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In A New Foundation for Liberty I discussed the idea of governing by the consent of the people, and the manner in which technological advancements have made possible advancements in liberty as well. In The Consent of the Governed, I discuss the origins of modern government and the theory of the social contract, as implemented in the American revolution. In this article I discuss a method for establishing a government based on unanimous consent rather than coercion.
Let us began with a hypothetical island, population zero. Such an island needs no government. Add a single resident, however, and he becomes both citizen and government; there is no risk of dissent. Adding a second resident adds the potential for disagreement, however, and so that is where we begin to consider the problem of consent.
Suppose our first island resident owns the island. He can then decide whether to allow the second resident onto the island. For instance, he can specify terms, and agree to allow the second resident onto the island only if that second resident agrees to those terms. This mechanism obtains affirmative and informed consent from each new resident, with the terms set by the first resident. Even if the later residents buy part of the island from the first resident, they would still be bound by the terms of the original entrance agreement; the first resident has become a de-facto government, setting the terms of the social contract.
Suppose that his terms included the things we traditionally consider the realm of government: taxes on income, imports, and exports; assistance in enforcing the law against those who violate it; agreement to abide by the decisions of a legislative body in some form; agreement to pay fines or submit to imprisonment for certain crimes, if found guilty by a jury in a court of law. By that method we have obtained affirmative consent for each citizen living on the island to whatever form of government the original resident chooses to institute.
Such a government could be a tyranny as easily as a republic, though it might be harder to convince people to agree to live under the rules of a tyranny; the point is that this mechanism for establishing consent does not establish any particular form of government. The first step to a government of affirmative consent is to start from a blank slate, and permit only those who agree to be governed under the rules of the new government to enter the territory.
What about those who enter the territory without agreeing? In one sense they are outside the law; they have given no affirmative consent to the form of government in place. It would be ethically difficult to punish someone who has given no affirmative consent to the government in place (while modern governments do this routinely, it is the very problem we are attempting to resolve). Without their agreement they cannot be considered bound by the laws of the government; yet neither can they be allowed to harm others. .
One potential solution would be to specify that the legal protections of the social contract apply only to those who agree to that contract. Such a solution would put all uninvited "guests" outside the law, and subject to whatever the citizens felt was necessary. It conveniently deals with the problem of invading armies by making it legal for anyone to shoot back without fear of reprisal. But if applied to accidental visitors or those who are not truly malicious, it falls prey to the same problem of consent as normal government: how can a government based upon consent enforce its laws on those who do not consent to them?
The question of how citizens should behave towards non-citizens is easily included as part of the social contract. The obvious answer is to frame the laws set forth in the social contract as applying to people in general rather than exclusively to citizens. This will ensure that a resident can be punished, according to the terms they agreed to, if they break those terms with respect to a trespasser.
However, without having agreed to the conditions of residence on the island, such illegal residents would have no legal right to remain. They could thus be detained by the police or any property owner for trespassing and deported immediately; no trial necessary, unless they claimed to be a citizen. And, of course, if they did so claim, they would then be subject to the laws they had agreed to.
Children, however, are a more complex question. They are not settlers and they cannot be expected to provide affirmative consent until they reach an age appoximating adulthood. Neither can we practically deny them the protection and responsibilities of the legal system until that time. The United States government solves this problem with minor status; juveniles are considered under the care and authority of their parents until their majority, and their parents are generally responsible for ensuring that their children behave according to the rules of society -- which means paying the penalties for their children's crimes.
For the crimes typical of youth, that solution will apply on our hypothetical island just as well. The parents are responsible to the law, and the children are responsible for their parents. However, in some cases this principle is equally unjust; the parents should not be punished for a horrible crime committed by a near-adult child.
The solution is simple: the parents can escape punishment by choosing to disown the child. The child would then be given the opportunity to agree to the social contract and pay whatever penalties are specified by the law, or be deported as with any other unauthorized trespasser.
This procedure can be successfully applied to a child who has obtained adulthood. The child's parents disclaim responsibility for him or her, or the child proclaims his or her own independence from his family, and the child is given the opportunity to agree to the social contract or leave the island. By this means the consent of the child can be obtained when the child himself is ready, in his own judgement or the judgement of his parents. It neatly sidesteps the question of mental competence; such a matter is left to the parents to decide or the child to demand.
Clearly there remain corner cases in this framework (orphans, for example) that do not have a satisfactory resolution. Such cases are easily addressed by whatever legislature is in place.
Visitors could obtain permission to enter the country by agreeing to the social contract for the duration of their stay. Such temporary residents would be exempt from the requirements and privileges of full citizenship, such as military service or the vote, but would agree to obey the laws regarding the treatment of others.
If you're not sure why a government might wish to obtain unanimous consent from its citizens, read The Consent of the Governed and A New Foundation for Liberty. If you want to find out how a government could be implemented along these lines in a way that would maximize liberty, read Governing by Consent.