The social contract theory of the State has it that the State is formed by the agreement of the People to establish a monopoly on legitimate violence to perform certain functions. Social contract theorists sometimes disagree about the nature and scope of the State’s functions, but most agree that they include, at a minimum, providing police, courts, & the military. Many social contract theorists argue that other things should be done by the State, but few besides anarchists question whether the State should do these things at all. For the sake of this discussion, then, let’s stick to these three. If the theory holds for them, then it may hold for others as well. If it doesn’t hold for these, then it may be difficult to see how it could justify additional State functions.
On this minimal conception of the functions of the State, then, social contract theory has it that the People are obligated to pay taxes to the State and abide by its rules in exchange for the protection they get from the police, courts, & military. In turn, the State is obligated to protect the People. In theory, there is mutual agreement between the People & the State to these terms and this substance, and there is mutual obligation. But does this theory hold in practice? In practice, is there really mutual agreement and mutual obligation about this relationship? I will argue that, in practice, neither mutual agreement nor mutual obligation can be found in the relationship between the People and the State. Further, I will argue that, in practice, there is no such social contract.
Some argue that the Constitution of a country is the social contract. But, as Lysander Spooner pointed out, written Constitutions have “no inherent authority or obligation.” They have “no authority or obligation at all, unless as a contract between man and man.” At most, they can only be contracts between those who were alive and “already come to years of discretion, so as to be competent to make reasonable and obligatory contracts” when they are written. Further, they can only obligate those “consulted on the subject, or asked, or permitted either to express their consent or dissent in any formal manner.” And, those who may authorize & be obligated to Constitutions have “no natural power or right to make it obligatory upon their children.” (“No Treason: the Constitution of No Authority,” the Lysander Spooner Reader, p. 71)
How else could the people agree to the State? “If they have done so, they can only have done so in only one of both of two ways, viz., by voting, and paying taxes.” (ibid, p. 73)
Taxation might seem at first to indicate the consent of the governed since people seem to willingly pay the State to protect them. However, the Mafia has also claimed to “protect” people in exchange for payment. In fact, the “protection” money collected by the Mafia isn’t willingly paid at all, but extorted by the Mafia from its victims. In fact, it isn’t “protection” money at all, but extortion. Extortion is defined as “obtaining property from another by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” (Black’s Law Dictionary, p. 302). The Mafia’s “protection” is neither freely offered nor freely accepted. Those who don’t pay their “protection” money are threatened with harm to their lives, liberties, & properties.
The same thing goes for taxation. The State doesn’t wait for anyone to request its “services,” and, like the Mafia, its offers are ones that you can’t refuse. Those who decline its offers are also threatened with harm to their life, liberty, or property. Where the Mafia may firebomb the home or business of those who don’t pay up, the State will rob, beat, imprison, and even kill those who refuse to pay their taxes because they reject the “services” the State has to offer.
Taxation may seem analogous to rent paid by a tenant to its landlord, but this analogy doesn’t hold water, either. While legitimate landlords get their property by being the first to make use of it and mark it off or by getting it in trade or as a gift from someone who did, etc., the State doesn’t get its territory that way. The State gets its territory the same way as the Mafia: by violence, or the threat thereof. Thus, neither the State nor the Mafia are the legitimate owners of anything they get by means of their extortion.
