Can Government Create an Obligation Without Your Agreement?

A familiar proposition runs through a great deal of popular legal writing: an obligation binds a person only if that person agreed to it. No signature, no contract; no contract, no duty. On this view, any demand that a person never consented to, whether a tax, a summons or a regulatory requirement, is either unenforceable or rests on some hidden agreement that the person can identify and withdraw from.

The proposition deserves a serious answer, because it contains a real insight and a real confusion. The insight is that consent is the foundation of one important category of obligation. The confusion is the assumption that it is the foundation of all of them. The question is best answered by looking at how the law itself has classified obligations, which it has done in recognisably similar terms for roughly fifteen centuries.

The oldest classification

The Institutes of Justinian, the sixth-century teaching text of Roman law that shaped the civil-law tradition and influenced the common law's vocabulary, defines an obligation as "a legal bond, with which we are bound by a necessity of performing some act according to the laws of our State." The definition is notable for what it leaves out. It does not say the bond must be accepted. It says the bond exists according to law.

The Institutes then divides obligations into four classes: those arising from contract, from quasi-contract, from delict (a wrong) and from quasi-delict. Only the first rests on agreement. The text is explicit that the others do not. In its treatment of quasi-contract it gives examples: a person who manages another's affairs in his absence, without being asked, creates obligations on both sides, and the absent owner is bound "even though he knows nothing" of it; a guardian and ward owe one another duties arising from the guardianship rather than from any bargain; co-owners who hold property in common without any partnership agreement are bound to one another by the fact of common ownership; and a person who receives money paid by mistake is obliged to return it "exactly as if he had taken a loan." Obligations from delict, the Institutes says, "originate in some act, that is to say, in the delict itself," such as theft or wrongful damage.

That framework is not a modern invention designed to defeat the consent argument. It is one of the oldest systematic statements of legal obligation in the Western tradition, and it already recognized that agreement is one source among several.

The strongest version of the consent argument

Put at its strongest, the consent argument is not a misreading of contract law but a claim about legitimacy. Between private equals, obligations should rest on agreement, and the law's insistence on offer, acceptance and consideration reflects that principle. Many obligations that look non-consensual can also be traced to some voluntary act: a person who owns land, earns income, operates a vehicle or enters a trade has chosen to do something to which the law attaches consequences. On this reading, the duty is not imposed from nowhere; it follows a choice, and a person who wishes to examine the duty should examine the choice that triggered it.

That second point has genuine force and is worth keeping. But it does not establish that the resulting duty is contractual. A person who chooses to drive does not thereby agree to every rule of the road; the rules apply because the law attaches them to the activity. The voluntary act is the trigger, not the source.

Sorting the sources of obligation

Modern law preserves the old categories, with some additions. It is useful to separate them.

Agreement. Contractual obligations do require assent, along with the other elements contract law demands. Here the consent proposition is correct, and the archive's discussion of how contractual obligations are defined in federal law traces that structure.

Wrongs. Liability for injuring another person or damaging property arises from the conduct itself. The person who causes harm has not agreed to compensate the victim, and the law has never required that he should. This is the Institutes' delict, now called tort.

Unjust enrichment. The mistaken payment in the Institutes remains the classic example. The recipient never promised to return the money; the obligation exists because retaining it would be unjust. Lawyers call this restitution or quasi-contract, a label that itself signals the obligation is treated "as if" there were a contract when there is none.

Status and relationship. Duties of parents, guardians and fiduciaries arise from a position, not a bargain. The Institutes' guardian is the ancestor of a large body of modern law on this point.

Property. Ownership carries obligations to neighbors and co-owners that no one negotiated. The Roman co-owners bound by "the mere fact of common ownership" have many modern descendants.

Public duties. Statutes impose duties directly. Federal tax law provides that a person required to file a return "shall, without assessment or notice and demand from the Secretary, pay such tax" when the return is due (26 U.S.C. §6151(a)). Federal jury law provides that a person summoned for jury service who fails without good cause to comply "may be fined not more than $1,000, imprisoned not more than three days, ordered to perform community service, or any combination thereof" (28 U.S.C. §1866(g)). Neither provision asks whether the person agreed.

What the courts have said about taxes

The point was put directly in Meriwether v. Garrett, 102 U.S. 472 (1880). In an opinion by Justice Field, joined by Justices Miller and Bradley, three members of the Court wrote: "Taxes are not debts. ... Debts are obligations for the payment of money founded upon contract, express or implied. Taxes are imposts levied for the support of the government, or for some special purpose authorized by it. The consent of the tax-payer is not necessary to their enforcement. They operate in invitum." The phrase in invitum means against an unwilling party.

Two cautions apply. First, that passage appears in an opinion speaking for three Justices, not in a majority holding, and should be cited as such. Second, the distinction it draws actually supports part of the consent argument's intuition: taxes are different from contract debts precisely because they do not rest on agreement. The disagreement is not over whether taxes are consensual. Everyone agrees they are not. It is over whether a non-consensual obligation can be binding, and the long record of the law is that it can.

Individual consent and political consent

The more interesting question lies one level up. American constitutional theory does speak of the consent of the governed, and statutes are made by representatives chosen through elections. That is a theory of collective, political consent: the community authorizes its government, and the government enacts laws binding on members who did not individually agree to each one. Whether that account is philosophically adequate is a question political theorists have argued over for centuries, and it is fair for readers to find it more or less persuasive.

But it is a different question from the one the popular proposition asks. The legal system does not treat individual agreement as a precondition of public duties, and nothing in the classification of obligations, ancient or modern, suggests that it ever did. A person who argues that a statutory duty is invalid for want of personal consent is therefore not applying a neglected rule of law. He is advancing a political theory that the law, as it has actually operated, has not adopted.

What can reasonably be concluded

Consent is essential to contractual obligation and to nothing else as a matter of definition. Obligations also arise from wrongs, from unjust enrichment, from status, from property and from public law, and the Institutes already recognized most of these categories in the sixth century. The consent argument is right that many such duties attach to something a person chose to do, and right that taxes and contract debts are different in kind. It goes wrong when it treats the contractual model as the only model.

The archive's related entries on how responsibility is assigned without negotiation and on when obligation exists without negotiation follow the same thread from different directions.