Democracy: The Philosophic Principles and Mechanisms, Part IV

A Question of Consent

by John M. Joyce (July 2008)

 

Thomas Carlyle is said—possibly apocryphally—to have

once been dining with a businessman who tired of Carlyle’s

loquacity and turned to him with the reproach,

“Ideas, Mr. Carlyle, ideas, nothing but ideas!”

Carlyle replied, “There was once a man called Rousseau

who wrote a book containing nothing but ideas. The second

edition was bound in the skins of those who laughed at the first.”

 

So far in this series the idea of consent has been introduced several times but has never been addressed in its own right as a concept relevant to democracy, freedom and liberty, and the law. The mechanisms of democracy have been outlined , the role of the people has been summarised and the question of freedom and liberty briefly outlined, but the parts played by the law, free speech and the Fourth Estate in our democracies have yet to be inspected. It would be extremely awkward to analyse the rôle of these three without first having some idea of what is meant by consent, both generally and in the setting of a modern democracy.

The usual way of looking at consent is to view this concept as a way of locking the people into the mechanisms of the state and ensuring that they obey the laws and co-operate with the state and its structures in all other respects. Simply put, because we all take part in the selection of our governments and because we all often criticise or support any measures taken by our government then these involvements can be taken to be our consent to the operation of the system and it is, therefore, assumed that we will consent, also, to support all the laws and structures of our states which are arrived at within the framework of that system. Implicit consent exists by virtue of our own actions as the people and we are not required to give explicit consent. If democracy can be said to have a weakness, then this is it.

Consent given in this fashion can only be binding if it is voluntarily given, or withheld (in certain circumstances), with full knowledge about the issues and after having had time to think about such issues. Agreement with any position exacted from a person under duress is not consent and any actions arising from such enforced consent cannot claim any moral or legal validity. Likewise, the deliberate or forced exclusion of any person from the processes by which they can demonstrate consent (excepting, one can argue, those persons discussed in the first essay in this series as being needful to exclude by virtue of them possessing some inherent inability to give consent) renders such processes devoid of validity, also.

Consent was an issue for governments even before our modern democracies came into being. How did rulers ensure that the people and, more importantly perhaps, those few of the people tasked with carrying out some aspect of government or other, were loyal (had consented) and were to be trusted to perform their tasks properly in the absence of any processes which could have allowed implicit consent to be assumed? The usual method of ensuring the compliance of such people was by requiring them to swear an appropriate oath – to give, in public, explicit consent, in other words. The penalties attached to oath breaking were civil, criminal and religious and were visited upon the oath breaker by others who had sworn similar oaths. In this respect explicit consent functions in much the same way as our modern implicit consent does – there are penalties administered by others, in a similar position to us vis-à-vis the state and consent thereto, which can be visited upon us if we withdraw our consent and act in certain, very narrowly defined, ways such as advocating the violent overthrow of the state, or the democratic mechanisms of the state. Ordinary disagreements with policies and political directions and threatening withdrawals of consent are, today, not viewed as dangerous, but as healthy and needed debates. It is only the extra-ordinary disagreements, usually coupled with the advocating of violent, rebellious acts, which are perceived to be outwith the framework of democracy and as indicating withdrawal of consent.

Oaths, of course, live on despite our states having long since evolved into modern democracies. In the Congress of the United States of America, in the Parliament of the United Kingdom of Great Britain and Northern Ireland, in the Parliament of France of the Fifth Republic (in both the Assemblée nationale and the Sénat), and in many other institutions throughout the democratic world, members swear some sort of oath of allegiance – they give explicit consent over and above the implicit consent assumed by their having taken part in the processes of the state – the processes inherent to democracy in such cases. Note that one cannot count the Pledge of Allegiance given by schoolchildren in the United States of America as an oath because it is ritually spoken by children (see the exclusions which I advocated here) and in no way meets the needs of any definition of reasonable, freely given consent – but it is useful in that particular country as a way of introducing its young to the democracy in which they live and re-inforcing the idea of the obligations which these putative citizens must live up to when they consent to be part of their state, as adults, later on in their lives.

