Consent theory for libertarians

Social Philosophy and Policy

Volumn 22, Issue 1, 2005, Pages 330-356

  Simmons, A John ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 12144258833     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0265052505041130     Document Type: Review

References (66)

1. Libertarians do sometimes discuss purported justifications of the state and utilize the ideas of state (or governmental) legitimacy or authority, but they regularly do so without considering the related (on some theories correlative) notion of political obligation. It is one thing to give an account of what justifies the state or of what governments may and may not do to their citizens. It is another to give an account of what citizens or subjects are morally required to do (for instance, in the way of supporting government and obeying the law) and why they are required to do it. Libertarians have mostly appeared to presume certain positions on this latter issue, rather than explicitly stating and arguing for them. In what follows I will suggest that this approach is a mistake, that the issue is too complex to be dealt with by presumption.
2. Exactly what kind of political society non-anarchist libertarians accept varies considerably, sometimes in substance and sometimes only in terminology. For instance, many libertarians reject the possibility of a legitimate state (usually meaning by this the distinctive contemporary form of the state) but accept the possibility of legitimate government or legitimate political society. Others accept the possibility of legitimate states, but only of more minimal states than the contemporary ones with which we are all most familiar.
3. Virtually none of the many books and articles specifically on political obligation (or on the duty to obey the law) produced during the past three decades has a libertarian author. The libertarian view that is most discussed in this literature is that of Robert Nozick. But even Nozick does not explicitly mention the problem of political obligation, despite the facts that two of his principal targets - H. L. A. Hart and John Rawls - are both centrally concerned with it (Hart in his account of "mutuality of restrictions" and Rawls in his defense of a natural duty of justice) and that Nozick's discussion of the principle of fairness has clear implications for debates about political obligation. As just a few of many possible further examples, none of the following substantial libertarian works appears to contain any explicit reference to the problem of political obligation: Tibor R. Machan, ed., The Libertarian Reader (Totowa, NJ: Rowman & Littlefield, 1982); Jan Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988); and David Boaz, Libertarianism: A Primer (New York: Free Press, 1997).
4. Virtually none of the many books and articles specifically on political obligation (or on the duty to obey the law) produced during the past three decades has a libertarian author. The libertarian view that is most discussed in this literature is that of Robert Nozick. But even Nozick does not explicitly mention the problem of political obligation, despite the facts that two of his principal targets - H. L. A. Hart and John Rawls - are both centrally concerned with it (Hart in his account of "mutuality of restrictions" and Rawls in his defense of a natural duty of justice) and that Nozick's discussion of the principle of fairness has clear implications for debates about political obligation. As just a few of many possible further examples, none of the following substantial libertarian works appears to contain any explicit reference to the problem of political obligation: Tibor R. Machan, ed., The Libertarian Reader (Totowa, NJ: Rowman & Littlefield, 1982); Jan Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988); and David Boaz, Libertarianism: A Primer (New York: Free Press, 1997).
5. Virtually none of the many books and articles specifically on political obligation (or on the duty to obey the law) produced during the past three decades has a libertarian author. The libertarian view that is most discussed in this literature is that of Robert Nozick. But even Nozick does not explicitly mention the problem of political obligation, despite the facts that two of his principal targets - H. L. A. Hart and John Rawls - are both centrally concerned with it (Hart in his account of "mutuality of restrictions" and Rawls in his defense of a natural duty of justice) and that Nozick's discussion of the principle of fairness has clear implications for debates about political obligation. As just a few of many possible further examples, none of the following substantial libertarian works appears to contain any explicit reference to the problem of political obligation: Tibor R. Machan, ed., The Libertarian Reader (Totowa, NJ: Rowman & Littlefield, 1982); Jan Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988); and David Boaz, Libertarianism: A Primer (New York: Free Press, 1997).
6. On left-libertarianism, see Peter Vallentyne and Hillel Steiner, eds., The Origins of Left-Libertarianism: An Anthology of Historical Writings (Houndmills, UK: Palgrave, 2000); and Peter Vallentyne and Hillel Steiner, eds., Left-Libertarianism and Its Critics: The Contemporary Debate (Houndmills, UK: Palgrave, 2000). Vallentyne characterizes left-libertarianism as combining the familiar libertarian commitment to full self-ownership with the view that "natural resources ... may be privately appropriated only with the permission of, or with a significant payment to, the members of society" (Left-Libertarianism and Its Critics, 1).
