Editing Social contract (section)

==Criticism==

===Consent of the governed===
An early critic of social contract theory was [[Jean-Jacques Rousseau|Rousseau]]'s friend, the philosopher [[David Hume]], who in 1742 published an essay "Of Civil Liberty". The second part of this essay, entitled "Of the Original Contract",<ref name="Hume">{{cite book|author=Hume, David|title= Essays, Moral, Political, and Literary, Part II, Essay XII, Of The Original Contract}}</ref> stresses that the concept of a "social contract" is a convenient fiction: {{blockquote|As no party, in the present age can well support itself without a philosophical or speculative system of principles annexed to its political or practical one; we accordingly find that each of the factions into which this nation is divided has reared up a fabric of the former kind, in order to protect and cover that scheme of actions which it pursues. ... The one party [defenders of the absolute and divine right of kings, or Tories], by tracing up government to the DEITY, endeavor to render it so sacred and inviolate that it must be little less than sacrilege, however tyrannical it may become, to touch or invade it in the smallest article. The other party [the Whigs, or believers in constitutional monarchy], by founding government altogether on the consent of the PEOPLE suppose that there is a kind of original contract by which the subjects have tacitly reserved the power of resisting their sovereign, whenever they find themselves aggrieved by that authority with which they have for certain purposes voluntarily entrusted him. |David Hume, "On Civil Liberty" [II.XII.1]<ref name="Hume"/>}}

Hume argued that [[consent of the governed]] was the ideal foundation on which a government should rest, but that it had not actually occurred this way in general. {{blockquote|My intention here is not to exclude the consent of the people from being one just foundation of government where it has place. It is surely the best and most sacred of any. I only contend that it has very seldom had place in any degree and never almost in its full extent. And that therefore some other foundation of government must also be admitted. |Ibid II.XII.20}}

===Natural law and constitutionalism===
Legal scholar [[Randy Barnett]] has argued<ref>''[http://www.randybarnett.com/ Restoring the Lost Constitution: The Presumption of Liberty] {{Webarchive|url=https://web.archive.org/web/20200820054950/http://www.randybarnett.com/ |date=2020-08-20 }}'', Randy Barnett (2004)</ref> that, while presence in the territory of a society may be necessary for consent, this does not constitute consent to ''all'' rules the society might make regardless of their content. A second condition of consent is that the rules be consistent with underlying principles of justice and the protection of natural and social rights, and have procedures for effective protection of those rights (or liberties). This has also been discussed by O.{{nbsp}}A. Brownson,<ref>{{cite web |url=http://constitution.org/oab/am_rep.htm |author=O. A. Brownson |title=''The American Republic: its Constitution, Tendencies, and Destiny'' |year=1866 |access-date=2011-02-13 |archive-date=2011-10-04 |archive-url=https://web.archive.org/web/20111004204024/http://constitution.org/oab/am_rep.htm |url-status=dead }}</ref> who argued that, in a sense, three "constitutions" are involved: first, the ''constitution of nature'' that includes all of what the Founders called "[[natural law]]"; second, the ''constitution of society'', an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it does establish the third, a ''constitution of government''. To consent, a necessary condition is that the rules be ''[[constitution]]al'' in that sense.

===Tacit consent===
The theory of a tacit social contract holds that by remaining in the territory controlled by some society, which usually has a government, people give consent to join that society and be governed by its government if any. This consent is what gives legitimacy to such a government.

Other writers have argued that consent to join the society is not necessarily consent to its government. For that, the government must be set up according to a constitution of government that is consistent with the superior unwritten constitutions of nature and society.<ref>{{cite web |url=http://constitution.org/oab/am_rep.htm |author=O. A. Brownson |title=''The American Republic: Its Constitution, Tendencies, and Destiny'' |year=1866 |access-date=2011-02-13 |archive-date=2011-10-04 |archive-url=https://web.archive.org/web/20111004204024/http://constitution.org/oab/am_rep.htm |url-status=dead }}</ref>

=== Explicit consent ===
The theory of an implicit social contract also goes under the principles of explicit consent.<ref>{{Cite news|url=https://www.itgovernance.eu/blog/en/gaining-explicit-consent-under-the-gdpr-2/|title=Gaining explicit consent under the GDPR|date=2017-07-05|work=IT Governance Blog|access-date=2018-02-08|language=en-GB|archive-date=2018-02-09|archive-url=https://web.archive.org/web/20180209063250/https://www.itgovernance.eu/blog/en/gaining-explicit-consent-under-the-gdpr-2/|url-status=live}}</ref>  The main difference between tacit consent and explicit consent is that explicit consent is meant to leave no room for misinterpretation.  Moreover, you should directly state what it is that you want and the person has to respond in a concise manner that either confirms or denies the proposition.

===Contracts must be consensual===
According to the will theory of contract, a contract is not presumed valid unless all parties voluntarily agree to it, either tacitly or explicitly, without coercion. [[Lysander Spooner]], a 19th-century lawyer who argued before the United States
Supreme Court and staunch supporter of a right of contract between individuals, argued in his essay ''[[No Treason]]'' that a supposed social contract cannot be used to justify governmental actions such as taxation because government will initiate force against anyone who does not wish to enter into such a contract. As a result, he maintains that such an agreement is not voluntary and therefore cannot be considered a legitimate contract at all. As an [[abolitionism|abolitionist]], he made similar arguments about the unconstitutionality of slavery in the US.

Modern Anglo-American law, like European civil law, is based on a will theory of contract, according to which all terms of a contract are binding on the parties because they chose those terms for themselves. This was less true when Hobbes wrote ''Leviathan''; at that time more importance was attached to consideration, meaning a mutual exchange of benefits necessary to the formation of a valid contract, and most contracts had implicit terms that arose from the nature of the contractual relationship rather than from the choices made by the parties. Accordingly, it has been argued that social contract theory is more consistent with the contract law of the time of Hobbes and Locke than with the contract law of our time and that certain features in the social contract which seem anomalous to us, such as the belief that we are bound by a contract formulated by our distant ancestors, would not have seemed as strange to Hobbes' contemporaries as they do to us.<ref>Joseph Kary, "Contract Law and the Social Contract: What Legal History Can Teach Us About the Political Theory of Hobbes and Locke", 31 Ottawa Law Review 73 (Jan. 2000)</ref>