On Tacit Contracts

[Wheylous]

Technically, he’s not. The road company right outside the restaurant could then refuse to let him use their roads. Or, you know, the restaurant could make the man sign a contract beforehand. Even better, the man has already signed a contract with a large group of companies which states that he will respect traditional customs which are reasonable, as decided by some arbiter.

Anyway, I doubt any of this would be a problem. I doubt that a people who are willing to respect ethics and reason enough to live in an AnCap society would choose to not​ pay their restaurant fee.

And remember - you sign your check at the end of the visit anyway. Why not simply sign at the beginning?

Either way - implicit contracts can rely on common courtesy to be “enforced”. Social contracts cannot.

[Autolykos]

@DarylLloydDavis

Though a mutual obligation exists between the individual and the state–the former to obey the law and thereby protect the state; the latter to protect the individual–it can easily be argued that the Social Contract is not valid, as no meeting of the minds is possible where the state is not a mind-possessing entity (nor, for that matter, its elected representatives) and the individual is not free in advance to refuse its protection and yet maintain his own freedom.

What does “obey the law” mean to you? Does it mean “obey whatever the state says is the law”? Or what?

What makes this mutual obligation exist between the individual and the state? As I see it, only that the state says it exists. This is very convenient - for the state.

However, the state per se doesn’t have a mind. So, given your definition of “legitimate contract”, it follows that one cannot exist between the individual (who has a mind) and the state (who doesn’t). Furthermore, even a collective of people doesn’t have a mind. It has as many minds as there are people in the collective. It makes no sense to me to treat a collective on par with a lone individual. At best, it’s a very leaky abstraction; at worst, it’s a category error.

How is the individual not free in advance to refuse the state’s protection and yet maintain his own freedom? This sounds to me like the individual has no choice in the matter - thus he’s been aggressively coerced into this arrangement with the state. In my honest opinion, this is highly immoral.

[Autolykos]

Regarding implicit/tacit contracts - if the “dine and dash” phenomenon were a big enough deal, no restaurant would allow a person to pay for food after eating it.

[DarylLloydDavis]

To enter a clearly-posted private business opens the door to an implicit contract, should the patron accept a good or service; though without a listing of prices, or any negotiation beforehand, the value of the good or service becomes a matter for an arbiter to decide. If, however, he entered a private home and accepted a glass of water, such an implicit contract would not be valid; unless the guest had reason to conclude in advance that it would not be free, ie. a meeting of the minds.

Ancap purists might argue that a business has no obligation to post notice of its status as a commercial enterprise; and that an assumption ought to be made that nothing in life is free. But purity often gets paved over by practicality.

The Social Contract is not a valid contract; but it is nevertheless an enforceable contract. Individual rights are predicated upon the survival of individuals–on the right to life. If survival itself depends upon securing control of limited natural resources; and such control cannot be maintained absent a limited state system, primarily in the form of a combined defense against competing collectives; then individual rights must be partially subsumed by a state system–only to the extent necessary for ensuring life itself. If technology advances to a point where individual survival is either no longer dependent upon limited natural resources or no longer physically imperiled by other humans, then the state might dissolve naturally.

That all other rights are not absolute, when the right to life is imperiled, may be demonstrated by a simple thought experiment:

Imagine a man with a nuke in his backyard, set to go off in one day. Anyone within a ten-mile radius is dead if it detonates. In securing the right to life his neighbors must violate his private property rights and defuse the bomb–if necessary revoking his right to life, in defense of their own. This is not so much a case of the many overwhelming the few–might makes right–as a case of the peaceable-many overcoming the threatening-few, or the single aggressor.

Mortality, limited resources, and finite living space all impose real limitations on the absolute inviolability of rights. The Social Contract, insofar as it secures the right to life, and by extension all other rights, is a special case of an imposed implict contract–unfortunate, but a real-world reflection of the supremacy of the right to life.

.

[Autolykos]

@DarylLloydDavis

The Social Contract is not a valid contract; but it is nevertheless an enforceable contract.

How can an invalid contract be enforceable, exactly?

@DarylLloydDavis

Individual rights are predicated upon the survival of individuals–on the right to life.

As I understand it, the right to life isn’t an entitlement to survival per se.

