Tacit Consent; B. Greenwood

THEmEEMAN IDEASON UBERTY TacitConsent:A QuietTyranny by Bowen H. Greenwood T o the student of liberty, John Locke has always been an important philosopher. His doctrine of rights, especially property rights, has always struck the imagination. On the other hand, John Rawls is thought of by many who value freedom as a dangerous philosopher. His concern withfairness often seems to override the claims of freedom. Yet, one concept which is expressed. in Locke's famous Second Treatise ofGovern men! opens a door in Locke's thinking which brings him dangerously close to Rawls. This is the doctrine of tacit consent. Locke argues that a government can only be legitimate when its citizens have con sented to it. In response to the obvious claim that not everyone has consented to the government under which they live, Locke offers the idea of tacit consent. He claims that if anyone accepts the benefits of a government, he has tacitly consented to the burdens that government imposes on him.

In this essay, I will argue that the essence of this argument is that one cannot justly claim benefits without incurring an obligation. Thus, accepting the benefits of society im poses a certain duty on one. Rawls, on the other hand, argues that a government would be legitimate only if its citizens consent to its fundamental princi ples from behind a veil of ignorance. Only principles of justice chosen without knowl edge of one's own circumstances can be tenable. When one emerges from the veil of Mr. Greenwood is a journalist in Billings, Mon tana. ignorance, though, consent becomes a dif ferent issue. In fact, without the veil, con sent no longer matters. Merely by living in a society organized on principles chosen behind the veil of ignorance, one incurs a duty to that society. Locke begins his argument by claiming that all men are naturally free. In his state of nature, men are free to "Order their actions, and dispose of their possessions, and per sons as they think fit, without asking leave, or depending on the Will of any other Man." I Yet, in a government, some people obvi ously come to have power over others.

How? Locke claims that the state gains those powers when the citizens give them to the society. "[H]e authorizes the Society, or which is all one, the Legislative thereof to make laws for him as the publick good of the society shall require.,,2 The state gov erns by consent. Only when a citizen au thorizes it to govern his life does the gov ernment have that power. Of course, many people live under a government who have never authorized it to make decisions for them. So how can a state legitimately have that power? Locke's an swer is the doctrine of tacit consent. When a person receives the benefits of a society, Locke contends that he is accepting the obligations that society imposes. Locke writes, "[E]very man, that hath any Pos session, or Enjoyment, of any part of the Dominions of any Government, doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the laws of 13 14 THE FREEMAN • JANUARY 1995 that government, during such enjoyment, as anyone under it.,,3 Thus, if one receives benefits, one incurs obligations.

The Lockean Argument Locke's argument for this claim is vague, but seems to have two parts. The first is that, if a person came to acquire property in accordance with Locke's theory of just acquisition (by mixing his labor with it), when that man entered civil society by consent, and agreed to be under its laws, it would be irrational for him to leave his property out of the society, and not subject to the laws.4 After all, the property is his because part of himself-his laboris in vested in it, therefore hisjoining the society would imply that the property came with him. Then, when the original owner of the property dies and wills the property to his son, that son lives on and enjoys the same land which has already been put under the jurisdiction of the state. So, by living there and not leaving, he grants his tacit consent to the state's claim to make laws for him. Since the state has already been given the right to make laws on that land, by living on the land the son gives the state the right to make laws for him.

There seems to be something more to Locke's argument, though. He appears to claim that it is simply irrational to receive benefits without expecting to have an obli gation in return. If someone gives me some thing, I am said to owe a debt, in at least some sense. The tacit consent theory argues that the thing given is the protection of the state, and the debt owed in return is obedi ence to the laws. Rawls' Theory of Consent This argument is very similar to that of Rawls. In A Theory of Justice, Rawls de scribes his theory of consent. Where Locke is interested in whether men actually would consent to a government, whether explicitly or tacitly, Rawls asks whether or not men would consent to this form of government from a fair original position. Rawls then claims, similarly to Locke, that if a state is just (is chosen in a way Rawls considers just), then anyone who lives under it, and receives its benefits, is obligated to obey its laws.

Rawls defines a fair perspective from which to choose principles of justice, and calls it the original position. In this perspec tive, men are behind a veil of ignorance, where they are ignorant of their place in society, class position or social status, nat ural assets or abilities, intelligence, strength, etc.5 This state Rawls calls the original position, and claims that it corre sponds to the state of nature in more tradi tional contractarian theory. Rawls claims that whatever principles men choose in this position are just, because this is a fair place from which to choose principles. As he puts it, "no one is advan taged or disadvantaged in the choice of principles . . . no one is able to design principles to favor his particular condition." The original position is fair, according to Rawls, because no one is able to take advantage of a superior condition and choose principles which he knows will ben efit him. Therefore, he claims of the original position, "the fundamental agreements reached in it are fair."6 This demonstrates Rawls' fundamental sense of the importance of fairness in consent theory.

