I – II – III – IV – V – VI – VII – VIII – IX – X – XI – XII – XIII – XIV – XV – XVI – XVII – XVIII – XIX – XX – XXI – XXII – XXIII – XXIV – XXV – XXVI – XXVII
[Single-page view]

If you’ve ever spent any time browsing through right-wing discussion threads online, you’ve probably come across the slogan “Taxation is theft.” The argument, simply enough, is that because taxes are mandatory, and because the government doesn’t receive direct consent from its citizens to take their money or property, its taking of that property can’t be regarded as anything other than an outright violation of its citizens’ rights – no more legitimate than a mugger robbing them in the streets. Sure, the government might attempt to justify itself by claiming that it’s acting in accordance with some kind of “social contract” that we’ve all implicitly bought into; but none of us have ever actually signed any such contract in physical reality – so how can this be considered valid grounds for government coercion? Isn’t the government really just a kind of “stationary bandit” (to use Martin C. McGuire and Mancur Olson’s phrase), taking from its citizens for no other reason than because it’s too powerful to be opposed?

I don’t think anyone would argue that this can’t certainly be true in at least some cases. If we imagine some Third World country being taken over by merciless warlords, for instance, who use their power solely to extract resources and enrich themselves at the population’s expense, it seems clear enough that this wouldn’t be a legitimate government so much as just a band of violent thugs calling themselves a government. (And it might also be fair to say that back in the old days, before the invention of democracy and rule of law and so on, this was essentially how every large-scale government worked.) But does this description apply equally to all governments, including modern democracies? Is all government action inherently coercive and unjust? Or can there be such a thing as legitimate government?

Often, the go-to response here will just be to shrug and concede that maybe government is inherently coercive, but it’s still worth it anyway because of all the benefits it brings. But some theorists have sought to go further than that, arguing that government power isn’t actually coercive at all; they’ve put forward a number of explanations (some more satisfying than others) for why government might be just and legitimate even if it doesn’t necessarily have the express consent of its citizens. Mike Huben, for instance, argues that even if citizens don’t give their explicit verbal or written consent to live under a particular government, they might still be giving their tacit consent simply by choosing to live in that particular government’s jurisdiction rather than moving somewhere else:

There are several explicit means by which people make the social contract with government. The commonest is when your parents choose your residency and/or citizenship after your birth. In that case, your parents or guardians are contracting for you, exercising their power of custody. No further explicit action is required on your part to continue the agreement, and you may end it at any time by departing and renouncing your citizenship.

Immigrants, residents, and visitors contract through the oath of citizenship (swearing to uphold the laws and constitution), residency permits, and visas. Citizens reaffirm it in whole or part when they take political office, join the armed forces, etc. This contract has a fairly common form: once entered into, it is implicitly continued until explicitly revoked. Many other contracts have this form: some leases, most utility services (such as phone and electricity), etc.

Some libertarians make a big deal about needing to actually sign a contract. Take them to a restaurant and see if they think it ethical to walk out without paying because they didn’t sign anything. Even if it is a restaurant with a minimum charge and they haven’t ordered anything. The restaurant gets to set the price and the method of contract so that even your presence creates a debt. What is a libertarian going to do about that? Create a regulation?

[…]

Why should we be coerced to accept the social contract? Why can’t we be left alone?

You are not coerced to accept US government services any more than you are coerced to rent or purchase a place to live. If pretty much all territory is owned by governments, and pretty much all houses and apartments are owned, well, did you want them to grow on trees? There ain’t no such thing as a free lunch.

Michael Huemer (himself a staunch anti-statist) gives a few more examples of popular justifications for government power, all of which rely on the idea of implicit consent rather than requiring an explicit social contract:

Explicit consent is consent that one indicates by stating, either verbally or in writing, that one consents. By contrast, implicit consent is consent that one indicates through one’s conduct, without actually stating one’s agreement. If citizens have not embraced a social contract explicitly, perhaps they have embraced it implicitly.

