On Social Contracts

Column by Mark Davis.

Exclusive to STR

“The great political superstition of the past was the divine right of kings. The great political superstition of the present is the divine right of parliaments. The oil of anointing seems unawares to have dripped from the head of the one on to the heads of the many, and given sacredness to them also and to their decrees.” ~ Herbert Spencer – The Great Political Superstition (1884)

The social contract is an idea that has formed the basis of legitimate political institutions since the early Greek philosophers. The “consent of the governed” is a concept that is seen as justifying a binding relationship between rulers and ruled. The phrase is emblazoned in “our” Declaration of Independence and embodied in the sacred Constitution, which submits all persons born on these shores to the rulers de jure. So start with a monarch, mix in a little democracy, stir up a little fear of anarchy and voila, you are a bona fide serf, eh…subject, I mean citizen. But wait, have you ever consented to be ruled by some gang of thieves popularly known as politicians, or anybody else for that matter? I know that I haven’t. So why do so many people submit to be ruled by other men within a system that nobody alive ever agreed to?
The common man is typically too busy making his way in life to discern between philosophical speculation and practical politics. Fair enough. Considering the limited time we have here on earth, focusing on how to get by in the existing world trumps wasting time formulating idealistic social systems, even ones that could bring significant improvement. Yet men yearn in their hearts for liberty, thus making change a perpetual political canard in elections. How many suckers have fallen for the “hope and change” hoax time after time? How many superstitious dupes have raised the specter of the Constitution, the “Founding Fathers” or the “rule of law” as the one true path to liberty? Is changing rulers at time intervals via ballot boxes or reviving sacred texts born from some delusional collective consciousness really practical? The fact that “everybody does it” doesn’t make it right. But as childish as that reasoning is, it’s all you’ve got if you believe that you are free because you are ruled by someone else.
It can be difficult to reveal what is hidden in plain sight. Not being able to see the trees when looking at the forest is a human trait common to both the elite intellectual and the simple-minded. As one steps back away from a clear view of individual rights to such a distance that collective rights appear plausible, much less sovereign, a fundamental clarity of thought is lost. So in the interests of “keeping it real,” I intend to briefly summarize the history of social contracts before attempting to refocus on why we desire social organizations and how they differ.
One of the first recorded examples of the social contract line of thinking was in a dialog talking about when Socrates was faced with committing suicide as the penalty for “refusing to recognize the gods recognized by the state” and of “corrupting the youth.” When Socrates’ followers suggested that he flee to avoid this penalty determined by a vote of the citizens of Athens, he refused on the grounds that he had lived his whole life under the local laws and he could not violate these laws when it wasn’t in his best interest, petty and arbitrary as they may be. This misguided patriot and man of principle has been held up ever since in state indoctrination centers as an example to us all. 
Others such as Epicurus spoke of how binding together for mutual benefit leads to ethical behavior and how society must have rules of conduct. So far so good; that is as long as one agrees to follow a set of rules, honor bounds one to do so dutifully. However, though contract law was still in its infancy, the recognition of at least implied agreement before the fact is maintained.
As an aside, Plato and Socrates disagreed on the relationship between justice and social contracts. Plato argued the “eye for an eye” fear of reprisal theory of justice while Socrates held out justice as a kind of virtue for men to seek. The “a just man is a happy man” ideal versus the “don’t f*ck with me or else” archetype is a conflict that resounds to this day when men seek to identify the nature of justice in society. Should the maintenance of honor be attended to before the maintenance of safety, or is fear to lord over honor? I tend to come down on the side of Socrates on that one, yet I have had difficulty following this line to its logical conclusion, which is pacifism. You know, like Jesus died to show us. But I digress.
So, does the nature of man, our survival instincts, preclude any possibility of a society based on a system of voluntary cooperation? Are we doomed to organize society based on a system of retribution that immediately promotes injustice above justice in the name of justice? This is not logical; nor is it sustainable in the long run. Emotional satisfaction may be achieved by the fearful and the aggrieved for a short time, but society is weakened because injustice is now put on a pedestal as the answer to injustice. True justice must retreat when treated so severely. 
