Political Philosophy

by Phil Parvin

  2 Related to the above, a successful theory of political obligation must explain why we are obligated to obey laws that we do not like. We might not like a law simply because it restricts our freedom (such as a law that imposes speed limits or requires us to pay taxes). More seriously, we might not like a law because we disagree with it on principled grounds (such as a law that we would not have voted for even for others).

  3 A successful theory must account for obligation while preserving freedom and equality. In pre-modern political theory, the authority of political institutions was often rooted in appeals to divine right or traditional hierarchies or the natural order. Enlightenment liberalism undermined these justifications, insisting that individuals should be conceived of as equals and that their freedom should be protected. Political obligation becomes problematic for liberalism because laws just are restrictions of freedom, and because the fact that only some people are lawmakers seems to undermine equality. If freedom and equality are important, what justifies some people telling other people what to do?

  Spotlight: Civil disobedience

  Civil disobedience – the idea that disobeying the law can be justified as a form of political protest – challenges some versions of political obligation. Famous acts of civil disobedience include Rosa Parks refusing to comply with racial segregation on buses in the American South in the twentieth century, the Boston Tea Party, in which eighteenth-century American colonialists destroyed imported tea rather than pay taxes on it to Britain, and the direct action taken by protestors in nineteenth- and twentieth-century Britain in favour of women’s suffrage.

  Social contract theories: obligation based on consent

  The dominant liberal response to the problem of political obligation turns to consent. If citizens consent to a government, or to a system of laws, we can derive obligation without undermining freedom and equality. This is because consent can be undertaken freely, and between equals, and yet still be binding on the consenting parties. A promise is the paradigmatic example of the fact that consent implies obligation but preserves freedom and equality. If you voluntarily promise your friend that you will help her to paint her flat, then you are morally obligated to paint her flat. The fact that your promise was voluntary means that your freedom is preserved. The fact that you are friends, and not employer and employee, or monarch and subject, means that you are in a relationship of equals and that your obligation does not result from inequality. Nevertheless, once you have made the promise you are under an obligation.

  It is relatively easy to see how consent theory preserves freedom and equality, then. What is more difficult to see is how it does so while obligating everyone to obey even those laws that they do not like, for why would anyone consent to a law they disagreed with? Different answers to this question give different versions of consent theory.

  HYPOTHETICAL RATIONAL CONSENT

  One response is to say that consent should not be considered on a law-by-law basis. Instead, the question is whether we consent to a system of laws in general. If it benefits us to have a system of laws in general then it is rational for us to consent to living under the authority of the state.

  Thomas Hobbes makes such an argument (Hobbes [1651] 1985). According to Hobbes, life without laws – in what he calls the ‘state of nature’ – would be so insecure and uncertain that it would be better for everyone to live under the authority of a state, or leviathan. Hobbes asks us to imagine a state of nature in which we are all at risk of being murdered, injured or stolen from at any time. Life in such a state, he writes, would be ‘solitary, poor, nasty, brutish, and short’ (Hobbes [1651] 1985: p. 186). Hobbes concludes that it would be rational for everyone to consent to a state. The job of the state is to pass laws that protect people’s lives by preventing them from killing each other, and to ensure compliance the state must be more powerful than any individual. Hobbes does not claim that everyone has in fact consented, merely that it would be rational for everyone to do so, and so his theory is based on hypothetical rational consent. After all, refusing to consent to the state is to say one is happy to remain in the state of nature, and in the state of nature there is nothing to prevent anyone else, including the representatives of the state, from killing you!

  ‘The finall Cause, End, or Designe of Men (who naturally love Liberty and Dominion over others,) in the introduction of that restraint upon themselves, (in which we see them live in Common-wealths,) is the foresight of their own preservation, and of a more contented life thereby; that is to say, of getting themselves out of that miserable condition of Warre, which is necessarily consequent (as hath been shewn) to the naturall Passions of men, when there is no visible Power to keep them in awe, and tye them by feare of punishment to the performance of their Covenants.’

  Thomas Hobbes, Leviathan [1651] (London: Penguin, 1985), p. 223.

  Hobbes’s theory therefore obligates everyone because anyone who has not consented can be coerced or even killed, since they would be subject to coercion and murder in the state of nature. And people are obligated to obey even laws that they do not like because Hobbes asks us to consider consent as being to the state as a whole, not to individual laws. This is because any set of laws that meet the minimal requirement of ensuring our physical safety will be preferable to the state of nature, and so any set of laws can be justified by hypothetical rational consent.

