To have authority in the practical sense is not merely to have power over someone. To have power over someone is to have at one’s disposal the means to make that person do something-but authority requires something more: that the person subject to authority has a certain pro-attitude towards the person or institution that claims authority.
Authoritative directives are obeyed not because those obey them are fearful of punishment but because those obey them think that the directives should be obeyed by virtue their issuing from the authority.
By far the most widely discussed justification for political authority and obligation is what is often called consent theory or contract theory.
Consent theorists claim that we should obey the law because we have consented to do so. Consent theory is a type of volunteerism, because it says that our obligation to obey the law derives from a voluntary undertaking on our part.
Consent theory is often associated with the seventeenth-century English Philosophers Thomas Hobbes and John Locke and with the Eighteenth-century French philosopher Jean Jacques Rousseau. But the thought that we have consented to obey the law was first given currency by the Greek philosopher Plato, in his dialogue Crito (326 BC).
Plato recounts how Socrates was condemned to death by an Athenian court for corrupting the minds of the youth with his ideas. Whereas Socrates’ friends urge him to escape, Socrates himself refuses to flee and stays to drink the fatal hemlock.
Socrates argues, among other things, that his long residence in Athens constitutes an agreement to obey the laws of Athens. By living in Athens he has, in other words, consented to obey the law. He must therefore respect the court’s verdict and submit to his execution.
Consent theorists make two claims. First, they claim that, by consenting to obey the law, each of us can impose on ourselves an obligation to obey the law. Second, they claim that we have, in fact, consented to obey the law.
The first of these claims has generally been regarded as uncontroversial; it is the second claim that has provoked one of the liveliest and most enduring debates in the history of political thought.
Modern consent theorists follow Locke (1690; 1924) in making a distinction between express consent (also sometimes called explicit consent or active consent) and tacit consent (also sometimes called implicit consent or passive consent).
Express consent is the type of consent that we give when we expressly announce-in speech or in writing that we consent to something.
Tacit consent, on the other hand, refers to more subtle forms of consenting within which no express announcement is made.
Consent theorists argue that the fact that most of us have never said or written anything indicating our consent to obey the law shows only that we have not expressly consented to obey the law. It does not show that we have not tacitly consented to obey the law. Furthermore, they argue, we have tacitly consented to obey the law, by doing things such as voting in elections and even just by residing in a particular geographical territory.
Considerable confusion surrounds the distinction between express consent and tacit consent. That express consent is exemplified by acts such as uttering a statement of consent or signing a document is clear enough; what is not clear, however, is what such acts are supposed to exemplify and what type of acts they are opposed to. The distinction most often appealed to in this connection is a distinction between consent by action and consent by omission: express consent means consent by doing something, whereas tacit consent means consent by not doing something.
On this interpretation, an example of tacit consent would be remaining silent when the chair of a meeting announces that all who do not speak up at a particular time will be deemed to have consented to a particular proposal. The obvious problem with this interpretation is that at least one of the acts that consent theorists claim is tacit consent to obey the law-voting-is an act, rather than an omission.
Thus, although the distinction between consent by action and consent by omission might help to illuminate the variety of ways in which consent can be given, it is not particularly relevant to arguments for consent theory.
In order to unlock the distinction that is relevant to these arguments, consider the types of the act that count as express consent: saying, ‘I consent to X’, signing a document, etc. These are all fairly trivial acts that serve no particularly useful purpose other than in their role as consent. If these acts did not count as consent, there would rarely be any reason to perform them-and there is a good reason for this.
Suppose that acts of express consent could include useful acts such as eating, playing football, breathing, and telling someone one’s name-acts that we might well have a reason to perform other than in order to consent. In such a scenario, we would end up consenting to things not because we wanted to consent, but because we could not avoid consenting in order to eat, play football, etc. Either that, or we would have to refrain from performing these useful acts in order to avoid consenting.
If, on the other hand, only acts with no useful role are selected to serve as acts of express consent, then we do not have to avoid performing useful acts in order to avoid consenting. With this restriction in place, we can be sure that when someone performs an act of consent, he or she does so because he or she wants to consent and not merely because he or she wants to perform that act.
The problem for consent theorists is that the two acts that they want to say are acts of consent to obey the law-voting and residing-are both useful acts. As such, they cannot count as acts of express consent without running into the problem just discussed. Tacit consent provides a way out, however, because acts of tacit consent can be useful acts. But (and it is a big but) not just any acts can qualify as tacit consent. An act can only qualify as tacit consent if it would normally be prohibited to the person who consents, because someone has a right that they not perform the act without thereby consenting.