Yet, of course, virtue can’t eliminate injustice as there will always be those who shun justice just as they shun virtue. The question of should we strive for the ideal or for the expedient, to have principles or do what feels good, goes to the essence of the natures of both man and justice. Still, society is spontaneously created wherever voluntary cooperation occurs, and it occurs more often than not. Is a society also thus formed when a man makes a slave of another by taking his labor by force or by fraud? Can society be born from a criminal act? What about maintained?
The source of what’s productive and efficient in society comes from those who seek to live virtuous lives, while destruction and inefficiency comes from those who seek to enrich themselves through the exploitation of others. Peaceful relationships lead to a prosperous society while coercive relationships ruin society.   These distinctions are often perceived as paradoxes by those who wish to justify their lack of faith in the power of virtue among our brethren. Thomas Hobbes was the first notable person since the Greeks to share his view of submission to central powers as the settling force of society.
In Leviathan (1651), Hobbes first recognizes that no man has the right to rule others, but then rationalizes that a Sovereign (monarch) must be given absolute authority if society is to survive. He argues men are reasonable and inherently self-interested and thus will see that a powerful central authority is required as an enforcement mechanism to make everybody follow the laws needed for everybody to get along. Hobbes basically extrapolates the commonly accepted familial system of a father ruling over his small family to much larger, unrelated groups. Therefore, the social contract between ruler and ruled is all that stands between men and the “solitary, poor, nasty, brutish and short life” waiting in a State of Nature where all are at war against all others. Hobbes thought that the monarchial state should work for the common good, but if the king didn’t, oh well, just tough. It was a classic conservative argument for the status quo being “as good as it gets.”
In John Locke’s Two Treatises on Government (1690), he softened the brutish aspects of the State of Nature and recognized that morality preceded central authorities, as morality comes from God. He also recognizes the familial (conjugal) organization as the basis of society. However, the relatively peaceful State of Nature is eventually disrupted by property disputes between men and groups that lead to war. Locke makes a compelling argument that to settle these inevitable property disputes, and for the preservation of society, men and families must cede power to central authorities to make laws, provide judges to adjudicate the laws and an executive to enforce the laws and judicial decisions. Locke’s arguments were a vast improvement over Hobbes’ arguments because they more accurately described the State of Nature and also saw the justification for protecting persons and property as the justification for a central authority. That is the “consent of the governed.” This opens the door to justifying revolution against rulers who don’t keep up their end of the social contract. He went further, suggesting people not only had a right to revolt, but an obligation to overthrow tyrants. This led to arguments for political bodies checking the power of absolute monarchs such as constitutional monarchies. Locke greatly influenced Thomas Jefferson and others in his generation, leading to the American Revolution.
Next we have Jean-Jacque Rousseau who in The Social Contract (1762) argued that social evolution must lead to a social contract between society and a central authority. Rousseau, like Locke, saw men in a State of Nature as loosely knit families generally getting along in small communities with men leading solitary, uncomplicated lives. But as populations grew and the division of labor expanded, it increased the amount of leisure time, which resulted in people making comparisons between themselves and their neighbors. Rousseau saw this condition and the invention of private property as leading to greed, inequality, envy, vanity and the supposed sin of competition. He saw that governments were created to protect the property of rich people from people without property, which results in setting inequalities in stone, leading to class warfare. Therefore, Rousseau was seeking a way that we could be free while maintaining the benefits of society reconciling historical institutions with social and economic equality. To do this, men must submit to the “general will” according to a reconstructed social contract hammered out by men forming a collective body to serve as sovereign based on democratic principles and the rule of law. Rousseau inspired many to seek to overthrow monarchs and set up liberal democracies like the French Revolution. Communists also expanded on his ideas of majoritarian authority.
The evolution of social contract theory went from Hobbes’ defense of the status quo (absolute monarchy), to Locke and the idea that maybe we could tweak the status quo a little (limited monarchy), finally getting to Rousseau and “off with the king’s head - power to the people” (liberal democracy/communism). They all relied upon a contract theory based on compensation as a justification for an implied contract. The “consent of the governed” postulated that since subjects/citizens received benefits from the state, then they must submit to the state.
