Consent Theory and Its Critics

In one line

Consent is the most attractive ground of political obligation and the one that most obviously did not happen, and the whole argument is about what may be substituted for it.

In the wording a student can write in an exam: consent theory holds that political authority is legitimate and obedience is owed only where those subject to it have agreed to be governed; the difficulty is that express consent is given by almost nobody, tacit consent must be inferred from conduct that has other explanations, and hypothetical consent is not consent at all but a claim that the arrangement is reasonable, so that consent theory either binds very few people or ceases to be about consent.

Why consent is so attractive

It is the clearest source of duty we know. Nobody disputes that a person who undertakes something is bound by it. Consent theory borrows that certainty.

It respects the person. If authority requires my agreement, then I am not merely material to be governed. This is the moral heart of the theory and it survives every technical objection.

It explains particularity effortlessly. I am bound to this state because it was with this state that the undertaking was made.

It generates limits automatically. If I agreed to a government for certain purposes, it has authority for those purposes and no others.

It makes the state's coercion intelligible. Enforcing a rule against somebody who agreed to be bound by it is very different from enforcing it against somebody who never did.

Express consent

What it is. An actual, identifiable undertaking: an oath of allegiance, an oath of office, a naturalisation ceremony, enlistment in the armed forces.

Its strength. Where it exists, the obligation is beyond argument. A person who has sworn to uphold the Constitution has an obligation of exactly the kind consent theory describes.

Its weakness. Almost nobody gives it. In any population, the overwhelming majority are citizens by birth and have never been asked to agree to anything. If express consent were required, most people would owe nothing.

Notice a further problem that is worth marks: the people who do give express consent are officials, soldiers and naturalised citizens. On a strict express consent theory the state has authority over precisely those it employs, and none over ordinary citizens, which inverts what the theory was meant to establish.

Tacit consent

What it is. Consent inferred from conduct rather than declared in words. Locke relies on it: a person who enjoys any part of the dominions of a government, he says, gives their tacit consent and is obliged to obedience.

The conduct usually relied on. Continuing to reside in the territory, voting, using public services, accepting the protection of the courts, holding property.