Consent Theory and Its Critics

Hume's objection, which is the decisive one and should be quoted in substance. It is idle to say that residence signifies consent, because most people have no real alternative. Hume's illustration is a passenger carried aboard a ship while asleep: we may as well say he freely consents to the master's authority because he stays on board, though he knows he must leap into the ocean and perish the moment he leaves.

Four further objections.

The conduct has other explanations. People stay because they were born there, because their family is there, because they cannot afford to leave, and because no other country would admit them. Inferring agreement from behaviour that has an obvious non-agreement explanation is bad inference.

Consent requires a real option of refusing. An agreement is only an agreement if declining was possible. Where the alternative is destitution or exile, the choice is not free in any sense the theory needs.

Consent requires knowledge. Somebody who has no idea that residence is being treated as agreement has not agreed.

Voting proves too little and too much. Those who vote against the winner are said to have consented to the system by voting, which means a vote counts as agreement to whatever it fails to prevent. And those who do not vote at all are then said to have consented by acquiescence, so both voting and not voting produce the same conclusion, which is a sign that nothing is doing any work.

Hypothetical consent

What it is. Not an inference from conduct but a claim about reason: the arrangement is one that rational people would agree to. This is how modern contract theory operates, most influentially in Rawls's device of choosing principles behind a veil of ignorance, where the parties do not know their own place in the society they are designing.

Its strength. It is honest. It does not pretend anybody agreed, and it supplies a test of the justice of arrangements that can actually be applied.

Its weakness. It is not consent. Dworkin's objection is the one to quote in substance: a hypothetical contract is not a pale form of an actual contract but no contract at all. That a reasonable person would have agreed to something does not bind me, any more than the fact that I would have agreed to sell you my house at a fair price obliges me to sell it.

So what is hypothetical consent doing? It has changed the subject, and usefully. It is no longer an argument from consent; it is an argument from reasonableness, and it should be assessed as one. An answer that says this has understood the whole debate.

Where consent theory ends up

Three positions are defensible in an answer, and a strong answer states which it takes.

The strict position. Only express consent counts, so almost nobody has political obligations. This is the philosophical anarchist's conclusion, and it is reached by taking consent theory seriously rather than by rejecting it.

The substitution position. Consent is unavailable, so other grounds must carry the weight: fair play, the natural duty of justice, and the common good. This is where most modern writing sits.

The transformation position. Consent survives as a standard rather than as a fact. What matters is not whether people agreed but whether the arrangement is one they could reasonably be asked to accept, and whether the institutions give them a real and continuing say. On this view elections, free speech, a right to be heard before a decision affecting you, and the right to challenge a law in court are the modern institutional substitutes for an agreement that never happened.

That third position is the one a law student should find most useful, because every one of those institutional substitutes is a legal doctrine they will study.

A worked example

A tenant signs a lease with a clause requiring disputes to go to arbitration.

This is real consent. She read it, she had the option of not signing, and she is bound by an award she disagrees with. The obligation is content independent: she must accept the arbitrator's decision even when she thinks it wrong, because she agreed to the procedure.

Now change the facts. She did not read the clause; it was in small print; every landlord in the city uses an identical clause; and the alternative to signing was homelessness. She still signed.

Every objection to tacit consent has just appeared in a private contract. Was refusal a real option? Did she know what she was agreeing to? Does her conduct show agreement or the absence of alternatives?

And notice what the law does about it, because it is exactly what political theory does. It does not abandon the idea of agreement. It supplements it: with rules about unfair terms, about notice of onerous clauses, about standard form contracts, and with a requirement that the arbitrator be impartial and hear both sides. Consent remains the organising idea while the law adds protections that make the consent worth something. That is the transformation position, working in a courtroom.

Distinctions that carry marks

What consent theory is NOT

It is not the claim that you must approve of each law. Consent is to the arrangement, and the arrangement then produces outcomes you may dislike.

It is not refuted by the absence of a historical contract. Its serious versions never claimed one.

Hypothetical consent is not a weaker kind of consent. It is a different argument wearing the same word.

Its failure does not license disobedience. It shifts the weight onto fair play, the natural duty of justice and the common good, which is where chapter 260 left it.

Quick revision

1. Why consent attracts: it is the clearest source of duty, it respects the person, and it explains particularity and limits automatically.
2. Express consent binds clearly and covers almost nobody, and perversely covers officials and soldiers rather than ordinary citizens.
3. Tacit consent is Locke's, and Hume's sleeping passenger is the standard answer: residence cannot show choice where leaving is impossible.
4. Also against tacit consent: the conduct has other explanations; consent needs a real option of refusal; it needs knowledge; and voting and not voting are both treated as consent, which shows nothing is doing any work.
5. Hypothetical consent is honest and is not consent: a hypothetical contract is no contract at all. It is an argument from reasonableness.
6. Three defensible conclusions: strict (almost nobody has obligations), substitution (fair play and natural duty carry the weight), transformation (consent survives as a standard, with elections, free speech, hearings and judicial review as the institutional substitutes).

Test yourself

1. Why is consent so attractive as a ground of political obligation? Because it borrows the clearest source of duty we have, that a person is bound by their own undertaking; because it treats the citizen as somebody whose agreement matters rather than as material to be governed; because it explains particularity without effort, since one is bound to the state one agreed with; because it generates limits automatically, the government having authority only for the purposes for which it was set up; and because it makes coercion intelligible, enforcement against somebody who agreed being a different thing from enforcement against somebody who did not.

2. State Hume's objection to tacit consent. That residence cannot demonstrate agreement where there is no real alternative to residing. His illustration is a man carried aboard a ship while asleep: one may as well say he freely consents to the master's authority by remaining on board, when he knows he must leap into the ocean and perish the moment he leaves. Most people are born into their state, cannot afford to leave and would not be admitted elsewhere, so their staying shows the absence of options rather than the presence of agreement.

3. Why is hypothetical consent said not to be consent at all? Because it makes no claim that anybody agreed to anything. It asserts that a rational person, suitably situated, would agree, which is a claim about the reasonableness of the arrangement rather than about anyone's act. As Dworkin put it in substance, a hypothetical contract is not a pale form of an actual contract but no contract at all: that I would have agreed to sell my house at a fair price does not oblige me to sell it. The argument has changed from consent to reasonableness, and should be judged as such.

4. What is odd about who gives express consent? That it is given precisely by those the theory least needed to reach. Oaths of allegiance and of office, enlistment and naturalisation ceremonies bind officials, soldiers and immigrants, while citizens by birth, who are the overwhelming majority and whose obligation the theory exists to explain, are never asked for anything. A strict express consent theory therefore gives the state authority over its own employees and over nobody else, which inverts the result it was constructed to reach.

5. What survives of consent theory, and how does the law reflect it? Consent survives as a standard rather than as a historical fact: what matters is whether the arrangement is one people could reasonably be asked to accept and whether they have a real and continuing say in it. The institutional substitutes for an agreement that never happened are elections, freedom of speech, the right to be heard before a decision affecting one is taken, and the right to challenge a law in court. Private law does the same thing on a small scale, keeping agreement as the organising idea while adding rules on unfair terms, notice of onerous clauses and impartial adjudication so that the agreement is worth something.