It took another century for the great abolitionist lawyer Lysander Spooner to come along and ask, “What consent? I never consented; did you?” in No Treason (1867). When simple truths are revealed, as when the little girl stated “The Emperor has no clothes,” people will most often be jolted from their willful blindness. Other times the powers that be maintaining the status quo are able to shush little girls and those who see the truth using court intellectuals. Powerful official sources give legitimacy to artificial constructs used to force submission to their authority. 
As Spooner put it:
“Our constitutions purport to be established by ‘the people,’ and, in theory, ‘all the people’ consent to such government as the constitutions authorize. But this consent of ‘the people’ exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given.”
 “The ostensible supporters of the Constitution, like the ostensible supporters of most other governments, are made up of three classes, viz.: 1. Knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. 2. Dupes—a large class, no doubt—each of whom, because he is allowed one voice out of millions in deciding what he may do with his own person and his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a “free man,” a “sovereign”; that this is “a free government”; “a government of equal rights,” “the best government on earth,” and such like absurdities. 3. Cowards, a class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so far sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change.”
For anybody still clinging to the status quo fiction over established fact, Robert Higgs recently wrote an excellent demolition of the Consent of the Governed. Would you sign that agreement?
So how did we get to a place where people born into slavery believe that they are free because they are ruled by a majoritarian central authority? Are the voting rituals put on by the high priests of democracy really that convincing because of all the wonderful and wise leaders it produces? Is the Democratic-Corporate State the epitome of social organization? Is modern government really as good as it gets?
Finally, as promised earlier, I want to look at how and why we formulate social contracts, actual and implied. Unlike the above cited great thinkers, my humble beginnings will not go all the way back to cavemen picking berries and frolicking in freedom or cowering among hostilities. You see, the State of Nature is still with us. Political States are parasitical, coercive social institutions that undermine, shackle and pervert Natural Rights, but the State of Nature never left us. I will begin by analyzing common, modern social institutions.
Sports and music are popular pastimes that most people are familiar with and many participate in, so I hope that they can serve as meaningful case studies. Let’s consider a person who develops a liking for basketball and another for playing guitar. The newbie basketball player erects a goal in his driveway and the musician finds a solitary place so that they can each practice and develop individual skills. Through watching others play, reading books and personal discovery, they each develop the basic skills to perform at a rudimentary level. Nobody forces them to practice and learn; indeed, they find joy in the process. Improvement is its own reward. This is human nature when left alone.
After getting to a point where the basketball player can dribble and shoot proficiently, he seeks out another person to play with. The guitar player, after learning most of the chords, a few progressions and developing a sense of timing, wants to play with someone else. Individuals who find joy in any activity will naturally seek out others with the same interest as fellowship multiplies one’s joy. This is due to our desire to not just improve our skills, but show that we can compete or perform at a level set by our companions. We make each other better. Still, we can only develop so far playing with one friend.
After a while our basketballer, and most likely his friend, find a nearby court where other basketball players have joined in a “pick-up” game. Now he/she must learn how to pass, defend and work with others as a team. Our guitar player and his/her friend seek out a drummer, a bass player and maybe a keyboardist to jam with. All the while skills are learned, taught and developed. The dynamics of these interactions and fellowship feed a growing sense of accomplishment, confidence and joy. So far we have pure voluntary cooperation toward common objectives by groups of individuals. All are equals with nobody submitting to or ruling over others.
Yet they are subject to rules. Basketball has generally accepted, agreed upon rules that all must acknowledge and understand for the game to work. Different courts with different groups of players may emphasize or de-emphasize certain rules such as how much contact constitutes a foul, how long “three seconds” is or who has “next” game, but local customs prevail as newcomers learn from established players what is acceptable. Dr. Naismith may have contributed the original general rules to society, but he was not the ruler of basketball, nor is anybody else.
Likewise, a group of musicians must all “be on the same page.” They must agree to all play the same song or they will just make horrible noise. If the bass player wants to play an A-D-E 4/4 blues progression, the drummer can’t be pounding out a 3/4 waltz while the guitar player is playing in the key of C. Music too has rules that everybody in the band must follow using teamwork to create harmonious music.  The rules of music have been discovered and developed for thousands of years totally void of a ruler or central authority.