7. On left-libertarianism, see Peter Vallentyne and Hillel Steiner, eds., The Origins of Left-Libertarianism: An Anthology of Historical Writings (Houndmills, UK: Palgrave, 2000); and Peter Vallentyne and Hillel Steiner, eds., Left-Libertarianism and Its Critics: The Contemporary Debate (Houndmills, UK: Palgrave, 2000). Vallentyne characterizes left-libertarianism as combining the familiar libertarian commitment to full self-ownership with the view that "natural resources ... may be privately appropriated only with the permission of, or with a significant payment to, the members of society" (Left-Libertarianism and Its Critics, 1).
8. On left-libertarianism, see Peter Vallentyne and Hillel Steiner, eds., The Origins of Left-Libertarianism: An Anthology of Historical Writings (Houndmills, UK: Palgrave, 2000); and Peter Vallentyne and Hillel Steiner, eds., Left-Libertarianism and Its Critics: The Contemporary Debate (Houndmills, UK: Palgrave, 2000). Vallentyne characterizes left-libertarianism as combining the familiar libertarian commitment to full self-ownership with the view that "natural resources ... may be privately appropriated only with the permission of, or with a significant payment to, the members of society" (Left-Libertarianism and Its Critics, 1).
9. David Boaz, Libertarianism: A Primer, 187 (my emphasis). Boaz contrasts government with the state, which is "a coercive organization asserting or enjoying a monopoly over the use of physical force in some geographic area and exercising power over its subjects" (187). Libertarians, like most theorists of the state, define the state in terms of its coercive powers, but libertarians tend to mean by coercion "unjustified coercion." For a dramatic example, consider Murray Rothbard's definition of the state as "an organization which possesses either or both (in actual fact, almost always both) of the following characteristics: (a) it acquires its revenue by physical coercion (taxation); and (b) it achieves a compulsory monopoly of force and of ultimate decision-making power over a given territorial area. Both of these essential activities of the State necessarily constitute criminal aggression and depredation of the just rights of property of its subjects (including self-ownership)." See Murray Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982), 171.
10. David Boaz, Libertarianism: A Primer, 187 (my emphasis). Boaz contrasts government with the state, which is "a coercive organization asserting or enjoying a monopoly over the use of physical force in some geographic area and exercising power over its subjects" (187). Libertarians, like most theorists of the state, define the state in terms of its coercive powers, but libertarians tend to mean by coercion "unjustified coercion." For a dramatic example, consider Murray Rothbard's definition of the state as "an organization which possesses either or both (in actual fact, almost always both) of the following characteristics: (a) it acquires its revenue by physical coercion (taxation); and (b) it achieves a compulsory monopoly of force and of ultimate decision-making power over a given territorial area. Both of these essential activities of the State necessarily constitute criminal aggression and depredation of the just rights of property of its subjects (including self-ownership)." See Murray Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982), 171.
11. Boaz, Libertarianism: A Primer, 127.
12. Ibid., 59.
13. Ibid., 64-82.
14. Ellen Frankel Paul, for instance, points to a similar tension in her essay "The Time-Frame Theory of Governmental Legitimacy," in Jeffrey Paul, ed., Reading Nozick (Totowa, NJ: Rowman & Littlefield, 1981), 271-72.
15. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 149 and 333.
16. Ibid., 12-13.
17. Ibid., 15-17.
18. Ibid., 101-119.
19. Ibid., 82-83.
20. What libertarian would argue that independents (i.e., those who have, at considerable cost, resisted incorporation into group protection schemes) can be legitimately coerced to join political society, so long as they are given government by way of compensation? It is hard to find a way to read Nozick's compensation arguments as anything other than a straightforward abandonment of his own (and libertarianism's) commitment to viewing rights as genuine "side constraints" on the actions of others - an abandonment motivated by Nozick's eagerness to defeat the individualist anarchist. Rights conceived as side constraints necessarily involve a sphere of protected choice (liberty, autonomy) for the rights-holder, not just a guaranteed level of well-being or personal utility. To use the moral analogue of the language most favored by legal theorists in their discussions of legal rights, Nozick appears in most of Part 1 of Anarchy, State, and Utopia to view entitlements as protected by property rules, but in his compensation arguments he appears to view entitlements as protected only by liability rules - this latter "protection" usually being regarded as no real protection at all by those influenced by classical liberal theories of rights. See, e.g., Guido Calabresi and A. Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral" (especially Parts 1-3) and Jules L. Coleman and Jody Kraus, "Rethinking the Theory of Legal Rights," both in Jules L. Coleman, ed., Rights and Their Foundations (New York: Garland Publishing, Inc., 1994).
