In The Second Treatise of Government, Locke puts forward his consent theory, highlighting the distinction between tacit and express consent; and the domain in which they apply. I shall argue, with reference to Harris, Simmons, Pitkin, and Mill, that the aforementioned consent theory is an unsuitable foundation for political obligation. This is for the following of reasons: firstly, in respect to tacit consent, I reject Locke’s notion that using various state provided facilities results in an obligation to adhere to laws which are unrelated to a given benefit. Secondly, I explore Simmons’ critique that making use of these ‘enjoyments’ merely implies consent, rather than being an actual sign of consent. Hence, Harris’ claim that tacit consent enables enforcement of a legal and moral obligation, demonstrates that a mere implication of consent is insufficient for prescribing political obligation. Thirdly, I maintain that Locke’s distinction between a tyrannical and legitimate government is a fruitless endeavour in the modern capitalist world, for appearances can be deceptive. In contrast, with respect to express consent, I highlight the thought of Mill and his ‘tyranny of the majority,’ resulting in the claim that the political minority who expressly consent to a state in fact restrict their liberty. Moreover, as express consent is only given by a fraction of the population, it becomes difficult to see its political significance. Therefore, I would argue that neither express nor tacit consent present a suitable foundation for prescribing political obligation.
One of the myriads of problems posed by tacit consent is that which Locke notes, “how far any one should be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all.” It appears that the tacit nature of tacit consent requires us to define a region in which one’s action or inaction can be deemed consent to the government one finds themselves in. On the Lockean view, tacit consent is given by everyone that “hath any possession or enjoyment of any part of the dominions of any government,” which he believes includes actions such as travelling on the highway, or owning property in a state. However, this poses a problem, namely that which Harris notes: that one has no obligation to obey the sovereign’s laws simply from using the roads of a state. For, if one is to use the roads of the state, it does not follow that one is obligated to obey state laws which are not directly related to this benefit. Clearly, our mere tacit consent to one form of the government’s dominion fails to shed any light on the government to which one is supposedly consenting to, so to suppose that such an action gives birth to political obligations is absurd. Therefore, I would argue that Locke’s tacit consent theory is an insufficient ground for political obligation.
Another problem posed by Locke, concerns the benefits accrued in the using of state facilities. Simmons, notes how “our acts of enjoyment, though not expressions of our consent, nonetheless are thought by Locke to ‘imply’ our consent by binding us to obedience.” On Simmons’ view, although Locke’s ‘enjoyments’ or ‘benefits’ imply our tacit consent, this is only sufficient to claim that they might be in some respect related to personal consent; they are not in fact signs of consent. Hence, one can see that the mere implication of consent is not a suitable foundation for tacit consent, for as Harris argued, “tacit contracts are genuine contracts that give rise to moral obligations and are legally enforceable.” Thus, if we are to accept the Lockean view of tacit consent, it appears that we are legally and morally bound to the sovereign of a given state, founded on the notion that because we have ‘enjoyed’ some benefits of a state we must adhere to its every whim. In addition, this poses a further problem, namely that one could be legally and morally bound to a tyrannical government from simply traversing the state’s roads. I would argue that such an idea is absurd, for surely one would not legally and morally bind an unfortunate member of a totalitarian state such as Nazi Germany to all the immoral practices they partook in. It seems clear that tacitly consenting to a state is an inadequate legal and moral framework for attributing moral culpability, and therefore, cannot be a firm ground for political obligation.
In contrast, Pitkin argues that if the government is acting in a tyrannical manner, “you are not obligated to obey one inch beyond the limits of the original contract.” For, the very foundation of the social contract rests upon the doctrine of inalienable rights. This is what Locke has in mind when he states that, “a man, not having the power over his own life, cannot, by compact, or his own consent, enslave himself to anyone one, nor put himself under the absolute, arbitrary power of another.” Due to the fact that tyrannical governments express absolute and arbitrary power onto the lives of their subjects, it would appear that one could not be legally and morally bound to obedience. Thus, consent is only a valid substratum for political obligation if our personal consent is not the product of coercion, for example: one could not be beaten into consenting to a government. However, the question remains whether such a distinction between a tyrannical and democratic government is enough to supply tacit consent with the means to prescribe political obligation. Surely one could argue that a government which presents itself as a democratic union, could in fact be a form of absolutism in disguise. Take for example the modern capitalist world, whereby we assume that our political endeavours are made in the interest of the people, for they are made by those democratically elected. Yet, perhaps unsurprisingly it seems that political decisions are made in accordance with the wishes of obscenely wealthy conglomerates, rather than common man. To what extent can one claim that our tacit consent to the government is justified, when it appears we all tacitly consent to different functions of government depending on our social class and education. Therefore, I would argue Locke’s distinction is redundant, and our inalienable rights are a mere illusion. In turn, leading to my assertion that consent theory is an insufficient ground for political obligation.
