The Social Contract Revisited

Hello! By using America’s services, protections and opportunities, you agree to the following rights and obligations, and any policies, laws or amendments thereto that may be agreed upon through explicit legal processes. Provisions are made for updates in the future, and you will be able to find the most current version of this agreement in state and federal law.

Do you remember seeing that language at birth? No? What about at 18 years old, the age of adulthood in the US? No? That’s odd…

What is a contract?

Contracts wasn’t my favorite class in law school, to be honest. I claim no authority in the field. But a contract is really just the creation of one or more legal obligations between parties.

A common mistake is to assume that contracts require explicit consent. All product ‘terms and conditions’ are forms of contracts, and simply by using the product are you considered to assent to such terms and conditions. We all probably make hundreds of contracts each day. For example, let’s say you sit down at a buffet, the waitress brings you water, and then you begin to fill you plate. A bloated hour later you are full. How would it go over if you simply strolled out of the establishment without paying? Probably not well. A contract was formed through your actions and the tacit understanding that an exchange would occur: food for cash. You didn’t sign anything and the waitress didn’t make sure you explicitly understood that monetary compensation would be expected when you finally tapped-out.

In theory, the law would step in and require you to pay for the buffet if such a suit were brought to court. Why? Because you gained a benefit, conferred by another, without offering compensation in a circumstance when compensation was reasonably expected. In a term of art, you were unjustly enriched.

What is a state?

A state is a legal structure which has a population and a monopoly on the legitimate use of force within its territory. Why would anyone cede the ability to unquestioningly use force to some legal structure? Let’s ask the Declaration of Independence:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

So people would theoretically enter into a state to secure life and liberty. And the state claims only power which comes from the people within it. That’s fine and dandy, but if a body is given power, it would likely abuse it in some way, wouldn’t it? It might even go so far as to disregard its original purpose. What do we do when this happens?

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

So when a government destroys liberty instead of securing it, the people have the right to change it or get rid of it all together. That unrelated concept of a contract is beginning to sounds familiar; rights, obligations, and remedies for breaches. But how do we know when a breach occurs, when to oust the state?

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

This is really just a recommendation and then a warning: Don't get rid of your government for stupid reasons, but to be honest people have a predisposition to tolerate a government that sucks rather than to get off the couch and change it.

OK, this state thing sounds like a contract, but I didn’t agree to it!

Oh, you did—you just don’t know it yet.

Just like at the buffet, a contract was formed through your actions and the tacit understanding that an exchange would occur. What actions? Voting, paying taxes, or benefitting from services paid for by taxes, etc. all indicate a use of the service provided for in the contract and tacit consent of the contract itself. By partaking in the state’s services, protections and opportunities you have been enriched at the cost of the other parties in the contract. It’s a quid pro quo, a reciprocating duty: you must uphold you end of the bargain. Elizabeth Warren put it nicely (paraphrased):

You built a factory out there? Good for you. But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn't have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did. Now look, you built a factory and it turned into something terrific, or a great idea? Keep a big hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.

If you don’t like this contract, there are of course ways out. Otherwise, it would be coercive! First, the Declaration of Independence notes, supra, when you have the right to destroy the whole contract. Second, the Constitution explains the processes for changing the specific terms while maintaining the contact generally. Third, you can stop benefitting from the contract, and thus your reciprocal obligations would no longer be required. Yes, I’m suggesting moving out of the country.

Note: The Westphalian state/social contract paradigm has shifted since the time of the Declaration of Independence due to the philosophy embodied in the Responsibility to Protect. Previously the contractual relationship was only the business of the state and the people within its territory. But now the UN has asserted the right to be involved in this relationship. This is quite new, but we have seen a growing trend of humanitarian and military interventions in situations which ordinarily would have been viewed as wholly domestic issues. 

Some problems with social contract theory

First, no person has a choice as to what political system into which that person is born. Individuals become beneficiaries (or victims) of state probably immediately. Thus affirmative action must be taken to change the terms or change contracts. But how would we remedy this? The choices are limited: anarchy, governance with no claims of the consent of the governed, or to create a stateless land of wild children, who upon a certain age would be required to choose a state to enter. Antarctica is a bit too cold this time of year for that, I think.

Second, there are opportunity costs to leaving a given territory. Even if someone studied all the social contracts out there, and picked their favorite one, there are costs and hurdles to getting there. This is especially true for the economically disadvantaged, who are more ‘stuck’ with a state in which they often have decreasing voice. But relocation is pretty common. If nothing else, history is the story of human migration. If you’re an American, unless you're full Native or fully descended from those brought here unwillingly, your ancestors made this exact choice.

Third, at times it is effectively contract of adhesion. There are so many parties to the contract that any change requires a large number of parties to agree or any change. Each individual is only 1 in over 300,000,000 parties, and like most contracts, you can’t unilaterally change its terms.

Fourth, one might argue that a contract without explicit consent is in itself presumptuous or immoral. There is some ground here, but that would solve nothing. For each contract we presently enter unknowingly, there are almost just as many that we simply click through or sign on because they are too long or we aren’t interested. The social contract is no different.

There are probably others, too…

Thoughts

Even if you view the social contract as a noble lie, it at least serves as a useful understanding of why it is deplorable for individuals to choose to ignore the opportunities and advantages that have been provided to them with taxpayer money and try at every corner to get out of any reciprocating obligation.

I understand, and am sympathetic to, disagreeing with almost everything that a government does and feeling that government has not upheld the values in the founding documents. I often admire movements like the Tea Party and Occupy because they are actively trying to change the contract for those very reasons. Alternatively, with the services and opportunities provided in other countries, I completely understand leaving the US for greener pastures.

But it is wholly unfair to continue to reap benefits provided through government services, then act as if you don’t—only to make yourself feel justified in trying to not pay your fair share back into the system. Don’t think what is presently asked is fair? You can work to change that, too—but keep in mind the costs of what you have gained a la the Warren quote above. While many states go so far as to require periods of national service, all I ask from Americans is to recognize benefits derived, to not be so bitter about reciprocating, and to please work to change the system for the better, should you choose to remain.

The current electoral and political system in the US is approaching, if not already in, a state of complete dysfunction. That is not to say it is irreparable, of course. But what we need, more than ever, is a citizenry who will roll up their sleeves and invest time and money into getting America back on course by either fixing our current institutions or abandoning them for wholly new ones. If you would rather leave, that’s fine. But we have neither the time nor the inclination to deal with individuals who wish to cheat the system by gaining from its outputs and yet have no desire or intent to pay back into the system their fair share.