21. What libertarian would argue that independents (i.e., those who have, at considerable cost, resisted incorporation into group protection schemes) can be legitimately coerced to join political society, so long as they are given government by way of compensation? It is hard to find a way to read Nozick's compensation arguments as anything other than a straightforward abandonment of his own (and libertarianism's) commitment to viewing rights as genuine "side constraints" on the actions of others - an abandonment motivated by Nozick's eagerness to defeat the individualist anarchist. Rights conceived as side constraints necessarily involve a sphere of protected choice (liberty, autonomy) for the rights-holder, not just a guaranteed level of well-being or personal utility. To use the moral analogue of the language most favored by legal theorists in their discussions of legal rights, Nozick appears in most of Part 1 of Anarchy, State, and Utopia to view entitlements as protected by property rules, but in his compensation arguments he appears to view entitlements as protected only by liability rules - this latter "protection" usually being regarded as no real protection at all by those influenced by classical liberal theories of rights. See, e.g., Guido Calabresi and A. Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral" (especially Parts 1-3) and Jules L. Coleman and Jody Kraus, "Rethinking the Theory of Legal Rights," both in Jules L. Coleman, ed., Rights and Their Foundations (New York: Garland Publishing, Inc., 1994).
22. Nozick, Anarchy, State, and Utopia, 18 and 132.
23. It is perhaps nowhere more apparent than in his brief attempt to demolish the consent theorist's rival: the fairness account of obligation and legitimacy (ibid., 90-95). The principle of fairness, Nozick argues, cannot be formulated so as "to obviate the need for other persons' consenting to cooperate and limit their own activities" (ibid., 95; emphasis in original).
24. It is perhaps nowhere more apparent than in his brief attempt to demolish the consent theorist's rival: the fairness account of obligation and legitimacy (ibid., 90-95). The principle of fairness, Nozick argues, cannot be formulated so as "to obviate the need for other persons' consenting to cooperate and limit their own activities" (ibid., 95; emphasis in original).
25. Ibid., 58, 283, and 331.
26. See, for instance, Nozick's remarks concerning the possible outcome where "almost all in the society ... adhere to the ideal of the more-than-minimal state," as a result freely establishing "the analogue of the more-than-minimal state ..., under which each person retains the choice of whether to participate or not" (ibid., 293).
27. Nozick appears to have a similar argument in mind in the following passage: "Since a structure that could arise by a just process which does not involve the consent of individuals will not involve limitations of their rights or embody rights which they do not possess, it will be closer, insofar as rights are concerned, to the starting point of individual rights specified by moral side constraints; and hence its structure of rights will be viewed as just" (ibid., 294; emphasis in original).
28. "[I]n a free society people may contract into various restrictions which the government may not legitimately impose upon them" (ibid., 320). The problem, we can add, is that no actual societies are "free" in the relevant sense-i.e., none enjoy the unanimous consent of their members.
29. The arguments that follow, I believe, show why the "time-frame" theory of governmental legitimacy (as Ellen Frankel Paul calls it) is ultimately indefensible.
30. Nozick, Anarchy, State, and Utopia, 133 (my emphasis).
31. Ibid., 134.
32. Ibid., 139-40.
33. I should try to be perfectly clear about what I take the force of these arguments to be. I do not intend to maintain that a state could not, under any conceivable conditions, function as a state without denying these rights to residents. States could permit those within their territories to exercise competitive enforcement rights and full rights over their property in land while still conceivably functioning as states. For instance, it is certainly possible that some particular set of citizens would never (or would only very rarely) choose to exercise their rival enforcement rights, just as it could turn out that when citizens made their own decisions about the uses of their lands, this happened to result in no serious obstacles to their state's viability or effective functioning. My arguments are intended to suggest only that it is extremely unlikely (under anything resembling realistic conditions) that granting citizenries such full rights (to rival enforcement or to control over land) would be compatible with maintaining functioning states, and that states granting such rights in typical conditions could not reliably provide the kinds of services that we normally associate with functioning or stable states.
