Some Distinctions in the Notion of Consent

Before I get to the matter on which I want to post today, let me thank Danielle, Frank, Dan, and everyone else here for inviting me to guest-post this month. It’s a pleasure to be here and to take part in one of my favorite blogs. I hope to post on some issues that relate to my current research, but might post on a few other things as well, depending on time.

An idea that plays a central role in much of my research is consent. Consent is a notion that’s important in many areas of law, of course, including standard first-year courses such as contracts, torts, and criminal law, though this is often enough not discussed at great lengths in these classes. I am particularly interested in the role that consent plays in some other areas of law, especially in international law and in certain aspects of immigration law. In these areas of law consent is often thought to play a deep or foundational role. International law, or at least large parts of it, is often thought to be “consensual” in a way that domestic law isn’t. (The idea that consent has an important legitimating role in international law is forcefully criticized by Allen Buchanan in his important book, Justice, Legitimacy, and Self-Determination. I defend an important, if limited, role for consent in my paper, “The Legitimating Role of Consent in International Law”.) Similarly, at least since Hobbes, many have argued that political legitimacy depends on the consent of the governed in some important way. A version of this argument shows up in certain aspects of immigration law, most clearly in discussions of access to citizenship. Peter Schuck and Rogers Smith, for example, argued, in their book Citizenship Without Consent, that the U.S. has a “consensual” form of citizenship, but that this is incompatible with the strong jus soli account of citizenship that we actually practice in the US. (I argue against certain aspects of this account in my paper, “Citizenship, in the Immigration Context”. The more historical aspects of Schuck and Smith’s book are nicely dealt with in a few papers by Mark Shawhan, and by Bernadette Meyler in her paper “The Gestation of Birthright Citizenship, 1868-1898: States’ Rights, the Law of Nations, and Mutual Consent”.)

It seems to me, however, that in these areas the discussion is often quite unclear, owing in part to a conflation between different notions of “consent”.  (Some examples of the sort of confusion I have in mind can be found in the discussion here) What I want to do in this post is to distinguish a few different notions of consent that are used in political philosophy that are directly relevant to the discussions about international law and the basis of legitimate government (and so to citizenship law as well). I contend that, if and when an author is unclear about what sense of consent he or she is working with, you should keep your hand on your wallet. Even if there is not an intentional slight-of-hand coming, you should at least expect shoddy goods in such circumstances. I won’t here attempt to apply the distinctions I’ll draw to concrete cases, but will simply try to make the distinction clear, in hopes that it might help improve discussion. (I will hope to apply some distinctions in a post later this month, time willing.)
The first distinction to draw is between actual consent and hypothetical consent. Though both mention the idea of “consent”, they are importantly different. Actual consent can in turn be divided into express and tacit consent. While there are important differences here, too, it is essential to see first that both express and tacit consent are varieties of actual consent. I start with the second distinction. Actual consent may be express or tacit. This distinction is important in the work of John Locke, but is not a philosophical one at its core. Express consent is, as it sounds, consent given via positive and distinct signs. Signing a contract, making a promise, swearing an oath, or agreeing to a transaction in some normal way would all be examples of express consent.

Tacit consent is actual consent that is not express. It may be given by patterns of action, or by participating in a system of cooperation. More controversially, it can be given by partaking in the benefits of cooperation, at least in some cases. It doesn’t need to be a mysterious idea- we might think that someone who makes a road across her property in the mountains, but who does not mark it as “private” or otherwise attempt to keep people from driving on it, has given tacit consent to its use by others, at least within certain bounds. Because the types of normative relations we can derive from instances of actual and tacit consent are different, it is important for authors who want to be clear and do not seek to mislead to be explicit about whether the consent they are discussing is express or tacit. Locke, for example, thought that express consent to political authority was perpetually binding, but that mere tacit consent could, at least in many cases, be withdrawn. Authors writing about consent to political authority often make claims that would only be plausible about express consent, but then fail to show where or when this express consent took place. Here we see one sort of slight-of-hand that is common in this area.

The idea that actual consent, either express or tacit, could provide the basis for political legitimacy in any strong form was, I hold, decisively refuted by David Hume, more than two hundred years ago, in his essay, “Of the Original Contract”. I won’t go into the details of Hume’s argument here, but will suggest that if someone offers an actual consent theory of legitimacy or obligation(1) and does not address Hume’s argument, then the author in question is selling a bill of goods. Mindfulness of Hume’s critique is one reason for moving to the idea of “hypothetical consent”. This is an idea associated with Rawls (though I do not believe he uses the term in A Theory of Justice) and with Kant, in his re-working of the social contrct tradition.  The basic idea here is that a just arrangement (of society, or some other scheme) is one that people would have agreed to in the appropriate circumstances. In Rawls’s theory, the relevant appropriate circumstance is the “original position”, though this is not a necessary part of the basic idea. It is important to be clear what is claimed here. To paraphrase Ronald Dworkin, we should not think of hypothetical consent as a pale form of actual consent. On its own, hypothetical consent does not justify imposing rules or laws, for example. Hypothetical consent provides a test for the fairness or justice of certain arrangements, but cannot, on its own, prove that any particular rule is legitimately applied. So, again, if an author offers a hypothetical consent account for the legitimacy of the application of a particular rule or law, we should want to know more before we accept the argument. (For example, even if Rawls’s derivation of his two principles of justice in the original position is correct, it would be an illegitimate use of force if the president would try to impose them via executive order, or if the Supreme Court were to appeal to them in deciding cases.) Hypothetical consent, then, provides us with an important tool for evaluating laws and social systems, but it cannot play the same role as actual consent, and an author who attempts to make it do so is trying to pull a fast one or is otherwise confused.(2)