The right holder grants an exemption from the prohibition only on condition that, when the act is performed, consent is automatically given.
for example, a customer in a restaurant tacitly consents to pay 80, for his or her meal by eating the meal. Unless eating the meal counts as consent to pay for the meal, then he or she should not have eaten it. The dish belongs to the owner of the restaurant and he or she has a moral right that, unless the customer thereby consents to pay for the meal, he or she should not eat it.
Why the requirement that acts of tacit consent must be acts that would be prohibited unless specified as consent? Because this requirement allows us to get around the problem that arises, as we saw above, with useful acts counting as consent. Acts of tacit consent are acts that the person who consents would not have been permitted to perform anyway, had the act not been specified as consent. As such, he or she has nothing to lose by that act’s being specified as an act of consent.
The customer at the restaurant, for example, does not lose out if eating a meal at the restaurant counts as tacit consent to pay for the meal. Had the customer not been permitted to eat the meal as an act of tacit consent, he or she would not have been permitted to eat the meal at all.
In order to determine whether residing and Voting can count as tacit consent to obey the law, it is therefore important to ask whether these things would otherwise be prohibited to us because the state has a moral right that we not do these things without thereby consenting. If the state does not have such a right, then it cannot treat our doing these things as consent to obey the law.
A second important question that we must ask in order to determine whether these supposed acts of consent succeed in placing us under a duty to obey the law is: was the consent given freely? Or rather, was the consent given freely enough to be effective in placing us under a duty to obey the law?
Theorists differ in their views about just how freely consent needs to be given in order to be effective. At the very least, most theorists agree that coerced consent-that is, consent performed under threat of harm-is ineffective.
Suppose, for example, that you are mugged in the street. The mugger holds a gun to your head and tells you that if you do not hand over your wristwatch, he will shoot you. You might consent to hand over your wristwatch, but your consent is ineffective. You do not give the thief any right to keep the wristwatch. The wristwatch remains yours and you are entitled to try to reclaim it.
Residence as Consent
Both Plato and Locke claim that residence in a particular geographical territory counts as consent to obey the laws of that territory. (Locke claims that even traveling through a geographical territory counts as consent to obey its laws.)
To some readers, this might seem to be an entirely natural claim: if we do not like the laws of the country in which we live, then we are free to leave and live elsewhere. If we choose to stay, then we have consented to obey the laws of that country.
But are we really free enough to leave for our continued residence to count as effective consent? Even if we set aside those states that forcibly prevent their citizens from leaving, many of us would have to leave behind our friends, family, culture, and work, etc. in order to move elsewhere.
So you might well question whether, if we choose not to make these sacrifices, our continued residence can really count as free and effective consent.
Hume famously argued that our residence in a territory no more counts as effective consent than does the presence on board a ship of a man who was carried on board while a sleep.
Rousseau, on the other hand, insists that when the state does not impede our exit, then our continued residence is free enough to count as effective consent. But he accepts that, when we are forced to stay in a country by a coercive state, our residence does not count as effective consent.
That is one reason why some theorists have questioned whether residence in a country can count as consent to its laws. Another reason appeals to the thought that, as we saw above, the state can only treat our residence as tacit consent to obey the law if it has a moral right that we not reside in the country without thereby consenting.
It is not easy to see why the state would have a right that we not live within its borders unless we consent to obey its laws. Many people own the land on which they live and seem therefore to have a prima facie right to live on that land without submitting to anyone’s rules.
We cannot simply assume that the government, as the authority that presides over the land, has a right to determine who can live within its borders. To do so would beg the very question that we wish to answer: why should we regard the authority that the government claims for itself as legitimate? It looks, then, as though the residence version of consent theory cannot succeed without relying on some prior justification for political authority that does not appeal to tacit consent. If such a justification can be found, then political authority will already have been shown to be legitimate and consent then becomes redundant.
Voting as Consent
A second act that some consent theorists have argued is tacit consent to obey the law is voting in a democratic election.
John Plamenatz, for example, writes that ‘where there is an established process of election to an office, then, provided the election is free, anyone who takes part in the process consents to the authority of whoever is elected to the office’.
Of course, not everyone in the world has the opportunity to vote in a democratic election and even among those who do, many choose not to exercise it. But can we at least say that citizens of democratic states who do cast their vote have freely consented to obey the law?
The voting version of the consent theory seems to face even the bigger problem than the residence version. The problem is that, whether or not we chose to vote, we will be forced to obey the law anyway. We do not really have the choice to abstain from the political and legal arrangements of the country altogether.
