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 will talk 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 we all 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)
We will talk about two objections to this position:
“There cannot be any such thing as tacit consent. If I didn’t explicitly accept the agreement, then I can’t be bound by it.”
“Even if there is such a thing as tacit consent, the kinds of actions that Locke describes don’t explain why anyone would be obliged to obey the government.”
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.
A necessary condition on consent; a condition that an expression of consent has to meet in order to create an obligation.
A reason why that condition cannot be met for consent to obey the state.
A conclusion: political obligation cannot be based on consent.
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 may not have time to talk about this one.)
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 will talk about if we are short on time.)
(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 (see Leviathan, ch. 20).
Can you think of other examples of seemingly valid agreements in which one party has no reasonable alternative? And who is right: Hume or Hobbes?
As you might have guessed from the way the previous section ends, there is a pretty good case where there seems to be valid consent even though there is no reasonable alternative.
Suppose a gravely ill person promises to pay a doctor to save her life. This person has no reasonable alternative to agreeing to the doctor’s terms. But most people think she is not allowed to skip out on paying the bill.
Who gave us this example? Why, it’s David Hume! Surprise!
We may draw the same conclusion, concerning the origin of promises, from the force which is suppos’d 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, wou’d certainly be bound to performance; tho’ 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  2000, 3.2.5, 337)
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, um, Hume.
Second, as Hannah (I think) noted, 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.