These are the points that should be familiar to you after today’s class.
- The difference between explicit and tacit consent.
- Hume’s arguments that consent could not be valid.
- The doctor case vs. the ship captain case.
Locke opens chapter 8 with a strong claim that consent is a necessary condition of two things:
Political authority: the state has the right to exercise political power only over those who consent to its rule.
Political obligation: people are obliged to obey the state only if they consent to do so.
But how is consent to obey the state given? We talked about Locke’s answer and Hume’s objections.
One way that we might have consented to obey the state is by doing so explicitly. We could have signed a contract on a piece of paper or made an oath in front of witnesses, for example. Some of us have actually done that. But not all of us have. That is a problem since all of us are thought to be obliged to obey the government.
So what have all of us done? Locke’s answer is that we have all tacitly consented to obey the government without having made any “expressions of it at all” (§119).
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 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 travelling freely on the highway; and, in effect, it reaches as far as the very being of any one within the territories of that government. (§119)
You might object to the very idea of tacit consent. “You can’t be said to have agreed to do something if you didn’t say so explicitly!” I see the point, but I think that would be rash. We recognize tacit consent fairly regularly. If I say “so we’re agreed that we will meet back here next Tuesday” and no one objects, I will take you to have tacitly consented and I will be miffed if no one shows up. So there is nothing outlandish about tacit consent.
A more promising kind of complaint would be to say that the sorts of actions that Locke describes don’t count as expressions of even tacit consent. Your silence could count as consent in the previous paragraph because we all knew that was how it would be understood. I said so clearly, you understood me, and you knew exactly what to do to tell me you did not agree. Locke’s examples of tacit consent don’t look like that. Few people think that they are expressing anything by using the roads. They are just using the roads. To put it the other way around, suppose you want to withhold your consent. Brian’s question is apt. How are you supposed to do it? Do you never go to the grocery store? There is no reasonable alternative to doing the things that Locke counts as giving tacit consent. So why is he entitled to think that when we do those things we’re voluntarily expressing our consent? It doesn’t feel voluntary and it doesn’t feel like consent.
That said, I made a case for Locke’s way of seeing things. Why would you think you get to use the roads without following the traffic rules or helping to pay for them? I’m not positive that the best way of expressing that is to say that those who use the roads consent to following the, ahem, rules of the road. It’s more natural to my ear to say that it’s unfair of them not to pay up. But I think Locke is on reasonable ground.
Amadi raised a point that I wanted to flag. What if you have been oppressed or treated unfairly by the state? You still use the roads. Can we assume you tacitly consent to obey the state?
I think he’s right to suggest that the case for thinking you consent is easier when you’re getting a fair deal and much harder when you’re getting a bad one. Moreover, I can see the point in saying that someone who has been abused by the state but uses the roads may well be thinking “there is no way I am consenting to obey this state!” That makes the case for saying that this person tacitly consents very weak.
There’s a more general point here. No one approves of everything the state does but, obviously, we’ll be back in the state of nature if people get to ignore the state whenever they disagree with it. Some people not only disagree with the state but are treated unjustly by it. They face a tough choice. We ask them to grit their teeth and put up with it and there are often good reasons why they should. But it is a hard thing to ask of someone and you can see how it would be reasonable to say “no” in response. The request would be more persuasive if it were accompanied by compensation for the injustices suffered, in my opinion.
Hume’s arguments apply to any version of consent: explicit or tacit. His point is that it is impossible for consent, however expressed, to ground obligations to obey the state. He has two arguments that have the same structure.
Here they are, with the premises marked in the passages. These paragraphs are tricky because the first premise does not always come first in the paragraph. In fact, it sometimes comes after the second premise.
Hume’s first argument; we did not talk about this one in class.
Should it be said, that, by living under the dominion of a prince, which one might leave, every individual has given a tacit consent to his authority, and promised him obedience; it may be answered, that (1) such an implied consent can only have place, where a man imagines, that the matter depends on his choice. But (2) where he thinks (as all mankind do who are born under established governments) that by his birth he owes allegiance to a certain prince or certain form of government; it would be absurd to infer a consent or choice, which he expressly, in this case, renounces and disclaims. (Hume  1987, 475.)
Hume’s second argument; this is the one we did talk about.
(2) Can we seriously say, that a poor peasant or artizan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires? (1) We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her. (Hume  1987, 475.)
The second argument turns on an assumption that consent is valid only if the person who gives it has an alternative to doing so that is not catastrophic.
That seems quite reasonable. I don’t consent to giving my money to the mugger who gives me a choice between my money and my life. That’s why I wouldn’t do anything wrong if I managed to give the mugger the slip even after I say “OK, I’ll give you all my money, just please don’t hurt me.” Here I used words that sound like consent to give him my money, but I’m not actually obliged to do so.
However we have already encountered one case in which a valid agreement can be made by someone who does not have an alternative that is not catastrophic: an army that surrenders in a war to avoid being wiped out. That is basically what Hobbes’s social contract is.
Here is another case that seems to have the same feature: a gravely injured person promises to pay a doctor to save her life. Who gave us this example? None other than David Hume!
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, A Treatise of Human Nature, Book 3, Part 2, Sect. 5, Par. 15)
What is going on here is that Hume is saying that there is no natural rule about when consent is valid or invalid. Rather, we have conventional rules that recognize consent as valid in some cases and invalid in others. What distinguishes the one from the other is the usefulness of the rule. A rule requiring people to pay doctors yields useful behavior: doctors will be willing to provide services to injured people. A rule requiring people to pay muggers would not be useful: it would encourage muggings.
There are two things to take from this. First, Hume was not being entirely consistent. It’s up to you to say which Hume got it right: the one that criticized Locke or the one that criticized, well, Hume. Second, Hume has started the ball rolling towards utilitarianism, a political and moral theory that we will encounter very soon.
In any event, 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.
These are the points that should be familiar to you after today’s class.