(1) An actual consent theory modeled on Locke’s has been argued for by A. John Simmons, but he plausibly argues that such an account leads us to “the edge of anarchy“.

(2) Despite what is sometimes suggested, this clearly does not apply to Rawls himself.

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4 Responses

  1. Patrick J. Charles says:

    Doesn’t your theory of jus soli have to be based on some form of minimum consent such at the doctrine of alegiance in temporary or local form? It was the well spring by which all protection was based. An alien could not claim protection on any other footing, except for those basic guarantees of protection of life and basic liberty. As I am writing a chapter for a SAGE publication and a law review article on this topic, the drafters of the fourteenth amendment were in general concurrence on being a member of the political community. Now, I am not saying, as it stands today that that children of unlawful aliens are not citizens. Absent congressional legislation on this topic, how can we limit citizenship? However, this does not mean there aren’t any legal limitations that can be imposed on jus soli citizenship.

  2. Matt Lister says:

    Thanks for your comment, Patrick. I always feel a bit sad when blog posts have no comments- and not just on my own posts.

    I’m not sure I follow your argument, though. Where do you see consent playing a role in a theory of jus soli citizenship, and who (and when) is the consent supposed to be given? My understanding of Schuck and Smith’s view, for example, is that they argued that consent must be “mutual” between the current citizens and the new citizen, the one becoming a citizen by being born. That’s already a pretty odd idea- a baby can’t consent to anything, after all. So, there are a lot of moves made, and it ends up being pretty metaphorical. (No one alive today gives express consent in their account, for sure, and they don’t explain why their account can do the needed work if it’s a tacit consent account.) Here we often end up looking at the parents of the children in question, but that won’t work either, for several different reasons that I go into in length in the paper I cite above. But I’d be interested to hear more about how you see consent working in a jus soli account of citizenship, if you feel like it. (I often find blog comments to be a hard place to do serious work, so I understand if you don’t feel like it.)

    I’m also a bit unsure about the last part of you comment, and if we disagree or not here. My post here isn’t a comment on US law or on the constitution. Rather, it’s about what sort of role consent can play in making the use of force legitimate. My considered opinion (again, argued for in the linked paper) is that it’s not the case that as strong a jus soli rule as we find in the US is a condition of justice, but that some fairly strong sort is. I argue for this in terms of hypothetical consent- trying to figure out what sort of system we would choose if we were in an appropriate choice situation. That type of argument is of use in understanding existing law only in, at most, a fairly small number of cases, though they may be important ones. (I think this sort of argument can be of great use in trying to figure out how we might reform our law, though.) But attempting to apply theories of actual consent, either express or tacit, to this area has seemed to me to be hopeless, and the examples I’ve seen have varied between somewhat interesting but completely unconvincing to hopelessly confused.

    As to the historical issues, I’m not a scholar on the subject and can claim no original insight, but I’m pretty well convinced by the accounts given by Meyler and Shawhan linked above, and recommend them.

  3. Patrick J. Charles says:


    Thanks for your reply. I think I will just have to share my findings with you when they are ready to be looked over. In terms of “domicile” (your reliance on Shawan), I disagree that this qualifies as any type of settlement without announcing one’s self to the government. That would be in direct violation of the reciprocity required with temporary allegiance (a huge matter of nineteenth century international law). One cannot have “domicile” without the intent to lawfully announce and subject one’s self to the government.

    I also disagree with Meyler, for she only selectively searched and incorporated nineeteenth century viewpoints. There is much out there that she did not incorporate or divulge with the sources she does use.

    Once I have something more concrete, I will send it your way for comments. I am a believer in getting dissenting viewpoints. They are extremely helpful. I will also be sending this out to Garrett Epps when I finish it.

    Thanks again for your reply,

    Patrick J. Charles
    P.S. In the meantime, if you want to read my views on the importance of allegiance, see “Representation Without Documentation” published in the BYU Journal of Public Law.

  4. Matt Lister says:

    Thanks Patrick. As I note, I’m not a historian and don’t want to play an amateur one, so rely on the work of others. I’ll look forward to seeing your work on the subject. (I should note that I’m fairly skeptical that this sort of historical work is important for the normative question that most interests me, and while I’m somewhat less skeptical that it’s important for the distinct legal question, I have some doubts on that, too. Rule by the dead hand of the past isn’t a very attractive option, after all, and is one that all the major consent theorists hoped to avoid.)