@DarylLloydDavis

If survival itself depends upon securing control of limited natural resources; and such control cannot be maintained absent a limited state system, primarily in the form of a combined defense against competing collectives; then individual rights must be partially subsumed by a state system–only to the extent necessary for ensuring life itself.

Please support the assertion that control of limited natural resources “cannot be maintained absent a limited state system”.

[DarylLloydDavis]

How can an invalid contract be enforceable, exactly?

You ask that as though the Social Contract weren’t currently being enforced. It’s self-evident how it can be enforceable–through force of law. Please read posts carefully, with an eye toward understanding them–not just refuting them.

As I understand it, the right to life isn’t an entitlement to survival per se

Though your quote means nothing, I’ll make an exception to my rule of not responding to nonsense and amplify the point. (And please don’t accuse me of another “category error.”) Survival is an imperative, not an entitlement. All else follows from the imperative to preserve the right to life, including the Social Contract.

Please support the assertion that control of limited natural resources “cannot be maintained absent a limited state system”

Support for that assertion may be found by surveying any well-populated or resource-rich region of the real world, noting the absence of any defensible control of natural resources absent a limited state system–an imposed, implicit Social Contract. If you differ with that apparent reality, then it is your part in a discussion to present a counterargument, ideally with valid examples.

And let me state once again: If you misinterpret my assertions in your haste to disagree with them, I will not respond to your misinterpretations. I’m interested in discussions/argumentation with thoughtful, polite adults.

[Autolykos]

@DarylLloydDavis

You ask that as though the Social Contract weren’t currently being enforced.

Not at all. Nor did I mean to give you that impression.

@DarylLloydDavis

It’s self-evident how it can be enforceable–through force of law.

Wheylous (please correct me if I’m wrong here) has been using the word “enforceable” in a normative sense - i.e. his issue is what makes a contract legitimately enforceable. You now seem to be saying that the “social contract” is enforceable because it’s currently being enforced, which is because there’s sufficient power to enforce it. That’s a totally separate issue - it doesn’t touch on legitimacy at all.

So let me ask you again, more clearly this time: how can a contract which is considered to be “invalid” or illegitimate nevertheless be considered to be legitimately enforceable?

@DarylLloydDavis

Please read posts carefully, with an eye toward understanding them–not just refuting them.

… I think I do read them carefully, thank you very much.

@DarylLloydDavis

Though your quote means nothing, I’ll make an exception to my rule of not responding to nonsense and amplify the point.

How magnanimous of you. Perhaps you’d like to explain just how my statement “means nothing”.

@DarylLloydDavis

(And please don’t accuse me of another “category error.”)

You can’t stop me, can you?

@DarylLloydDavis

Survival is an imperative, not an entitlement. All else follows from the imperative to preserve the right to life, including the Social Contract.

Explain to me what you mean by “imperative” and exactly how survival constitutes one.

@DarylLloydDavis

Support for that assertion may be found by surveying any well-populated or resource-rich region of the real world, noting the absence of any defensible control of natural resources absent a limited state system–an imposed, implicit Social Contract. If you differ with that apparent reality, then it is your part in a discussion to present a counterargument, ideally with valid examples.

You said that control of limited resources “cannot be maintained absent a limited state system”. The word “cannot” to me implies impossibility. That is, you effectively said that it’s impossible to control limited resources without a “limited state system”. Can you prove this logically? Current reality has nothing to do with this.

@DarylLloydDavis

And let me state once again: If you misinterpret my assertions in your haste to disagree with them, I will not respond to your misinterpretations. I’m interested in discussions/argumentation with thoughtful, polite adults.

I’m not a mind-reader. If I’ve misunderstood something, how am I supposed to know that unless you point it out for me? Furthermore, if you simply state that I’ve misinterpreted something, how am I supposed to understand how I’ve misinterpreted it unless you explain what you actually meant?

[DarylLloydDavis]

Wheylous (please correct me if I’m wrong here) has been using the word “enforceable” in a normative sense - i.e. his issue is what makes a contract legitimately enforceable. You now seem to be saying that the “social contract” is enforceable because it’s currently being enforced, which is because there’s sufficient power to enforce it. That’s a totally separate issue - it doesn’t touch on legitimacy at all.

