Online Library of Liberty

A collection of scholarly works about individual liberty and free markets. A project of Liberty Fund, Inc.

Advanced Search

William Paley dismisses as a fiction the idea that there ever was a binding contract by which citizens consented to be ruled by their government (1785)

The English moral philosopher William Paley (1743-1805) debunks the idea that there ever was a binding “contract” by which the inhabitants of a country ever “consented” to be ruled by their rulers:

Smoothly as this train of argument proceeds, little of it will endure examination. The native subjects of modern states are not conscious of any stipulation with the sovereigns, of ever exercising an election whether they will be bound or not by the acts of the legislature, of any alternative being proposed to their choice, of a promise either required or given; nor do they apprehend that the validity or authority of the law depends at all upon their recognition or consent. In all stipulations, whether they be expressed or implied, private or public, formal or constructive, the parties stipulating must both possess the liberty of assent and refusal, and also be conscious of this liberty; which cannot with truth be affirmed of the subjects of civil government as government is now, or ever was, actually administered. This is a defect, which no arguments can excuse or supply: all presumptions of consent, without this consciousness, or in opposition to it, are vain and erroneous.

But the original compact, we are told, is not proposed as a fact, but as a fiction, which furnishes a commodious explication of the mutual rights and duties of sovereigns and subjects. In answer to this representation of the matter, we observe, that the original compact, if it be not a fact, is nothing; can confer no actual authority upon laws or magistrates; nor afford any foundation to rights which are supposed to be real and existing. But the truth is, [294] that in the books, and in the apprehension, of those who deduce our civil rights and obligations à pactis, the original convention is appealed to and treated of as a reality. Whenever the disciples of this system speak of the constitution; of the fundamental articles of the constitution; of laws being constitutional or unconstitutional; of inherent, unalienable, inextinguishable rights, either in the prince or in the people; or indeed of any laws, usages, or civil rights, as transcending the authority of the subsisting legislature, or possessing a force and sanction superior to what belong to the modern acts and edicts of the legislature; they secretly refer us to what passed at the original convention. They would teach us to believe, that certain rules and ordinances were established by the people, at the same time that they settled the charter of government, and the powers as well as the form of the future legislature; that this legislature consequently deriving its commission and existence from the consent and act of the primitive assembly (of which indeed it is only the standing deputation), continues subject, in the exercise of its offices, and as to the extent of its power, to the rules, reservations, and limitations, which the same assembly then made and prescribed to it.

“As the first members of the state were bound by express stipulation to obey the government which they had erected; so the succeeding inhabitants of the same country are understood to promise allegiance to the constitution and government they find established, by accepting its protection, claiming its privileges, and acquiescing in its laws; more especially, by the purchase or inheritance of lands, to the possession of which, allegiance to the state is annexed, as the very service and condition of the tenure.” Smoothly as this train of argument proceeds, little of it will endure examination. The native subjects of modern states are not conscious of any stipulation with the sovereigns, of ever exercising an election whether they will be bound or not by the acts of the legislature, of any alternative being proposed to their choice, of a promise either required or given; nor do they apprehend that the validity or authority of the law depends at all upon their recognition or consent. In all stipulations, whether they be expressed or implied, private or public, formal or constructive, the parties stipulating must both possess the liberty of assent and refusal, and also be conscious of this liberty; which cannot with truth be affirmed of the subjects of civil government as government is now, or ever was, actually administered. This is a defect, which no arguments can excuse or supply: all presumptions of consent, without this consciousness, or in opposition to it, are vain and erroneous. Still less is it possible to reconcile with any idea of stipulation, the practice, in which all European nations agree, of founding allegiance upon the circumstance of nativity, that is, of claiming and treating as subjects all those who are born within the confines of their dominions, although removed to another country in their youth or infancy. In this instance certainly, the state does not presume a compact. Also if the subject be bound only by his own consent, and if the voluntary abiding in the country be the proof and intimation of that consent, by what arguments should we defend the right, which sovereigns universally assume, of prohibiting, when they please, the departure of their subjects out of the realm?

Again, when it is contended that the taking and holding possession of land amounts to an acknowledgement of the sovereign, and a virtual promise of allegiance to his laws, it is necessary to the validity of the argument to prove, that the inhabitants, who first composed and constituted the state, collectively possessed a right to the soil of the country—a right to parcel it out to whom they pleased, and to annex to the donation what conditions they thought fit. How came they by this right? An agreement amongst themselves would not confer it; that could only adjust what already belonged to them. A society of men vote themselves to be the [296] owners of a region of the world—does that vote, unaccompanied especially with any culture, enclosure, or proper act of occupation, make it theirs? does it entitle them to exclude others from it, or to dictate the conditions upon which it shall be enjoyed? Yet this original collective right and ownership is the foundation for all the reasoning by which the duty of allegiance is inferred from the possession of land.

The theory of government which affirms the existence and the obligation of a social compact, would, after all, merit little discussion, and however groundless and unnecessary, should receive no opposition from us, did it not appear to lead to conclusions unfavourable to the improvement, and to the peace, of human society.

About this Quotation:

Paley is regarded as one of the founding fathers of the theory of “utilitarianism” (the purpose of government is to ensure the greatest happiness of the greatest number of people in society) yet he is also a strong advocate of natural rights which is commonly assumed to be the opposite of utilitarianism. The explanation for this apparent contradiction lies in the fact that he thought the “end” of a political organisation was to ensure such happiness and the “means” to achieve this was the strict adherence to individuals’ natural rights to life, liberty, and property. This perspective changed in the 19th century when utilitarians like Bentham and his followers thought that utility could provide both the means and the end to achieve human happiness. In this quotation, Paley provides one of the greatest demolition jobs of the idea that governments derive their legitimacy from having the “consent” of the people they govern. From his utilitarian perspective, whether one obeyed the dictates of an existing government was purely “expedient” - did it or did it not protect one’s life, liberty and property adequately; if not, how expensive or dangerous was it to change this government for a new, more effective one. According to the Lockean (and other) theories of consent, since there were no actual historical examples of explicit “compacts” (agreements or contracts between rulers and the ruled), theorists invented the ”fiction” that there was a “tacit or implied” contract, which Paley rejects on three grounds: that the convention could not agree to everything in advance of the formation of the government and that therefore there were things which existed prior to government which it cannot revoke; that there is usually no “opting out clause” whereby “be it (the government) ever so absurd or inconvenient” the citizen could dissolve the political agreement which now binds him; and finally that every violation of the compact by the government (which were frequent in his view) “releases the subject from his allegiance, and dissolves the government.” At the end of the passage quoted, Paley also makes the astute observation that some states prevent their unhappy subjects from leaving, but does not make the equally important point that today, most states prevent unhappy citizens from other states from entering their jurisdiction.

More Quotations