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To Alter Or To AbolishChapter 24Social ContractsWritten by Darrell Anderson. Whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. John Locke, Second Treatise of Government In the United States, the new nation and its foundational law — the Declaration of Independence, the Articles of Confederation, and the Constitution — arguably were based upon the concepts of natural rights, law, and self-government. James Madison summarized his opinion of the new political system:[1] We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of mankind for self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God. To enhance their protections of life, liberty, and property, participants supposedly authorized certain individuals within this new political system with a part of their own right to self-defense and protection. They did not transfer or surrender these abilities, but only shared them. This sanctioning was to be used only to perform that which could not be performed or was difficult to perform at an individual level — people cooperating together in parallel or series usually perform more than when acting individually. Individuals could enable others within this new political system only with rights or abilities they already possessed, and each individual already possessed the right to defend property and rights. Frédéric Bastiat emphasized this point:[2] If every individual has the right to defend — even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus, the principle of collective right — its reason for existing, its lawfulness — is based on individual right. The signers of the American Declaration of Independence proclaimed these roots of empowerment: That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. [Emphasis added.] Such empowerment often is referred to as a social compact or social contract. These phrases are potentially misleading. When people form an association and certain rules and privileges are thereafter selected, a formalized process of government exists within that group of people. There does indeed exist a relationship among those people and the individuals administering that process of government. However, that relationship is not in the nature of a compact or contract, and at best is little more than a trust.[3] The specific structure for that process of government is managed by people, and the relationship between selected or appointed individuals and the people within that group is more correctly called a trust. How is a trust different from a contract or agreement? One difference between contracts and agreements is that contracts are based upon the idea of transferring title to property. Agreements do not necessarily exchange anything; agreements are merely an acceptance of specific human action. A trust is created to manage property or rights to property. The people who create a trust are called grantors. The individuals appointed to manage the trust are called trustees. The people who receive the benefits of the trust are called beneficiaries. Trustees have no equitable benefit in the trust, but only the beneficiaries. The boundaries and limits of that management and the benefits to be received are defined in the trust document or declaration.[4] Within certain societies those guiding rules are called bylaws and often the deed or declaration instrument is called a constitution. A constitution often is composed of two parts, one part acknowledging some of the rights, privileges, and duties of the participants and another part declaring the rights, privileges, and duties of the trustees. The latter part is dependent upon the former, and the former part is independent of the second. The primary purpose of the concept of government is to protect property and provide social order, therefore arguably enumerated powers cannot exist without an acknowledgment of the rights being protected. When people form societies by explicit consent, constitutions are not contracts or social contracts, but mere open notice of a trust agreement and enumerates the expected behaviors of the trustees. The goal is not to restrain the beneficiaries as much as to restrain the behavior of the trustees.[5] Unfortunately, there are flaws with this concept when consent is not explicitly honored. In the United States certain individuals within this new political system supposedly were “empowered” with standing that did not exist individually, such as regulating commerce, or expropriating property under the guise of taxation or eminent domain. Thus, the document was faulty from the beginning. Furthermore, there is no evidence that every individual agreed to the document. There should be little debate that those individuals who explicitly approve and agree to abide by a constitution are bound, such as oath-takers. However, whether people who have not provided explicit consent can be bound and whether posterity can be bound is a different question. That such imaginary powers were “granted” by “the people” is one indication that the concept of the social contract is flawed.[6] Remember the maxims regarding the non-delegation of powers. An individual can delegate powers only if that individual originally possesses that standing. Second, the concept of consent teaches that among sapient beings, all compacts, contracts, associations, affiliations, etc., only can be enjoined voluntarily and explicitly. All such relationships depend upon consent. Nobody forces you to join the bridge club, buy a particular automobile, or join a political society. You do so only by consent. The concept of consent contains elements used to define contracts and agreements. That is, there must be a meeting of the minds, there must be voluntary willingness or permission. Implied consent is assumed in any agreement, but does not necessarily bind an individual to all components of the agreement. Compacts or contracts of any type depend upon the concept of consent. Individuals who have not provided explicit consent to any compact cannot be members of any compact. They only can be said to agree to or endure certain conditions of that compact. Although people provide implied consent when agreeing to certain social customs, they do not necessarily provide explicit consent to be bound as in a contract. “Being in the neighborhood” does not mean explicit or implied consent is provided. If your neighbor invites you into his house and you are asked to remove your shoes upon entering, you do not enter a