A closer reading of my post would have yielded this short, clear statement.

The Social Contract is not a valid contract; but it is nevertheless an enforceable contract.

Individual rights are predicated upon the survival of individuals–on the right to life.

As I understand it, the right to life isn’t an entitlement to survival per se.

How magnanimous of you. Perhaps you’d like to explain just how my statement “means nothing”

It’s your statement. If there’s meaning to it, please explain: How does it refute the simple statement I made? Where did I mention entitlement? If one does not have a right to life, and to act in defense of one’s life, then all other rights are void by extension.

That all other rights are not absolute, when the right to life is imperiled, may be demonstrated by a simple thought experiment:

Imagine a man with a nuke in his backyard, set to go off in one day. Anyone within a ten-mile radius is dead if it detonates. In securing the right to life his neighbors must violate his private property rights and defuse the bomb–if necessary revoking hisright to life, in defense of their own. This is not so much a case of the many overwhelming the few–might makes right–as a case of the peaceable-many overcoming the threatening-few, or the single aggressor.

Explain to me what you mean by “imperative” and exactly how survival constitutes one.

Really?

You said that control of limited resources “cannot be maintained absent a limited state system”. The word “cannot” to me implies impossibility. That is, you effectively said that it’s impossible to control limited resources without a “limited state system”. Can you prove this logically? Current reality has nothing to do with this.

Actually, I said IF “..the control of limited resources cannot be maintained absent a limited state system…” And I used that conditional formulation, because I wanted to leave open the possibility that control could be maintained without a state system, but that so far it has not been–at least not in the modern world–or not for long.

I’m not a mind-reader. If I’ve misunderstood something, how am I supposed to know that unless you point it out for me? Furthermore, if you simply state that I’ve misinterpreted something, how am I supposed to understand how I’ve misinterpreted it unless you explain what you actually meant.

I don’t mind explaining away an honest misinterpretation. But when one is immediately followed by another, and all with a snide tone, I can’t help suspecting that the other person isn’t interested in giving a fair hearing or providing a thoughtful response. I also suspect that you begin a reply to the post, sentence by sentence, without entirely reading through it first.

[gocrew]

@Wheylous

Have you violated someone’s property right? Give me an example

If you reach an agreement to transfer title to property on such and such condition, and then don’t transfer the title when such and such condition is satisfied, you become a thief.

[Wheylous]

Alright, I’m on board. But take a look at this thread:

https://forum.freecapitalists.org/t/gambling-questions-for-fellow-rothbardians/20363

It’s long, so I’ll summarize: promises are not legally enforceable in libertarian society. Only actual title transfers are. Hence, I can say “I promise to transfer you said title on Jan 3rd” and not have it be enforceable, while “I transfer this title to you on Jan 3rd” is enforceable. Maybe this was a bit poorly worded…

Anyway, I agree that fraud in the way you define it (with actual transfers of title) is bad. Why? Because the title transfer already happened and what you’re then doing is merely obstructing someone’s property.

Yet breaking implicit contracts is not fraud because no title was transferred. There might have been some common sense agreement, but that rests on the good will of society. Naturally, as I’ve said before, traditional implicit contracts which make sense in everyday life such as restaurant dining would be followed through by most people anyway. As someone else mentioned, if there is some recurring problem with this, then the restaurant policy will simply change.

[gocrew]

@Wheylous

promises are not legally enforceable in libertarian society

This is one of the few positions of Rothbard that I disagree with. If there is an agreement, there is a contract, in my opinion. I don’t think it makes sense to require specific words, because that is getting caught up in formalism. An agreement is an ethereal thing. Simply because certain words are spoken, written, or not does not prove a contract one way or another. They can be evidence of a contract, but not proof. I think Kinsella >> Rothbard on this. Kinsella’s work on this is probably available on this site.

@Wheylous

Yet breaking implicit contracts is not fraud because no title was transferred.

You are assuming as true that which is yet to be demonstrated. Whether an implicit contract can transfer title is the point under contention, no? Or one of them, at any rate.

@Wheylous

There might have been some common sense agreement, but that rests on the good will of society.

I don’t think you meant to say this as it was written. A commonsense agreement rests on the two minds involved, and nothing more.