That doesn’t mean that there are no leaders, because leadership also naturally develops. Leaders in voluntary organizations rise based on merit and desire. Those who exhibit superior skills and a desire to lead will step forward to assume this important role if the others perceive his actions to be respect-worthy. A leader’s respect-worthy actions will enhance teamwork and make the team or band perform better, making all participants happier. A pushy person with lots of desire, and even some skill, will not be accepted as a leader if the others do not agree with his leadership style or goals. This type of coercive behavior undermines the cohesiveness of the group. Do not confuse rulers with leaders, as they are very different roles. Even coaches and music teachers must earn respect and acceptance or they will undermine the group and lose players (and they get paid--see below).
Note here two examples of typical implied social contracts that we enter into on a daily basis. We join together with others with common interests to pursue common goals and follow agreed upon rules of behavior: all without a ruler or central authority. And what happens when a thug ignores the rules of basketball, a keyboard player always plays in a different key or a leader wants to become a ruler? All of the other individuals in that group assert their prerogative to inform the transgressors of the agreed upon rules of behavior. If restatement of these rules doesn’t suffice to correct the unruly behavior, then the group members cast out the offender and reorganize without him. You see the voluntary nature of social organizations involves not only the willing participation of each individual, but the willing acceptance of the other individual group members.
Now let’s go to the next level. Let’s say that our athlete and musician want to expand their horizons and join with other good players who are more serious about their respective skills and goals. As they graduate from amateur status to pro teams and concert/recording bands, more structure is required. When money is involved, more formal contracts are required in order to make clear what each participating individual’s responsibilities are and also to spell out how disputes will be settled. If our basketball player submits himself to a draft and/or signs a contract with a team in an organized league, they now have another layer of rules besides the rules on the court. The team may require he travel, eat, and be ready to perform at specific times. Likewise, our musician has signed with a promoter and/or agent to perform certain types of songs at specific times and locations. 
At this level, monetary rewards are now the common goal replacing the joy of pure fellowship. While this changes the individual-group relationship from an implied social contract where anybody can walk away at any time to a formal contract signed by all parties with specific performance requirements, it retains its voluntariness. That is everyone agreed to the terms by voluntarily signing the contract. Further, either side can still break the contract and be subject to the penalties agreed to in the contract to cover this occurrence. Unlike with coercive organizations, jail, torture and death are usually not agreed to as penalties for non-performance.
I hope the above brief examples have clarified the difference between voluntary social organizations and coercive social organizations. If you were forced from birth to be a member of a group that was to play basketball or music, and the justification was that somebody else’s (or even your) great-great-great-great-great grandfather signed a “social contract” that binds you to not only participate in that group, but obey arbitrary rulers in the process, would you find that acceptable? What if you ended up in the most successful band in the world or on the best basketball team in the world, would that suffice for your loss of liberty? Do you think that basketball teams and bands organized by force and ruled by autocrats could really be superior to those organized by voluntary agreement and led by respect-worthy leaders? Aren’t these principles of freedom and liberty even more important when it comes to social organizations with the common goals of security, health and economic prosperity?
When coercive social systems are revealed to be tools of exploitation by the elite, the masses must decide whether they prefer liberty or submission. Liberty is always the more difficult path, while submission to the status quo is the path of least resistance. Not just physically and intellectually, but spiritually. This is how the inevitable cognitive dissonance that individuals feel when they are ruled by others is soothed by emotional slogans and familiar forms. Psychological and social conditioning over a lifetime buttressed by constant media bombardment that some collective consciousness can better serve as your guiding light than what your own mind provides can seem insurmountable. But some always do and they serve as a reminder to others that they can too. Thus the light of liberty is in each of us, not in some scrap of paper or piece of cloth pretending to represent that light.
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Mark Davis's picture
Columns on STR: 65