contract but only agree to abide by the customs of that specific society. John Locke, despite accepting the idea of statism and majority rule, concluded similarly:[7] It is true, governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them: for if any one shall claim a power to lay and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government: for what property have I in that, which another may by right take, when he pleases, to himself? [Emphasis added.] Some individuals argue that by living or remaining within a specific geographical area that also happens to coincide within political boundaries means an individual provides implied consent, but this argument fails because geographical areas are not the same as political areas. Nature knows no boundaries, only people do. This was a flaw in John Locke’s theory of implied consent. Locke wanted to dispute Hobbes’ conclusions of “all against all” violence necessarily requiring a top-down structure of government, but nonetheless Locke accepted the existence of statism and therefore tried hard to invoke a theory of implied or tacit consent. His theory meant rejecting the idea of withdrawal. Although Locke thought an individual could freely return to a “state of nature,” he argued that all external property titles first had to be forfeited. Yet, even in a state of nature many animals “practice” a rudimentary concept of property through territorialism and protecting offspring. Nobody chooses where or when to be born, and there is only one earth and everybody has to live somewhere. People are concurrently members of numerous societies and associations. Additionally, the implied consent theory succeeds only if statists can establish ownership of all the land and every individual explicitly consents to that ownership. Furthermore, geographical areas are physical locations in the real world. Political societies exist only between the ears. Most important, with respect to voluntary association within any political society, is that the idea of implied consent is an oxymoron. Active participation in any society requires explicit consent, not an action of silence or deferment. Implied consent to participate in any society appears only through ignorance. A child, for example, accepts the protection and welfare of parents only because the child knows no better. At a later age a child is able to distinguish the difference and can choose to leave, not participate, or negotiate a new arrangement. Oddly, many individuals reject that concept within political societies. With respect to political societies, the idea of passive implied consent is hardly new. The idea seems to have been around at least as far back as Plato’s time,[8] but the idea is filled with confusion and challenges. Among other conditions, a contract exists only when property titles are exchanged. Minimally, a contract presupposes reciprocating duties and obligations, otherwise the concept of contracts is meaningless. Within the title-transfer model of contracts, a contract is valid only when property titles are exchanged and property titles are knowingly exchanged only by explicit consent. Within the expectations model of contracts, only a promise is necessary, and this model seems to be the basis of all modern political societies.[9] However, a promise is strictly a subjective mental image, open to interpretation. Even a formal trust at least establishes limitations and boundaries for the actions of trustees — an expectations contract model fails even at that. Therefore, social compacts cannot be considered contracts by those individuals who have not provided explicit consent to participate in a trust relationship, nor have exchanged property titles. Such compacts are, at best, open notices. Consider how typical political “social contracts” often are formed. One day an individual is settled in a geographical area claiming no connection to any particular society. The next day that individual is declared to be a member of a political society and has no choice but to move on or “join.” Such was the typical settlement of the United States. North American Indians and early settlers never were provided a choice of providing consent and truly joining any political society. By mere decree, they were coerced into joining based upon fiat boundaries. Try remaining today in the same geographical area yet leave the political society, much as the Southern United States attempted to do during the War Among the States.[10] Conquest is the name of the game and is further evidence that violence is used. Such an approach is not a contract but “might makes right.” Such an approach is not consent but conquest and adversarial raw acquisition. The concepts of self, property, rights, contracts, and consent become meaningless. In short there no longer are any rules. There is one other realization associated with consent. If an individual consents to participate, then an individual also can choose not to participate, or cancel that participation. In a word, secession is a natural component of contracting. A proper definition of secession means withdrawal, not revolution or overthrow. Secession means the right to remain in the same geographical location yet disassociate one’s self with any group of people. Secession does not necessarily mean physical emigration. Secession is not a “love it or leave it” response, but the right to withdraw or ignore. That secession is a logical conclusion of the right not to contract does not mean the practical procedure of secession is straightforward. The only process of government that can succeed is one based upon customary law and consent. The concept of secession is embedded in the Declaration of Independence: That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it . . . . [Emphasis added.] Another clue that no social contract exists is there is no evidence of a period of performance or a deadline through which a contract expires or terminates. “Social contracts” are considered perpetual and to automatically affect posterity. Lastly, a simple observation teaches that the modern idea of the implied social contract is flawed. For any contract to be binding there must be a meeting of the minds. What sane individual would voluntarily agree to an adhesion contract, especially a contract where the other party is free not only to change the rules of the contract at any time, but name the price of exchange and virtually without limit? An adhesion contract is a coercive “take it or leave it” contract. For example, court judges have decided that police protection is not guaranteed.