Furthermore, this assumes that the State claims title to all the real estate within its territory, which isn’t always the case. In fact, land title was held “allodium” (“Land held absolutely in one’s own right, and not of any lord or superior; land not subject to feudal duties or burdens. An estate held by absolute ownership, without recognizing any superior to whom any duty is due on account thereof.” – ibid, p. 39), or “fee simple absolute” (“A fee simple is an estate limited absolutely to a man and his heirs and assigns forever without limitation or condition. An absolute or fee-simple estate is one in which the owner is entitled to the entire property, with unconditional power of disposition during his life, and descending to his heirs and legal representatives upon his death intestate.” – ibid, p. 317) in England prior to the Norman Conquest. But, as Thomas Jefferson pointed out in his “Summary View of the Rights of British America”:
“America was conquered, and her settlements made and firmly established, at the expense of individuals, and not of the British public. Their own blood was spilt in acquiring lands for their settlement, their own fortunes expended in making that settlement effectual. For themselves they fought, for themselves conquered, and for themselves alone they have right to hold. No shilling was ever issued from the public treasures of his Majesty, or his ancestors, for their assistance, till of very late times, after the colonies had become established on a firm and permanent footing. That then, indeed, having become valuable to Great Britain for her commercial purposes, his Parliament was pleased to lend them assistance against an enemy who would fain have drawn to herself the benefits of their commerce, to the great aggrandisement of herself, and danger of Great Britain. Such assistance, and in such circumstances, they had often before given to Portugal and other allied states, with whom they carry on a commercial intercourse. Yet these states never supposed that by calling in her aid, they thereby submitted themselves to her sovereignty. Had such terms been proposed, they would have rejected them with disdain, and trusted for better, to the moderation of their enemies, or to a vigorous exertion of their own force… ”
America was not conquered by William the Norman, nor its lands surrendered to him or any of his successors. Possessions there are, undoubtedly, of the Allodial nature. Our ancestors, however, who migrated hither, were laborers, not lawyers. The fictitious principle, that all lands belong originally to the King, they were early persuaded to believe real, and accordingly took grants of their own lands from the Crown.” – Thomas Jefferson, “Summary view of the rights of British America,” LIFE & SELECTED WRITINGS OF THOMAS JEFFERSON, ed. Adrienne Koch & William Peden, Random House, (c) 1972, pp. 294-95, 308
However, this error didn’t waive the right.
There are other essential differences between the rent paid by tenant to landlord and the tax paid by people to the State: tenants voluntarily choose to enter into their landlord’s estate, and to pay the rent charged by the landlord for the tenant’s occupation of the estate. Furthermore, tenants can quit the premises and thus relieve themselves of liability to pay rent to the landlord. Neither condition obtains in the relationship between the People and the State. Even if we assume that the State holds legitimate original title to its territory, this could only obligate people to pay rent if they’d voluntarily occupied it in the first place. Furthermore, the People aren’t relieved of tax liability even if they leave the country if the country in question is that claimed by the Federal Government of the USA, which requires its citizens to pay taxes to it no matter whether they live within its geographical boundaries or not.
The very word “taxation” means “forced exaction,” according to Charles Adams, tax attorney and leading historian of taxation (see his books “Fight, Flight, Fraud,” and “For Good and Evil”). As he points out, the common-law principle of fair benefit received for consideration given has no place in tax law. Black’s Law Dictionary says: “Essential characteristics of a tax are that it is not a voluntary payment for donation, but an enforced contribution…” (p. 758)
There are a number of reasons why voting isn’t an expression of the consent of the governed as well. One is that voting is also done under duress, just as is paying taxes. Taxes are assessed whether one votes or not, so many vote out of self-defense in order to prevent their taxes from being used against them in some way or another. Another is that the majority often votes to violate the rights of the minority, which violates the principle that contracts to violate the rights of another are invalid. Still another reason is that since voting is done by secret ballot there can be no meeting of the minds as is necessary for any legally binding agreement. Yet another reason is that voting could at most only bind those who actually voted in any given election, but elections are commonly held to obligate those many people who don’t vote. Still further, those who vote for candidates who lose the election can’t be said to have consented to the rule of the winner. There may be other reasons, but I think these are enough to prove that voting can’t be an expression of the consent of the governed.
One could still argue that even though there’s no mutual agreement to pay taxes & obey the State’s rules in exchange for the State’s protection, the people are still obligated to do so because the State is obligated to protect them whether they agree to it or not. But, in fact, not only doesn’t the State have any obligation to protect those who haven’t agreed to it, it doesn’t have any legal obligation to protect people who’ve not only agreed to the State’s protection but desperately need it because they have no other way of getting protection. Neither the police, courts, military, or any other officials or employees of the State have to protect them:
“As numerous courts have held, they have no legal obligation to protect anyone in particular. You cannot sue them for failing to prevent you from being the victim of a crime.” – Jeffrey Snyder
This is an instance of the legal doctrine of “sovereign immunity,” which stems from the medieval notion that the king could do no wrong. Black’s Law Dictionary says that it “precludes litigant from asserting an otherwise meritorious cause of action against a sovereign or a party with sovereign attributes unless sovereign consents to suit.” (p. 724) The State has been so kind as to waive sovereign immunity in some cases under the Federal Tort Claims Act of 1946, but “preserves governmental immunity with respect to the traditional categories of intentional torts, and with respect to acts or omissions which fall within the ‘discretionary function or duty’ of any federal agency.” (p. 317) What is the scope of this “discretionary function or duty”? It can be found in Black’s Law under the heading of “sovereignty”: “The power to do everything in a state WITHOUT ACCOUNTABILITY, – to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like” (emphasis added). The several states under the federal government also have their own statutes relieving them and the city and county government under them of liability for any and all failures to protect the people from threats to their lives, liberties, and properties as do the county & city levels of government.