How can one indicate agreement without stating agreement? In some situations, one expresses agreement to a proposal simply by refraining from opposing it. I call this ‘passive consent’. Suppose you are in a board meeting, where the chairman says, ‘Next week’s meeting will be moved to Tuesday at ten o’clock. Any objections?’ He pauses, and no one says anything. ‘Good, it’s agreed’, the chairman concludes. In this situation, it is plausible that their failure to express dissent when invited to do so indicates that the board members consent to the change.

In other cases, one commits oneself to accepting certain demands by soliciting or voluntarily accepting benefits to which those demands are known to be attached. I call this ‘consent through acceptance of benefits’. For example, suppose you enter a restaurant and order a nice, tasty veggie wrap. After you eat the wrap, the waitress brings the check. ‘What’s this?’ you say. ‘I never said I was going to pay for any of this. If you wanted payment, you should have said so at the start. I’m sorry, but I don’t owe you anything.’ In this case, the restaurant could plausibly argue that, by ordering the food, you implicitly indicated agreement with the usual demand connected with the provision of that food: namely, payment of the price mentioned on the menu. Because it is well known in this society (and presumably known to you) that restaurants are generally only willing to provide food in order to get paid, it was your responsibility, if you wanted free food, to state this up front. Otherwise, the default assumption is that you agree to participate in the normal practice. For that reason, you would be obligated to pay for your meal, notwithstanding your protestations to the contrary.

A third form of implicit consent is what I call ‘consent through presence’, whereby one indicates agreement to a proposal merely by remaining in some location. While having a party at my house, I announce, loudly and clearly to everyone present, that anyone who wants to stay at my party must agree to help clean up afterwards. After hearing my announcement, you carry on partying. In so doing, you imply that you agree to help clean up at the end.

Finally, sometimes one implicitly consents to the rules governing a practice by voluntarily participating in the practice. I call this ‘consent through participation’. Suppose that, during one of my philosophy classes, I tell the students that I am going to run a voluntary class lottery. ‘Those who want to participate’, I explain, ‘will put their names into this hat. I will draw one name out at random. Each of the other participants will then pay $1 to the person whose name is drawn.’ Suppose that you put your name into my hat. When the winner’s name is drawn, you discover, alas, that the winner was not you. I come to collect $1 from you to give to the winning student. ‘I don’t owe you anything’, you insist. ‘I never said that I agreed to pay a dollar. All I did was drop my name into your hat. Maybe I was dropping it in just because I like putting my name into hats.’ In this situation, it seems that you are obligated to hand over the dollar. Your voluntary participation in the process, when it was well known how the scheme was supposed to work, implied that you agreed to accept the possible financial burden associated with my lottery scheme.

Each of these four kinds of implicit consent – passive consent, consent through acceptance of benefits, consent through presence, and consent through participation – might be used as a model for citizens’ implicit acceptance of the social contract. To begin with, perhaps citizens typically consent to the social contract merely by refraining from objecting to it (passive consent). Just as few if any of us have ever explicitly stated that we accept the social contract, few have ever stated that we do not accept it. (The exceptions are anarchists who have explicitly stated their rejection of government.)

Consent through acceptance of benefits would also confer a nearly universal authority. Nearly everyone has accepted at least some benefits from their government. There are certain public goods – such as national security and crime prevention – that the state provides automatically to everyone within its territory. These goods are not relevant to consent, because these are benefits given whether citizens want them or not. Pacifists, for instance, are given the ‘good’ of military defense, against their will. However, there are other goods that citizens have a choice about accepting. For example, nearly everyone uses roads that were built by a government. The government does not force people to use these roads; thus, this is a case of voluntary acceptance of a governmental benefit. Similarly, if one calls the police to ask for assistance or protection, if one takes another person to court, if one voluntarily sends one’s children to public schools, or if one takes advantage of government social welfare programs, then one is voluntarily accepting governmental benefits. It can then be argued that one implicitly accepts the conditions known to be attached to the having of a government – that one should help pay the monetary costs of government and obey the laws of the government.

