Governing by Consent

In The Consent of the Governed I explained why a Libertarian State might wish to obtain unanimous consent to the laws it seeks to enforce. In Obtaining Unanimous Consent I explained how this could be accomplished on a hypothetical deserted island, in a manner which could be applied to almost any form of government or territory; the only requirement is a blank slate within that territory (no other legitimate government authority, and no existing population). In this article I intend to explain what a government based on unanimous consent and libertarian principles might look like. This is a thought experiment rather than a specific proposal, so many areas are left vague. This is the nature of a libertarian government: limits are relatively few so that the processes are adaptable.

If a government intends to operate by consent, it needs some facility to know what its residents have agreed to on an individual basis, not merely what their representatives have agreed to. Computer technology has advanced sufficiently that this capability is now within our reach. It is now possible to build a secure system for registering contracts, a system that can ensure that signatures on those contracts cannot be faked or the terms of the contract changed (without mutual consent of the parties). I won't describe the technical aspects in detail; take it on faith that it can be done, and the technology to do so is publically available. Yes, there is a privacy tradeoff with this; I may write about that later.

So, assume that our government has the capability to record agreements between any two legal entities (a legal entitity is a citizen, a corporation, or the government). Assume it can do so for each individual citizen cheaply (much more so than a ballot referendum; more like mailing an agreement, and getting it back with a signature). Obviously the first agreement that will be recorded is the basic social contract; how can we structure that contract to support the maximum possible freedom while maintaining individual, affirmative consent?

The first element of the social contract is simple: new citizens must agree to all provisions of the social contract that all currently-existing citizens have already agreed to. This forms the core of the social contract: all provisions universally accepted become a requirement for all new citizens. Provisions that do not have universal acceptance are binding only upon those that agree to them, and new citizens need not agree to them in order to become citizens.

This core idea provides immense flexibility. The most basic elements of the social contract can be defined at the beginning of the nation, when only a few people need to agree. Those people have the opportunity to shape the legal system for those they hope to entice into their new nation. Yet, with so few people, if their terms are too onerous, no one will join.

Following the principle of liberty maximization, then, let us set down some basic principles for the initial contract (in simple terms):

• Thou shalt not murder, nor threaten murder.
• Thou shalt not steal, nor threaten theft.
• Thou shalt not injure, nor threaten to injure, any person, save in the defense of self or others against injury or murder.
• Thou shalt not interfere with the lawful actions of others, save to enforce the lawful judgement of a court.
• Thou shalt impose no obligation without the uncoerced consent of the obligated.
• Thou shalt abide by the lawful judgements of the courts, as rendered by a unanimous jury of 12 citizens selected at random, in accordance with the laws thou hast signed.
• The courts shall have the power, by unanimous vote of a jury, to nullify any contract deemed deceptive, or to which agreement was made under coercion or false pretenses.
• All contracts between private parties shall be subject to a yearly review by those parties, at which time any party may withdraw; but a penalty may be specify for the exercise of this clause.

This basic code of behavior covers, in broad terms, most of the serious crimes as understood by a modern nation, as well as securing an agreement to abide by the judgement of the courts. While this is not intended to be a working model, merely an example, there are simple subtleties to note:.

• "Murder" is distinct from "kill"; to kill accidentally, or in self defense, or in times of war, is not murder.
• "Steal" is distinct from "take property". If a citizen has agreed to a financial committment they refuse to follow, a court could enter a judgement ordering that goods or funds in the appropriate amount be seized, and the police could seize the goods or funds without violating the social contract. The offender in that case would have consented to the use of force, if necessary, to meet the obligations he voluntarily entered into.
• The prohibition against injury specifically includes the use of violence to enforce the law; the only exception is defense of self or others. Thus, a government agent has no power to do harm, only to enforce agreements without violence. Of course, if a citizen responds to an enforcement attempt with violence, it is just to respond in kind; and there are ample means available to apply force without inflicting injury.

Upon this foundation we can build the structures usually associated with government, and we can do it voluntarily. I will use the basic model of government provided by the United States Constitution, since it has worked reasonably well. So, with that understanding, consider a three-branch federal government (legislature, executive, and judicial) with regional subgovernments. The structure is the same as in the United States, but the purpose is subtly different.

The Executive Branch

• Nominate ambassadors and set foreign policy
• Administration of existing laws
• Administration of required infrastructure and personnel to implement laws
• Veto power over acts of the legislature
• Commander-in-chief of the military

The executive branch remains mostly the same, with the purpose being to administer the operations of government in general, to provide a figurehead for diplomatic purposes, and to operate as commander-in-chief of the military forces in wartime. As in the US, the head of the Executive Branch is the President, who has the power to sign a legislatively-passed law into effect (in other words, to set up necessary infrastructure; such laws are not binding on those who do not sign them) and to veto such laws subject to a 2/3rds override in the legislature. Elected by popular vote.

The Legislative Branch

• A single house of 100 members
• Declare war (with a 2/3rds majority)
• Overide Presidential vetos (with a 2/3rds majority)
• Propose laws by majority vote
• Ratify ambassadorial appointments
• Ratify treaties with foreign nations
• Issue subpeonas for investigative purposes

Unlike the traditional legislative role, legislatures in this form of government do not pass laws. Instead, they write proposed laws and pass them to the people, who choose to sign (or not to sign) as they wish. The primary distinction between a legislatively-passed law and a citizen initiative is that the legislatively-passed law could make use of government infrastructure; in particular, the executive branch (after the law is passed by the legislature and signed by the executive) can set up offices or other facilities to implement a law, whereas a citizen initiative would need to arrange its own infrastructure.