[11] Because the fundamental purpose of the concept of government is to protect property and social order, an individual then has to wonder what mutual benefit is being received in the so-called exchange for the property of money expropriated through forced taxation to support these people. What happened to the original quid pro quo philosophy? John Locke wrote that, “. . . for no rational creature can be supposed to change his condition with an intention to be worse.”[12] Do not think this discussion invalidates all social compacts, or that people cannot act cooperatively toward common goals and “social ends.”[13] Such social agreements certainly can and do exist, but they always are limited by the concept of explicit consent and the maxims of non-delegation. In other words, social agreements are derived from human interaction, not that society is derived from the concept of a social contract. Likewise, political societies also can exist, but only if explicit consent is honored. To form a social agreement or political society and deny explicit consent is tyranny and such definitions should fool nobody. Societies and social agreements cannot function peaceably under the continual threat of violence. Reciprocity diminishes when force and coercion are used. Reciprocity exists only in voluntary associations. When explicit consent is honored reciprocity will be high; when denied, reciprocity is low. Thus, in any group of people based upon free association and voluntary exchange, an implied social contract can exist only through free and voluntary interactions. Social contracts never can exist between people and a politically self-privileged elite, but only between people and people.[14] When any implied social contract exists, an implied constitution exists. Notice that such a description merely describes a property-based, tort-centered, customary law community. By definition, then, social agreements do exist — in the nature of customary laws. Customary laws are not the same as fiat dictatorial laws. Customary laws are derived from the customs of each specific society. Fiat laws are not derived from the same source. Nonetheless, as discussed earlier, this discussion teaches that any process of government, regardless of form, provides limited privileges to certain individuals. Carried to a logical conclusion, political societies can affect only those individuals who explicitly choose to participate. Those individuals who choose not to participate voluntarily still are governed by the concepts of property titles, trespass, and torts and the two cornerstones of justice (provide remedy for trespass and do not trespass against the boundaries of other people). Because of the flawed idea that “everybody” tacitly participates in political societies, the “people” (or their “representatives”) often choose to expand their self-invoked privileges beyond the basic function of protecting life, liberty, and property. Because “being in the neighborhood” is assumed to mean implied participation in that political society, rather than being limited to implied consent to local customs, most individuals assume that whatever people within the political society decide also must affect “everybody.” However, even if ignoring the flaws behind today’s idea of the social contract, and ignoring the maxims of non-delegation, observation teaches that such expansive “empowerment” is without foundation and does not benefit the entire community of people, but benefits only a segment. In such an environment mutual survival yields to individual survival. Whenever that happens mutual trust is breached and those individuals who are violated respond in an expected manner of doing whatever possible to secure their individual survival and pursuit of happiness. This makes sense because essentially there no longer are any mutually satisfying reciprocating rules. Respect for the concept of law diminishes and reciprocity becomes meaningless. Such self-empowerment is purely for political gain. Self-empowerment is an attempt to bypass the fundamental observation that every human must work to sustain his or her life and can sustain energy flows peaceably only through voluntary exchanges of property. This political process is an attempt to enslave people. Distributive justice rules the day instead of commutative justice. Theoretically, the concept of distributive justice means only that a distribution of resources is just if each holder is entitled to those resources.[15] In practice, distributive justice is a pseudonym for coercive wealth redistribution. Many arguments are offered about why this coercion is necessary. In an environment of free association and voluntary exchange, however, no coercion is necessary. The concept of contracts negates any need for rulers because contracts are always based upon the principle of voluntary equal exchange.[16] Regardless, many individuals believe and accept that empowered agents can do more as a group than can the individual. This is the essence of all social agreements, that is, to accomplish more by the idea of synthesizing the many into one. People can and do perform more collectively than individually, but the problem facing these agreements is the absence of explicit consent and ignoring the maxims of non-delegation. That is, individuals within these political systems were “empowered” to perform specific functions that most individuals are unable to perform on their own and have no ability to perform on their own. Therefore, these individuals have no such powers or standing. For example, consider the American Constitution’s Takings clause that declares, “. . . nor shall private property be taken for public use, without just compensation.”