Mark Davis is a husband, father and real estate analyst/investor enjoying the freedoms we still have in Longwood, Florida.


tzo's picture

Most excellent, Mark.

Suverans2's picture

G'day Mark Davis,

I've only begun reading this, but I have a question, a comment, and a suggestion, already.

You wrote, "The phrase is emblazoned in “our” Declaration of Independence and embodied in the sacred Constitution, which submits all persons born on these shores to the rulers de jure."

Could you do me a favor and show me precisely where the U.S. Constitution "submits all persons born on these shores to the rulers de jure"? Be careful now, because it is not the 14th Amendment. What that Amendment states, very precisely, at section one, is, "All persons born or naturalized in the United States, AND subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside." Note well that that highlighted portion does NOT say, "ARE subject to the jurisdiction thereof". That's because it is, rather, a second "condition" that must be met before one can be a citizen of the United States and the State wherein one resides. The question we need to answer is "how", precisely, does one become subject to the jurisdiction thereof"?

It was established in Herriot v. City of Seattle[2] that, "Citizens" are members of a political community who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as collective rights."

Most individuals would rather believe that they had no hand whatsoever in their own enslavement, and so will attack anyone who says that they did. "WHERE DID I EVER SUBMIT MYSELF TO THE DOMINION OF THE GOVERNMENT?!?!", they will scream.

Well, I don't know, let's start with these three, (1) When an application asks you if you are a member of a "political community" [See Herriot v. City of Seattle above], do you voluntarily check the "Yes" box? [Remember, generally it will be asked in a fashion similar to this: "Are you citizen of CA or SC or GA?" or, "Are you a Resident of ND or MA or MO?"]; (2) Have you ever voluntarily checked the "Yes" box where it asked, "Are you a citizen of United States?"; or, (3) Do you voluntarily use a membership/chattel number [a T.I.N.], because it is so-o-o inconvenient not to? For most individuals it would be, ALL OF THE ABOVE.

Also, we should always keep this maxim of law in mind when using the word "person".

Homo vocabulum est naturae; persona juris civilis. Man (homo) is a term of nature; person (persona) of civil law. ~ Black's Law Dictionary, Sixth Edition (c.1991), page 736

I shall now continue reading.

[1] Black's Law Dictionary, Sixth Edition (c.1991), page 425
[2] Herriot v. City of Seattle, 81 Wash.2d 48, 500 P.2d 101, 109

Suverans2's picture

"So start with a monarch, mix in a little democracy, stir up a little fear of anarchy and voila, you are a bona fide serf, eh…subject, I mean citizen." ~ Mark Davis

Start with these and you will get virtually everyone to check the "Yes" boxes.

Mark Davis's picture

Thank you Tzo.

G'day Suverans2, that's why I like you: holding my feet to the fire on precise language and honest phrases. But I think the Constitution is universally accepted by its citizens as the basis of the US Federal Government's claims of soveriegnty over this great land and its people whether or not there is a particular phrase in it that does explicitly claim thus.

Suverans2's picture

G'day Mark Davis,

Sorry if I seem to be nit picking, but this is anything but, in my opinion; it is precisely because it is almost “universally accepted by its citizens” that makes it imperative that we dispel this false notion. Those men and women who carry the status of “citizens”, of which you speak, (and who may be reading your essay), need to understand the truth of the matter, i.e. that there is absolutely nothing, "embodied in the sacred Constitution, which submits all persons born on these shores to the rulers de jure."

Rulers “de jure”, (of right), rule only over the men and women who have voluntarily, (albeit ignorantly*), “submitted themselves to dominion of [the] government”.
(*If you enter into a covenant/contract without fully understanding it, whose mistake is that?)