@Wheylous

Naturally, as I’ve said before, traditional implicit contracts which make sense in everyday life such as restaurant dining would be followed through by most people anyway.

Right, but we are necessarily dealing with those instances where an agreement was not adhered to. It is no good to wave away the problem of rape by saying that 99.9% of sexual encounters are consensual. We must still deal with that 0.1%.

If someone enters a restaurant, dines and dashes, is the restaurant within its rights to threaten and even use violence to recover damages. I think the answer has to be yes, in the vast majority of instances. If someone from an uncontacted Brazilian rain forest tribe somehow wandered into American society, entered a restaurant and then ate, it could probably be succesfully argued that there was no contract. But this could not be true of an American citizen, who damn well knows under what conditions he is being served the food. There is an agreement, which is what a contract is, even if there is no verbal communication.

The heart of a contract is the agreement. The verbal communication facilitates, in most cases, the forging of the agreement, but absent the communication, if there is still an agreement, then there is a contract.

[nirgrahamUK]

I think Kinsella >> Rothbard on this. Kinsella’s work on this is probably available on this site.

I dare say every article of Kinsella’s that I read which brushed on the topic began with a reminder that Rothbards ‘title transfer’ theory of contract is superior to other formulations (chiefly the ‘promise theory’) so I must say I’m suprised at this statement.

[Wheylous]

Can I have some links to some of Kinsella’s works? I’ve heard of Against IP, but not many others.

[nirgrahamUK]

http://mises.org/journals/jls/17_2/17_2_2.pdf

To many—even to many libertarians—it seems elementary and
obvious: if you promise to do something, you may be forced to do it.
Some libertarians and laymen assume that an individual has some power
or ability to legally “bind” or obligate himself by simply promising to
do something. However, this assumption is groundless. Not all promises are enforceable, nor should they be.

[DarylLloydDavis]

http://mises.org/journals/jls/17_2/17_2_2.pdf

To many—even to many libertarians—it seems elementary and
obvious: if you promise to do something, you may be forced to do it.
Some libertarians and laymen assume that an individual has some power
or ability to legally “bind” or obligate himself by simply promising to
do something. However, this assumption is groundless. Not all promises are enforceable, nor should they be.

I started reading that PDF and a question occurred to me when I read this:

It is impermissible to use force in response to non-invasive actions,

since this would itself be initiated force. Speech is (generally) nonaggressive, for example, because it does not invade others’ property
borders, so it does not justify the use of responsive force.

If many libertarians believe that speech does not constitute an initiation of aggression and therefore does not justify retaliatory aggression, does this mean that one does not have the right to take a death threat seriously–to wrest a knife from another hand, or to shoot first? That would be a pretty dysfunctional interpretation of liberties.

[nirgrahamUK]

@DarylLloydDavis

If many libertarians believe that speech does not constitute an initiation of aggression and therefore does not justify retaliatory aggression, does this mean that one does not have the right to take a death threat seriously–to wrest a knife from another hand, or to shoot first? That would be a pretty dysfunctional interpretation of liberties.

The relevant note here is that

Speech is (generally) nonaggressive

this is allowing for the fact that a threat when credible is to be interpreted as an aggressive act, an initiation of aggression.

[DarylLloydDavis]

Glad to hear it. I don’t consider myself a libertarian; but the way Ron Paul talks, one might conclude that Israel doesn’t have the right to take the Iranian leader’s threats to wipe it off the map seriously. But at what point is a threat a “credible” threat? And who gets to decide that issue?

[nirgrahamUK]

http://www.youtube.com/watch?v=0zkhnSCKz6U Just for you Daryl

[DarylLloydDavis]

Just for you Daryl

You’re good. That answers that. I must have been listening to the liberal characterizations of his positions. But that still leaves the question of whether one is free to take any threat literally; or if a duty to weigh the probabilities of its being carried through is required. (By the way, how do you quote in this forum? Sorry, newbie.)

[nirgrahamUK]

About Quoting :

How to Quote a post in a reply on the Mises Forums

but I mostly typed the quote blocks directly use square blocks with no spaces and the word quote
[ quote user = “someone that said something” ]some text someone said [ / quote ]

@DarylLloydDavis

But that still leaves the question of whether one is free to take any threat literally

no we covered that it has to be credible already …