Author: Noah Busbee
Consent operates as the basis of the social contract within the context of political theory. As a moral foundation, consent describes the mechanism by which free people enter agreements with the government that accord the transfer of rights concerning political obligations. Consenting to live under the jurisdiction of a certain state grants its government certain privileges in your conferring of rights to them, and the individual gets benefits and services from the state in exchange. Underneath the umbrella of consent, there are two distinct forms originally expressed by John Locke in his seminal ‘Second Treatise’. These two forms are express or explicit consent – and, more controversially – tacit consent. Focusing on ‘tacit consent’ as it relates to the rules of a nation, I argue that tacit consent is entirely unavoidable for the organization of the modern state. Yet, its foundations and core suppositions are, at the very least, morally questionable and might require an outsourcing of grounds for political obligation (participation in civil society) beyond consent.
2. Consent and Standards
In contrast to express consent, which is given through a physical act that confirms the consent of a party in an agreement, tacit consent is defined as ‘silent’ consent given without any physical affirmation (Bennett, 1979, p. 227). For example, imagine a child born into a certain nation is thus obligated to follow the laws and regulations of said nation without ever having physically agreed to the nation’s laws. Legal scholar Bowen Greenwood illustrates the example of a son who has inherited property from his father. While the father consented to build his property within the jurisdiction of one nation, his son simply received the property as a gift with the knowledge that he would be under the regulation of the state. According to all known interpretations, the son has tacitly consented to being under the nation’s jurisdiction without ever having affirmed such acceptance through his inheritance. Explaining the Lockean argument, Greenwood writes “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.” (Greenwood, 1995, p. 3). John Locke, who first put into writing the idea of tacit consent, explores the idea that obligations and duties both arise from and give rise to notions of consent (Locke, 2017, p. 37). By receiving benefits from the state, one is therefore obliged to follow the laws of the state. By receiving state protection, for example, the son who has tacitly consented to state leadership is thus bound to the rules of the nation.
Supporters of the idea that tacit consent is legitimate and binding will undoubtedly hold that receiving benefits incurs obligations. Craig Carr, who wrote an article entitled ‘Tacit Consent,’ writes in defense of the idea that “[a] person who performs some act of association incorporates himself into the commonwealth and thereby consents tacitly to obey the law.” (Carr, 1990, p. 337). He further supports this claim by bringing in examples such as a game of chess or tennis. His argument explains that if one engages in the game, one is tacitly consenting to abide by the rules of the game without needing to provide affirmation. True enough, if you engage in playing a game, you are tacitly consenting to play by the established rules of said game. However, with a game, there is a key action in which you decide to participate in the game, as opposed to the governance of the state. Furthermore, if you do not engage in the governance of a polity or do not subscribe to any state-sanctioned benefits, by what metric is there tacit consent?
In a piece entitled ‘Tacit Consent and Political Obligation’, John Simmons, another writer on the subject, attempts to specify the legitimacy of tacit consent by outlining certain criteria. His criteria for valid tacit consent are as follows:
(1) The situation must be such that it is perfectly clear that consent is appropriate and that the individual is aware of this… (2) There must be a definite period of reasonable duration when objections or expressions of dissent are invited or clearly appropriate, and the acceptable means of expressing this dissent must be understood by or made known to the potential consenter. (3) The point at which expressions of dissent are no longer allowable must be made clear in some way to the potential consenter… (4) The means acceptable for indicating dissent must be reasonable and reasonably easily performed. (5) The consequences of dissent cannot be extremely detrimental to the potential consenter. (Simmons, 1976, p. 279-80).
Accepting these criteria acknowledges the high standard required for creating political obligations. To be productively involved in society, one must be informed of one’s responsibilities, and most importantly (to consent theorists), willing to engage in such obligations.
