This is the fourth article in a series critiquing Social Contract Theory. The prior article is located here: Consent: Is It Implied?
As has been discussed in prior installments, it is unclear where or when citizens supposedly entered into the social contract. But let us suppose they did. Let us assume citizens have agreed to obey the state’s edicts in exchange for protection.
In the United States at least, such a theory does not hold up under scrutiny. The state’s courts have ruled there is no such obligation for government officials. In Warren v. District of Columbia, the court cited “a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen”. Similar decisions have been reached in Hartzler v. City of San Jose and in DeShaney v. Winnebago County Department of Social Services. The latter was upheld by the U.S. Supreme Court.
If the state’s official position is that its agents have no obligations to protect citizens, then it would seem it is denying even the existence of a social contract. Surely, citizens cannot be expected to uphold their own purported obligations if they are guaranteed nothing in return.
But perhaps these instances all happen to fall outside the purview of the state’s responsibility. It is at least possible its obligations to provide security do not include the instances outlined in the cases above. For example, in Hartzler v. City of San Jose the plaintiff’s decedent asked the police to come to her home because her ex-husband had called and threatened to kill her. The department responded that she should call them when he showed up. Unfortunately, she never got the chance because she was stabbed to death upon his arrival.
It is conceivable a contract regarding security may not obligate government officials to respond to a call unless the threat is present. But how do we know? There is no written agreement we can look to. So inevitably, the terms of the contract must be decided on in court.
The Ultimate Arbitrator Problem
Let me say that in another way. In the supposed social contract between citizens and the government, the terms are to be decided upon in a government court. If the government is a party to the dispute, there is a glaring bias, and therefore injustice in an agent of the government deciding the case.
Even if we somehow, either implicitly or explicitly, entered into an agreement, the government maintains that it has the sole right to decide what it is obligated to provide in terms of security. Practically speaking, this equates to a guarantee of injustice, as it amounts to the government unilaterally setting the terms of the so-called “agreement.” A Social Contract which relies on the consent of both parties for its justification is null and void if one party has the monopoly power to set the terms.
You can read more from Andrew Kern On Think Liberty here.