Your Neighbor’s Contract You Can’t Refuse

by Justin Longo | 11:24 am, December 16, 2009 | 3 Comments

Imagine you are good friends with your next door neighbor. Now also imagine that he is an ex-Marine, super-duper black belt in 12 different forms of martial arts, and he is a technology wiz who has all the latest gadgets and knows how to use them. Your neighbor uses his techie abilities and latest gadgets to form the most advanced home defense system ever created. On top of that, even if he does encounter an evildoer on his property, his military and martial arts background will surely overwhelm the sorry intruder. Thus, we can say with certainty, you have the best neighbor ever!

One day you go and check the mail. Inside you find a bill from your neighbor for $300. The bill reads, “One month’s defense services…… $300.” This perplexes you to say the least. You don’t recall ever entering into an agreement with your neighbor for his services. Not even a verbal one. A strong sense of injustice overwhelms you, but before you walk next door to give him a piece of your mind, you realize who you are dealing with and back off.

Now you are indeed benefiting from your neighbor’s incredible home defense system and self-defense capabilities. That is a fact. However, you never asked for it, nor did you agree to it after the fact.

When you finally work up the courage to discuss the issue with your neighbor, he thankfully keeps his cool and shows you a contract he wrote out for you. “The contact is right here my friend. It describes the service I’m providing you and the rate at which you are billed. I think $300 per month is MORE than fair” he says.

Swallowing very hard, you reply, “But I never consented to this contract — neither before you installed your system, nor after. And look, my signature is nowhere to be found on that piece of paper.”

This argument is not good enough for your neighbor and he, quite predictably, sticks to his proverbial guns. He claims that despite the fact that you never consented to this agreement, it still stands because there is no question that you benefit from his home defense services. In fact, “I’ve been watching over your house just as much as my own for the past month,” he says.

What sort of recourse do you have in this situation? Your neighbor is not going to back down, and he is much stronger than you. He never comes out and says it, but implicitly you fear he will take the $300 if you don’t willingly give it up. You must take this case to court and convince a judge that this type of contract is illegal. You never consented to it, your signature is nowhere to be found, and you don’t accept his services. At this point it is fair to say that the injustice is plain to see. A contract forced on someone else is not a contract. It is force.

I bring this example up because although we can all agree that you do in fact gain from your neighbor’s home defense system, it is immoral for you to be forced into paying for something you never consented to, nor ever asked for. Your neighbor was in the wrong when he tried to give you the old “offer you can’t refuse” bit.

The part that still confuses me is why Constitutionalists don’t see this parallel when debating limited government and the so called “social contract” in general, and the Constitution in particular. Lysander Spooner wrote about the “Constitution of No Authority” way back in 1867. It was obvious to him even back then that you cannot impose a contract on people who had nothing to do with it.

If forcing a contract on someone is so plainly wrong in my above neighbor example, when the victim is so clearly benefiting from the contract, knows the guy, and is friends with him, how can we possibly say that the government can make and enforce contracts on us against our will? The only possible way to justify such force is to say that the government owns all the land in America. It is to say that you are merely renting the land you live on and all the things you own. That you don’t have the final say over your own body and your own property.

If you’d like to believe such nonsense, go ahead. I choose to believe I own my body and all my property and that no one, no matter what kind of uniform they are wearing can force me into a contract I had nothing to do with, nor consented to. And yet that is the situation we face everyday. We pay for services we never requested, for prices we never agreed to, from people we never met.

….. on second thought, you better go back and reconcile with your neighbor. Pay him now, because he might be your best friend when the government bureaucrats start looking for more money to feed their bankrupt beast.

Comments

Julian Dunraven
December 17th, 2009 @ 3:40 am

AnCap,

Interesting. It is even appealing on first glance. Alas, were this to be the case, government would have to enter into direct contract with each individual. Nothing would ever get done and commerce would grind to a halt due to the uncertainty of the legal plain as the land would be filled with various contracting parties, each recognizing different rules.

Naturally, society cannot function under such circumstances. However, long before the U.S., or even the concept of a state, people worked out a way around this problem by recognizing a type of enduring contract.

Think of the Constitution, and our government in general, as a type of Covenant Running With the Land. It is that ancient doctrine in which peoples do indeed hold one another to contracts which were never signed or agreed to—because the obligation runs with the land. In this case, the U.S. government would hold the covenant as expressed by the Constitution. In order to change the covenant, the people and the government must agree upon the change, which we express through the constitutional amendment process or a successful revolution. I suppose this may be the legal expression of the social contract, an expression of the natural law in which people worked out the only way to live in a society of mutual consent with continuity.

In any case, I thought the concept might interest you.

Julian Dunraven
JustinAC
December 17th, 2009 @ 8:37 am

Thanks for the reply Julian, I respect your analysis on topics of law greatly. However, I must admit you are off on this one.

