Consent

When we grant consent, we permit something to be done: We relinquish some of our authority in a sphere of concern where our sovereignty ought otherwise to be respected. Consent is, under certain conditions, generally taken to have deep moral significance, but scholars disagree over what forms of consent generate what sorts of obligations and what conditions make consent morally and legally significant.

Consent is fundamental to social contract accounts of political legitimacy, arising as early as Plato's Crito, but most prominently in the seventeenth-century writings of Thomas Hobbes and John Locke. Both Hobbes and Locke based the legitimacy of state authority on the consent of those ruled. For Locke, authority is far more limited and provisional than for Hobbes, who argued that, in the absence of government, rational parties would find life so miserable that they would freely consent to an absolute authority that would secure and maintain order.

In modern moral and legal thought, actual consent—whether express or tacit—is of great importance in determining the force of moral obligations and the validity of contracts. In political thought, [Page 142]however, hypothetical consent has increasingly played a central role in justifying particular accounts of justice and legitimacy. For example, theorists such as John Rawls imagine idealized situations in which parties must choose binding terms of social cooperation; the legitimacy of these terms is grounded not in anyone actually accepting them, but in the claim that agents with certain characteristics, under carefully specified conditions, would freely choose them.

These characteristics and conditions are important. Consent-based theories of legitimacy and obligation generally agree that consenting parties must be rational agents, capable of understanding moral categories such as right and wrong. We will, of course, often disagree about the substance, scope, and demands of reason and morality, but we must at least grasp such distinctions for our consent to be meaningful. And for consent to confer any sort of obligation, it must meet certain conditions: Consenting parties must be sufficiently informed about the terms they are consenting to, and their consent must be freely given. Disagreement ensues over what counts as sufficient information and what forms of coercion and constraint limit or nullify obligations arising from consent.

Few people, for instance, would argue that a person, forced at gunpoint to accept an exploitative contract, is legally or morally obligated to adhere to that agreement. In such a case, consent does not generate an obligation. But many cases are less obvious: In modern liberal democracies, are we obligated to obey a law that we find, after sincere and informed reflection, to be pointless and offensive, but which has emerged from an acceptable democratic process? If we challenge the law—as conscientious objectors—should we be punished?

Some scholars take a stringent libertarian, even anarchist position on such matters: Political authority is only legitimate insofar as it is grounded in the express consent of those affected by its exercise. Others allow that some actions can be taken as evidence of implicit agreement, but nonetheless emphasize the importance of actual consent, whether express or tacit. Other scholars argue that hypothetical consent is sufficient to confer legitimacy upon basic principles of political order and that consent is not required for specific laws and policies: So long as there are effective means available for redress and reform, citizens must obey specific laws, which are legitimate if they are consistent with a fundamental constitutional structure that would win the consent of reasonable and sufficiently informed citizens. However, critics wonder if such hypothetical consent can ever really generate actual obligations. Still other scholars suspect that legitimacy and obligation are not ultimately grounded in consent, but instead in the deeper accounts of moral agency and the good life that make consent seem so important in the first place.

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