It is significantto note that Rawls is not at all interested in consent expressed outside of the original position. Once principles of justice have been chosen in the original position, men have no right to opt out of them from outside that position. As Rawls says, "Each is bound to these institutions independent of his voluntary acts, perfor mative or otherwise. Thus even though the principles of natural duty are derived from a contractarian point of view, they do not presuppose an act of consent, express or tacit, or indeed any voluntary act, in order to apply.,,7 If a society is structured in accordance with just principles, one has no choice but to obey the laws of that society. Thus, Rawls' ideas about consent are apparently different from those of Locke, but on closer inspection there are similariTACIT CONSENT: A QUIET TYRANNY 15 ties. For, although he claimed above that his principles of justice presupposed no act of consent, Rawls nonetheless accepts the Lockean idea of tacit consent, and argues in favor of it. He writes that one is bound to a society if the society is just, and one has voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers to further one's interests. The main idea is that when a number of persons engage in a mutually advantageous cooperative venture ac cording to rules, and thus restrict their liberty in ways necessary to yield advan tages for all, those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission. 8 Thus, like Locke above, Rawls believes that voluntarily accepting benefits incurs an ob ligation. It is fair to say that this belief stems from the importance Rawls places on fair ness in a political system. What he seems to be saying above is, in effect, "it wouldn't be fair for you to benefit from my actions, and not assume a duty as a result."

In two important ways, Rawls has less ened the importance of actual, explicit con sent. To begin with, it is not even important to him whether a person consents actually to a measure. It is only important that one would consent in the original position. Fur thermore, though, he also claims that simply receiving benefits voluntarily implies con sent as well, and allows the state to make demands on one regardless of whether one consents in fact. StrikingSimilarities Although Locke would reject the claim that a person's actual explicit consent does not matter, he would agree with the claim that receiving benefits voluntarily gives the state the right to make laws for one. The similarities between his theory of tacit con sent and Rawls' are striking; so much so that one is tempted to suspect Rawls was guided entirely by Locke in formulating his. The question, though, is whether or not Locke could reject the first of Rawls' claims-that if one would consent to x in the original position, it does not matter whether one consents to x in reality-without also reject ing the concept of tacit consent. I argue that underlying the theory of tacit consent is a belief in the importance of fairness, or justice, as Rawls would say. When Locke claims that tacit consent obliges one to obey laws, he is really making the claim that it wouldn't be fair to take from the state without giving to the state. Thus, he would have to agree with Rawls' claim that a fair institution must be obeyed regardless of whether one consents to it or not.

Defenders of Locke might protest this, claiming that Locke gave a logical defense of his theory of tacit consent, and does not need to rely simply upon the idea offairness. This, of course, is the above-mentioned claim that property, once brought into a state, remains under the state's control, regardless of the wishes of future owners. Let us examine this claim more closely, for it will appear weaker under light. The man who originally acquired the land, according to Locke's theory of property, had the right to.do whatever he wanted with it, except to let "it go to waste. Yet, the son who inherited it, who is alleged to give his tacit consent to the activities of the state, acquired the property in another manner. He was given it as a gift. So, the question becomes, does this form of ownership con fer the same rights as acquiring it originally? Nozick's Views Some light can be shed on this question by turning to the philosopher Robert Nozick.

According to him, the son's ownership does in fact confer the same rights as the father's. In his book Anarchy, State and Utopia, he claims that a person is entitled to a holding (hasjust ownership of it) ifhe either acquires it justly or has it justly transferred to him.9 Both methods of gaining entitlement to a property carry the same rights. Locke would most likely accept this argument. In the state of nature, people are entitled to do almost anything to which all parties in16 THE FREEMAN • JANUARY 1995 volved in the act consent. There is no reason to assume that this list of permissible con tractual actions would not include transfer ring ownership of property. Thus, when the father gave the property to his son, the son became owner of the property in the same sense his father was. Yet Locke's defenders might ask whether the son's ownership of the property gives him the right to remove it from the state's control. Although the father acquired prop erty which was without previous obligation, the son is acquiring property which is al ready under the control of the state. Thus, the son cannot acquire the right to take the property out of the state's control.

However, it is not correct to assert that the father acquired land which was without obligation, whereas the son acquired land which was already under control of the state. According to the Lockean theory of property, original acquisition of property transfers that land from a communally owned state to a privately owned state. The father's land was, in fact, under obligation before he acquired it, just as it was under obligation when the son acquired it. Thus, it would seem that the same arguments Locke uses to justify the father being able to acquire complete ownership of the land would also apply to the son. Furthermore, if the son does not have the right to take the property out of the state's control, how can he truly be said to own it? As Nozick points out, "the central core of the notion of a property right in X. . . is the right to determine what shall be done with X.,,10 Therefore, if the son is to be said to own the land, then he must have the right to decide what to do with the land. This must, by definition, include taking it out from the state's control. If it did not, then the state would retain the right to decide how the land is used, not the son, and therefore he would lack the fundamental right of ownership.

