A. John Simmons on tacit consent and political obligation

What is consent?

Simmons’ definition:

When I speak of consenting, I mean the consenter’s according to another a special right to act within areas where only the consenter is normally free to act. (1976: 276)

Simmons notes that he differs from Locke on this definition. Locke groups together three sorts of act as acts of consent:

(i)  promises,

(ii)  all written contracts,

(iii) acts of consent which are essentially authorizations of the actions of others.

One reason Simmons gives for grouping them together:

...all are deliberate, voluntary acts whose understood purpose is to change the structure of rights of the parties involved and to generate obligations on the “consenters”. (1976: 275)

One reason Simmons gives for setting apart consent from promises:

The primary purpose of making a promise is to undertake an obligation.

The primary purpose of giving consent to another’s actions is to authorize those actions. (The resulting obligations are secondary.)

See here for Joseph Raz’s objections to Simmons’ definition.

Signs of consent and tacit consent

A person gives consent through a sign of consent.

A sign of consent can be verbal, such as saying, “I consent to that,” but it can also be achieved non-verbally, for example if you raise your hand to express that you are willing to have an extra tutorial on Wednesday afternoon.

Tacit consent is a sign of consent which is not verbal and for which you do not have to perform any action.

Example from Simmons. A company chairman says the following at a meeting: “There will be a meeting of the board at which attendance will be mandatory next Tuesday at 8 am, rather than at our usual Thursday time. Any objections?” The board members are silent and inactive. So long as certain conditions are met (the chairman spoke clearly and audibly, etc.), they have tacitly consented.

The conditions under which tacit consent can happen

Simmons identifies five conditions that must be met or else tacit consent cannot happen:

1.  The situation must be such that it is perfectly clear that consent is appropriate and that the individual who potentially consents is aware of this.

2.  There must be a definite period of reasonable duration when objections or expressions of dissent are invited or clearly appropriate, and the acceptable means of expressing dissent must be understood by or made known to the potential consenter.

3.  The point at which expressions of dissent are no longer allowable must be made clear in some way to the potential consenter.

4.  The means acceptable for indicating dissent must be reasonable and reasonably easily performed.

5.  The consequences of dissent cannot be extremely detrimental to the potential consenter.

See here for a challenge to the awareness component of condition 1. Regarding conditions 4 and 5, Simmons imagines a violation where in order to object to a board meeting, one must lop off one’s arm at the elbow.

Simmons’ argument against consent theories of political obligation

Simmons commits himself to an argument against consent theories towards the end of his paper (1976: 290). Here is my reconstruction of it:

(1) An adequate consent theory of political obligation must explain why most citizens of a state, in normal circumstances, have political obligations.

(2) A consent theory can only do this if most citizens of a state, in normal circumstances, have consented to state authority.

(3) There are only two possible ways in which a citizen can consent to state authority: explicitly or tacitly.

(4) Few, if any, citizens in normal circumstances have explicitly consented to state authority.

(5) Few, if any, citizens in normal circumstances have tacitly consented to state authority.

Therefore:

(6)  There cannot be an adequate consent theory of political obligation.

Justification for (1): the aim is to explain political obligation in general. Simmons thinks that those opposed to consent theory may therefore grant that it can explain political obligations, but only for a few people or else in highly unusual circumstances. I have used the term ‘normal circumstances’ to capture that there is space for those opposed to make this concession – a term that needs more clarification, or to be replaced with something else throughout the argument.

Justification for (2): this premise is taken to be beyond reasonable doubt.

Justification for (3): this premise is also taken to be beyond reasonable doubt.

Justification for (4): this premise is taken to be beyond reasonable doubt, but as an obvious empirical fact, not an a priori truth. That is why consent theorists start talking about tacit consent in the first place.

Justification for (5): Simmons uses his account of the necessary conditions for tacit consent to say that the conditions are not appropriate for tacit consent to happen. He implies that, outside of highly unusual circumstances, most or all of the conditions are violated. 

Why there is a mistaken belief that tacit consent to the state is widespread

Simmons thinks that some previous political philosophers have made the mistake that there is widespread tacit consent to the state because:

they fail to distinguish between a sign of consent and implying consent;

or they fail to distinguish between the occurrence and the attitudinal senses of ‘consent.’

Giving a sign of consent and implying consent

Simmons distinguishes giving a sign of consent, either explicitly or tacitly, from a range of behaviours that he counts as ‘implying consent.’ This term is confusing, because Simmons is using it to draw attention to acts which are actually not acts of consenting:

(i) Acts which indicate that you would consent if asked.

(ii) Acts which are hopelessly ‘stupid’ or ‘pointless’ if you are not prepared to consent, although you have not actually consented. Simmons’ example is talking at great length about how reasonable it is to consent to the government.

(iii) Acts that bind you morally to the same course of action that you would be bound to if you did consent, though you have not consented.

Simmons says that much previous work in consent theory has failed to separate acts of these kinds from actually consenting. That is primarily why Locke ended up wrongly believing that there has been tacit consent, according to Simmons.

The occurrence and attitudinal senses of ‘consent’

‘Consent’ in the attitudinal sense is an attitude of approval.

‘Consent’ in the occurrence sense is the result of an act: a giving of a sign of consent. It may bring about changes in the structure of an individual’s rights and obligations.

One can consent in the occurrence sense without any attitude of approval for what is being consented to, e.g. because one feels embarrassed to be the lone dissenter.

Simmons regards consent in the attitudinal sense as irrelevant to discussions of political obligation.

Simmons’ debate with Hanna Pitkin over how to interpret Locke

Locke believes:

(i)  by residing in the territory of a government we consent to it, even if it is a bad government

(ii) but we are not obligated to bad governments.

Pitkin says that given these commitments, Locke is not best interpreted as thinking of consent as the explanation for political obligation, otherwise he would have said that we have political obligations towards bad governments. Pitkin’s interpretation: it must ultimately be the goodness of good governments which, for Locke, generates political obligation (see Pitkin 1966: 996).

Simmons challenges this interpretation. Suppose that you promise to do something bad, e.g. help your friend kill someone he does not like. You have promised but you do not have to go through with the promise, because the action is something bad. There is no obligation from the promise. But that does not mean that when there is an obligation from a promise, it is because of the goodness of what is promised. If you promise to meet me tomorrow, then you are obliged simply because you promised. The promise gives rise to the obligation, not the goodness of what is promised. It is just that if what is promised is bad, then no obligation results.

Similarly, Locke might think the following about consent: people within the territory of a government always consent to that government and the consent gives rise to an obligation, unless the government is a bad government. In the case of other governments, it is simply the consent that gives rise to the obligation, not the goodness of the government.

References

John Simmons, A. 1976. Tacit Consent and Political Obligation. Philosophy & Public Affairs 5: 274-291.

Pitkin, H. 1965. Obligation and Consent—1. The American Political Science Review 59: 990-999.

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