Against Prisons and Taxes
4. No Social Contract
We have just seen reason to think that we have entered into an unspoken contract with the government. We also saw that the existence of a contract can make a moral difference, as in the case of subletting. Is this, finally, the morally relevant difference we need in order to resist TX3? No, it’s not.
To see why not, notice that we haven’t actually identified a difference between our relationship with the government and Jasmine’s relationship with her neighbors. First, even if they didn’t ask for it, they too are enjoying the benefits of having fewer con men and other criminals running around. Second, they too choose to stay in the neighborhood even though they know that Jasmine is going to demand money from them. Who could blame them? They’ve lived their whole lives in that neighborhood.
That’s where their family and friends are. That’s where their job is. They couldn’t afford to up and move to a new neighborhood even if they wanted to. Third, they don’t vocally object to what Jasmine is doing. After all, it’s unlikely to make any difference, and she’s clearly a very dangerous person.
What this all shows, I think, is that—despite receiving benefits, sticking around, and being passive—her neighbors have not consented to living by Jasmine’s rules. But then, by parity of reason, we haven’t tacitly consented to living by the government’s rules simply by virtue of receiving benefits, sticking around, and being passive. (Similar remarks apply to sexual consent. Just because someone comes home with you after being taken out for dinner, doesn’t try to leave, and doesn’t vocally object to your advances, that doesn’t mean that they have consented to having sex with you.) And if we haven’t thereby tacitly consented to living by the government’s rules, then there’s no good reason to think we have entered into any “social contract” with the government.
We are, however, still left with the question of why these behaviors don’t constitute tacit consent in the case of Jasmine and the government and yet do constitute tacit consent in the other cases: getting into a taxi, sticking around the party, and not objecting to the time change. The answer is that there are certain further conditions that have to be met in order for these types of behaviors to constitute tacit consent. I’ll mention two.
The first condition is that there has to be a reasonable way of opting out of the arrangement. In those other cases, there is a reasonable way of opting out: you could just pass on the taxi and walk home, leave the party before midnight, or speak up and say that the time change doesn’t work for you. By contrast, there’s no reasonable way to opt out of the services the government
provides. For instance, you can’t get anywhere without using their roads. Additionally, you’d have to leave the country to stop benefitting from the protection that the government provides, and most people can’t afford to leave the country even if they wanted to. And even if they could afford to leave, it would require completely uprooting their lives. And even if they were willing to do that, where would they go? There’s virtually nowhere on the planet for them to go that doesn’t have taxes and prisons. There is no reasonable way to opt out.
The second condition that has to be met in order for those behaviors to constitute tacit consent is that explicit refusal to opt in has to be recognized. Suppose you go to a restaurant and they bring you food and charge you for it even though you explicitly said you didn’t want any. Or suppose that the professor was clearly going to move the exam to 9am even if you and others did object to the time change. In that case, you haven’t tacitly consented, because explicit refusal to opt in is not recognized. The same is true of our arrangement with the government. Here is what happens when people try to live “off the grid” and explicitly refuse to pay taxes: government agents show up with guns and take them to prison. Explicit refusal to opt in is not recognized.
We can turn these observations into an argument that we have not tacitly consented to paying taxes and following the laws.
No Consent
(NC1) Someone tacitly consents to an arrangement only if (i) there is a reasonable way to opt out and (ii) explicit refusal to opt in is recognized
(NC2) There is no reasonable way to opt out of paying taxes and following laws, and explicit refusal to opt in is not recognized
(NC3) So, we have not tacitly consented to paying taxes and following laws
Since we have not tacitly consented to following the laws or being subjected to taxation and imprisonment, there is no good reason to think that we have entered into an unspoken contract with the government. But that was supposed to be the morally relevant difference between what Jasmine does and what the government
does. Thus, we are back where we started, with no morally relevant difference to wield against TX3 of the Against Taxation and Imprisonment argument.