[17] By observing the doctrine of explicit consent and the maxims of non-delegation, nobody has power or standing to take property from another individual without that individual’s explicit consent. Yet, magically and mysteriously such powers appear for statists. How can this be? Thus, court judges wrongly focus on the issue of compensation rather than the root question of where such powers were derived. When such issues are raised, judges merely reply that such questions have been “long settled.” Really? By whom? When investigating such previous legal actions, overwhelmingly such disputes issue were “settled” in favor of the party that was actually a legal fiction — ”the state.” Because such illusionary powers are “enumerated” within constitutions, people incorrectly believe those documents grant powers to individuals within the political system. Pay no attention to the man behind the curtain. If asked the primary purpose of the process of government, many individuals would respond, “To protect and promote the general welfare of the people.” Such an answer is a paraphrase of the Constitution[18] and at best that answer loosely describes some of the visible results of the process of government. Furthermore, such an answer is taken out of context from the Constitution, as “general welfare of the United States” only can be defined as protecting the boundaries of all people. Any human-made law that does not provide such protections is a law providing for special interests and special welfare, and automatically negates the concepts of self, property, rights, contracts, and consent. Because of the concept of consent and the maxims of non-delegation, the process of government never can be expanded beyond protection of boundaries. Whatever powers are acknowledged are limited to those individuals who provide explicit consent, but those powers are limited to whatever rights and powers each individual originally possessed. “General welfare” is an ambiguous phrase and subjective. Just as happiness and trespass can be defined fundamentally only by an individual, the term “general welfare” must be specifically defined,[19] and can be defined only with respect to property titles and rights. Subjectivity opens the doors to abuse. To assert that the process of government provides for the “general welfare” is a subjective statement, but if general welfare is defined as protecting boundaries, then the statement arguably becomes more objective, and attempts to avoid confusion and uncertainty. The participants of any political society must be participating freely of their own will. People must be at liberty to participate and must be at liberty not to participate. To force people to participate immediately violates the rights of those individuals. Each individual has the right to freely choose and when people are forced or coerced to participate, they see violated their right to live a quiet and peaceable life as they see fit. To force or coerce other people voids the cornerstones of life, liberty, property, and choice. When force and coercion are used there no longer are any principles except “might makes right.” Adversarial raw acquisition prevails. People are at liberty to choose. The only possible time an individual might be coerced against his or her free will is when that individual is found to have violated the two cornerstones of justice and must provide restitution to remedy trespass. Anything else is tyranny and extortion. The word government does not necessarily imply a central or corporate ruler, but fundamentally represents a desire by the members of a specific society to provide boundaries for certain human actions. When this process takes the form of a corporate central entity, calling this limited arrangement a political trust is more appropriate. Furthermore, social contracts are flawed ideas when force and coercion are used and explicit consent is denied. Although a peaceful political society arguably is possible, the standing of empowered individuals is limited. Additionally, that society can affect only those people who have explicitly consented to participate. Those people who choose not to participate voluntarily in the political society still must acknowledge and honor the boundaries of other people — they cannot trespass. Anything less is an attempt to coercively redirect energy flows. Bastiat satirically declared what the process of government is not:[20] I demand nothing better, you may be sure, than that you should have really discovered outside of us a benevolent and inexhaustible being, calling itself the state, which has bread for all mouths, work for all hands, capital for all enterprises, credit for all projects, ointment for all wounds, balm for all suffering, advice for all perplexities, solutions for all problems, truths for all minds, distractions for all varieties of boredom, milk for children and wine for old age, which provides for all our needs, foresees all our desires, satisfies all our curiosity, corrects all our errors, amends all our faults, and exempts us all henceforth from the need for foresight, prudence, judgment, sagacity, experience, order, economy, temperance, and industry. Finis. Next: Chapter 24 — Law and Order According to Whom? Endnotes [1] Federer, America’s God and Country: Encyclopedia of Quotations, p. 411. [2] Bastiat, The Law, p. 6. [3] Kammen, A Machine That Would Go Of Itself, p. xviii. [4] Reader’s Digest Family Legal Guide, pp. 1006–1008. [5] Kammen, A Machine That Would Go Of Itself, p. 53, citing an 1831 speech given by John C. Calhoun. [6] Refer to the Lysander Spooner for an analysis on the fallacies of constitutions, such as No Treason No. IV: The Constitution of No Authority (1870), and the Letter to Grover Cleveland (1886). [7] Locke, Second Treatise of Government, Sect. 140. [8] The concept is used in Plato’s Dialogues of the trial and death of Socrates. [9] Evers, “Toward A Reformulation of the Law of Contracts,” p. 7, footnote 23. [10] The term “The Civil War” is inappropriate. A civil war is a battle for control of the political or social system. Although not fighting with clean hands, like the American colonists southerners were not fighting for control, but withdrawal. The southerners had no desire in overtaking the existing political system. They merely wanted to withdraw, be left alone, and form their own society. See Charles Adams, When in the Course of Human Events; Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free Men. [11] Warren v. District of Columbia, 444 A.2d 1, 4 (D.C. 1981); DeShaney v. Winnebago County, 109 S.Ct. 998 (1989); Balistreri v. Pacifica Police Department, 901 F.2d 696 (9th Cir. 1990). [12] Locke, Second Treatise of Government, Sect. 131. [13] Hayek, The Road to Serfdom, p. 165. [14] Proudhon, General Idea of the Revolution in the Nineteenth Century, p. 112. [15] Nozick, Anarchy, State, and Utopia, p. 151. [16] Proudhon, General Idea of the Revolution in the Nineteenth Century, p. 113. [17] U.S. Constitution, Amendment V. [18] U.S. Constitution, Preamble and Article I, § 8, cl. 1. [19] Hayek, The Road to Serfdom, p. 64. [20] Bastiat, Selected Essays on Political Economy, “The State.” |
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