To argue that without a central contract that the whole of society agrees to, “nothing would get done and commerce would grind to a halt” is identical to arguing that without a central food planner, no farmers, bakeries, grocery stores and the like would be able to figure out what to make and how much of it to make, resulting in food production chaos. You are arguing for central planning in dispute resolution. This is a fallacy — much like it would be to argue for central planning for food.

The truth is, law is derived from the social interactions we have on a daily basis. It is not a top-down dictate that one, or several people force on us by decree. Rather, law emerges spontaneously as though from an invisible hand. Yes, law does get codified, but codification is merely the recognizing of existing laws and customs. Isn’t the goal of judges and arbitrators to “discover the law?”

The same market and spontaneous (emergent) order that you love that takes care of our food, shelter, clothing, and iPods, does not all of the sudden disappear when it comes to law and order.

Milton Friedman’s son David Friedman has written volumes on polycentric legal systems and the general idea of privately produced and purchased law. Fortunately, David is just one of many in a 150+ year old tradition of writing on the spontaneous order of law production. This of course also includes empirical research on the history of spontaneous legal orders like “The Not so Wild Wild West” and the Law Merchant.

I know you are familiar with these concepts, so I’m curious why they don’t satisfy you. I’ve yet to be convinced that we need a one size fits all legal order, like many leftists believe we need a one size fits all education system.
Julian Dunraven
December 20th, 2009 @ 12:38 am

Justin,

Forgive my tardy reply but, as my short answer did not satisfy, I had to find time for a long one. I do not argue for a central planner of justice. Indeed, I think an ultimate arbiter would be contrary to the very notion of justice. Rather, I acknowledge that society must select a certain set of supreme principles and procedures with which to pursue justice. These must conform to the Natural Law as we have come to understand it, not attempt to suppress it. Certainly, Mr. Spooner seems to argue from that point of view. I merely contend that the Constitution manages that with legitimacy, that one can (or should be able to) withdraw from its compact, but that a covenant of some sort is fundamentally necessary to maintain justice.

The Legitimacy of the Constitution.

Speaking only on Mr. Spooner’s constitutional arguments, I agree with him entirely in his view of treason. He is correct in truth and under the Constitution as written, regardless of the government’s actual behavior. He is also correct that the Constitution and Natural Law demands a government be based upon the consent of the people. However, he is incorrect about a great deal as well.

First, the basis of Western law is not in contract. It is in property law. Thus, it is fitting that the Constitution is not, as Mr. Spooner asserts, strictly a contract. Rather, as I maintained earlier, it is a type of covenant running with the land under property law. In taking this view, I strongly object to Mr. Spooner’s interpretation of “posterity” in the Constitution, as well as his view of consent.

First, the right to dispose of your property to your posterity is a fundamental aspect of property law. One can also attach conditions and covenants upon that property to better facilitate its future use. To say the Constitution does not attempt to do just that seems to ignore the plain meaning and common usage of the language at the time.

As to consent, though Mr. Spooner is fond of referring to the general principles of law and reason, he rather conveniently omits any mention of the ancient doctrine that silence gives consent. When the American Revolution threw off the British Crown, and the Founders offered the Constitution as a replacement system, if there was any overt objection it remained quiet until, eventually, all states and property owners implicitly tied their lands to the Covenant of the Constitution and made active use of the process and association it established. This is clear consent.

Now, Mr. Spooner does argue that using the processes of the Constitution is no surety of consent. He is mistaken. No government, however tyrannical, can exist without the consent of its people. Even the most violent and depraved regimes in the world, if not recognized as legitimate by the people, exercise effective control no further than the range of the nearest army encampment’s patrols. Mr. Spooner absolves people of their decision making responsibilities far too easily.

These points eliminate most of Mr. Spooner’s objections to the legitimacy of the Constitution. Nonetheless, it is puzzling to me why Mr. Spooner bothers to frame his arguments in terms of the British common law system at all. He freely admits that the British Crown and its systems were overthrown. The only link to that legal system is the Constitution itself. If you do not recognize that document, though, arguing common law doctrines is as silly as arguing principles of Sharia law. Why should anyone care? Without the Constitution, there is only the Natural Law to fall back upon. If Mr. Spooner believed that the Constitution violated the Natural Law, he could have sought to reform it through the amendment process, withdraw from it, or overthrow it entirely. He sought to overthrow it, and failed to persuade anyone to join his cause, which I suppose furthers the argument for consent.

Withdrawing from the Constitution.

I do agree with Mr. Spooner that the Constitution, ultimately, requires the free consent of those to be bound by it, and any of us can withdraw our consent if we wish. If he had withdrawn from the Constitution, I would agree with him that the U.S. would have no right to lay hands upon him or hold a gun to his head to force him to comply with its laws. However, neither would he have the right to unilaterally remove his lands from the Covenant, and the obligations to others which may encumber it. Thus, he would simply have had to depart the U.S. If he refused to depart, I would not sanction the use of force to remove or imprison him unless he became violent or began to actively infringe upon the rights of others.