Consider next the case of consent through presence. This, in my experience, is the most popular theory of how citizens give their consent to the state, perhaps because it is the only account that can be applied to everyone within the state’s territory. The government does not require anyone (other than prisoners) to remain in the country, and it is well known that those who live within a given country are expected to obey the laws and pay taxes. Therefore, by voluntarily remaining, perhaps we implicitly accept the obligation to obey the laws and pay taxes.

Lastly, some citizens might give implicit consent through participation in the political system. If one votes in elections, it might be inferred that one accepts the political system in which one is participating. This, in turn, might obligate one to abide by the outcome of the political process, including the laws made in accordance with the rules of the system, even when these are different from the laws that one desired.

If any of these four suggestions hold up, they would account for both political obligation and political legitimacy, at least with respect to some citizens.

Of course, naturally, there are plenty of counterarguments to these “implicit consent” arguments, pointing out that we wouldn’t automatically accept them as valid if they were applied to a tyrannical government like the aforementioned government-by-violent-warlords, so they can’t really be considered legitimate justifications for government in and of themselves. If they were – i.e. if the legitimacy of government were just as simple as saying “Taxation isn’t coercive because you’re free to move to another country” – then we could just as easily apply that line of reasoning to other areas, like “Domestic violence isn’t abuse because you’re free to leave your marriage,” or “School bullying isn’t violence because you’re free to change schools” – which would be pretty problematic, to say the least. As commenter BastiatFan writes:

[According to the implicit consent] argument:

In order to be taxed, you must first engage in some kind of voluntary transaction such as buying goods, owning a business, choosing to accept a gift (estate tax), etc. If you take this action knowing that you will be taxed, you have given consent to pay that tax.

This seems to rest on the assumption that so long as one has an option to avoid some threatened response from another, one consents to the response if they take the action. This is an old argument, going back at least as far as Aristotle, who argued that since slaves did not commit suicide, they consented to be ruled by their masters.

The flaw with this argument seems obvious to me, but apparently it is an attractive one to many, as it constantly recurs.

[…]

It’s quite simple: no one accepts this argument when it is applied anywhere else in life. Nowhere can someone argue this as a defense and have it accepted.

A mugger steps out of the shadows and presses a knife to his victim’s belly. “Make a sound and I’ll gut you like a fish,” he says. When the victim shrieks, have they consented to having their insides become their outsides?

The [implicit consent argument] says: “If you take this action knowing that you will be taxed, you have given consent to pay that tax.”

Is it also true that “if you take this action knowing that you will be stabbed, you have given consent to endure the knife”?

I hope not!

And so the problem is that the underlying principle is simply not one that anyone accepts. We don’t need to delve deeply into meta-ethics. It doesn’t matter which ethical framework they assume.

I don’t believe they actually accept the principle that this argument is based on.

The whole “You’re consenting by not moving away” argument can be especially hard to swallow because for most people, packing up their entire life and moving to a whole other country just isn’t that realistic an option, even if they strongly object to their government. As Scott Alexander writes:

The United States allows its citizens to leave the country by buying a relatively cheap passport and go anywhere that will take them in, with the exception of a few arch-enemies like Cuba – and those exceptions are laughably easy to evade. It allows them to hold dual citizenship with various foreign powers. It even allows them to renounce their American citizenship entirely and become sole citizens of any foreign power that will accept them.

Few Americans take advantage of this opportunity in any but the most limited ways. When they do move abroad, it’s usually for business or family reasons, rather than a rational decision to move to a different country with policies more to their liking. There are constant threats by dissatisfied Americans to move to Canada, and one in a thousand even carry through with them, but the general situation seems to be that America has a very large neighbor that speaks the same language, and has an equally developed economy, and has policies that many Americans prefer to their own country’s, and isn’t too hard to move to, and almost no one takes advantage of this opportunity. Nor do I see many people, even among the rich, moving to Singapore or Dubai.

