Some Distinctions in the Notion of Consent
Before I get to the matter on which I want to post today, let me thank Danielle, Frank, Dan, and everyone else here for inviting me to guest-post this month. It’s a pleasure to be here and to take part in one of my favorite blogs. I hope to post on some issues that relate to my current research, but might post on a few other things as well, depending on time.
An idea that plays a central role in much of my research is consent. Consent is a notion that’s important in many areas of law, of course, including standard first-year courses such as contracts, torts, and criminal law, though this is often enough not discussed at great lengths in these classes. I am particularly interested in the role that consent plays in some other areas of law, especially in international law and in certain aspects of immigration law. In these areas of law consent is often thought to play a deep or foundational role. International law, or at least large parts of it, is often thought to be “consensual” in a way that domestic law isn’t. (The idea that consent has an important legitimating role in international law is forcefully criticized by Allen Buchanan in his important book, Justice, Legitimacy, and Self-Determination. I defend an important, if limited, role for consent in my paper, “The Legitimating Role of Consent in International Law”.) Similarly, at least since Hobbes, many have argued that political legitimacy depends on the consent of the governed in some important way. A version of this argument shows up in certain aspects of immigration law, most clearly in discussions of access to citizenship. Peter Schuck and Rogers Smith, for example, argued, in their book Citizenship Without Consent, that the U.S. has a “consensual” form of citizenship, but that this is incompatible with the strong jus soli account of citizenship that we actually practice in the US. (I argue against certain aspects of this account in my paper, “Citizenship, in the Immigration Context”. The more historical aspects of Schuck and Smith’s book are nicely dealt with in a few papers by Mark Shawhan, and by Bernadette Meyler in her paper “The Gestation of Birthright Citizenship, 1868-1898: States’ Rights, the Law of Nations, and Mutual Consent”.)
It seems to me, however, that in these areas the discussion is often quite unclear, owing in part to a conflation between different notions of “consent”. (Some examples of the sort of confusion I have in mind can be found in the discussion here) What I want to do in this post is to distinguish a few different notions of consent that are used in political philosophy that are directly relevant to the discussions about international law and the basis of legitimate government (and so to citizenship law as well). I contend that, if and when an author is unclear about what sense of consent he or she is working with, you should keep your hand on your wallet. Even if there is not an intentional slight-of-hand coming, you should at least expect shoddy goods in such circumstances. I won’t here attempt to apply the distinctions I’ll draw to concrete cases, but will simply try to make the distinction clear, in hopes that it might help improve discussion. (I will hope to apply some distinctions in a post later this month, time willing.)
The first distinction to draw is between actual consent and hypothetical consent. Though both mention the idea of “consent”, they are importantly different. Actual consent can in turn be divided into express and tacit consent. While there are important differences here, too, it is essential to see first that both express and tacit consent are varieties of actual consent. I start with the second distinction. Actual consent may be express or tacit. This distinction is important in the work of John Locke, but is not a philosophical one at its core. Express consent is, as it sounds, consent given via positive and distinct signs. Signing a contract, making a promise, swearing an oath, or agreeing to a transaction in some normal way would all be examples of express consent.
Tacit consent is actual consent that is not express. It may be given by patterns of action, or by participating in a system of cooperation. More controversially, it can be given by partaking in the benefits of cooperation, at least in some cases. It doesn’t need to be a mysterious idea- we might think that someone who makes a road across her property in the mountains, but who does not mark it as “private” or otherwise attempt to keep people from driving on it, has given tacit consent to its use by others, at least within certain bounds. Because the types of normative relations we can derive from instances of actual and tacit consent are different, it is important for authors who want to be clear and do not seek to mislead to be explicit about whether the consent they are discussing is express or tacit. Locke, for example, thought that express consent to political authority was perpetually binding, but that mere tacit consent could, at least in many cases, be withdrawn. Authors writing about consent to political authority often make claims that would only be plausible about express consent, but then fail to show where or when this express consent took place. Here we see one sort of slight-of-hand that is common in this area.
The idea that actual consent, either express or tacit, could provide the basis for political legitimacy in any strong form was, I hold, decisively refuted by David Hume, more than two hundred years ago, in his essay, “Of the Original Contract”. I won’t go into the details of Hume’s argument here, but will suggest that if someone offers an actual consent theory of legitimacy or obligation(1) and does not address Hume’s argument, then the author in question is selling a bill of goods. Mindfulness of Hume’s critique is one reason for moving to the idea of “hypothetical consent”. This is an idea associated with Rawls (though I do not believe he uses the term in A Theory of Justice) and with Kant, in his re-working of the social contrct tradition. The basic idea here is that a just arrangement (of society, or some other scheme) is one that people would have agreed to in the appropriate circumstances. In Rawls’s theory, the relevant appropriate circumstance is the “original position”, though this is not a necessary part of the basic idea. It is important to be clear what is claimed here. To paraphrase Ronald Dworkin, we should not think of hypothetical consent as a pale form of actual consent. On its own, hypothetical consent does not justify imposing rules or laws, for example. Hypothetical consent provides a test for the fairness or justice of certain arrangements, but cannot, on its own, prove that any particular rule is legitimately applied. So, again, if an author offers a hypothetical consent account for the legitimacy of the application of a particular rule or law, we should want to know more before we accept the argument. (For example, even if Rawls’s derivation of his two principles of justice in the original position is correct, it would be an illegitimate use of force if the president would try to impose them via executive order, or if the Supreme Court were to appeal to them in deciding cases.) Hypothetical consent, then, provides us with an important tool for evaluating laws and social systems, but it cannot play the same role as actual consent, and an author who attempts to make it do so is trying to pull a fast one or is otherwise confused.(2)
(2) Despite what is sometimes suggested, this clearly does not apply to Rawls himself.