Let's consider a second possible ground of political obligation, namely in consent. We're looking for a ground for the obligation to obey the law. The natural suggestion, one closely associated with Thomas Hobbes and John Locke, is that it's the consent of the governed that generates an obligation to obey the law. Let's call this the consent theory of political obligation. That theory states that we have an obligation to obey the state because we've consented to the state and to having such obligations to it. One thing that's so attractive about the idea of consent as the ground of political obligation is that we're accustomed to thinking of consent as being very powerful and capable of generating extensive obligations. If you consent to picking me up from the airport, you incur an obligation to do so. When you consent to taking part in medical research you incur various, often onerous, obligations such as the obligation to refrain from eating and drinking for certain periods. Finally, if you join a religious order and consent to having certain obligations as part of that, then you acquire those obligations. There might be limits to the power of consent to generate obligations. But even if there are limits, consent can generate obligations in many cases. So, consent seems like the right kind of thing to be a ground for political obligation. So, why might one doubt the consent theory? Here are three problems that it seems to face. First problem. Insufficient people have given consent. Plausibly, only those who join a state through immigration as adults have actively consented to being bound by a state's laws. Most people have never even considered the issue. So, they can't plausibly be said to have given consent to the state. The obligation to obey the law looks to only apply to a limited range of people, if we go with the consents account examined so far. Second problem. It seems to be a restriction on consent that it only generates obligation if one is able to withhold consent. Where there's no possibility of withholding consent, there is no effective consent. Applied to the problem of political obligation, we might worry that there's no way in which citizens can withhold consent from the state. So, no possibility of consenting to it. After all, what would it be to refuse consent to the state? One can't just send a letter to the government refusing consent to being governed. So, if we have no ability to refuse or to withdraw consent, then arguably we can't consent to the state. We can't be said to have consented to the state given that we have no effective alternative. Third problem. Suppose that citizens can withhold or revoke consent, then the consent theory of political obligation faces a different problem. If consent is the ground of political obligation and we can revoke or withhold consent, then it seems very easy to escape or avoid the obligation to obey the law by simply refusing consent or by withdrawing it. Seems like it would be a hollow victory if we solve the problem of political obligation only by establishing an obligation that one can so easily shrug off. Okay. So, how might a consent theorist reply to these problems? So, how might someone who thought that consent was the ground of political obligation reply to these apparent problems for the view? The first reply is that one way of responding to the problem of insufficient people having given consent is to distinguish between two kinds of consent; expressed consent and tacit consent. The difference between them lies in how that consent is communicated. Expressed consent is given openly and directly by explicitly saying that one consents to something. By contrast, tacit consent is given by doing something else within a context where it's understood that that constitutes giving consent. For example, if you're told that going into the classroom is to consent to being filmed within the classroom, then if you go into the classroom you've given consent. So, how will this distinction between tacit consent and expressed consent help with the problem? The first problem was that too few people had actually consented. Well, that's what it looked like at least. If one can tacitly consent to being governed by the states and acquire the obligation to obey the law, then perhaps enough people have in fact consented. It may be true that most of us have not explicitly consented to the state. We haven't sworn allegiance or anything like that, but perhaps in our actions we give tacit consent to the state. Which actions are the relevant ones or perhaps it's things like voting in elections, using public services, or our continued presence within the state. What about a reply to the second problem? The second problem for the consent theory was that it may not be possible to give consent to the state because we can't withhold consent. This might also be alleviated by the distinction between expressed and tacit consent. If consent is given by performing the actions of, for example, voting in elections and using public services, then perhaps one can revoke consent by just simply refraining from those actions. Now, for the third problem, this was that if it's possible to withdraw consent by simply reporting a lack of consent, then it would be too easy to escape the obligation to obey the law. One could simply revoke consent and escape the obligation to obey the state. This might also be alleviated by the distinction between expressed and tacit consent. If consent is given by voting in elections or remaining within the territory, then it isn't easy to revoke your consent. Few, if any, would easily be able to escape the obligation to obey the states. The distinction between expressed and tacit consent seems like it might provide a way for the consent theory to avoid the problems that we've considered. However, to fully assess the suggestion, we need to know how tacit consent might be given to states. What might constitute tacit consent to the state? So far, we've considered participation in elections, using public services, or remaining within the state. Each of these faces problems. The problem with using participation in elections as a way of giving tacit consent to the state is that, at least in most democracies, turnout is pretty low. So, everyone who doesn't vote in the election would no longer have tacitly consented to the state, and in those states that have very high turnouts, they're typically compulsory democracies. So, in virtue of the fact that people can't withhold consent, then plausibly they're not really giving tacit consent. So, if we adopted this tacit consent version of the consent theory, and we thought that the relevant kind of tacit consent came from participating in elections, we'd face the problem of the theory delivering an obligation only for a very small proportion of its citizens. If tacit consent isn't given by voting, what about citizen's use of public services as the mean by which they tacitly consent to the state? Here we face the problem that whilst most of us make use of public services, we face little real choices to whether we do so. One can't easily avoid making use of the roads, for example. It's just hard to treat the use of state provided public services as an act of giving consent to the state given that such actions can't be avoided in most cases. What about remaining within the state? Is that action a form of tacit consent to being governed by the state? Well, here we get a similar problem as in the case of public services. Many people have no effective alternative to remaining within their state. That might be due to financial restrictions because they lack the money to leave or other strong ties to their current state. Even if someone can leave their current state, they have little or no alternative to being within some state. Thus, the action of remaining within one state doesn't look like a plausible contender for a form of tacit consent to being governed. In this section, we've examined the consent theory of political obligation. This is the claim that it's the consent to being governed that generates the obligation to obey the law. We found a number of problems with the view; problems that didn't seem to be avoided by distinguishing between expressed and tacit consent. Let's move on now to consider a third and final candidate ground for political obligation, namely in fairness.