3. Foundational Issues
The inclusion of these criteria illustrates the fundamental instability of the inclusion of tacit consent in serving as grounds for political obligations. Take the example of the son who inherited his father’s property and is now, under the guidelines of tacit consent, obligated to the rules and structures of the nation. At no point during or after ownership is officially transferred to the son is there an opportunity for the son to consent to the rules of the nation – his consent is instead expressed as a signing of the deed to take ownership of the property. True, this does entail, or should entail, a proper understanding of the rules and regulations for such ownership, thus fulfilling criterion 1. The expressed consent is only to take ownership of the property, however, and subscribing to the jurisdiction and rules of the state, and all the details included in such an arrangement, are not expressed. Furthermore, at no point in this process is there a fulfillment of criterion 2, 3, 4, or 5. The responsibility for creating such opportunities is placed on the government. Tacit consent is, as discussed, a lack of response from the consenter that should, in context, indicate consent. At no point in the process of ownership transfer is there even the opportunity to explicitly express dissent, much less tacitly. The only option, in this case, would be to not sign the deed, meaning the property would likely be transferred to the state without any justification. Is the only option in this case to lose one’s property to a state that one might think has no right to it? Simmons believes the last two criteria, especially in situations such as these, are important “in understanding why continued residence in a state cannot be taken as a sign of consent to its government’s authority.” (Simmons 1976, p. 280).
As another example, imagine a child born within the sovereign borders of a nation. Assume this child is now 16 and has reasonable mental facilities. They might now be able to fulfill criterion 1. However, again, the other criteria lack fulfillment. One might contend that voting for a change in rulership or for certain policy practices might substitute the ability to express their dissent. However, 16-year-olds cannot vote in most jurisdictions. Furthermore, if we accept that voting is a means of expressing consent for a certain rulership, what about those who choose not to vote? It could be said they are tacitly consenting to certain rulership that the majority agrees upon. But again, according to Simmons criteria, someone who agrees with no candidate or is not voting from a principled ideology that is in line with a single party, then there is a violation of criterion 2-5 yet again. I use this simple case to illustrate the gravity of potential moral wronging of individuals by the state through the enforcement of political obligations on those who, by virtue of the instability of pure tacit consent, ought not to have such obligations forced upon them.
4. Concluding Remarks and Ramifications
Tacit consent as a ground for political obligations is entirely unsatisfactory. Simmons himself agrees as such, writing,
It seems clear that very few of us have ever tacitly consented to the government’s authority… While consent, be it tacit or express, may still be the firmest ground of political obligation… It must be admitted that in most modern states consent will only bind the smallest minority of citizens to obedience. (Simmons, 1976, p. 290).
The infeasibility of tacit consent as grounds for political obligation led Simmons to the conclusion that tacit consent “cannot form a part of a consent theory, with its insistence on consent as the sole ground of political obligation.” (Simmons, 1976, p. 290).
While tacit consent is a seemingly unavoidable aspect of civil society in that all people born into a nation are subject to its laws, the moral foundations of tacit consent do not necessarily prompt an obligation from an individual to participate in civil society. For that, either express consent or an outsourcing of such grounds for obligations is required.
Bennett, J. G. (1979). A note on Locke’s theory of tacit consent. The Philosophical Review, 88(2), 224–234. https://doi.org/10.2307/2184507
Carr, C. L. (1990). Tacit consent. Public Affairs Quarterly, 4(4), 335–345. https://www.jstor.org/stable/40435760
Greenwood, B. (1995, January 1). Tacit consent: A quiet tyranny. Foundation for Economic Education. https://fee.org/articles/tacit-consent-a-quiet-tyranny/
Locke, J. (2017). Second Treatise of Government (Jonathan Bennet, Ed.).
Simmons, A. J. (1976). Tacit consent and political obligation. Philosophy & Public Affairs, 5(3), 274–291. https://www.jstor.org/stable/2264884
 This list is exhaustive and includes criteria (4) and (5) which are of Simmons’s own theorizing. He posits these as additions to the first three criteria on the grounds of increasing the validity of tacit consent.
About the Author: Noah Busbee is a recent graduate of the University of Richmond, finishing magna cum laude with a double major in PPEL (Philosophy, Politics, Economics, and Law), with a concentration in Politics, and History. Noah’s interests reside primarily in researching contemporary and modern political philosophy. Specifically, Noah hopes to focus on political-legal theory, the ethics of punishment, the impact of the criminal justice system on family structures and functions, and the political theory of Libertarianism.