According to social contract theorists like Hobbes and Locke, the obligation to obey the state’s laws stems from consent to, wait for it, a social contract. In today’s readings, Locke describes how that might work while Hume argues that no social contract could possibly explain why people are obliged to obey the state.
Locke seeks to address two problems. One is skepticism about the idea that states were formed on the basis of consent, back in the misty dawn of time. We did not read his discussion of that point. The other problem is that it is hard to see how consent could work now. Even if states were originally made by a social contract, back in the misty dawn of time, there is no opportunity to make a social contract now. Now, the state is already running when you are born and the current members will not be interested in renegotiating the social contract with each generation as it enters.
So how is the each generation supposed to consent? Locke’s solution is ingenious. He says that people would agree to a limit on their property: it can be passed on only to those who consent to obey the state. Then, each generation will tacitly consent to obey the state as its members acquire property that is in the state’s “dominion.” Easy!
Well, maybe it’s not so easy. Natasha noted that this is in tension with Locke’s support for private property. It is a limit on property rights, after all since it puts a condition on passing on property. In Locke’s defense, I said that I thought the property owners would agree to this condition in the social contract: no one wants the state they have made to turn into swiss cheese. It would have been nice if Locke himself had worked through the details of this argument, though.
A second problem is that the story about how consenting to obey the state is a condition of inheriting property is that it does not work for people who do not have property. To get around that, Locke extends the story about tacit consent to say that everyone who uses anything within the state’s dominion, such as the roads, tacitly consents to obey the state (see §119).
As Nate noted, since Locke is willing to say that people tacitly consent to obey the state by using the roads, he does not actually need the story about tacitly consenting when you inherit property. As I recall, I bobbled the question in class. I think I wound up saying that people who inherit property explicitly consent, which is wrong. So let’s take a second crack at it. Nate is right. Locke says people tacitly consent either by inheriting property (“hath possession”) or by using roads (“enjoyment of any part”): “every man, that hath any possessions, or enjoyment of any part of the dominions of any government, doth thereby give his tacit consent, and is … obliged to obedience to the laws of that government” (§119). Since everyone uses the roads and other public accommodations, the point about inheriting property is redundant. So why is it there? My best guess is that Locke thought he needed it to establish what the state’s dominion is. He has to establish the boundaries of the state before he can say someone tacitly consents by using the roads within the state’s boundaries. I think his idea was that the boundaries are drawn around the landed estates of everyone who accepts the social contract. But, as I said, that’s a guess.
We had some discussion of the difference between tacit and express consent. For transactions that require consent, we normally require people to do something that they would do only if they intended to convey their consent such as speaking special words, signing special documents, and so on. We do this so we can be nearly certain that they really did mean to give their consent to the contract, will, or promise. This is what Locke calls “express” consent.
“Tacit” consent is given by means of some ordinary behavior as opposed to special behavior. We use this too, but generally for less important agreements. This is because ordinary behavior is an imperfect indicator of an intention to consent. It’s ordinary behavior, after all. You might have been doing what you did for any one of a number of reasons and not necessarily because you meant to give your consent to something.
Locke asserts that tacit and express consent have different implications. Tacit consent is revocable while explicit consent is not (§121–22). Taylor thought that was arbitrary: why should the different ways of expressing consent determine the content of what you agreed to? I’m with Taylor here.
We focused on two of Hume’s arguments (Hume  1987, 475). They have the same structure:
Hume’s first argument maintains that consent is valid only if the person giving it believes she has a choice in the matter. In the second argument, he maintained that expressions of consent are valid only if those giving them have a genuine option to refuse their consent which, in this case, means leaving the country.
As Ella noted, Hobbes disagrees with Hume on the question of whether these are genuinely necessary conditions of valid consent. Hobbes is quite clear that your consent can be valid even if you do not have a genuine option to refuse: that is the point of the chapter on the commonwealth by acquisition.
We also talked about a case that seemed to support Hobbes’s side of this dispute. Suppose you need a doctor to save your life and you promise to pay the doctor for doing so. Is that promise invalid even though you did not have a genuine option? Your choice was: promise to pay the doctor of die of the disease, after all.
“We may draw the same conclusion concerning the origin of promises, from the force which is supposed to invalidate all contracts, and to free us from their obligation. Such a principle is a proof that promises have no natural obligation, and are mere artificial contrivances for the convenience and advantage of society. If we consider aright of the matter, force is not essentially different from any other motive of hope or fear, which may induce us to engage our word, and lay ourselves under any obligation. A man, dangerously wounded, who promises a competent sum to a surgeon to cure him, would certainly be bound to performance; though the case be not so much different from that of one who promises a sum to a robber, as to produce so great a difference in our sentiments of morality, if these sentiments were not built entirely on public interest and convenience.” (Hume  1995, Book 3, Part 2, Sect. 5, Par. 15)
The relevant part is the sentence about the doctor: “A man, dangerously wounded, who promises a competent sum to a surgeon to cure him, would certainly be bound to performance.” Who wrote that? None other than David Hume! The rest of it gives you a taste of something that Hume had said in the chapter on property that we read earlier in the week, namely, that the rules governing promises and contracts are conventional in the same way that the rules governing property are. If so, it’s conventions all the way down and we can dispense with the social contract.
The chief question is whether the relationship between citizens and the state is more like the relationship between the doctor and the patient or the relationship between the kidnapped sailor and the ship captain.
Hume, David. (1748) 1987. “Of the Original Contract.” In Essays, Moral, Political, and Literary, edited by Eugene F. Miller, Revised edition, 466–87. Indianapolis: Liberty Fund.
———. (1740) 1995. A Treatise of Human Nature. Edited by Mark C. Rooks. The Complete Works and Correspondence of David Hume. Charlottesville, VA: InteLex Corporation.
Locke, John. (1680) 1995. Two Treatises of Government. Edited by Mark C. Rooks. The Philosophical Works and Selected Correspondence of John Locke. Charlottesville, VA: InteLex Corporation.