34. I defend this understanding of consent in A. John Simmons, On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton, NJ: Princeton University Press, 1993), 69-70, and 83-84; and in A. John Simmons, "'Denisons' and 'Aliens': Locke's Problem of Political Consent," in A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001), 165-66.
35. I defend this understanding of consent in A. John Simmons, On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton, NJ: Princeton University Press, 1993), 69-70, and 83-84; and in A. John Simmons, "'Denisons' and 'Aliens': Locke's Problem of Political Consent," in A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001), 165-66.
36. This is true as well, I think, of the justifications in consensual language that we sometimes offer for our treatment of young children or persons who are insane. Our true concern is to do what we think is best for them in circumstances where they cannot choose for themselves, not to treat them as we imagine they would agree to be treated if only they had nondefective wills of their own - especially since, among other things, we could hardly claim to have very clear grounds for deciding what those wills would be like. Here I (apparently) disagree with Joel Feinberg, who uses an example like the one I use in the text above to argue that "dispositional consent" does perform like actual consent (in precluding "rightful grievances"), provided that there is very strong evidence of the disposition to consent, no opportunity to actually solicit consent, and "serious loss or harm" at issue for the (dispositional) consenter. See Joel Feinberg, Harm to Self (New York: Oxford University Press, 1986), 173-74. While I agree with Feinberg that justifications for interfering with others' liberty are often available in the kinds of situations he describes, I think these justifications are mischaracterized when described as resting on the consent of the person who is interfered with.
37. For a defense of this reading of Locke, see Simmons, On the Edge of Anarchy, 205-7.
38. On the consent tradition, see A. John Simmons, Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979), chap. 3.
39. In David Hume, Essays Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis, IN: LibertyClassics, 1985), 465-87.
40. Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), 192-93.
41. I defended an extension of Hume's argument in both Moral Principles and Political Obligations, 91-100, and On the Edge of Anarchy, 197-202, and 218-48.
42. I defended an extension of Hume's argument in both Moral Principles and Political Obligations, 91-100, and On the Edge of Anarchy, 197-202, and 218-48.
43. Like-minded persons could simply withdraw from their states and found such a society on unanimous, express consent, using as territory an island purchased from some sovereign power, or an independent reservation set aside for the purpose by a sovereign power persuaded of its utility, or (in the near future, perhaps) part of an extraterrestrial body taken by "right of first occupancy."
44. Other objections to such consensual societies - based, for instance, on possible injustice - are addressed in the text below.
45. See, e.g., Carole Pateman, "Women and Consent," Political Theory 8, no. 2 (1980): 149-68.
46. There is, of course, a familiar feminist argument that focuses more specifically, but slightly differently, on the background conditions for women's consent. If women live in conditions of sexist oppression, the preferences on which their choices and their consent are based are bound to be formed in ways that involve "tainted" internalizations of the expectations of their oppressors. As a result, women's consent cannot be viewed as nondefective, even where it appears to be given freely and informedly. For a general discussion of this line of argument, see John D. Walker, "Liberalism, Consent, and the Problem of Adaptive Preferences," Social Theory and Practice 21, no. 3 (1995): 457-71.
47. John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 53. See also John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 287.
48. John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 53. See also John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 287.
49. Assuming, of course, as the principal participants in these debates do, that it is at least possible for persons to have political obligations.
50. The second part of Hume's attack on consent theory was to argue that promises/consent in fact bind us only because of the utility of the practice of promising. We can legitimately, as a consequence, appeal directly to the utility of obedience to law (support for government, etc.) to ground our political obligations, with no need to take the intermediate step of attempting to ground those obligations in personal consent. Joseph Raz advances an argument similarly designed to relegate consent to an "auxiliary and derivative" role in his essay "Government by Consent," in Joseph Raz, Ethics in the Public Domain; Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994), 366-69.