In contrast, Locke puts forward the notion of express consent, which is given by those who voluntarily renounce their individual liberty and natural rights. Locke claims that the “express consent, of any man, entering into any society, makes him a perfect member of that society.” This is done in order to leave the state of nature and create a society; which acts in the interests of the majority. However, if we are to consider Mill’s “tyranny of the majority,” which highlights how the political majority is effectivity a tyranny over the political minority, express consent appears less appealing. It is unclear why one would, or even should, dissolve their individual liberties to birth a society if they are a member of the political minority, for political decisions do not affect them a way which preserves their liberty. In fact, the ‘tyranny of the majority’ makes them less free than they were in the state of nature. So, what grounds does Locke have to enforce the idea that express consent cannot be dissolved, if the political minorities are forced to adhere to the whim of the majority. Surely this undermines Locke’s view that man leaves the state of nature with an “intention [..] to [better] preserve himself, his liberty, and his property.” With this in mind, I would argue that consent theory is an insufficient framework for prescribing political obligation.
Locke argues that once express consent is given, it cannot be rescinded unless the sovereign openly breaches the social contract, forming what Pitkin argues to be a “indissoluble bond for life.” However, problems arise when it is considered that only a minority of people have expressly consented to a given government. This is because express consent is only given by those who wish to emigrate to another state, (for all the original signatories of the modern-day social contract are dead), or by those who become members of the government. Hence, if one is to accept Locke’s idea of express consent, it becomes difficult to see its merits, for it only applies to a fraction of the population. In addition, Harris argues that even if there were those who were party to the creation of the original social contract, and expressly consented to it, “such express consent would have no bearing on the contemporary issues of the legitimacy of political authority and the existence of political obligations of persons who were not parties to the original compact.” In essence, one has no grounds to attribute political obligation to those who have not expressly consented to a government’s rule, and even those who have expressly consented, have no guarantee that what they consented will remain indefinitely. Surely it is possible that although one expressly consented to a legitimate sovereign, as time passes the sovereign could degrade into a form of absolutism. Moreover, if such a change comes about, how is one to recognise and react accordingly if the sovereign’s apparent behaviour is in line with the original contract. It appears that one could expressly consent to a government, forming an “indissoluble bond,” but with no assurance that the state acts in their best interest. Therefore, I would argue that Locke’s distinction fails to address the cunning and self-interest driven nature of the political machine, in turn rendering consent theory an illegitimate ground for political obligation.
In conclusion, I have argued that Locke’s consent theory is an unsuitable ground for political obligation, for the following of reasons. Firstly, in respect to tacit consent, it seems clear that simply using state facilities should not result in an obligation to follow laws unrelated to the benefits used. Secondly, as Simmons argues, using the aforementioned facilities only imply that consent has been given, this however, is insufficient grounds to claim a sign of consent has been issued. Thirdly, Harris’ notion that tacit consent enables a moral and legal obligation, shows how one could be obliged to follow laws of a tyrannical government merely from using their highways. This, coupled with the illusory appearances of modern government, demonstrates that a mere tacit consent is an insufficient ground for political obligation. In regard to express consent, I have shown that Mill’s ‘tyranny of the majority’ results in diminished liberty for the political minority. Moreover because express consent is only given by a fraction of the population, it is difficult to determine who exactly has consented to a given government’s rule. Therefore, I would argue that Locke’s consent theory is an illegitimate foundation for prescribing political obligation.
Bibliography
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Locke, J. (2004). The Second Treatise of Government. New York: Barnes & Noble Publishing, Inc.
Mill, J. S. (1869). On Liberty. London: Longman, Roberts & Green.
Pitkin, H. (1965). Obligation and Consent–1. The American Political Science Review, 59(4), 990-999.
Simmons, J. (1976). Tacit Consent and Political Obligation. Philosophy & Public Affairs, 5(3), 274-291.