The Consent Theory of Political Obligation

Harry Beran

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9781032807775
• eBook ISBN:
  9781000704723
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

First published in 1987. The theory that political obligation and authority are derived from the consent of citizens is commonly accepted in the history of Western political thought. It is expressed in the famous assertion of the American Declaration of Independence that governments derive 'their just powers from the consent of the governed' and in the constitutions of some Western powers.

This book provides the first systematic and comprehensive restatement and defence of consent theory since the 19th Century. It distinguishes consent from contract theory, examines what the actual consent of citizens can consist in and what place it must have in liberal democratic theory. The consent theory's relationship with ethics is explored and the major objections to the theory are countered. The author points to some political reforms which would increase the proportion of citizens in liberal democracies whose consent places them under political obligation. The book provides an overview of the current state of the consent theory of political obligation and authority.

1

Introduction

In this book I try to make plausible the claim that, within liberal democratic theory, political obligation and authority must rest on the actual personal consent of citizens.

The book tries to fill a surprising gap in contemporary political theory. The consent theory of political obligation is the most commonly accepted theory of political obligation in the history of Western political philosophy (often of course in the form of contract theory).¹ Even some of its critics grant that it ‘has provided us with a more intuitively appealing account of political obligation than any other tradition in modern political theory’ (Simmons, 1979, p. 57). In the last two centuries liberal democracies have emerged and with them the widespread belief that political authority rests on the consent of the governed. The American Declaration of Independence provides an early and famous expression of this view in asserting that governments derive ‘their just powers from the consent of the governed’. The American Constitution does not repeat this phrase, but students of it claim that its Preamble ‘embodies’ the principle that the people are sovereign, that any and all authority for governmental action must flow from them and that government at any level may be conducted only with the consent of the governed.² Some more recent liberal democratic constitutions express the essence of these ideas explicitly. Thus the 1949 Constitution of the Federal Republic of Germany asserts that ‘all state authority emanates from the people’ and the 1974 Swedish Constitution begins with the words ‘All public power in Sweden emanates from the people’. Yet despite all this, there does not exist a single contemporary attempt to state fully and systematically what the consent is which is supposed to be the basis of political obligation and authority, what place such consent has in a liberal democratic state, and to defend consent theory against the numerous objections to it which occupy a good deal of space in contemporary discussions of political obligation and authority. Moreover, perhaps partly because of the absence of such work, few contemporary political theorists accept consent theory.³

Much about restating consent theory in contemporary terms can be learnt from the writers who have, in recent years, written in support of the claim that actual consent is the basis of political obligation and authority. H.D. Lewis (1940) draws attention to the narrow scope of consent theory (he points out that consent is intended to explain only one of the possible moral reasons for obeying the law) and demolishes some of Hume’s objections to it. But he does nothing to indicate what consent consists in. Others offer three different accounts as to what it consists in. Joseph Tussman (1960) identifies it with acceptance of membership in the state, but acknowledges that many adult citizens do not accept such membership with the knowledge that this counts as consent. John Plamenatz (1967) and D.D. Raphael (1970) identify it with participation in democratic elections. And H.L.A. Hart (1955, pp. 185–6) and John Rawls (in an early article: 1964) identify it with the acceptance of the benefits of the law-abidingness of one’s fellow citizens. Michael Walzer (1970) gives all three forms of consent some role in his account of the extent to which consent can be found in liberal democracies, but considers political participation to be the best expression of it.

All these writers claim or assume that consent-based political obligation and authority is at least possible and actually exists to some substantial extent, in contemporary liberal democracies with their representative form of government. Carole Pateman (1979), however, asserts that the problem of political obligation cannot be solved within liberal democratic theory, partly because it is, she claims, necessarily a theory of representative democracy. She holds that the problem of political obligation can be solved only within a theory of participatory democracy. Pateman appears to identify the consent which creates political obligation with participation in the law-making of direct democracy.