Hypothetical consent theorists argue that we would consent to set up a state and obey the law if the state did not already exist. The difficulty for hypothetical consent theorists is to explain why it should matter morally what we would do, rather than what we have, in fact, done.
Hypothetical theorists have tried to respond to this challenge in a number of different ways. Central to these responses is often the claim that, by looking at hypothetical consent, we can determine what it would be rational for us to agree to, even if we were purely self-seeking.
But again, one might reasonably challenge the hypothetical consent theorist to explain why we should care what it would be rational for us to do, when, in reality, we might prefer to act irrationally.
If the hypothetical consent theorist replies along the lines of, ‘Because it is in your best interests to do what it is rational to do’, then it looks like his or her argument for political authority and obligation appeals to the benefits that the state brings, rather than on the moral importance of consent.
But if the hypothetical consent theorist’s argument relies ultimately on the benefits that the state brings, then the hypothetical consent seems to drop out of the picture: that is, we might as well seek to justify political obligation and authority by direct reference to the benefits that the state brings.
One reason to think that we should obey the law regardless of the presence or absence of consent is that obedience to the law allows the state to exist and that the existence of the state brings many benefits. We have roads to drive down; police to keep the peace within our borders, and armies to protect our borders. Some of us are lucky enough to enjoy access to free or heavily subsidized health care and education. Are these benefits not themselves sufficient justification for political authority and obligation?
The answer to this question is both yes’ and ‘no’. For those who want to act in ways that benefit society, the benefits that the state brings will provide a reason to obey the law. But those who are less motivated to benefit society, or those who want to reap the benefits of others’ obedience without paying the cost, will not regard the benefits that the state brings as a reason for them to obey the law. If we want to show that everyone has a duty to obey the law, then we must show not only that obedience to the law, by permitting the state to exist, benefits society. We must also show that everyone has a duty to act in ways that benefit society.
The moral theory best placed to ground the claim that everyone has a duty to act in ways that benefit society is utilitarianism. First proposed by Jeremy Bentham in the late eighteenth century, utilitarianism says that everything we do should aim to maximize the amount of pleasure and minimize the amount of pain in the world. It does not matter whose pleasure or pain is at stake: what is important is the overall aggregated balance of pleasure over pain across everyone. Whenever we have a choice about how to act, we should always choose the option that best fulfills this aim.
One objection immediately arises to any attempt to use utilitarianism as grounding for political authority and obligation. If someone is deciding whether to obey or to break the law on a particular occasion, then surely, according to utilitarianism, he or she ought choose whichever option would maximize the amount of pleasure in the world and minimize the amount of pain. Whether that option is within the law or outside the law is irrelevant, except in so far as any punishment that illegal actions might attract should be factored into the person’s calculations.
But perhaps a more sophisticated version of utilitarianism can meet this objection.
Bentham’s version of utilitarianism-sometimes called act utilitarianism—judges individual actions directly against the utilitarian requirement to maximize pleasure and minimize pain.
In contrast, a more sophisticated version-sometimes called rule utilitarianism introduces two stages:
Potential rules are judged against the utilitarian requirement to maximize pleasure and minimize pain, and the best rules are chosen accordingly.
Individual actions are judged right or wrong against these rules, regardless of how each action performs in terms of its direct influence on the amount of pleasure and pain in the world.
If we adopt rule utilitarianism rather than act utilitarianism, then it is easier to see how we might construct a utilitarian case for political authority and obligation. The benefits that obedience to the law and the existence of the state bring would be conducive to the promotion of pleasure and the reduction of pain. As such, it seems quite plausible that a rule requiring obedience to the law would be among those rules most likely to maximize pleasure and minimize pain. This would only be true if the laws of the state in question were suitably designed-but then a rule utilitarian would also argue that the laws themselves should be chosen by utilitarian criteria.
The problem with the utilitarian justification for political authority and obligation is that it is only as strong as the utilitarian moral theory itself. While utilitarianism does still have its supporters, most theorists now tend to regard utilitarianism as (at best) an incomplete account of morality. In deciding how to act, we should take into account not only the likely consequences of an action, but also considerations such as rights and justice. We should do so even when these other considerations demand that we act in ways that should not maximize pleasure and minimize pain.
So we can conclude that there is a case for limited state – for obedience to law and respect for political authority. We should support the state when it acts within its authority, but not be afraid to hold it to account when it goes beyond that point. This raises the question of when and how we may disobey the law in order to keep political authorities in check. Various social movements throughout the history have used illegal protests as an effective means to challenge what they have regarded as illegitimate or immoral laws.