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Sunday, February 08, 2004

Doctrines of Implied Consent

Even "pure" Libertarians will agree that any group of individuals can enter into contracts or pacts with each other specifying virtually any set financial and behavioral relationships within that group of individuals. Any transaction or behavior that can be done in private can be specified. People can buy land in an area and create a "face-to-face" community using such pacts which contractually specify laws and taxes in addition to ones imposed by the Government in which the community reside. These could even be lifetime contracts and could probably even specify how the property of the deceased should be disposed of. Other examples of what such contracts or pacts might include paternalistic intervention into people's lives, restrictions on the range of books which may circulate in the community, limitations on the kinds of sexual behavior, and so on.

What isn't okay, either for the Libertarian or most others, is to permanently impose the contractual set of obligations on future generations. When a child comes of age, clearly they can't be forced to accept the contractual obligations of others. However, neither does the new adult have any rights to the property or other benefits in the pact. By mutual consent, the new adult and the community may choose to explicitly add the new adult to the community's pact. Or, the new adult may leave and seek to continue his or her life elsewhere.

To explicitly keep track of the paperwork to add a new member to a community is cumbersome. I would think that instead of requiring an explicit addition of the new member, if the new adult simply stayed (and was allowed to stay) in the community, then it would signify the acceptance by the community of the new member and the acceptance by the new member of the contractual obligations of the community. It doesn't necessarily need to be a child coming of age. It could also be any person moving or immigrating to the community.

The next step is to consider the entire United States as one big happy community (1)(though not a face-to-face community). Since income tax, government regulation, and even government deception and lies have been part of the social and political landscape for decades, it follows that by staying in the United States, we give our implicit consent to those governmental behaviors. Since our explicit or implicit consent to the behaviors of a community make the actions of that community (that are acceptable within the realm of the community's pact) regarding ourselves perfectly acceptable and moral, then it follows that the same would hold true for the community of the United States as a whole. Thus, we could conclude that it is not the case that taxation is "individuals having something taken from them without their consent by the government."

It looks to me like this line of reason, which I call "the doctrine of implied consent through residence", is logical. However, I think there are some serious holes around the edges which make me question whether or not this seemingly straightforward logic is really valid.

As a first example, let's say that at some future time, everybody in the whole world adopted some new religion that required human sacrifice. And let's say that all separation of church and state had been erased so that the governments enforced or even conducted the sacrifices. Let's also assume that the person to be sacrificed was chosen by lottery. If you didn't believe in this worldwide religion, you might choose to go to the country where they sacrificed the lowest percent of the population. After you've moved there, does your residence imply consent to be sacrificed if your number comes up in the lottery?

It seems to me that this logic applies to taxes as well. If every country in the world (that lets anybody immigrate) taxes its population beyond that required to maintain the minimal state, does your residence in a given state imply consent to being taxes? Or how about deception and lying? If every country in the world lies to its citizens from time to time, does living in a given State imply consent to being lied to by that State? Because of these questions, I'm currently thinking that you can only fully give implied consent to a government behavior by residing in that country if there is a country somewhere in the world that would allow anybody to immigrate to it, and that you accept as having only completely moral laws and behaviors. Otherwise, it seems to me that being forced to choose between evils reduces the validity of the consent.

There's also the issue of changing the implicit contract of the community. Given that my living somewhere implies consent to the current laws and behaviors of that country (which I think is questionable because of the examples above), does it also imply consent to all future laws and behaviors of that country? After all, the United States Constitution can be amended to be virtually anything and thus any set of laws and behaviors are attainable. A related question is that if the social contract is changed, how long should an individual have to move before consent to the new contract is implied?

These are important questions. At the beginning of last century, Germany was considered to be one of the best places for Jews to live. The Jews had immigrated to Germany and that would seem to imply some kind of active consent to German laws and behaviors. The Nazis came to power more or less legitimately within the existing German constitution. The Nazis then decided to implement the Holocaust. Would it follow that the German Jews consented to being sent to Auschwitz? If Jews choose to stay after they knew there was a significant probability that the Nazis where going to kill them (many had an inkling that it was the case), would that have meant they consented to their fate? And if they did consent, did that make that genocide morally okay? Or does the consent only apply to the current set of rules and regulations and not any changes to them? If so, what are the moral implications of changes to the law that adversely affect given individuals?

