Implicit Contracts as an Argument Against Evictionism?

The first time I encountered the argument that there exist implicit contracts between mothers and their fetuses that make it so the mothers do not have the right to evict the fetuses from their bodies was when Mark Stoval made the argument in his post, “Murray Rothbard and I Disagreed on Abortion and Child Abandonment.”

I recently encountered the argument again in Jakub Wisniewski’s essay, “Response to Block on Abortion, Round Three,” and felt the need to respond more clearly, since I still do not believe the argument succeeds. Wisniewski writes:

[Walter] Block tries to show the supposed untenability of my reliance on the principle of pacta sunt servanda on the grounds that “at the time of intercourse (…) there is no one for the voluntarily pregnant woman to have a contract with!” True, but why should we treat intercourse rather than conception as the moment at which the relevant, binding decisions take place? since, obviously enough, no contract (even an implicit one) can be made with the fetus before it comes into existence, it seems only natural to think of the moment at which it comes into existence–i.e., conception–as the moment at which the mother, who voluntarily invites a new potential human being into her womb (i.e., voluntarily allows it to appear there), makes an implicit contract with it. Block’s attempt to portray intercourse as the relevant point of focus appears to involve a significant mischaracterization of the situation.

But the mother does not necessarily “voluntarily invite a new potential human being into her womb (i.e., voluntarily allow it to appear there)”, even if she did have consensual intercourse. At the moment of conception and perhaps the moment right before conception, the mother may be thinking, “Oh no, there are sperm cells and an egg cell inside me. I hope they don’t fuse and form a human being because I don’t want a human inside me. If I could do something to prevent a human from appearing inside me I would, but it is out of my control whether the sperm and egg fuse together or not.”

It’s clear that she’s not inviting a human inside her (i.e. voluntarily allowing it to appear inside her) since she is explicitly stating that she doesn’t want the sperm and egg to fuse together (i.e. she doesn’t want a human to appear inside her) and since she can’t control whether or not the sperm and egg happen to fuse together and cause a human to appear anyway.

So I disagree with Wisniewski’s position that whenever a woman has consensual intercourse and gets pregnant, she makes an implicit contract at the time of conception with the new human in which she agrees to carry the fetus to term.

Allow me to make the argument again in the form of a hypothetical conversation between Wisniewski and a woman for the sake of clarifying the argument:

Woman: I recently voluntarily allowed some sperm cells into my body. Currently they are moving around and there is a chance that one of them will fuse with an egg cell and form a new human being. There is nothing I can do to prevent one of them from fusing with an egg cell causing a new human being to form. If a sperm and egg do fuse together forming a new human, I will evict the human from my body.

Wisniewski: But that would be unjust to evict the human from your body.

Woman: Why would it be unjust?

Wisniewski: Because you would have formed an implicit contract with the human in which you agreed not to evict it from your body.

Woman: When would I have made this contract?

Wisniewski: At the moment of conception.

Woman: But I am saying right now that I don’t want the human to appear inside me and that I don’t agree to let it stay inside me if it happens to appear. And soon, when the moment of conception arrives (assuming it does arrive), my will won’t be any different. So how can you say that I would make an implicit contract with those terms if I am explicitly stating now that I do not agree to the terms of the contract and if at the time you say the implicit contract is made I am still explicitly stating that I do not agree to the terms of the contract?

Wisniewski: That’s a good question. Maybe my argument is mistaken. I think I might have assumed that the fact that you consensually had intercourse means that you would later (at the moment of conception) agree to have the human appear inside you. But now that you point out that it does not make sense to say that a person makes an implicit contract if that person is explicitly stating (at the time that the alleged implicit contract is made) that they don’t agree with the terms of the contract, I realize that this was a false assumption.

So in summary, I disagree with Wisniewski’s position that an implicit contract between the mother and new human obliging the mother to carry the fetus to term is made at the time of conception.

However, I am not sure that I fully agree with Walter Block. In Wisniewski’s essay, “A Critque of Block on Abortion and Child Abandonment,” he writes:

Further, he [Block] denies that the voluntariness of the pregnancy obliges the woman to carry the fetus to term; such an obligation could stem only from there being an implicit contract between the two, and Block denies the existence of any such contract on the ground that one cannot consent (even implicitly) to any decision made before one came into being.

While I agree with Block that no such contract (even an implicit one) between the mother and fetus exists (as I argued above), I disagree with Block in that I don’t think that such an obligation for the woman to carry the fetus to term could only stem from a contract between the mother and fetus.

