How HOAs Help Show You Don't Need Consent in Government

I posted the following comment at Cafe Hayek (slightly edited):

Since the time I read Machinery of Freedom on Professor Boudreaux’s recommendation, I've thought two things: 1. It was be great to have a government/society that did not coerce anyone, but derived its authority from the consent of all its constituents, and 2. there is no way to do this.

Mr. Hinkle tries to use his HOA example to draw a distinction between a government of consent (HOA) and government, which rules without its constituent’s consent. The example is not persuasive, mostly because this case he uses as a jumping point is some kind of anomaly. Owners do not sign a contract to abide by the CC&Rs when they purchase into a HOA; They are bound to the terms of the CC&Rs regardless of whether they assent. You could argue that when a purchaser buys the property that they know is subject to CC&Rs they assent to them. But there is no ability to negotiate the terms of the contract; the purchaser must take or leave the CC&Rs, just as an immigrant must take-or-leave the laws of the country he immigrates to. And what if a person is born to a family living in an HOA and later inherits the property? The person is still subject to the regulations in the CC&Rs. That situation seem no different to me than being bound to the laws of the country you were born in without ever having consented to those laws.

You could say, if HOA's/CC&Rs aren't consent to, then we don't need them! We'll just let property owners opt in and opt out of private law system created and enforced by private companies (the Protection agencies from the Machinery of Freedom.) But HOAs solve property right problems, and their CC&Rs must "run with the land" to do so. If I want to buy property in a neighborhood where people mow their lawns and cannot paint their houses bright pink, these obligations must run with the land. While current owners may agree to those terms, I have no assurance that subsequent owners will likewise comply unless the contract, like CC&Rs, bind future owners, too.

I agree with Professor Kling that HOAs are better than government, because they are generally small, and easier to escape if they get too oppressive. However, on the question of consent, I see no principled distinction between an HOA and government. Both bind all who fall within their territory, regardless of consent.

I made another comment at the Kling link.