Heck, the US has fifty states. Moving from one to another is as easy as getting in a car, driving there, and renting a room, and although the federal government limits exactly how different their policies can be you better believe that there are very important differences in areas like taxes, business climate, education, crime, gun control, and many more. Yet aside from the fascinating but small-scale Free State Project there’s little politically-motivated interstate movement, nor do states seem to have been motivated to converge on their policies or be less ideologically driven.

What if we held an exit rights party, and nobody came?

Even aside from the international problems of gaining citizenship, dealing with a language barrier, and adapting to a new culture, people are just rooted – property, friends, family, jobs. The end result is that the only people who can leave their countries behind are very poor refugees with nothing to lose, and very rich jet-setters.

[…]

So although the idea of being able to choose your country like a savvy consumer appeals to me, just saying “exit rights!” isn’t going to make it happen, and I haven’t heard any more elaborate plans.

Besides, even if it were easier for people to relocate solely for political reasons, that still wouldn’t mean much if the thing they were objecting to wasn’t just having to live under the authority of one particular government, but having to live under the authority of government in general. As Jason Brennan puts it:

You have no reasonable way of opting out of government control. Governments control all the habitable land, so we have no reasonable way to escape government rule. You can’t even move to Antarctica—the governments of the world forbid you to live there. At most, a small minority of us—those who have the financial means and legal permission to emigrate—can choose which government will rule us.

Even that—choosing which government will rule you—does not signify real consent. Imagine a group of men said to a woman, “You must marry one of us, or die, but we will let you chose whom you marry.” When she picks a husband, she does not consent to being married. She has no real choice.

So in light of all these considerations, is the implicit consent argument just totally worthless? Well, not necessarily. I’ve been giving all the counterarguments here, but I should say I’m actually fairly sympathetic to some variations of the implicit consent argument when it comes to government power. As Huemer’s examples illustrate, implicit consent is a real thing that can exist in certain situations – and it seems entirely plausible to me that this might include large-scale social contracts. (In fact, if you’ve read my post on metaethics, you’ll know that I consider a similar kind of mechanism to be what basically grounds all of morality.) Implicit consent might not fully legitimize all government action 100% of the time, of course, but that doesn’t mean there might not be at least some partial validity to the idea.

Having said that, though, it’s clear that not everyone will find the idea quite so compelling. So are there any other arguments left that we might turn to as valid justifications for government coercion? Huemer considers one other possibility (before ultimately rejecting it as well) – that although government might not always have its citizens’ consent, maybe it doesn’t necessarily need their consent for its actions to be legitimate, if the citizens themselves are acting in such an unreasonable way that coercing them is justifiable:

The legitimacy of a political system is a matter of the permissibility of imposing that system on all the members of a given society. It is, in part, a matter of the permissibility of intentionally, coercively harming those who disobey the rules produced by the system. The hypothetical social contract theory, on the present interpretation, offers the following candidate justification for this sort of coercion: one may coercively impose an arrangement on individuals, provided that the individuals would be unreasonable to reject the arrangement.

This principle stands in stark conflict with common sense morality. Imagine that an employer approaches a prospective employee with an entirely fair, reasonable, and attractive job offer, including generous pay, reasonable hours, pleasant working conditions, and so on. If the worker were fully informed, rational, and reasonable, he would accept the employment offer. Nevertheless, the employer is not ethically entitled to coerce the employee into working for him in the event that the employee, however unreasonably, declines the offer. The reasonableness of the offer, together with hypothetical consent, would bear very little ethical weight, at most slightly mitigating the wrongness of imposing forced labor.

Similar judgments apply to other exercises of coercion that would normally require consent: it is not permissible for a physician to coercively impose a medical procedure on a patient, even if the patient was unreasonable to refuse the treatment; nor for a vendor to extort money from a customer, even if the customer was unreasonable to refuse to buy the vendor’s product; nor for a boxer to compel another boxer to fight, even if the latter was unreasonable to reject the offer of a match.

