In this paper I will outline and evaluate what I consider to be the two main justifications of political obligation, namely theories of consent, and theories of fair play. I will argue that, whilst both types of theory have a certain intuitive appeal, neither is successful in rendering an account of our obligations in a specifically political context. It is clear that both theories show how some of our obligations arise, but I would argue that the situations under which they are applicable do not extend to the political situation, since the latter differs in important respects. I would argue that the argument from tacit consent fails as a theory of political obligation in the same way that express consent does, because, even though consent does generate obligations and therefore the state's authority is justified if the citizens consent to it, it is not possible for the majority of citizens to even tacitly consent to the government. The principle of fair play is a seemingly persuasive one and I would argue that it is successful in generating grounds for obligation within a cooperative scheme. But it fails as a justification for political obligation principally because the government cannot be generally regarded as a cooperative scheme on a large scale. Hence both arguments I will consider here fail to give a convincing account of why citizens have an obligation to the state. However, it is worth pointing out that there are still "many good reasons for obeying the law which have nothing whatever to do with the claim that it is obligatory to do so", one of which being the simple fear of being punished for civil disobedience.
The principal idea behind theories of consent is this:
"No man is obligated to support or comply with any political power unless he has personally consented to its authority over him"
This notion has an intuitive appeal, since it seems that when we consent to something we do put ourselves under an obligation to comply with that which we have consented to. However, I will argue that in fact theories of consent are not as persuasive as they appear to be as a way of justifying the state's authority and defending our obligation to abide by the rules of the government. In his book entitled 'Moral Principles and Political Obligations', Simmons offers a definition of consent which will be useful in this discussion. He describes consent as a deliberate and voluntary action which generates obligation and restricts the liberty of the consenter. Unlike promises, consent, in the sense we mean, is generally given to the actions of other people (rather than our own actions). So Simmons formulates this definition of consent. It is: "the according to another by the consenter of a special right to act within areas within which only the consenter is normally free to act"
It is important at this point to make the distinction between express and tacit consent. Express consent takes place when someone explicitly states that they consent to something and it is obvious that this would not be applicable politically as it is clear that most people have never been in a position to expressly consent to the government. So the expression of consent that concerns us is tacit consent, but we need to be clear about the criteria which must be met for silence to be taken as consent. Simmons gives us five such conditions which must be met:
(1) The person must be aware of what is going on and that consent is appropriate
(2) There must be a period when objections can be made and people must know how to object
(3) It must be clear when no more objections can be made
(4) The means for objecting must be reasonable and easily performed
(5) The consequences of dissent must not be too harmful to the dissenter
All the above conditions must be satisfied if we are to take silence as consent when arguing for political obligation. The question is often raised of whether consent always creates an obligation. Rawls argues in 'A Theory of Justice' that consent to unjust institutions does not bind: "Consent to clearly unjust institutions does not give rise to obligations"
However I would argue that the worthiness of the institution is irrelevant and that the act of consenting itself is enough to make us obligated to the institution we have consented to (Simmons makes the point that a person's moral unworthiness does not free us from the obligation we have to keep a promise we have made to him). As Green argues, "The free and informed consent of rational persons binds them to obey"
A key feature of consent seems to be that it is given intentionally. Therefore, Locke's arguments that we consent to the government just by travelling along a road fail because they rest on his belief that consent can be given unintentionally. As Green points out, a clear sign of consent is necessary and therefore, "Mere residence...is not enough, a public promise to obey the laws is, and between lies a realm of contest"
Simmons makes the important distinction between acts that are 'signs of consent' and acts which 'imply consent'. A genuine act of consent must always be a 'sign of consent'. Locke's view seems to deal with implied consent rather than genuine tacit consent because he talks about enjoying the benefits of the state as grounds for political obligation. Obviously it is possible to enjoy the benefits without consenting to the government, although in most cases if someone enjoyed the benefits it would imply that they consented to the government. Simmons claims that the mistake Locke makes, of confusing signs of consent with acts which merely imply consent, has been made by many political philosophers and he argues that political participation, whilst it may imply consent, is definitely not a sign of consent. Singer has argued that there is a clear connection between consent and voting, but I would agree with Green's criticism that, "In the liberal democracies there is no law or settled social practice which makes voting a sign of consent, and the right to vote is not conditional on one's acceptance of the state's authority"
In order for, say, continued residence within the boundaries of a state to constitute tacit consent to the government it would need to satisfy the five conditions stipulated above. Whilst we can imagine it satisfying the first three, it is very unlikely that the demands of conditions (4) and (5) could be met. It would seem that, although in theory citizens have the choice of emigration, in many cases it would not be easily performed (for instance if people were very poor) and in nearly all cases the consequences would be too adverse to make it plausible (ie. leaving family and friends and having to adapt to an alien culture etc.)
All this leads us to the conclusion that, "tacit consent must meet the same fate as express consent concerning its suitability as a general ground for political obligation"
However, Locke's idea that enjoying the benefits of the state, specifically residing within the state boundaries, may be grounds for political obligation, paves the way for suggestions of other principles which may bind us to obey the government, and in particular the principle of fair play.