Though all the writers mentioned explicitly support some version of consent theory, none gives anything remotely like a full and systematic exposition or defence of it. To fill this gap I spell out the assumptions of democratic liberalism which, pace the utilitarians and pace Rawls’s cavalier dismissal of actual consent (in A Theory of Justice 1971), make it necessary for consistent liberal democratic theory to insist that actual personal consent must be the basis of political obligation and authority. I give a systematic exposition of the theory which, I hope, does justice to the insights of other consent theorists and those of other writers on political obligation and authority; and I provide a case for and full defence of the version of the theory advanced here.

To achieve the greatest possible plausibility for the theory, I:

(a) identify the consent which creates political obligation and authority with acceptance of membership in the state but also give participation in democratic elections and acceptance of the benefits of the law-abidingness of one’s fellow citizens important supplementary roles in a theory of justified political obedience;

(b) stress that consent provides only one of the possible reasons for obeying the state, namely that reason which is involved in the existence of an authority relationship between the state and its citizens;

(c) stress that the utility of and consent to the state are, therefore not mutually exclusive, but complementary and equally necessary parts of a liberal democratic theory of justified political obedience;

(d) stress that consent theory need not assume that existing liberal democracies stand in an authority relationship to most of their citizens and is, therefore, not committed to the task of finding acts of actual consent among the present citizens of existing liberal democracies.

Once these features of consent theory are appreciated, some of the often repeated objections to it lose their plausibility. Those which are not diffused by them can also be rebutted.

I develop the version of consent theory I find most plausible in Chapters 3, 4 and 5, qualify it in subsequent chapters and summarise it in Chapter 9. (Readers who like to know the general outline of a theory before its finer points may find it useful to read the summary in Chapter 9 first.)

Notes

1. See Gough (1967). Pitkin introduces her discussion of political obligation and consent with the remark that the doctrine of consent is the solution most commonly offered of the problem of political obligation (1965, p. 990). Compare Pateman (1979, pp. 1–2) and Steinberg, (1978, p. 4).

2. See Hancock (1963, p. 78).

3. Or rather, while there is a great deal of casual appeal to and acceptance of consent as the basis of political obligation (see, e.g. Hoffman, 1981, and Wight, 1972), most of the writers who particularly focus on and critically discuss political obligation reject consent theory. This is reflected in the present work in the small number of writers who can be mentioned as accepting the theory (see Chapter 1) and the many writers who are mentioned as rejecting it (see Chapters 4 and 6).

2

Conceptual Preliminaries and Normative Assumptions

I am trying to make plausible the thesis that, within liberal democratic theory, the actual personal consent of citizens must be the basis of political authority and political obligation. Since there is much disagreement on the correct analysis of the concepts of consent, authority and obligation, I will make such analytical remarks about them as I expect to be sufficient to make my use of them clear and plausible. In the last part of the chapter I will note some normative assumptions which I make.

Consent

I will make clear my use of the concept of consent not by analysing it but by using the model of promise. Consenting, agreeing and promising to do X are alike in that they put the person who consents, agrees or promises to do X under an obligation to do X and give the person who receives the consent, agreement or promise a right to X being done. The obligation and the right are correlatives. Both are created by the one act of promising etc. and they are two aspects of the relationship created by the promise between the promiser and the promisee. The obligation and the right are moral ones, since one is morally blameworthy if one fails to do what one has promised or consented or agreed to do, without sufficient moral reasons.

Thus by promising to do X one can create a moral reason for doing X where without the promise, other things being equal, there would be none (e.g. by promising to lend Jane a book) or create an additional moral reason for doing X where there already is a moral reason for doing it independently of the promise (e.g. by promising my mother on her death bed that I will support my aged father).

There are some moral reasons for action which hold independently of one’s past acts. In contrast, promising is a device which enables persons to place themselves under a moral obligation by their free choice. Therefore, if one is, for example, coerced to say ‘I promise to give you 5,000 dollars’ the utterance does not count as a promise and no obligation is created. (The last sentence involves two claims: the conceptual claim that the coerced utterance of the promising formula is not a promise, and the normative — and conceptual — claim that it does not create an obligation. I make both claims on the basis of the assumption that no adequate analysis of the concept of a promise can be given without the definition including ‘creates a moral obligation’. Hence, if no obligation has been created, no promise has been made. Following J. L. Austin (1965), I say that an attempt to promise which succeeds in creating an obligation ‘comes off.)