“Government is in reality established by the few; and these few assume [presume] the consent of all the rest, without any such consent being actually given.” ~ Mark Davis

And a “rebuttable presumption”, in law, stands until “rebuttal evidence” is given.

Stabit praesumptio donec probetur in contrarium. A presumption will stand good until the contrary is proved. Hob. 297. ~ Bouvier's 1856 Law Dictionary and Black's Law Dictionary, Sixth Edition (c.1991), page 1403

If you are presumed to have “submitted [yourself] to the dominion of [the] government”, and you fail to rebut[1] that presumption, whose mistake is that?

Have you “rebutted the presumption” that you are a “member” of the political community?

Omnes licentiam habere his quae pro se indulta sunt, renunciare. [It is a rule of the ancient law that] all persons shall have liberty to renounce those privileges which have been conferred for their benefit. Cod. 1, 3, 51 ; Id. 2, 3, 29 ; Broom, Max 699. ~ A Law Dictionary, (Black's 2nd c.1910), page 851 and Black's Law Dictionary, Sixth Edition (c.1991), page 1086 [Remember, anything in brackets is not part of the definition! Bracketed material is “for information only”.]

Have you renounced the “member-only” benefits and privileges conferred on your “person”? And, please, don't anyone say, well, then, you can't use their “legal tender”, you can't use their highways, and other such malarkey. Those are not “member-only” benefits and privileges. Men and women foreign to their jurisdiction may utilize such things without binding themselves to the political community.

Lex non cogit ad impossibilia. The law does not compel the doing of impossibilities. Hob. 96. ~ Bouvier's 1856 Law Dictionary and Black's Law Dictionary, Sixth Edition (c.1991), page 912

Nulla impossibilia aut inhonesta sunt praesumenda. Impossibilities and dishonesty are not to be presumed. Co. Litt. 78.

If this were not so, then there would be no place on earth that a free man could stand. This would create an impossibility.


[1] Rebut. In pleading and evidence, to defeat, refute, or take away the effect of something. When a plaintiff [the accuser] in an action produces evidence which raises a presumption of the defendant's [the accused] liability, and the defendant [the accused] adduces [presents] evidence which shows that the presumption is ill-founded, he is said to “rebut it”. ~ Black's Law Dictionary, Sixth Edition (c.1991), page 1267

Suverans2's picture

"It can be difficult to reveal what is hidden in plain sight. Not being able to see the trees when looking at the forest is a human trait common to both the elite intellectual and the simple-minded." ~ Mark Davis

I think that is backwards, my friend, it's impossible to see the forest (the big picture) when you are looking at a tree (a "brush stroke"). One has to back off from "the tree" (the "brush stroke") in order to even see "the forest (the big picture)".

"Locke greatly influenced Thomas Jefferson and others in his generation, leading to the American Revolution." ~ Mark Davis

I believe it lead to "secession", a "declaration of independence", which was met with violence resistance.

"The “consent of the governed” postulated that since subjects/citizens received benefits from the state, then they must submit to the state." ~ Mark Davis

Hmmm, I am of the opinion that in order to receive benefits from the state, individuals must submit to the state, i.e. become subject/citizens.

When simple truths are revealed, as when the little girl stated “The Emperor has no clothes”... ~ Mark Davis

Was that a "little girl", I always thought that it was a little boy who said that.

"Political States are parasitical, coercive social institutions that undermine, shackle and pervert Natural Rights, but the State of Nature never left us." ~ Mark Davis

Amen, brother, amen. Scream it from the roof tops!!

"For anybody still clinging to the status quo fiction over established fact, Robert Higgs recently wrote an excellent demolition of the Consent of the Governed. Would you sign that agreement?" ~ Mark Davis

Other questions, Mark Davis, that might be asked is, "If it was presumed that you had signed that agreement, would you manifestly rebut the presumption?" Or, in the event that you actually had, somehow, ignorantly, signed it, would you manifestly withdraw from membership?

I have to go to work now, and I know that you will sorely miss me. LOL

I hope that you don't take any of this as a personal attack on you, my friend, because it is certainly not put forth with that intent.

Have a great day!