The principle of fair play (which is advocated in the main by Hart and Rawls) is grounded on the idea that 'everyone has to do their fair share'. The idea is that if someone accepts the benefits of the enterprise then they are obligated to take on their fair share of the burdens of that enterprise. Hence theories of fair play attempt to show that if someone is willing to accept all the benefits of social co-operation (including the benefit of other people obeying the law), they must also be willing to obey the laws that the government institutes. Simmons highlights three special conditions which must apply to talk of fair play:
(1) A number of individuals participate in an 'enterprise'
(2) A set of rules governs the enterprise
(3) When some (or all) people follow the rules, some (or all) get certain benefits, but in some cases at least the benefits can be had without following the rules.
The key idea is that if someone benefits from others obeying the rules, he has an 'obligation of fair play' to take on his share of the burden. Rawls adds a further condition to point 1 above, that, as in the case of consent, the scheme of social cooperation must be mutually beneficial and just. Simmons discusses this justice requirement in some detail. There are two ways in which this requirement may be looked at, the first being the injustice in supporting immoral schemes. But it does not seem that the principle of fair play alone disqualifies immoral cooperative schemes (for instance criminal conspiracies). But what about the issue of injustice in the distribution within the scheme? Whilst it seems important that a person must have a fair share of the benefits in order to be bound to do his fair share, Rawls seems to miss out consideration of the obligations of individuals, "to whom a fair share of benefit is in fact allocated within an unjust scheme" It also seems unnecessary that the benefits must be shared out equally, since the share of the burdens allocated to us seems to be directly proportional to the benefits we have accepted. (Nozick raises the issue of whether we are all obliged to do the same amount of work even though we may reap differing degrees of benefit from the scheme: "As the person least benefited by the practice, are you obliged to do an equal amount for it?" I would argue in response to this that the important issue is whether, for each individual, the benefits of joining in the scheme outweigh the costs).
We are at liberty to refuse to accept the benefits of an unjust system and therefore would not be bound to support an unjust scheme. So it seems that Rawls' justice condition is flawed.
Simmons takes into consideration Nozick's criticisms of the fair-play theory and shows effectively that Nozick's counter-examples to the principle of fair play do not in actual fact pose a threat to the principle because they do not take seriously the distinction between accepting benefits and merely receiving benefits. Nozick's example of the PA system does not pose a threat to the principle of fair play because the person in that example is an innocent bystander and would not be included in the co-operative scheme under the principle of fair play. This does raise the issue of who counts as an 'outsider' to the cooperative venture. It seems that for someone to be a participant in a cooperative scheme, he must either:
(i) have agreed in some way to be governed by the system's rules, or
(ii) have played an active role in the scheme when it is up and running
Nozick would argue at this point that the principle of fair play simply collapses into a theory of consent, because you have to consent to become an 'insider' and that entails that you are bound by the rules anyway, so the principle of fair play is redundant. However, Nozick makes the mistake of not taking the distinction between accepting and receiving benefits seriously. As Simmons' example of Jones the 'free-rider' illustrated, you can be a participant by accepting benefits without consenting to the scheme. So the principle of fair play does not collapse into consent. Simmons now puts forward the criteria for the acceptance of benefits:
(I) You must have tried to get, and succeeded in getting, the benefit, or
(II) You must have taken the benefit willingly and knowingly
Nozick's examples (for instance the man who lives in a street where the residents take turns in sweeping it every day) are not counter-examples to the principle because they are all instances of receiving benefits rather than accepting benefits. People are bound only when they accept benefits (for example you wouldn't want to say that someone is obliged to pay up when someone has cleaned their windscreen at the traffic lights, because they haven't sought the benefit and they did not knowingly accept it). I would agree with Nozick's claim that, "One cannot...just act so as to give people benefits and then demand (or seize) payment" but Nozick seems to want to use this to discredit the whole idea of fair play. As Simmons' criteria above make clear, this case of Nozick's would not be an example of accepting benefits and therefore the recipient would not be bound to pay. Simmons makes the distinction between 'open' and 'readily available' benefits, the former being benefits that one would have to go to considerable lengths (or endure considerable inconvenience) to avoid, such as in Nozick's street-sweeping case. 'Readily available' benefits are those which can be easily avoided and have to be sought. It can be seen that the principle of fair play is more applicable to 'readily available' benefits, although most benefits of the state are 'open' benefits. So the principle of fair play fails as a justification of political obligation because it is not clear that the majority of the people voluntarily accepted the benefits of the state and it is also not clear that political institutions can be regarded as cooperative schemes.
To conclude, I would argue that neither of the theories we have looked at show how we come to have political obligations. Consent-based theories show that political authority is legitimate if everyone knowingly consents to it, and since not nearly everyone has, these types of theories fail to show how we can have an obligation to the state. Theories involving the idea of fair-play are only effective in cases where people have willingly and knowingly accepted benefits and, since most of the benefits that the state affords are 'open' benefits, we cannot show that most people have accepted the benefits of the state, and therefore the principle of fair-play also fails to account for our political obligations.
© Anne Witton 1997. No part of this article may be copied without my permission.
BIBLIOGRAPHY
Green, L The Authority of the State Oxford University Press, 1988
Harris, P On Political Obligation Routledge, 1990
Honderich, T (ed) The Oxford Companion to Philosophy Oxford University Press, 1995
Locke, J (ed Laslett, P) Two Treatises On Government Cambridge University Press, 1960
Nozick, R Anarchy, State and Utopia Blackwell, 1974
Rawls, J A Theory of Justice Oxford University Press, 1972
Simmons, A J Moral Principles and Political Obligations Princeton University Press, 1979