The legislature's role would be to initiate new laws for public signature and fine-tune the older laws. To create a new agency, for example, the legislature would write a law for public signature specifying the structure of the agency, any obligations that existed between the general public and that agency, and a funding mechanism. The executive would then set up that agency (according to the structure in the law) and the general public would have the opportunity to sign the law or refuse it. Only those citizens signing the law would be bound by the dictates of the agency, and only those signing would be obligated to provide funding. But based on the vote of the legislature, resources could be spent to establish the agency.

Ratification of ambassadorial appointments is straightforward; it does not confer upon the ambassador the power to make enforceable agreements. The ambassador is merely a negotiator. Similarly with ratification of treaties; even ratified treaties can be enforced only against those of the general public who sign the treaty themselves. As with proposed laws, however, the majority vote of the legislature is sufficient to set up infrastructure.

The Declaration of War serves a special function. As with other laws, it must be individually ratified before any individual can be bound by it; but the legislative declaration is sufficient to allow offensive action by the military or individual citizens without legal sanction.

Legislators are selected by contract, not by election; that is, individuals sign contracts stating that a particular person is their chosen representative. The 100 people with the most signed contracts at the start of each legislative session constitute the elected legislature for the duration of the session.

The Judicial Branch

The judicial branch revolves around the concept of a jury. Rather than judges interperting the law, the jury itself directs the trial by majority vote, with a lawyer of their own provided (at the cost of the court system) to advise on points of law. Prosecution and defense lawyers are provided by the parties, if desired, or the court system if not. Expert witnesses, if any are required, will be selected by the jury and paid equally by all parties. The relevant law for the trial is the agreements both parties have signed.

The result of the trial is a verdict. If the verdict is signed by all three parties, indicating an agreeable resolution, they are bound by the verdict and share court costs equally; if it is signed by one party and the jury, the non-signing party is responsible for all court costs; if the suit is withdrawn (eg, a settlement) then the party that brought the suit is responsible for costs. The appeals process is best designed by the legislature to match the real conditions of the chosen territory.

The primary benefit of this system is to place power in the hands of the jury, rather than the judge. Rather than laws being written for a judge to interpert and lawyers to twist, laws would be written for juries to read, understand, and apply.

Local Governments

Local governments are formed by the simplest possible means: collect a group of contiguous landowners and have them sign a contract, similar to a state Constitution, that defines the rules for that local government. If you want to expand the territory, get the landowners on your borders to agree to the contract. One of the rules of the contract should be that no one can sell land or rent a residence to anyone who does not, as part of the transaction, sign the local government contract.

Such a government would have no special power over visitors, but would have whatever powers the contract granted over residents that did not violate the foundation contract itself, for so long as the resident remained a resident. Those who desired could form a religious community, a Moslem enclave, a communist commune... whatever they desired and could sustain. Those subject to the government could free themselves from the agreement by moving their place of residence elsewhere, and if the government failed, then the contract could be dissolved by unanimous consent of the landowners.

What are the benefits of this form of government?

First and foremost, liberty. Unlike all previous forms of government, no one is coerced. All obligations incurred are voluntarily agreed to.

Second, inertia. The larger a government becomes, the more difficult it is to enact a universal law; the more universal laws there are, the harder it is for a new citizen to join. This turns the current balance of power on its head; under a representative system, the larger a government becomes, the more vulnerable to corruption and collectivism it is, because each individual has a smaller voice in the whole; under a system based on consent, each law is individually evaluated for the personal situation of each individual.

Because new citizens (including children of present citizens) are asked to evaluate and consent to the entire social contract, a system that does not work well will not grow. Consent to the system of government is not assumed, but granted only after sober reflection by a mature adult. The growth of malignancy is halted, as no one will consent to a hostile form of government; they will instead choose the best government under which to live. Choice, over coercion.

Third, efficiency. Anyone can write a "law" and circulate it for signatures. Good laws will succeed in the free market; poor ones will fail. Government services have a natural framework for competing privately-managed providers, creating competition within the government itself.

Fourth, honesty. The legislature has the power to propose, not the power to rule. There is relatively little advantage to expending effort on convincing (or bribing) a legislator; you have to convince each individual to agree before they are bound by anything you can get a legislator to pass. And if a corrupt actor manages to persuade a legislator to slip in a loophole or the like, people will stop signing the proposed contract once the loophole gets out.

Fifth, stability. Once a basic legal code is laid down, change is slow and gradual. Any new proposal will be operating within a pool of first-adopters long before the rest of society considers the proposal. If there are problems lurking within the proposal, they will become apparant as more people sign -- and that will slow adoption.

Sixth, adaptability. The executive and legislative branches allow for a rapid response to problems or threats as they appear; technology allows a new proposal to be written and proposed to the people very rapidly. Implementation of the proposal can begin at once for those who sign. Yet the rapidity of response is not coercive; those who prefer to sit on the sidelines can do so.

Seventh, diversity. Many different systems can be built on top of the same basic social contract. For any problem facing the nation, people can look at different communities and observe how each community dealt with the problem -- and whether the solution worked.

What are the potential problems?

Among many others, there's no bill of rights. We had that argument when we wrote the Constitution of the united States, so such a bill should probably be included in the foundational contracts of this government. However, that is a topic that I will address at a different time.

How can government be funded voluntarily?

Simply include a funding measure for basic operations in the founding document, of course. I have not done so because there are so many options, and which one you use depends on the specific situation in which your government needs to operate. However, one obvious source of funding is a registration fee for contracts that you wish enforced by the government, either a flat fee or based on the value of the contract. This mechanism ensures that those making the most use of the system are also contributing towards its upkeep.

Conclusion

This essay is designed to provide a basic insight into the organization of a theoretical government based on the principle of unanimous consent. Consider it a thought experiment; one that has time yet to evolve. Most likely, nothing will come of it. But just in case, if you like the idea, please leave an encouraging comment.