Many anarchists see the state as nothing more than an illegitimate entity that coercevily rules over us. Accordingly, we don’t voluntarily choose whether to accept the government’s law, it’s forced upon us. Therefore all taxation is “theft” and all laws are fiats. In a recent essay by the mutualist, Alex Eley, he concludes:
The social contract is not a true contract, as I did not agree to this, nor did I sign any document claiming these things.
This a very common argument used by anarchists due to their ignorance of jurisprudence and more specifically contract theory. It’s mistakenly thought that contracrs rest on a binary “yes or no” system. But in fact consent is more gradual, varying by different degrees of consent: expressed, implied, and hypothetical.
Anarchists state that they never signed their name to any contract to the domain they preside in. This conscious affirmation, such as signature, saying “yes” or “I agree”, and any other communicative act, all of which indicates express consent.
Down the scale of consent, we have implied consent, where a person may show acceptance of a default term by declining to expressly object to it. This is your typical “you consent by living here, if you don’t like it move to country ‘x'”. But as legal professor Tom W Bell points out:
People live in countries for many reasons – family relations, cultural preferences, economic opportunities – that have nothing to do with the government. Indeed, most citizens seem to put up with their governments only grudgingly, for want of better options.
This leaves us with hypothetical consent. Unlike those above it, it ignores facts about what any given party does or does not want, instead it is based on a counterfactual belief on what the party would have wanted.
Despite their appealing clarity, therefore, attempts to justify in a binary manner cause problems over obscuring important distinctions. Making express consent as a necessary and sufficient condition for justification is too abstract to be applied to the reality that is our complicated and complex world. In borderline cases, express consent proves hard to define. Can a child give express consent? How about someone desperately seeking protection from a murderous assailant following just steps behind? Can a person who suffers multiple personality disorder bind all of himselves to a single promise? In still other cases, express consent cannot be had. Conflicts over ambiguous contracts would need a judgment based on the parties’ implied consent to default terms, for instance, while protecting an unconscious patient’s rights would appeal to hypothetical consent.
At most, a state can claim the hypothetical consent of those it governs. This it does by offering governing services so fair and efficient that we can credibly suppose that hypothetical citizens would agree to them if asked.
Granted, hypothetical consent is the weakest of all degrees of consent. The ideal should be then, not to overthrow the state, but making the state more consensual. Tom W Bell has an incredible piece where you can read more about this issue here