  Ronald Dworkin argues that a ‘hypothetical contract is not simply a pale form of an actual contract; it is no contract at all’ (Dworkin 1975: p. 18). The problem is whether a theory like Hobbes’s really can preserve individual freedom and equality. If the consent is only hypothetical, it is difficult to see how freedom is preserved. In Hobbes’s state of nature there is no real freedom: we are all effectively forced to agree because the alternative is so dreadful.

  TACIT CONSENT

  Theories of tacit consent attempt to connect all existing individuals with the state, by providing a way in which we all can consent in our everyday life. If everyone can actually consent, then the political obligation ought to be stronger than if we rely on hypothetical consent.

  ‘[E]very man, consenting with others to make one body politics under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporate into one society, would signify nothing, and be no compact, if he be left free, and under no other ties than he was in the state of nature.’

  John Locke, Second Treatise of Government [1690], ed. C.B. McPherson (Indianapolis, IN: Hackett), p. 52.

  This is the approach of another social contract thinker, John Locke (Locke, [1690] 1988). While Hobbes characterized life without a state as thoroughly unpleasant and brutal, Locke characterizes it as a situation of perfect freedom and equality. Because there is no formal government, no individual has more power than other, and equality is preserved. Because there is no law, everyone has perfect freedom, constrained only by the limitations of nature. Locke therefore concludes that the state of nature is not the worst sort of situation to be in.

  Because, for Locke, the state of nature is not intolerable, it follows that the requirements of consent are much more strident. That is, a state is legitimate only if people actually do consent to it. We cannot infer rational hypothetical consent, because it might sometimes be rational to prefer the state of nature. This means that, for Locke, we must find a way for each individual actively to consent.

  How, then, do we give our consent? Locke argues that people give tacit consent when they use or enjoy what he calls ‘any part of the dominions of any government’. Tacit consent means unstated, implied consent. So, the idea is that people do not have to sign a formal document in order to be politically obligated. Instead, consent is given tacitly: it is implied by the performance of some other action. For Locke, we tacitly consent to the state when we enjoy or use anything that the state provides. So, tacit consent could occur whe
n we walk down the street, for then we use the roads that the state has provided.

  Does this mean that we could live in society without consenting to obey the state? If we could avoid things such as using public highways, we would not tacitly consent. If this were the case, then we would face one of the problems of political obligation, that of ensuring universal obligation. Locke’s theory of tacit consent gets round this problem rather well. It would obviously be very difficult to avoid walking down any public roads – though not impossible. It would be impossible, however, to live within the territory of a state and not enjoy or benefit from any of its provisions. Even if you never left your house, you would still benefit from the system of law and order that the state enforced. If your house were burgled, or if you were assaulted, the state would prosecute the perpetrators. Indeed, the fact that the state punishes criminals makes it much less likely that you will be burgled or attacked. So, even if you remain within your house, you are still enjoying the benefits of the state. Tacit consent, in the end, is given by everyone.

  This notion of tacit consent is useful because it solves the problem of ensuring that political obligation is universal. However, there are problems with it. The most obvious, of course, is that the fact that it is not really possible to withhold consent undermines the consent. How genuine can consent really be if it cannot be withheld?

  The second problem is, as with hypothetical consent, determining the extent of our obligation. It seems fairly clear that we are obligated to support those services which we use, those services which show our tacit consent. So, if you visit a GP, it seems reasonable to suppose that you have consented to pay taxes in support of the NHS, and if you complain to the police that you have been assaulted, it seems reasonable to suppose that, at the same time, you are obliged not to assault anyone yourself. It is less clear, however, whether and why going to the GP should signal that you also consent to the public education system, or to the existence of regulations on drugtaking, or to contributing to public subsidy of the arts. Rather than provide a general justification for the state, tacit consent theory only seems to create obligations to obey laws one by one.

  Spotlight: Voting and tacit consent

  It is sometimes suggested that voting can be a form of tacit consent. The problem with this suggestion is that the number of people voting is often inadequate to obligate even the majority of citizens, let alone everyone. Average turnout for British general elections is around 60 per cent; for local and European elections it is more like 35 per cent!

  Fair play

  The second approach to political obligation is based on the principle of fair play. The idea here is that, if you receive some benefit from the state, you have a duty to reciprocate, to contribute your fair share of resources or effort into maintaining that benefit. It is only fair, so this theory goes, if you contribute toward that which you have benefited from. It would be unfair for you to visit the GP but then refuse to pay taxes toward the NHS, or for you to enjoy the protection of the law as regards your personal property but then to steal from others. Political obligation is derived from the principle of fairness.