For example, could such an obligation not also stem from a contract between the mother and father? The father could say, “I will not have intercourse with you unless you contractually agree that if you get pregnant as a result then you will carry the fetus to term (unless doing so threatens your own life, etc.).”

If such a contract is legitimate, this would not mean that all evictions should be illegal, because it would not necessarily be the case that all fathers and mothers would make such a contract. However, for those possibly-soon-to-be-fathers concerned about eviction, they could make contracts like this with their partners and if their partners ended up becoming pregnant they would not have the right to evict their fetuses.

The Hard Case: Why Electing Anarchists Is Counterproductive

Note: I no longer agree with this thesis. I am currently very confident it is wrong. See the updates at the end.

Many anarchists—especially voluntaryists—believe that it is obvious that electing anarchists to political office is a counterproductive strategy for achieving a free society. For example, voluntaryist Wendy McElroy writes, “Political offices are the State. By becoming politicians libertarians legitimize and perpetuate the office. They legitimize and perpetuate the State.”

In contrast, other anarchists believe that voting for anarchists or even “libertarian minarchists” (a contradiction of terms) certainly can help the cause of a free society. In fact, anarcho-capitalist Walter Block apparently believes that participation in electoral politics is so crucial to achieving liberty that he recently went so far as to accuse Wendy McElroy of not being a libertarian due to her opposition to a Ron Paul presidency.

Block wrote, “How, then, can I call into question her libertarian credentials? I do so on the ground that she is a bitter opponent of the Ron Paul presidential campaign, and this is the last best hope for liberty, as I see matters.”

I am not at all sure why Block sees the Ron Paul presidential campaign as “the last best hope for liberty.” Is he saying that if we lived under a non-democratic government then we would not have much hope at all of achieving liberty (a free society) simply because we would not be able to elect rights-respecting libertarian politicians? Since when is our freedom dependent on our ability to elect nice rulers?

It seems to me that we should be trying to get rid of rulers, not trying to get nice rulers. You might say that there’s no reason why we can’t try to do both, but then you have to answer McElroy’s and others’ arguments that this is impossible using political methods. It’s impossible because voting for nice rulers actually helps to perpetuate the delusion that there is such a thing as a legitimate ruler by perpetuating the delusion that voting for people can magically give them the right to commit aggression (rule).

Wendy McElroy makes this point in her essay Why I Would Not Vote Against Hitler:

The power of the state does not rest on its size – the number of laws on the books or the extent of the territory it claims. A state’s power rests on social conditions, such as whether people will obey its laws and how many resources it can command to enforce obedience. A key social condition is how legitimate the state is seen to be. For without the veil of legitimate authority, the people will not obey the state, and it will not long command the resources, such as taxes and manpower, that it needs to live.

In other words, freedom does not depend so much on repealing laws as weakening the state’s authority. It does not depend – as political strategists expediently claim on persuading enough people to vote “properly” so that libertarians can occupy seats of political power and roll back legislation. Unfortunately, this process strengthens the institutional framework that produced the unjust laws in the first place: it strengthens the structure of state power by accepting its authority as a tool of change.

McElroy’s last sentence explains why voting for nice rulers actually hurts the cause of a free society by legitimizing the state and the democratic process that makes people erroneously believe that there is such a thing as a legitimate ruler.

For those who are still unsure why voting legitimizes the state and rulers’ acts of aggression, I will explain it in more detail below.

Perpetuating The Delusion Of Rightful Rulers

Most people hold the delusion that people can gain the right to commit aggression (rule) by receiving a majority of votes in elections. This is why we call the government a government rather than a mafia. It is a legitimized mafia due to this widespread delusion that voting for people can give them the right to rule.

As libertarian anarchists we recognize this delusion as being completely false. In reality we know that voting doesn’t matter: voting has no effect on what actions people can legitimately or morally take. But, because the deluded believe that voting can give people the right to commit aggression they regard voting as something that does matter very much.

When you, an anarchist, vote in an election, the deluded people notice your action, see that it is consistent with their delusion that voting matters, and hence continue to believe that voting can give people the right to commit aggression. Thus, the voting anarchist perpetuates this delusion that voting matters—that voting really can give people the right to commit aggression—and hence perpetuates the state, hurting the cause of a free society.

When you refuse to vote, however, the deluded people notice your action and see that it is not consistent with their delusion that voting matters. If voting really did matter—if whoever received the most votes really did gain the moral right to commit aggression—then you would vote. But, you refuse to vote. Consequently, the deluded are forced to question their belief. Of course it’s possible that they could dismiss your act of non-voting by saying that you choose not to vote out of apathy. But, assuming that they know that you are not apathetic, your choice to not vote is very unsettling to them, at least compared to the choice to vote which would not make them think twice about their delusion that voting matters.

