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Is The Social Contract Legit?

Written by Subject: Human Rights

The social contract is a description of "the origin of society and the legitimacy of the authority of the state over the individual." The social contract asserts that all of us have consented to surrender some of our rights to a ruling group, in exchange for the protection of our remaining rights.

The question I'll address today is whether this is a legitimate contract.

The social contract is certainly enforced as if it were a legitimate contract, but enforcement doesn't legitimize anything; that's merely one half of a contract, executed unilaterally.

The Requirements of A Contract

For any contract to be legitimate, a clear agreement and authorizations on both sides are required. Specifically (condensed from Wikipedia), a contract is:

An agreement entered into voluntarily by two or more parties, each of whom intends to create one or more obligations between them. The elements of a contract are "offer" and "acceptance" by "competent persons" having legal capacity who exchange "consideration" to create "mutuality of obligation."

Any contract that fails to meet this standard is not a legitimate contract and its enforcement cannot be justified. And so, let's examine some aspects of contracts:

Competence: In order to agree to a contract, one must be competent. You cannot, for example, make a contract with a hungry five-year-old, trading a few candy bars for a third of the child's lifetime earnings. The child is not competent and any such agreement is invalid.

No contract can be binding upon any person, prior to the age of competence.

Voluntary agreement: A valid contract must be agreed to. No contract and no subsequent enforcement is legitimate unless every person being held to it (having it enforced upon him or her) was given free choice to either accept or reject it. Without specific and voluntary agreement there is no contract.

The standard of agreement typically applied to the social contract is that we all implicitly agree by using even one thing provided by a government. This, very clearly, would not stand as "voluntary agreement" in contractual law.

Duress: A contract must be agreed to "without duress." That is, without a threat of harm. And so, our rejection of the social contract, should we wish to do so, may not be accompanied by any threat of punishment or actual punishment.

The usual retort to this fact is that if we want to exit the deal, we must leave the ruler's territory. That, however, places the ruler's rights above our own as a starting point. In other words, it lays grave expenses upon anyone who wants to exit the contract, prior to them accepting the contract. That, again, would never stand under contract law.

Undue influence: Undue influence involves "one person taking advantage of a position of power over another person." The people said to have accepted the social contract, however (or at least the vast majority of them) were compelled to attend schools, beginning long before the age of consent, operated by the other party to the contract. That, by itself, is grossly inappropriate, and only gets worse when we see that these schools invariably teach the social contract as fully valid, and any alternatives as invalid or worse.

It's also the case that the "other party" under the social contract employs legions of armed men and authorizes them to subdue those who break their rules.

No contract would be valid under these conditions; it would be entirely unenforceable under contract law.

Mutuality of obligation: Without "mutuality of obligation," there can be no contract. If the other side of the contract is not meeting their obligations, there must be recourse. This, however, is not applied to the social contract; if it were the citizens of New York City could have demanded a refund (at the least) following the attacks of 9/11. Clearly the other side of the deal failed to meet their obligations.

If one side of an agreement fails, the other side must be recompensed. In the absence of that, there is no contract.

Last Words

My purpose in addressing this subject is not to generate any specific response. Without a doubt, millions of people act as if this contract were real, and will continue to do so.  What I would like to see emerge is honesty. 

Those who wish to justify the status quo are free to do so, but I'd like them to put forth justifications that are honest and substantial, not merely slogans endlessly repeated.

**

Paul Rosenberg

www.freemansperspective.com

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