  This approach was defended by H.L.A. Hart (Hart 1955). Hart argued that ‘when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission’ (Hart 1955: p. 185). Hart’s idea, then, is that if others restrict their liberty so as to provide something that benefits you, it is right that you ought to restrict your liberty when necessary, so as to continue to provide the benefit: if others are providing a benefit for you, you must make your fair share of contributions. An example of a restriction of liberty would be taxation. Being forced to pay taxes is a restriction on liberty: the compulsion involved means that you cannot do whatever you like with your money but must donate some of it to the government. So, to continue with the example of the NHS, if other people are restricting their liberty by paying taxes to the NHS, you are obliged to restrict your liberty by doing the same.

  Fair play theory preserves freedom and equality in two ways. Firstly, by referring to occasions when others restrict their liberty, Hart shows that restrictions on liberty are costly and must be recompensed in some way. If other people are restricting their liberty for your benefit, their sacrifice requires that you do something significant in return. Secondly, equality is maintained in Hart’s insistence that everyone must contribute to public goods. It is precisely because people are equal that it would be wrong for only some to restrict their liberty so as to secure a benefit for everyone. Equality applies not just to entitlements but also to duties. If people are equal, then they must all have a duty to contribute to public goods.

  One implication of this approach is that you are obligated to contribute to benefits that you have not consented to. Even if you do benefit from some public service, it may be that you would rather not have the service and avoid the contribution. Still, according to fair play theory, you are obligated nonetheless.

  Libertarian philosopher Robert Nozick criticizes this implication of fair play theory (Nozick 1974). He argues that if a person would prefer not to receive a benefit so as to avoid paying the costs, it is unreasonable to suppose that she is obligated to pay. In effect, Nozick returns the issue to one of consent. If you have explicitly consented to a particular practice or act because it benefits you, then it seems reasonable to say that you are obligated to contribute. But, if you haven’t consented, it seems unreasonable to require you to contribute to something just because it is a benefit. After all, there might be no end to the things that people could do for you and then demand a contribution. What if you come back to your house one day to find that your neighbour has mown your lawn, another one has painted your house and another has washed your car? Surely you are not obliged to pay them, or even to return the favour.

  ‘Individuals have rights, and there are things that no person or group may do to them (without violating their rights). So strong and far-reaching are these rights that they raise the question of what, if anything, the state and its officials may do… [A] minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified;… any more extensive state will violate persons’ rights not to be forced to do certain things, and is unjustified.’

  Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974), p. xi.

  Nozick’s example also suggests another problem with the theory of fair play. Nozick states that you have benefited from the practice, and that you accept that it has been beneficial. But what happens if you do not, in fact, like it? If this is your position, the others have still put themselves out, and they have still done so with the intention of providing a benefit. How does that affect your obligation?

  This issue arises with tacit consent as well. Remember, one example of tacit consent was walking down the public road. This might oblige you, at the very least, to contribute to maintaining the road, its street lighting and so on. But, although most people agree that public roads are a benefit, some people might disagree. You might wish that, instead of a tarmacked road, there was a dirt track, so that you could enjoy your four-wheel-drive or your horse riding better. You might be a stargazer, and wish that the roads were not lit up, because street lighting interferes with your ability to see the stars. So, things which are generally agreed to be beneficial by most people might actually harm others. It is very difficult, in such cases, to see where obligation comes from.

  Natural duties

  The final approach to securing political obligation is the natural duties approach supported by, among others, Jeremy Waldron (Waldron 1993) and John Rawls (Rawls 1971).

  The idea of natural duties is similar to the idea of natural rights, discussed in the previous chapter. Just as some people believe that we have certain rights on account of the fact that we are human beings, so s
ome legal and political philosophers have argued that, as human beings, we have certain duties which we are morally required to fulfil. In particular, Waldron and Rawls argue that we have a natural duty to justice. Rawls argues that ‘first, we are to comply with and to do our share in just institutions when they exist and apply to us; and second, we are to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves’ (Rawls 1971: p. 334).

  We will put aside for now the important question of how to define justice (this is the subject of Part Two). Assume for now that we all know and agree which institutions are just. In such circumstances, would a theory of natural duty explain political obligation?

  Remember, theories of political obligation attempt to preserve individual freedom and equality. Theories of natural duties succeed very well at this task – at least if they are liberal theories, based on a liberal theory of justice, as Rawls’s is. Rawls’s theory of justice is based precisely on freedom and equality. A just outcome or institution is one which conforms to freedom and equality. So, a natural duty to obey and establish just institutions is, at the same time, a natural duty to preserve freedom and equality.

  Natural duty theory also does well at explaining why everyone is obligated to obey even laws they dislike. As long as those laws, or the institutions that enact them, are just then obligation ensues.