Consent theory of authority has a long tradition in political philosophy; and objections to consent theory have a tradition almost as long. The appeal of consent theory is unquestionable: if we accept the fundamental liberal assumption that individual freedom is the default position and impositions to this freedom must be justified, then it seems only natural to think that any obligations we have to obey a political authority must require our consent.
Yet justifications of the authority of the state based on the consent of those it governs seem untenable after even cursory examination. David Hume’s retort to John Locke’s theory of tacit consent remains just as problematic today as it did a quarter millennium ago:
We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, the moment he leaves her.
– Of the Original Contract 1748
Objections to consent theory seem to come in two flavours: practical and theoretical, or to use AJ Simmons’ terminology, a posteriori and a priori. The first kind of objection, a posteriori or practical, seem to be most common. In this case, while a consent based account of political authority may or may not be possible in theory, no state’s authority can ever be said to have been justified this way. The second kind, a priori or theoretical, says that no state’s authority can ever be justified. It is impossible and by extension impractical.
A posteriori objections to consent theory seem sound enough to me. It is a simple matter of empiric fact that no state has now or in the past, lived up the requirements of any half decent consent theory. What is far more interesting from a philosophical perspective however, are the a priori objections like Hume’s. Could a consent based account of political authority ever succeed and under what conditions?
On this I offer two thoughts. The first is that consent is necessarily incompatible with the non-voluntary nature of the state. The normative force of consent stems from the free action of the consenter. Like promising or contracting, we consider the voluntary nature of the proclamation an essential element of the obligation that ensues. If coerced or made under duress, then we typically consider the obligation to be voided. Yet the state is most certainly not voluntary. It claims jurisdiction over all those in it’s domain, and while it may permit subjects to emigrate to other states, compliance with its laws while within its boarders is considered non-negotiable. So the concern here is that if I don’t have the capacity to dissent while remaining on the state’s shores, can I ever properly consent to its rule?
The second related thought is that perhaps the state’s claim to exclusive territorial sovereignty can never be justified. The state is after all, nothing but a representation of the people within it. The power of the state may not be wielded equally by all those it claims to represent, nor in the interests of all, but take away the people and the state is nothing but empty buildings and words on a page. What, apart from agreement, convention, and use, establishes the state’s rights over this piece of the world rather than another?
It seems perfectly coherent to me to image any current state bounded differently than it is today. Why couldn’t the US or Australia be divided into two independent states if that’s what the people there wanted? Or alternatively two or more existing states federating into a single union? Conceptualised this way, the boundaries of states could be determined by the consent of the people, rather than attempting to justify the forced rule of statically bounded states with the incompatible consent of those governed.
This is probably a very vague and poorly articulated attempt to explain a conception of fluid and self determined boundaries, but alas, that is the nature of my thoughts at the moment.