A common, yet misguided, critique of contractualism is that because there is no explicit contract between citizens and the government, we cannot examine this relationship through a contractual lens. With the exception of immigrants, the laws of a state are imposed on citizens, who lack the power to modify or reject them. These agreements wouldn’t be enforceable for our market transactions, some of which tediously ask us for several signatures on several documents, so they shouldn’t be enforceable for our agreement with the government. Unless we had personally been at the drafting of the constitution, or at least assigned someone on our behalf, the laws of the country shouldn’t apply to us.
And this is not a fringe perspective. In a letter to James Madison, Thomas Jefferson even stated:
Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.
Yet this rests on the fallacious idea that all contracts are explicit. Rather, our common law has a well-developed doctrine of implied (or if you prefer, forced) contracts.
For example, if a contract is incomplete, but has enough terms to show that a contract was intended to be made, a court can make up terms that would be binding on both parties, even if neither party would actually agree to those terms. If you are engaged in a business enterprise with another person but don’t have a partnership agreement, a court can subject you two to all the rules of partnership law. If you die without a will, a court will make a will for you, even if the result would make you roll in your grave. If you divorce your spouse without a prenuptial agreement, a court has that covered as well, regardless of animosity or adultery. And if you accidentally burn someone’s house down, then congratulations, you just bought that house and will be in a court case to determine the price (or as it's called in tort law, damages).
In some areas of law, a court will impose its rules even if it goes against the explicit terms of a contract. So if you’re a business executive, you can’t contract around your duty of loyalty and good faith to the company. You can’t sneak in a term that would grant you the powers to engage in fraud. Reasonable people would simply not agree to certain terms, so something like South Park’s Humancentipad would not be enforced by a judge.
Our law doesn’t just enforce agreements but creates new agreements. And to create new agreements between parties, courts don’t look at what those two specific parties would agree to, but what reasonable people would agree to, creating rules that would apply to everyone.
And rulemaking can get meta. Sometimes the terms of these forced contracts aren’t even made by legislatures, the branch explicitly tasked with drafting laws. Sometimes, they are “discovered” (invented) by judges and administrative agencies, through applying (hopefully) what is a reasonable interpretation of the laws to create more specific rules.
A libertarian may consider this overreach and interpret this behavior as typical government meddling for its own self-interest. But the laws of implied agreements have been developed for a reason.
Often, there would be some sort of dispute between two parties who had some sort of agreement (like a merchant contract), and there would be some sort of dispute that can’t be resolved by the explicit terms of the agreement (like a warranty). So the court imposes some sort of terms that it hopes reasonable people would agree to (like the implied warranty of merchantability) that would ideally resolve the issue. The government imposes a contract based on what reasonable people would agree to, and contracts continue.
Picture the alternative: every time there was litigation between parties on an issue not explicitly addressed in the contract, the judge just throws the case out of an unwillingness to impose new terms. We’d have much longer contracts, fewer transactions, and richer lawyers.
Yet say you are not bought and still believe that contractualism can’t be right because you didn’t sign anything. The government didn’t sign anything with you either. Imagine the implications if that means your relationship with the government is purely voluntary. An administration can come to power, realize that no natural-born citizen actually formally accepted the US constitution and all the laws arising from it, and therefore can determine that all the rights of citizens and obligations of government are non-binding. If you didn’t sign on to your First Amendment rights, what is stopping a government from respecting them? If contractualism is wrong because of the absence of an explicit agreement, then it's like we are all renting an apartment without signing a lease, and are subject to eviction at the whims of the landlord.
One solution might be that upon reaching the age of consent, each individual would negotiate with a government representative to determine their rights and duties. Everyone would have their own constitution, which would set out their complete relationship with the state, including what rights they’ll have, the amount of taxes they’ll pay, and how fast they can drive on public roads. We can call this the “personal constitution negotiation.”
A substantial critique would be the administrative costs of that kind of arrangement. But the government can provide most people with a custom, boilerplate agreement that matches our current laws, while allowing anyone who is passionate and lawyered-up enough to negotiate with a government representative for their own deal (say, giving up their 5th amendment rights from unreasonable searches and seizures in exchange for being free from securities regulations).
Meanwhile, the government may also want to pursue custom agreements from certain people they find undesirable to deal with. For instance, if someone is considered to have a high risk for criminal behavior, the government may want to negotiate for that person to have less rights than the typical contract (like including a term stating “must wear an ankle bracelet at all times”).
People the government considers to be more desirable to deal with would be given more rights and abilities than people who are deemed less so. This is the case in the market, so why not with the government?
Custom legal agreements already exist to some extent, like companies negotiating tax breaks from states and localities in exchange for doing business with their constituents. However, despite this procedure being ideal from a libertarian perspective, we understand this procedure to be wrong in an important sense.
The government would want to base its contracts on information from its citizens, like IQ, personality traits, family wealth, gender, race, and anything else that the government might find relevant. But from a moral perspective, these traits are arbitrary, reflect only power, and therefore just laws would not take these factors into account. Not at least without a very strong and of course, reasonable, justification.
But this is resolved by John Rawls’s thought-experiment of parties creating principles of justice from an original position under a veil of ignorance. As many are familiar with, John Rawls in his 1971 book “A Theory of Justice” argued that his two principles of liberty and equality would be developed by rational, moral parties in the original position. This is best summarized by the SEP’s entry on Rawls:
The original position is a thought experiment: an imaginary situation in which each real citizen has a representative, and all of these representatives come to an agreement on which principles of justice should order the political institutions of the real citizens. This thought experiment is better than trying to get all real citizens actually to assemble in person to try to agree to principles of justice for their society. Even if that were possible, the bargaining among real citizens would be influenced by all sorts of factors irrelevant to justice, such as who could threaten the others most, or who could hold out for longest.
Without the original position, justice would be determined by bargaining power rather than reason, realizing Thrasymachus’s argument in Plato’s Republic, where justice is “nothing but the advantage of the stronger.”
Our relationship with the government should not be based on an actual, explicit contract, but an agreement that is reasonable, impartial, and universal.
Basically, the only just agreement you can have with the government is one that doesn’t take any of the above characteristics into account and would be based on something akin to pure reason. And this makes intuitive sense. When we advocate for certain laws, we understand that they would be applied universally and without their application being determined by characteristics like personality type and IQ. This is despite the fact that different people would pursue and receive different agreements from the “personal constitution negotiation.”
The above paragraph is why most people are contractualists to some extent. In my view, contractualism combines the freedom of libertarianism and the welfare gains of utilitarianism. I’ve yet to see a thought experiment that contractualism can’t get at least partway to an intuitive resolution. But if you have any critiques of contractualism, I’d be pleased to hear them.