Now we come to the main problem with consent as a concept in our modern democracies – obligations accruing to the individual by his or her implicit consent to the mechanisms of the state and its democratic processes and by his or her involvement in them being deemed implicit consent. If one consents, implicitly, to the operation of the state, does one consent for all time and for all such operations? How far is one obliged to obey the laws of one’s polity simply because they have been arrived at by the due processes of enactment – processes which it is assumed that one consented to merely by the act of taking part - and supported by a majority of one’s fellow citizens?

It’s obligation which some philosophers believe is the corollary of giving implicit consent: that our implicit consent has some of the natural aspects of a promise. In exercising our democratic freedoms we are not only giving consent to the democratic selection processes but also making a promise to to support the resulting government and any systems and laws put in place by it (as long as such placement is done according to the usually pre-established method, which in democracies is through the parliaments and congresses). Such a promise, it is argued, works both ways. Our representatives in our parliaments and congresses consent and promise, both implicitely and explicitly, not to tamper with the systems which we the people have approved, and to govern in accordance with our democratic principles.

Various other philosophers disagree with the idea of consent and promise. They assert that we probably don’t have the freedom to consent – original freedom – and that we are ‘born bound and objectively constrained’ as Prof. Michael Walzer (Princeton) phrases it. However, the same argument which I used here in paragraphs five, six, seven and eight in discussing free will could, in theory, be applied to original freedom – that even if we don’t have it we think we do and believe that we are acting as if we do. Even this group of philosophers (and I’ve no idea as to whether Prof. Walzer belongs to it or not, I merely used his words) has to address, however, the question of just how far we are obligated, how firmly we are bound just because we are human and will always live in groups – in societies – even in societies which are not free. Generally, these philosophers believe that we are only obligated to obedience if the government we live under is in some sense moral or good – provides for our needs and is not tyrannical and unreasonably despotic – but then such a government might be one which enjoyed our consent to rule even if it wasn’t democratic.

One can make a distinction – a minor distinction, in my opinion – between ‘consent and obligation’ and ‘born bound and obligated’ but if the only way to justify ‘born bound and obligated’ is to use the same arguments to justify that position as one would use to justify ‘consent and obligation’ then one has to ask just how different the two positions actually are. Perhaps they are just two ways of looking at reality with one – consent and obligation – being somewhat more theoretical and analytic than the other.

However, neither position is necessarily a reflection of the complete picture. States and governments are not perfect or completely moral in all their actions so a third view can be formulated – that individual citizens have to use their own moral reasoning. We must decide for ourselves which laws to obey and when to obey them; and we must decide, also, when to co-operate with our polity and when not to. In a sense this can be viewed as an ongoing process of consent, or dissent, and a reasoned acceptance of obligations as we perceive them to be necessary and correct. In this view there is no blanket consent implicit in our taking part in any of the processes of our state and neither is there a promise that we will obligate ourselves to accept all the workings and laws of our state. We do not feel born bound or objectively constrained either – though in many ways we probably are.

Consent in modern western liberal secular democracies is also closely tied to dissent. Citizens do have the ordinary right to disagree and, it can be argued, to disobey in some circumstances. It seems that our polities have adopted the third view of consent – that we must all make moral judgements – but even that is not the full picture. If you deliberately break a law then the state assumes that you are obligated and that you did give consent to that obligation. Those amongst us who administer the law will not accept, excepting in very rare circumstances, that you were merely exercising your right to dissent.

So, consent is not a simple issue and there are no easy answers as to what consent actually means. This will be an important point to bear in mind as I turn my attention to rôle of the press and free speech, and the position of the law in modern polities.

Bibliography:

Carole Pateman, The Problem of Political Obligation: A Critique of Liberal Theory, (Chichester, 1979)
P. H. Partridge, Consent and Consensus, (New York, 1971)
J. P. Plamenatz, Consent, Freedom and Political Obligation, (Oxford, 1968)
A. J. Simmons, Moral Principles and Political Obligations, (Princeton, 1979)
Michael Walzer, Obligations: Essays on Disobedience, War and Citizenship, (Cambridge, Mass., 1970)

 

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