Similar remarks apply to the issue of political obligation. The unreasonableness of rejecting an arrangement does not suffice to generate an obligation to comply with the arrangement. The worker in the above example is entitled to refuse the offer of employment, unreasonable though this refusal may be.

Contrasting intuitions may be drawn from another analogy. A shipwreck has stranded a number of people on a hitherto uninhabited island. The island has a limited supply of wild game, which may be hunted for food but must be conserved against extinction. Assume that the only reasonable plan is for the shipwrecked passengers to carefully limit the number of animals harvested each week. Despite these facts, one passenger refuses to accept any such limit. It seems plausible to hold that the other passengers may coercively restrain the unreasonable passenger from excessive hunting for the benefit of all on the island. Furthermore, the reasonableness of limiting the rate of hunting and the unreasonableness of rejecting such limits seems to play a crucial role in the justification for such coercion.

What is the difference between the island case and the employment contract case? The most important difference is that the employment contract case involves the seizure of a resource, the employee’s labor, to which the victim of coercion has a moral right; whereas the island case involves the protection of a resource, the wild game, over which it is plausible to ascribe a collective right, held only partly by the coercee but mostly by the coercers. The unreasonable passenger in the latter case lacks any moral right to decide unilaterally on the use or distribution of the wild game, in the way that an individual has a moral right to decide on the use of his own labor.

If we accept this account of the cases, the hypothetical social contract is more like the rejected employment contract, for the social contract concerns, perhaps among other things, the coercive redistribution of resources that individuals have rights over. Among other things, the state lays claim to a portion of all persons’ earnings, whatever the source. […] Nor is the state’s coercion undertaken solely or even chiefly in the service of protecting collective resources. Often, the state deploys coercion in the service of paternalistic, moralistic, or charitable ends or for the sake of providing indirect economic benefits for small segments of society at the expense of others. No private individual or organization would be considered entitled to use coercion for these sorts of purposes, however reasonable his plans.

Here as elsewhere, our attitudes toward government differ from our attitudes toward other agents. The unreasonableness of rejection clearly does not license a private individual to force the terms of some contract upon another individual. Yet the unreasonableness of rejecting the social contract is thought to license the state to force the terms of that contract on its citizens. What the hypothetical contract theory gives, then, is another example of the particularly lenient moral attitudes applied to government rather than a justification of those attitudes. One must begin by ascribing some special moral status to the state to believe the state morally entitled to force an arrangement on individuals merely because they would be unreasonable to reject the arrangement.

Huemer rejects the idea of government coercion because he considers it to be more like the employment contract case than the island case. And certainly, we can see for ourselves that this diagnosis is often the correct one – history is full of examples of governments unjustly forcing their citizens to give up what’s rightfully theirs, unjustly penalizing them for acts that don’t harm anyone else, and so on. Having said that, though, we again have to return to the question of whether this really describes all governments all of the time. Is there really no context in which government coercion might be justifiable as a way of preventing someone from infringing on the rights or property of others (as in the island example)? I don’t think this is the case; I think that there are plenty of ways in which government action can be legitimate in this sense. Some of the more obvious examples, naturally, include things like coercing murderers to stop murdering people, and coercing robbers to stop robbing people, and so on. But then again, even adamant anti-statists like Huemer would agree that violent criminals shouldn’t just be allowed to freely lay waste to everyone else’s lives. The real sticking point for them is just the question of whether it can therefore be considered justifiable for the government to pay for this law enforcement by coercing the rest of us as well, via compulsory taxation. And this brings us back to our original “Taxation is theft” debate; is there any basis for saying that taxation, coercive as it is, can nevertheless be ultimately just and legitimate? This is the question I want to delve into a bit more deeply here – because in my view, the situation may actually be a lot more similar to Huemer’s island case than he and his fellow anti-statists think.

Continued on next page →