Aaron Ross Powell
Director and Editor

Aaron Ross Powell is Director and Editor of Lib​er​tar​i​an​ism​.org, a project of the Cato Institute. Lib​er​tar​i​an​ism​.org presents introductory material as well as new scholarship related to libertarian philosophy, theory, and history. He is also co‐​host of Libertarianism.org’s popular podcast, Free Thoughts. His writing has appeared in Liberty and The Cato Journal. He earned a JD from the University of Denver.

In the story I told last time, you’re living with your family in Montana, raising cattle, drinking their milk, and generally bothering no one. Now the government’s decided that, first, they want to levy a tax on each head of cattle to pay for road construction and, second, drinking raw milk is illegal, so you’d better stop.

The question I raised was, “Are you politically obligated to obey either law?” If so, why?

Of course, you may choose to obey one or both of the laws for reasons of prudence–it’d be more trouble than it’s worth to disobey, you’re afraid of retribution by the government’s agents, etc.–but that would mean acting based on non‐​political‐​obligation justification. Likewise, you may feel you have a moral duty to not drink raw milk (you’ve been convinced by the arguments against it), but that duty need not be political. Remember, a political obligation is one you are duty‐​bound to follow because of its source (the state) and your relationship to it.

Theories of political obligation fall into five general sorts: consent, gratitude, fair play, association, and natural duty. Let’s start with the first. In my introductory post, I wrote,

The consent account is perhaps the easiest. Here, you have obligations because you consented to them. You agreed to obey the law and support the state by some statement or action you took. This could mean something as obvious as saying, “I agree to obey the laws and support the state.” But it needn’t be that explicit. You might have appeared in a crowd, with an agent of the state standing up front. The agent said, “Anyone who doesn’t consent, raise your hand.” By not raising your hand, you (perhaps) consented, thus creating political obligations. In our Montana story, maybe you consented to pay for road improvements by driving on the existing roads regularly when you went into town to run errands. Maybe you consented to obey the state’s laws–including the law against consuming raw milk–when you decided to remain in the United States instead of moving to some other country where raw milk consumption faces no prohibition.

This was Locke’s preferred method and it remains perhaps the most obvious. By explicitly binding ourselves to a political authority, we agree to abide by that authority’s rules. We consciously decide to undertake a moral obligation and then are, for some period, bound by it. (It seems clear that “consent” demands awareness of consenting. We can’t become bound via consent and not know it.)

But what counts as consent? As I said above, “explicit” consent clearly does. But few of us explicitly consented to be bound to our government. Instead, if consent happened at all, it occurred implicitly. The two most obvious ways this might happen are by living within a state’s claimed borders or by participating in its political process.

Let’s start with the argument from geography. In our story, you’ve lived in Montana your whole life. Both the state government and the federal government claim authority over the region and everyone who lives within it. By staying, have you tacitly consented to the state’s rule? At first it might seem so. After all, you know the land is within the jurisdiction of the United States and that the U.S. government expects to be obeyed by those who live within it. If you don’t like it, you can always leave, right? This is the “If you’re going to live under my roof, you better follow my rules” form of tacit consent.

But if tacit consent depends on making a choice between two possible actions–one that expresses consent and one that doesn’t–then the choice itself must be meaningful. If you’d been chained to a large rock in Montana your whole life, little sense could be found in saying you’d “chosen” to remain there. David Hume extended this meaningful/​non‐​meaningful distinction to less far‐​fetched imaginings when he asked, “Can we seriously say that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires?” Further, given that every bit of land where one could reasonably live is already claimed by some government, none of us have the legitimate option to avoid the state altogether.

Merely living on land within the border claimed by a government may yet create obligations through one of the other four theories, but it’s difficult to argue that they come via consent.

What about voting? It seems that whether voting rises to the level of tacit consent depends much on the intent of the voter. Clearly, if the voter intends to become obligated by voting, then his act of voting acts as consent. But need it? A potential voter might live in the United States but not believe he has consented to be bound to its laws. However, he knows that the outcome of the upcoming election will impact him. One candidate may favor policies leading to greater pollution. Or one may be tougher on crime, making his election a potential security benefit. So our potential voter becomes an actual voter, but not because he consents to the legal system of the United States or because he consents to the rule of either potential victor. Instead, he votes for the same reason you might decide to give your wallet to a mugger: if all probable outcomes aren’t any good, it still makes sense to try to get the least worst one.

And what about the majority of Americans who don’t vote in most elections, either because they choose not to or because they can’t (felons, for instance). Have they consent by not voting? If not voting counts as consent and voting counts as consent, then what doesn’t count? “Not voting and staying put” doesn’t get us to tacit consent, either, because then we’re just back to the “under my roof” argument.

Consent theory is a rich and complex branch of the philosophy of political obligation, one with far more nuances and sub‐​arguments than I can explore here. What it has going for it is that, unlike the other theories of political obligation, consent clearly works. Those who do consent to be bound are bound. The trouble with consent, however, is its stringent demands. We can explicitly consent to become bound to a state’s laws, but very few of us actually do–and what counts as tacit consent is narrow enough that it likely doesn’t pull in even a majority of citizens..

So consent succeeds as a theory of obligation in the sense that it can create obligations, but it fails as a general theory binding most of us to the actual governments that claim to have authority over us.

We must look elsewhere.