One could still argue that even though the State has no legal obligation to live up to its end of the deal it still has a political obligation: if its officials breach the social contract, then they can get defeated in their next election and replaced with someone else. However, this objection was anticipated by Lysander Spooner as well:
“Suffrage is equally powerless and unreliable. It can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes. Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is, that the first were chosen for that very reason, and yet proved tyrants. The second will be exposed to the same temptations as the first, and will be just as likely to prove tyrannical. Who ever heard that succeeding legislatures were, on the whole, more honest than those that preceded them? What is there in the nature of men or things to make them so? If it be said that the first body were chosen from motives of injustice, that fact proves that there is a portion of society who desire to establish injustice; and if they were powerful or artful enough to procure the election of their instruments to compose the first legislature, they will be likely to be powerful enough or artful enough to procure the election of the same or similar instruments to compose the second. The right of suffrage, therefore, and even a change of legislators, guarantees no change of legislation – certainly no change for the better. Even if a change for the better actually comes, it comes too late, because it comes only after more or less injustice has been irreparably done.
“But, at best, the right of suffrage can be exercised only periodically; and between the periods the legislators are wholly irresponsible. No despot was ever more entirely irresponsible than are republican legislators during the period for which they are chosen. They can neither be removed from their office, nor called to account while in office, nor punished after they leave their office, be their tyranny what it may. Moreover, the judicial and executive departments of the government are equally irresponsible TO THE PEOPLE, and are only responsible (by impeachment, and dependence for their salaries), to those irresponsible legislators. This dependence of the judiciary and executive upon the legislature is a guaranty that they will always sanction and execute its laws, whether just or unjust. Thus the legislators hold the whole power of the government in their hands, and are at the same time utterly irresponsible for the manner in which they use it.” – Lysander Spooner, “Trial By Jury,” THE LYSANDER SPOONER READER, pp. 126-27
How could the State be obliged to protect those who reject its offer if it isn’t even obliged to protect those who not only accept the offer but whose very lives depend upon it?
What about enforcement of the State’s obligation to protect the people by means of the right of revolution? First of all, in order for the people to be able to overthrow the State by armed revolution they have to be able to break the State’s monopoly of legitimate violence by not only being able to keep & bear arms but also by having the authority to judge the legitimacy of their actions. Thus, they have to rob the State of its defining characteristics. The government that would then be overthrown may be tyrannical, but it wouldn’t be a State except in the sense of being an organization which tries to monopolize legitimate violence by means of force & fraud, however unsuccessfully it might do so. In fact, even if a State didn’t claim sovereign immunity, even if it were based upon the consent of the governed, it still couldn’t be held to its end of the deal without first being robbed if its status as a State. There being no practical way to enforce obligations upon an existing State, no such obligations can exist in practice, which means that there can be no mutual obligation between the People & the State – which means that there can be no contract between People & State, since mutual obligation is a necessary condition for contract to exist.
Secondly, Spooner answered this one as well: “The right of revolution… is of no practical value, except for those who are stronger than the government. So long, therefore, as the oppressions of a government are kept within such limits as simply not to exasperate against it a power greater than its own, the right of revolution cannot be appealed to, and is therefore inapplicable to the case. This affords a wide field for tyranny…” – ibid, pp. 129
It turns out that the alleged “social contract” is doubly one-sided: the only party to agree to it is the State, and the only party that is obliged by it is the People. The State agrees to collect taxes & enforce its rules upon the People, and the people are obliged to pay those taxes & abide by those rules. There is no mutuality of agreement nor any mutuality of obligation between the State and the people, and, therefore, can be no contract. There is no more contract between the State and the People than there is between the Mafia and the victims of its extortion rackets or rapists and their victims. Thus, the People have no obligation to pay taxes or to obey the State, and the State has no legitimacy in attempting to enforce any such obligations.