Each person benefits from the beneficence of their country's economy (well, at least in some countries). But the opposite is true as well. The economy, and thus other people benefit from the efforts of each individual. Would an individual who has invested a great deal in a country have additional rights regarding changes to the laws? If an individual works for 20 years in a country with an initial set of laws and behaviors, is it moral to force him to choose between acquiescing to a new set of laws (which affect him adversely) and leaving his investment (tangible and intangible) and starting anew somewhere else, even though he knew it was possible that one day the laws might change (though he couldn't necessarily predict how)?

Is there any limit to the cost of leaving that would nullify the doctrine of implied consent? For example, leaving one small community to join a second one could be accomplished on foot (people run away from home all of the time), but it's substantially more expensive to leave the United States (though I could conceivable walk to Mexico from here). If the whole world were one big country (community), then you would have to leave the planet, which pretty much nobody could afford (except for maybe Bill Gates).

There are many, many more questions like these regarding the doctrine of implied consent due to residence. Where do the questions regarding the doctrine come from?

I think that the main issue is that it's possible to choose not to live in any face-to-face community if you can't find one whose implicit contract you find acceptable. You can live by yourself, or you can start your own if you can attract others to join you. However, you can't feasibly not live in a country. I know the South Pole is open, but I don't think that being able to go live by yourself at the South Pole is a meaningful exception to the fact that every other square inch of land is claimed to be under the control of some country or other. So you can opt out of communities, but you can't opt out of nations.

So I'm finding the doctrine of implied consent via residence of minimal value in showing the morality of any government laws or behaviors, including taxes. It better shows that the resident accepts the legality of government laws (by definition) and behaviors, but not morality. I could be convinced otherwise, however, if solid answers appear to the above questions.

I'd like to also briefly consider a (vaguely) related concept regarding the moral justification of taxation. The concept is this: if you don't want to pay taxes, you don't have to make any money; therefore by making money you're giving consent to paying taxes.

Let's say that one day someone named Guido who's six-foot four, 260 pounds, and heavily armed tells you that you need to start paying him half of your income. If you don't make any money, you don't need to pay him. Does that imply that if you do make money, you've consented to Guido's demand and that Guido's demand is moral? I would think not and that the same line of reasoning applies to the government collecting taxes.

A second problem is that the government also collects sales tax. So not only would I have to not make any money, but I'd also have to not spend any money. And though food is exempted, clothing and shelter are not (at least here in San Diego), so survival would be an issue.

I have yet to see a really convincing argument showing that government actions (Means) beyond the Minimal State (the "Night Watchman State") are moral. However, I have no desire for us to strive toward a Minimal State. The reason I keep harping on this stuff is that in discussing our government, I feel that it's important to accept that many of its desirable actions (Means) are inherently immoral (or at best amoral), and to move on to focusing on the Ends that can be achieved, including the Means in the equation only by considering all side effects, short term and long term, besides the desired Ends that results from those Means. I think that the cost of limiting ourselves to moral Means is too great a burden, in that it seems to push us back toward a Minimal State, which I think is a bad thing (which I'll eventually get to in other posts).

(1) For some reason, Libertarians have an inherent problem with this step. I'm apparently a little too dense to grasp it, but the following is a quote from "Anarchy, State, Utopia" that describes some reasoning related to this:
In a nation, one knows that there are nonconforming individuals, but one need not be directly confronted by there individuals or by the fact of their nonconformity. Even if one finds it offensive that others do not conform, even if the knowledge that there exist nonconformists rankles and makes one very unhappy, this does not constitute being harmed by the others or having one's rights violated. Whereas in a face-to-face community one cannot avoid being directly confronted with what one finds to be offensive. How one lives in one's immediate environment is affected.

This distinction between a face-to-face community and one that is not generally runs parallel to another distinction. A face-to-face community can exist on land jointly owned by its members, whereas the land of a nation is not so held. The community will be entitled then, as a body, to determine what regulations are to be obeyed on its land; whereas the citizens of a nation do not jointly own its land and so cannot in this way regulate its use.

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