Coercion is one way in which a putative promise can fail to come off. There are, of course, other ways. An attempt to promise comes off only if the attempted act is free, informed and competent. Hart has made extremely plausible the view that the best, and perhaps the only adequate, way of specifying whether a putative promise satisfies these three conditions is via a list of further conditions all of which must be absent for the attempted promise to come off (1963). Following Hart, I call these further conditions defeating conditions, since, if one has uttered ‘I promise to do X’ seriously (i.e. not in a joke or play or language lesson etc.), one can still defeat the claim that one has promised to do X, if one can show that one or more of these conditions obtained. The most important of these defeating conditions are the following:¹

(1) Lack of freedom defence:

(a) coercion;

(b) undue influence;

(c) post-hypnotic suggestion;

(d) exploitation of promiser’s predicament.²

(2) Inadequate information defence:

(a) deception;

(b) innocent misrepresentation by the promiser of an important

matter relevant to the promise;

(c) gross misunderstanding by the promiser and the promisee about a matter relevant to the promise.³

(3) Lack of competence defence:

(a) insanity of the promiser (or the promisee for that matter);

(b) temporary or permanent mental incapacity of the promiser (e.g. complete intoxication or senility);

(c) immaturity of the promiser.

There is one possible defeating condition not included in the above list. Some writers claim that a putative promise to do something morally wrong does not create a promissory obligation (and therefore, in my terms, does not come off). I do not include this condition because other writers claim that such a promise does come off and does create a promissory obligation (though one which may be overridden by the wrongness of the promised action) and because I know no entirely persuasive argument for one of the claims rather than the other. At any rate, it is not likely to make any substantive difference to consent theory which of the two positions is adopted. If the immorality of a promised act is a defeating condition, then the general agreement to obey the law fails to come off with respect to the specific law which is morally wrong. If such immorality is not a defeating condition, then the general agreement to obey the law comes off even with respect to the immoral law, but the resulting obligation to obey the immoral law may be overridden by the moral wrongness of the action it requires. I will adopt the latter position for the following reason (which, I grant, does not compel adopting the position). The kind of liberal democratic state which has (consent-based) political authority over the great majority of its citizens can be assumed to be morally desirable on the whole. Still, experience indicates that such a state will at best be only nearly just, i.e. will have some laws which are morally wrong. In agreeing to obey such a state one agrees to do something which is not morally wrong. It, therefore, seems simplest to say that such a promise comes off, simpliciter, and creates an obligation to obey all law, even laws which are immoral. And, as already indicated, the political obligation to obey those laws which are normally wrong, may be overridden by this moral wrongness.

All the claims I make about promising are also true of consenting and agreeing to do something. This is so either because consents and agreements are types of promises or because consenting and agreeing to do something are at any rate like promising in the respects mentioned.

We do not readily speak of tacitly promising to do something. But, as A. John Simmons notes (1979, p. 79) ‘genuine instances of tacit consent, at least in non-political contexts, are relatively frequent’. He uses the following illustration (1979, p. 79):

Chairman Jones proposes to his fellow board members that the next board meeting, with mandatory attendance, be next Tues...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Contents
• Acknowledgements
• Dedication
• 1. Introduction
• 2. Conceptual Preliminaries and Normative Assumptions
• 3. The Membership Version of Consent Theory
• 4. Consent and Three Versions of Democratic Liberalism
• 5. Three Versions of Actual Consent Theory
• 6. Replies to Objections
• 7. Reforms Required to Maximise Consent-based Political Obligation and Authority
• 8. Political Obligation and Moral Ought
• 9. Summary of the Membership Version of Consent Theory
• Bibliography
• Author Index
• Subject Index