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Consent Theory

In the Western tradition, perhaps the most familiar answer to questions of political obligation is a theory based on consent. This is a common feature of popular discourse and important public documents. For instance, according to the Declaration of Independence, governments derive "their just powers from the consent of the governed." In this chapter, we will examine this view in some detail, not only in order to understand consent itself, but also as an example of the considerations that support and undermine different theories of obligation.

Consent

The doctrine of consent first arose in late medieval times in connection with royal authorities' need to secure the agreement of other grandees to their plans or projects (Klosko 2011b). In a simple case, a king would summon nobles who would be asked to agree to a plan to raise taxes or undertake some war. Although the king would ordinarily have to make concessions in order to secure the nobles' consent, the fact that they had consented would strengthen his position. Similarly, according to a consent theory of political obligation, when people surrender their power to government, this is done on certain conditions. They enter into a contractual relationship with government - "the social contract" - agreeing to obey it as long as it performs the specific functions for which it was established.

Central to the idea of consent is change to the normative status of the persons to whom consent is given, generally by according them rights they did not previously have. Ordinarily, your taking my car without permission would not be justified, would possibly even be a crime. But circumstances would be different if I consented to let you use it. My consent would give you a right to use the car. As a general rule, consent must be given freely - on which more directly - and communicated to the relevant parties. Ordinarily, you would not acquire a right to use my car unless I somehow let you know that you had the right. In this respect, an act of consent is like a promise, as, ordinarily, promises too must be communicated to the parties to whom they are given.

Like promises and other "obligations" in the narrow or technical sense, moral requirements based on consent are imposed by individuals upon themselves. This is one of consent theory's chief attractions. The idea that people must agree to their obligations to government is supported by the great weight liberal political theory places on values of liberty and autonomy. As Harry Beran puts this, rights to self-determination should extend to political self-determination. People should be under political authority only if they put themselves under it (Beran 1987). Presumably because of its intuitive clarity, consenting to obey government is highly attractive as a means through which political obligations are assumed. According to John Locke, it is a basis that "[n]obody doubts" (1988 [1690], sec. 119). In his essay "Of the Original Contract," David Hume supports this view: where consent "has place," he writes, "[i]t is surely the best and most sacred of any." But Hume also notes that "it has very seldom had place in any degree" (1985 [1748], 474). As we will see, establishing that consent actually "has place" is the doctrine's chief weakness.

Like promises, consent to government is thought to bind only if certain conditions are met. We will focus on three conditions which are especially prominent. First, the promisor must not be forced to make the promise. She must do so freely, and so must have reasonable alternatives to making it. Second, she must be aware of what the promise entails. This includes such matters as exactly how the promise is made, to whom it is made, and to what it commits the promisor. Third, the promisor must be competent to make it. Generally, this includes age requirements, while similar restrictions hold in regard to various psychological conditions, including mental illness and intoxication. If any of these conditions is not satisfied, a given promise will not create a binding obligation. Accordingly, these conditions may be described as "defeating conditions," as failure to satisfy one or more of them will generally prevent a binding promise from being completed (Beran 1987, 5-9). Although various additional conditions could be noted, in general, if Abe makes some promise to Beth, we may presume that the promise is valid, unless it can be shown that one or more of the defeating conditions is present. As we will see, analogous defeating conditions play a significant role in the consent theory of political obligation.

The locus classicus for a consent theory of political obligation is John Locke's Second Treatise of Government, which is one of the most familiar accounts of political obligation in the liberal tradition. A brief look at Locke's doctrine provides an overview of both strengths and weaknesses of consent theory and reasons for its continuing relevance. According to Locke, people are by nature free. They originally exist in a state of nature, which is a situation without government. Because people are naturally free, nothing can remove them from this condition but their own consent (Locke 1988 [1690], sec. 95). People in this condition are subject to the law of nature. But because there is no authority to enforce this law, Locke subscribes to the "strange Doctrine" (sec. 13) that all men have the right to enforce it for themselves. While the state of nature is relatively peaceful, self-enforcement leads to conflict, and so people are willing to surrender this power and establish government, which they do by consenting to join together in political society and agreeing "to be concluded by the majority" (sec. 96).

The advantages of Locke's theory are apparent. In addition to its intuitive clarity, consent provides a clear basis for content-independence. In leaving the state of nature and consenting to be concluded by the majority, a given individual, Abe, undertakes an obligation to do whatever the majority decides - though not without limits, on which more directly. As noted above, this feature grounds political obligations that are comprehensive. Moreover, consent theory has the great advantage of accounting for what Leslie Green calls "the self-image of the state." As Green says, the state conceives of itself as a "duty imposer." By issuing directives, it is able to change people's normative status, to impose duties and other requirements on them, the content of which it alone determines (Green 1988, 86). The state's ability to do this follows from people's agreement to be concluded by what the majority decides. As Green also argues, other theories of political obligation encounter difficulties accounting for this feature of political obligations, which is presumably a strong reason for the continuing attraction of consent theory.

An additional strength of consent theory is its ability to explain exactly how the powers of government are limited. The scope of government's legitimate power is built into the terms according to which people consent. If government violates these terms or oversteps in other ways, it loses its powers and its subjects have various recourse. One reason for the continuing appeal of consent theory is its ability to justify taking action against governments that are viewed as unjust, as in Locke's Second Treatise and the Declaration of Independence.

At first sight, Locke's doctrine of consent provides strong protection for individual liberty. Political obligations require personal consent. One is not bound by the consent of one's father, or by the terms of an original contract made at the foundation of society. Each individual must agree himself (Locke 1988 [1690], secs. 116-18). However, although "express consent" establishes clear political bonds, Locke recognizes that few people consent in this way. And so he turns to what he calls "tacit consent," other actions that people perform that are capable of binding them.

The need for tacit consent is clear. In general, in modern societies, the only people who may be viewed as consenting expressly are naturalized citizens, who voluntarily move from country A to country B. If they become citizens of B, this ordinarily entails taking an explicit oath of obedience to their new government. In addition, in most cases, they can be taken to have moved voluntarily and voluntarily chosen to become citizens of B, thereby freely assuming obligations to B. But because naturalized citizens generally constitute only a small fraction of society, most inhabitants must be covered by tacit consent. For all intents and purpose, the consent theory of political obligation is a theory of tacit consent. As Locke views it, tacit consent is expansive:

And to this I say that every Man, that hath any Possession, or Enjoyment of any part of the Dominions of any Government, doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the Laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land, to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely traveling freely on the Highway; and in Effect, it reaches as far as the very being of any one within the Territories of that Government....