As I said earlier, in order to achieve a free society we should be trying to get rid of rulers, not trying to get nice rulers. If it is true, as I have argued, that while trying to get nice rulers through participation in the electoral process we are actually helping to keep rulers, then we really should stop participating in the electoral process. We should never vote nor run for political office.

For those who doubt my above argument that voting necessarily hurts the cause of a free society by perpetuating the delusion that voting matters—that voting can give people the right to rule—consider the following thought experiment that I came up with based on Wendy McElroy’s essay Why I Would Not Vote Against Hitler. I know that it is very unrealistic, but I think it still illustrates my point.

Why I Would Not Cast The Deciding Vote For A Consistent Libertarian Anarchist Against Hitler

Imagine that everyone has already voted except you. Everyone in the geographic region claimed by the government is sitting on the edge of their seats watching to see what choice you will make (even the anarchists this time!). Are you going to vote for Hitler, the consistent libertarian anarchist, or not vote at all? For the sake of making this thought experiment even more extreme let’s say that if you refuse to vote then, rather than be a tie, Hitler will win. Thus, assuming you’re not going to vote for Hitler, you can either vote for—and successfully elect—the consistent libertarian anarchist or you can choose not to vote and let Hitler win. What do you do?

It’s a no-brainer: you vote for the consistent libertarian anarchist so that nobody’s rights get violated. Most people are deluded into believing that whoever receives the most votes also receives the right to commit aggression (rule), so obviously you should vote for the rights-respecting, consistent libertarian anarchist so that no harm will come from this widespread delusion.

What? You thought I was going to say don’t vote? Why would you do that? Casting the deciding vote for a consistent libertarian anarchist (against Hitler of all people!) sounds like a dream come true. What could be wrong with it? Oh yeah, now I remember: The people will still believe that voting matters.

But, what if you didn’t vote? What if you refused to vote and let Hitler win? What if you just said, “Voting doesn’t matter. Whether I vote or not does not change what actions either of these two individuals can legitimately or morally take. Therefore, I refuse to vote so as to force you to question your long-held delusional belief to the contrary.”

Hitler wins. Are people going to blame you for allowing Hitler to gain the right to commit aggression or are they finally going to see their delusion for the utter insanity that it is?

Walter Block has it wrong. We’re trying to get rid of rulers, not get nice rulers. We’re trying to abolish government, not reform it. Our freedom is dependent on our ability to wake people up from their delusion that voting for people can give them the right to rule, not on our ability to elect nice rulers. That’s why a refusal to participate in electoral politics is the only path to a free society. Voting just makes people think that we don’t hate the state. But we do: we hate it to its core. Electing anarchists is counterproductive.

A Response To Rothbard

Hans-Hermann Hoppe once wrote:

It is necessary to recognize that the ultimate power of every government—whether of kings or caretakers—rests solely on opinion and not on physical force. The agents of government are never more than a small proportion of the total population under their control. This implies that no government can possibly enforce its will upon the entire population unless it finds widespread support and voluntary cooperation within the nongovernmental public. It implies likewise that every government can be brought down by a mere change in public opinion, i.e., by the withdrawal of the public’s consent and cooperation.

Murray Rothbard once said:

Let’s put it this way: Suppose we were slaves in the Old South, and that for some reason, each plantation had a system where the slaves were allowed to choose every four years between two alternative masters. Would it be evil, and sanctioning slavery, to participate in such a choice? Suppose one master was a monster who systematically tortured all the slaves, while the other one was kindly, enforced almost no work rules, freed one slave a year, or whatever. It would seem to me not only not aggression to vote for the kinder master but idiotic if we failed to do so.

Do not forget, Rothbard, that the vast majority of your fellow countrymen erroneously believe that this voting process makes the government’s rule over you justified and that without this widespread delusion of legitimacy the government’s rule would be impossible.

If the vast majority of your fellow slaves believed that your enslavement was justified because of this voting process and their belief was the only thing keeping you enslaved, would you vote? I wouldn’t—not on my life.

(UPDATE July 2, 2014: Hey Former-self, what do you mean, “not on my life”? =P My rhetoric and emotional appeals in this blog post are amusing looking back. Of course, once one understands the absolutely enormous damage caused by the widespread belief in political authority it’s easy to be extremely turned off by the entire political process.)