Thus, Locke's argument that tacit con sent springs from living on land which is already under state control is invalid. If the father truly gave the land to the son, then in order to have the right to make laws for that land the state would have to get the same consent from the son as it did from the father. In fact, there is no other ground on which the theory of tacit consent can rest than that of simple fairness. Having accepted the idea of fairness as a justification for imposing obligations, is Locke forced into accepting the Rawlsian position that a society grounded on fair principles does not require the consent of those who participate in it? At this point, we have seen that Rawls claims that (1) if you accept benefits you incur obligations be cause that's fair, and (2) a fair society does not require consent. Locke, on the other hand, after analysis of the tacit consent argument, appears to claim that (1) if you accept benefits you incur obligations be cause that's fair, (2) any society requires consent, and (3) accepting benefits and thereby incurring obligations is an accept able demonstration of consent.

Obligation? However, Locke's argument breaks down into a claim that by accepting benefits from a society one obligates oneself to that society. The investigation must now focus on whether it is possible for Locke to draw a distinction between this claim and that of Rawls that one is obligated to any fair society, consent or no. A first attempt to answer this question comes from pointing out the fact that fair ness is the obligating factor in both situa tions. Thus, Locke's claim about tacit con sent can be reworded as "The fact that it would be unfair to take benefits without incurring obligations means one is obligated if one takes benefits." Similarly, Rawls' claim, that a fair society obligates one, can be reworded as "The fact that the society is fair obligates you." This places the two claims logically very near to each other. Yet, they are still definitely not the same claim. Locke's claim has an "if' involved, which Rawls' claim lacks. That is, no matter how much he believes in fairness, Locke still places an obligation on one only after one commits a voluntary action. He does not say that you must always do what is fair, TACIT CONSENT:A QUIET TYRANNY 17 only that in this case, it would be unfair of you not to do x, so you must do it. Rawls, on the other hand, claims that one must always do what is fair. So at this point, Locke still appears able to avoid the Rawl sian trap of fairness obviating consent.

Yet, Locke's reasoning must again be called into question. How can it be just for fairness to obligate in this one circumstance, but not in another? Perhaps Locke is claim ing that by voluntarily playing an active part in any equation, one activates fairness as a binding force. That is, as long as onejust sits around, the fact that a particular action is fair does not require one to perform that action. However , once one receives certain benefits, the fact that a certain action is fair does require one to perform that action. Passive Benefits The problem with this claim is that re ceiving benefits is passive, not active. You can just sit there, without taking any action, and the state can give you certain bene fits without any action on your part. The North American Air Defense Command (NORAD), for example, defends me from assault without my needing, asking, or even taking notice. Locke's doctrine of tacit con sent would mandate that I assume an obli gation to the state because of this.

Since Locke's doctrine of tacit consent does not actually require any active partic ipation from one, we can see how fairness can quickly become obligating in all circum stances rather than just in one. Any person giving one a benefit would seem to incur a corresponding obligation from one. Just as I am obligated by fairness to pay taxes for NORAD because it defends me, I could be made to pay someone who washed my windshield on the street, whether I con sented to it or not. Mter all, it would be unfair for me to benefit from his action without giving him something in return. What one sees here is that the factor which makes fairness obligatory in Locke's tacit consent theory has nothing to do with the one being obligated, and everything to do with external factors. A person who washes another's windshield, or defends him has the power to make a demand on him by virtue of fairness. This situation can easily be expanded to make fairness univer sally obligatory. One benefits from clean air, so one could be said, under this same Lockean theory of tacit consent, to be obligated to protect the environment.

In short, it is impossible for Locke to defend a claim that fairness obligates only in the case where he wishes to use it, and nowhere else. The way he has conceived of fairness as obligatory allows it to be used in almost any case. Thus, Locke cannot, in fact, avoid Rawls' claim, that fairness is universally obligatory. Locke and Rawls both make the claim that one who benefits from society is obli gated to it. That is, both share a theory of tacit consent. But Rawls at first appears to be making a larger, and completely different claim. However, a closer examination re veals that Locke's tacit consent cannot be defended except on the basis of fairness. Locke's acceptance of fairness on this ground forces him into a situation where he must choose between keeping.his theory of tacit consent, and accepting the Rawlsian claim that consent does not really matter as long as the society is fair; or abandoning the idea of tacit consent, and retaining a contractarian framework where individual consent to society matters. In the end, the doctrine of tacit consent cannot be sup ported while placing any value at all on actual consent. D 1. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1992), p.

269. 2. Locke, p. 325. 3. Locke, p. 348. 4. Locke, p. 348. 5. John Rawls, A Theory ofJustice (Cambridge: Harvard University Belknap Press, 1971), p. 12. 6. Ibid. 7. Rawls, p. 115. 8. Rawls, p. 112. 9. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 151. 10. Nozick, p. 171.