Say you go to a store and purchase a stereo -- one with packaging that promises you that the stereo plays music when it is electronically powered. Then, when you try turn your new stereo on, you realize that it does not run because it is broken.

So you go to the store and ask for a refund.

Suppose the store refunds your money. Why is that? You may believe that the store does this because the store's managers understand that, if the store's refusal to refund you makes you angry, you may choose to stop at a competitor's establishment.

There is more to it than that, however. In actuality, every time you make a purchase, there is an implict conctractual agreement that the product or service being paid for actually does what its sellers claim it does.

When you buy your stereo from the store, the stereo's packaging claims that the stereo will play music. By selling you this item -- complete with the packaging it came with -- the store implicitly also makes that promise to you.

The implicit contract is this: if you give your money to the store, then the store provides you with a good or service that does what the seller says it will do.

Thus, if you buy a stereo from a store and it does not work, then the store is in breach of the implicit contract it has made with you.

So if the store refused to refund your money, you would have a valid claim to sue the store in small claims court.

The store can only weasel out of this implicit arrangement if the store established a different set of ground rules before the deal was sealed. In other words, if you go to the store and the owner warns you, before you even take your money out, that the stereo might not work, and you go ahead and pay for it anyway, then you have no claim against the store owner when it turns out that the machine indeed malfunctions.

That sort of pre-emptive renegotiation of contractual terms is also seen in the case of prenuptial agreements. When you enter into a marriage contract, the default version of such contracts stipulates that both partners are merging their estates into a single entity, with each marriage partner holding joint ownership over all the assets.

But what if you want to marry a woman while, even after getting married to her, retain 100-percent ownership over your pottery collection? That is, even after you marry her, she has absolutely no stake or claim in any part of your pottery collection; it's all yours. If you want that arrangement to be codified legally, so that she cannot take any of your pottery away should you later get divorced, then you need to put that in a prenuptial agreement -- a prenuptial agreement being a further clarification of the terms of your marriage contract.

Now, my stereo example is part of a much larger phenomenon. Implicit, non-written contracts are necessary in order for a free society to exist. This principle is known as contract by estoppel. As Wikipedia explains the principle,

a landlord may tell a tenant that the rent is reduced or cancelled for a specific period of time, e.g. "You can pay half rent until the noise and dirt from the maintenance of the common parts is over." If the tenant changes behavior as a result of what is said, the landlord might be "estopped" from retrospectively claiming the full rent."

Thus, the Social Contract peddler can reply to you that you do not need to "sign" anything literally for the Social Contract to be valid.

Basically, say the Social Contract believers, your entry into the Great Pact is implicit. You consent to it when you reach adulthoood and choose to continue living in the democratic society instead of moving somewhere else or deciding to become a hermit in the woods.

Thus, you sign an unwritten, implicit Social Contract By Estoppel.

Just as the scenario with the stereo involved an unwritten contract that could still be enforced by the government's guns in court, so too can your refusal to abide by the Social Contract.

In your response, you said that

every individual has the right over his or her own life and is therefore the only person who can give permission to who they do or do not want to associate with.

The Social Contract theorist replies that you only retain absolute ownership over your life if you're a hermit in the woods. By living in society, you must agree to the Social Contract and, in so doing, you relinquish some ownership over your life to the rest of society. By living in society, you must partially live under your neighbors' terms. If your neighbor wants to do something that you don't want to do, you have a legal obligation to cede a portion of control over your life to your neighbor.

You touch upon what's wrong with the Social Contract pusher's argument when you say,

a contract is only binding where each party intentionally (or gave the impression of intent)gave consent to an agreement. so people can contract and be bound to the organization's rules like homeowner associations.

There is something to add to this: You cannot truly consent to any contractual arrangement -- not even an implicit contract-by-estoppel -- if, before entering into the contract, the party whom you are dealing with has given you no opportunity to learn of what the contract's objectively-definable terms are.

In the example of the defective stereo, there was no written contract, but there are a set of objectively definable terms. The packaging of the stereo promisees the stereo will function when you have properly followed the instructions for its usage. By selling you the stereo with that packaging, the store is legally considered to have made the same promises about the stereo that the manufacturer has.

And yet, the terms of any Social Contract are not objectively definable. It does not help for the Social Contract theorist to say that you were made aware of the terms of the Social contract when you were a child being coerced into taking civics lessons at school, because those such lessons (indoctrination, really) do not provide us any clear standards.

What Thomas Hobbes said are the Social Contract's terms are completely different from the terms that John Locke and Thomas Jefferson believed it had.

Do you know why? Because it's fiction! It's completely made-up. There is no more proof of a Social Contract existing than there is proof that gray space aliens have abducted human beings.

Those who doubt this can try an experiment. Visit ten contract lawyers separately. On every single occasion, ask that lawyer what the specific terms of the Social Contract are.

Most of the answers will be extremely different. The more similar the answers are, the more vague they will be. The more specific two answers are, the more dissimilar they will be.

And try posing this question:

Suppose that, when I first reached the age of contractual competency, there was no draft. I only agree to live under that government if there is no draft. Ten years later, the government drafts me. I then dodge the draft. So which party breached the contract first -- me or the government?

Any lawyer who tells you that you instigated the contractual breach has actually contradicted the implicit message of the Declaration of Independence.

In the Declaration, Jefferson says that once you agree to a certain system of government, then the government is contractually obligated to retain that system of government. Should the government then introduce an entirely new system of law -- in the American colonists' case, a whole new set of taxes on trade --- then it is the government that instigated the contractual breach.

Also note that because every single adult, upon reaching the age of contractual competency, has very different ideas about what kind of government he would live under. Thus, one set of terms in a "Social Contract" that one young adult may agree to is not necessarily the same as the terms that another young adult would agree to his own "social contract" with society.

Thus, if all of these people are to live under the same government, then it is inevitable that the government's compliance with its "contractual agreement" with one young adult will lead it to defecting on its "contractual agreement" with other adults.

For political philosophers to argue over what the true terms of the one best Social Contract (that Americans are supposedly held to) is really comparable to Renaissance-era monks arguing over what number of angels dance on the head of a pin.

In actuality, we have no proof that any angel dances on the head of any pin, and likewise have no proof that a "Social Contract" exists.