Alternatively, if he were able to persuade a large number of people, or even a few states, to withdraw with him and forge a new covenant amongst themselves, they should be free to do so—as the U.S. has increasingly recognized in the international community.

However, as someone who did not recognize our system of law, he could not avail himself of it when it was convenient for him to do so either. Picking and choosing when one will play by the rules and when one will declare independence is identical to declaring you will heed no law but your own whim. This puts others on notice that they are in mortal danger from such an individual. Thus, every other part of society would be justified in refusing to treat with him, to enforce his contracts, to defend his interests and to allow him participation in its processes. I doubt very much he would be able to survive such circumstances without resorting to violence or infringing upon the rights of others. History has not shown such a life can be maintained for more than a handful of years.

Alternative Legal Theories

Yet, history does provide interesting examples of exactly the situation I describe. One need not be limited to theory in order to envision such a society. The Celts provide one interesting example of a consent based society. The Celtic legal system was overseen by an order of Druids known as Brehons. It provided the foundation of our modern contract law and common law precedent system. Yet, it had no enforcement aspect, no criminal law system. Celts would have been appalled by the idea that a ‘sovereign’ had any ownership interest in the lives of the people and could thus inflict suffering when offended. Everything was viewed as either a matter of contract or equitable dispute over conflicting rights. The defendant would then have to either right the wrong or pay the plaintiffs just compensation. If he refused to comply, he was simply shut out of society for failing to adhere to their covenants. If he became violent, he was either driven out or killed by chieftain’s warriors. The Brehon laws survived longest in Ireland, where they endured from the pre-Christian era to the late eighteenth century when the British Crown brutally suppressed them in its efforts to control that land. We still have written records of them, though, and I recommend reading them. I think you would enjoy them.

Early Iceland was very similar due to its heavy Celtic influence. However, lacking an educated professional class of Brehons, any Icelander who knew the traditions and laws of the land and spoke well could become a Goði or chieftain. Unlike chieftains in other cultures, Goðar did not necessarily employ warriors or even control contiguous territory. There might be several Goðar in any given area. They drew their power, not through force, but from their clients—the people. A family would pay a Goði what we might call a legal retainer. In exchange, the Goði stood ready to argue that family’s rights under law. The family also had the right to transfer to any other Goðar if they found better services elsewhere. The judgments of the Goðar relied heavily upon the consent of the people, and could be appealed to ever larger assemblies. As in the Celtic system, there was no criminal law. It was all contract and equity. Those who failed to comply were viewed as outside the law — literal outlaws — and banished from the covenant community. If they refused to depart or did violence, they could be killed on sight by anyone without legal consequence.

The modern world has begun to look back to these systems with interest and I am indeed familiar with many of the ideas now being vetted by various jurists and scholars. We have permitted private arbitrations and mediations to be specified in contract. I have read proposals to privatize some of the court system, or at least permit private prosecutors in victim crimes as we permit private defense counsel. I have recently been intrigued by proposals to abolish criminal law entirely and go back to Celtic/Icelandic style restorative justice. However, while we can tinker with the machinery and delivery mechanisms of justice as we attempt to discover the law, we must have an agreed upon covenant of absolute principles with which to frame those discoveries. That framework of principles, in our society, is the Constitution.

The Icelanders were able to preserve their notions of justice due to their relative isolation. In the end, though, they fell to Norway. The Celtic laws were pushed further and further west by successive conquerors until the British, with a far different concept of justice, eliminated them entirely. Though no one is ever quite safe from the conqueror’s sword, in the modern world, with far greater social and physical mobility, no country, especially the U.S., could rely upon common cultural tradition for even minimal protection of its conceptions of the Natural Law. The principles we embrace must be an express covenant. If no such common principles existed, what would happen when a Muslim follower of strict Sharia killed a homosexual and the victim’s family demanded justice? Under Sharia, justice has already been done. That notion of justice is a horrific crime under U.S. law, though. Who prevails? Without an express covenant of key principles and procedures running with the land, you invite chaos and blood feuds. By no stretch of the imagination could that be called justice; it is blatant barbarism.

Conclusion

In conclusion, it is my contention that the U.S. Constitution is not a contract, but a covenant running with the land in accord with the common law system upon which the nation was founded. It also has the full consent of the people by the standards of such a covenant, by the operation of common law principle, and by all standards of international custom. Despite the specific actions of our government, it is possible, or should be, to withdraw from the covenant. It is even possible to do so while maintaining your land, provided the rights of others are not trampled by doing so. Nonetheless, some express covenant is necessary to preserve the principles and procedures we have discovered in accord with our conception of the Natural Law. Before you give up on this current covenant entirely, it might be nice to see if we could actually hold our current government to its terms.

Julian Dunraven, J.D., M.P.A.

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Your Neighbor’s Contract You Can’t Refuse

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