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UPDATE April 24, 2012: I no longer believe that electing anarchists is counterproductive. Instead I believe that voting for libertarians (even Ron Paul) can possibly be productive to the cause of a free society. This changed my mind. [Update: The link was to a Mises Forum post with a counter-argument from Graham Wright, the creator of the video Government Explained.]

UPDATE October 24, 2012: A slight correction on the April 24th update: Electing anarchists is not necessarily counterproductive–my argument in this essay that electing anarchists is counterproductive is wrong. But that does not mean that voting or trying to elect libertarians to political office does help the cause of a free society. And it certainly does not mean that such participation in the electoral process is an efficient strategy for achieving a free society.

My current view is that libertarians who participate in the electoral process probably are helping the cause of achieving a free society (meaning I don’t think their actions are counterproductive), however I think libertarians who do not participate in voting or running for political office may be helping the cause even more.

Let me also mention that I think the issue of voting is often treated by many libertarians (including both those who support participation and those who oppose participation in electoral politics) as though it were more important than it actually is. Half a year ago when I wrote this essay and was trying to make up my mind about whether I should vote or not I believed that the issue was a big deal. I believed that it was very important that I determine which act (voting or not voting) helped the cause of a free society more. But the truth is that the issue is not important. The act of voting and the act of not voting are both quite insignificant. If we were to observe people in the world and make a list of all the things they have done to help make the world a more just place, the acts of voting and not voting would both not be significant enough to include on the list.

UPDATE November 8th, 2016 11:30 AM CT: Today is Election Day. PredictIt gives Trump a 21% of defeating Clinton. This year I registered to vote and voted for the first time. I was persuaded by Robert Wiblin and others in the Effective Altruism community that my vote for Clinton in swing state New Hampshire has high expected value. The expected difference in outcomes between the two candidates is significant enough that the 1 in ~10 million chance of affecting the outcome of the election is sufficient to make it worth voting, perhaps even very worth it. So my view has again been changed on this topic. I now think that voting can be a pretty significant act.

That said, I would still agree with my above statement that “If we were to observe people in the world and make a list of all the things they have done to help make the world a more just [better] place, the acts of voting and not voting would both not be significant enough to include on the list.”

Although perhaps campaigning and getting hundreds if not thousands of others to vote well who otherwise would have voted poorly or not voted at all would make such a list.

A Reply to Orygyn’s “A Society Without Mandatory Tax”

The following is my reply to Orygn’s blog post A Society Without Mandatory Tax:

This is great to see. Far too many people just say “Society wouldn’t be able to function without government,” and then go on to continue supporting immoral initiations of force (taxation, etc) rather than put in the effort to learn about voluntary solutions to societal problems.

While Orygyn did say, “…if you posit that mandatory taxation is immoral, it falls to you to posit a society that can function well without it,” he also made a good effort to try to think of ways that various problems might be solved without coercive taxation, so I give him credit. Before I provide some information on this topic, however, I would like to correct what Orygyn said (quoted previously). Anarchists, libertarians, or other opponents of coercive taxation, do not have the burden to provide voluntary solutions to every societal problem that people hand them (see this brief article). You are right, however, that until voluntary solutions to social problems are widespread (and if they are not spread by lovers of peace, who will they be spread by?), there will be little chance that people will, on a large scale, stop supporting things like coercive taxation.

Note that I do not have answers to every question you might have about how people will be able to provide solutions to every societal problem without resorting to aggression. Before I became an anarchist I had a long debate with my friend for several months on this issue of how to solve certain social problems without government force. I was confident that certainly some aggression was “necessary” to deal with at least some problems. My friend, an anarchist, disagreed and he persevered for an unbelievable long time in our debate. I don’t think that I would have had the patience or dedication to make the intellectual journey myself. I only managed because I did not want to let my friend down by stopping answering his arguments, so I argued against him for months.

It wasn’t until I one day decided to go back and read some of our discussion from months earlier that I realized that many of the problems that I had previously believed to be unsolvable without government coercion, I now had answers to. Soon after that I decided that despite still having many unanswered questions, I knew enough that I could let go of my support of violence. Since that day I have learned a great deal more about ways in which problems can be solved peacefully rather than violently, but I still am far from having all of the answers. You can’t expect any one person to have answers to every problem that society faces. In reality, everyone in a free society would be working to come up with the best solutions to particular problems. No one person or small group of people can design a whole society. Once you become aware of voluntary solutions to a certain number of problems that you previously believed to be unsolvable without coercion, however, then I think you (Orygyn as well as anyone else reading this), like me, will be able to drop your belief that violence is necessary to solve problems. Government is not a necessary evil.