51. Principally, in Simmons, Moral Principles and Political Obligations; in chapter 8 of Simmons, On the Edge of Anarchy; and in essays 1-8 of Simmons, Justification and Legitimacy.
52. Principally, in Simmons, Moral Principles and Political Obligations; in chapter 8 of Simmons, On the Edge of Anarchy; and in essays 1-8 of Simmons, Justification and Legitimacy.
53. Principally, in Simmons, Moral Principles and Political Obligations; in chapter 8 of Simmons, On the Edge of Anarchy; and in essays 1-8 of Simmons, Justification and Legitimacy.
54. Since I also argue that no existing states are legitimate even by consent theory's standards, I should perhaps clarify the sense(s) in which I take alternative accounts of legitimacy and political obligation to "fail." Their failure does not consist in their inability to show that some existing states are in fact legitimate. It consists, instead, in their being unable either (a) to explain how particularized political obligations could arise, or (b) to explain how political obligations could arise in large-scale, pluralistic modern political societies.
55. See Raz, "Government by Consent," 362-63.
56. In a Nozickian Utopia (a framework of consensual communities), those who consent to membership in a community will specify in advance that the community must compensate them for unacceptable changes in its structure (Nozick, Anarchy, State, and Utopia, 324). Nozick does not comment on the moral position of those who fail to include such provisions in their contractual undertakings.
57. Raz, "Government by Consent," 364. Something like this is often taken to be the real substance of Jean-Jacques Rousseau's objections to representative government in On the Social Contract (1764), ed. Roger D. Masters, trans. Judith R. Masters (New York: St. Martin's Press, 1978), bk. 3, chap. 15. It is also what motivates Robert Paul Wolff's more wide-reaching critique of both representative and majoritarian democracy in Robert Paul Wolff, In Defense of Anarchism (New York: Harper & Row, 1970), 27-58.
58. Raz, "Government by Consent," 364. Something like this is often taken to be the real substance of Jean-Jacques Rousseau's objections to representative government in On the Social Contract (1764), ed. Roger D. Masters, trans. Judith R. Masters (New York: St. Martin's Press, 1978), bk. 3, chap. 15. It is also what motivates Robert Paul Wolff's more wide-reaching critique of both representative and majoritarian democracy in Robert Paul Wolff, In Defense of Anarchism (New York: Harper & Row, 1970), 27-58.
59. Raz, "Government by Consent," 364. Something like this is often taken to be the real substance of Jean-Jacques Rousseau's objections to representative government in On the Social Contract (1764), ed. Roger D. Masters, trans. Judith R. Masters (New York: St. Martin's Press, 1978), bk. 3, chap. 15. It is also what motivates Robert Paul Wolff's more wide-reaching critique of both representative and majoritarian democracy in Robert Paul Wolff, In Defense of Anarchism (New York: Harper & Row, 1970), 27-58.
60. Kent Greenawalt, Conflicts of Law and Morality (New York: Oxford University Press, 1989), 92. See more generally Greenawalt's discussion of open-ended promises at 81-82.
61. We can, if we wish, imagine this as the first stage of Nozick's Utopia: "a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own Utopian vision on others" (Nozick, Anarchy, State, and Utopia, 312).
62. See my fuller discussion of these matters in A. John Simmons, "On the Territorial Rights of States," Philosophical Issues 11 (2001) (supplement to Noûs): esp. 300-306.
63. I discuss at some length the idea of inalienable moral/natural rights (along with my reasons for being skeptical about arguments for inalienability) in Simmons, On the Edge of Anarchy, chap. 5.
64. Consent theory obviously must explain the idea of "defective" consent in ways that are not ad hoc or "cooked up" simply to generate certain results in arguments like these. What makes consent defective must be explained in terms of the same arguments that are used to explain why nondefective acts of consent should be regarded as binding and legitimating (see Raz, "Government by Consent," 362). If it is possible to argue for inalienability in these same terms (which I doubt), then acts of consent that involve attempts to alienate inalienable rights will also be properly described as defective.
65. Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000), 1.
66. The hasty and largely undefended claims that follow in this paragraph in the text are elaborated and defended more carefully and at much greater length in my essay "Justification and Legitimacy," included in Simmons, Justification and Legitimacy, 122-57.