Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs

In order to clarify just what a government is, I added the following material to Part III, “American Political Governments”, of The Foundations of HOAs. The complete Part III booklet can be found at Governments

Government is defined by a “social contract”, and CC&Rs define the new social contract (p.31 – 33)

The current view of the controversy that HOAs are governments make use of these similarities of purpose and functions between other legal entities and HOAs to argue that the homeowners association is not a government. However, since the “evidence” presented clearly demonstrates that governments and HOAs share these attributes, this comparison also serves the argument that a government is a business. This comparison argument, promoted by the pro-HOA special interests, places credence on the much quoted, yet archaic and misplaced 1946 Supreme Court holding (Marsh v. Alabama), “public functions” test that compared functions, services, and public access territories (the issue in this case was not about whether or not HOAs are governments, but on the application of free speech to company towns). It fails in face of the stark reality that state laws do not impose any such requirements on the incorporation of a town or village.

Given the prevalence of this misguided public functions test, I’ve repeatedly made use of a basic definition of government: a government is: “the person or group that controls and regulates the people within a territory.” While the functions and provided services of a government are shared with many other entities, both businesses per se and nonprofit organizations, this definition “separates the chaff from the wheat.” What has been absent from any debate on this controversial topic has been the subject of purpose: what is the purpose of the organization? Businesses per se, have a profit motive. Nonprofit entities have a multitude of purposes ranging from a purely educational focus to providing a united support group for a particular trade or industry or to providing some form of charitable assistance to the public.

The question to be addressed, and that has not been addressed, is: What is the purpose of government that distinguishes it from all these other organizational forms? If none can be found, then what is the point of a government? Can we really say that American government is a business like any other business? But, before we proceed any further, an examination of the loosely used term “government” or more precisely, “public government” is in order. After all, all organizations, if viable, have some form of government or governing body. Keeping it simple, a number of related definitions from Black’s Law Dictionary will clarify my definition of a government.

Under “government”, Black’s simple definition says: “The structure of principles and rules determining how a state or organization is regulated.” And, to clarify by what is meant by a “state”, Black’s speaks in the same terms of the differences in function that distinguishes an association from that of the state, and of the need to determine the “essential and characteristic” activities and purposes of a state. A state is a community of people established for “securing certain objectives . . . a system of order to carry out its objectives.” Nothing new here, but Black’s then goes on to say: “Modern states are territorial; their governments exercise control over persons and things within their frontiers.” And cautions not to confuse the “state” with other communities of people in other forms of organizations designed to accomplish other objectives.

With this understanding, we can now move forward to examine the distinguishing essentials and characteristics of public, or state government. And the answer to the question raised above can be uncovered in the political and democratic philosophies and fundamental principles written centuries ago, in the writings of Rousseau, Voltaire, Locke, Montesquieu, Thomas Jefferson, James Madison and the other Founding Fathers. In short, and stated simply, they are the surrender of the rights and freedoms possessed by man living in “the state of nature” (which is a long forgotten condition and environment, yet, unrecognized, is still a condition actively desired in today’s society), under a “social contract” that establishes the quid pro quo for this surrender.

Read more . . . American governments: HOAs under servitudes & Public government under the Constitution

Published in: on July 19, 2009 at 8:15 am  Comments (3)  

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  1. See earlier article (August 2007), “Alice in HOA Wonderland: recognizing HOA political governments”.

  2. […] The author advises that 1) “the HOA Observe the violation or receive the complaint. This represents the board’s introduction to the issue”, and 2) “Conduct a factual investigation of the alleged violation.”  But, isn’t this what the prosecutor and police do?  Isn’t the HOA acting as if it were a civil, but private, government?  Except, of course, as we all know, the HOA’s covenants (laws) and procedures fail to measure up to or conform those of public government. (For more detailed analysis of HOA government vs. public government, see Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs). […]

  3. […] And, shorter and more to the point about the role and function of public government, visit: Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs. Excerpt from the Brief: Conclusion: Arizona Schools are Failing at Core Academic Mission [emphasis […]

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