Consent to State Legitimacy vs. Voluntary Obedience to Law?

Sorry to be so convoluted about the attributions and citations here, but Brandon Christensen over at Notes on Liberty drew my attention to this post by Arnold Kling on Yoram Hazony’s recent book on nationalism. I haven’t read Hazony’s book, but Kling’s post is meant to be an explication both for readers and interested non-readers alike. Here’s what he (Kling) says:

A long post, below the fold, offering my [Kling’s] charitable interpretation of what he [Hazony] is saying.

1. We have three options for government, two of which are very unpleasant: anarchy; repression; or legitimate government. With anarchy, people don’t obey the law. With repression, they obey with great reluctance and only if carefully watched. With legitimate government, they obey the law voluntarily.

2. Legitimate government means that people willingly make sacrifices, such as paying taxes and serving in the armed forces, to help sustain that government.

3. Contrary to the theories of John Locke and others, legitimacy does not come from consent. It first requires that people have a sense of commonality. This comes from common traditions and cultural focal points. These might include language, religion, holidays, moral codes, social narratives, etc. Without this sense of commonality, a state has to default to anarchy or repression.

I don’t understand this. Does anyone? Not a rhetorical question. Maybe it’s laid out in the book, but at face value, this set of claims makes no sense to me.

Claim (1) says that if we put aside anarchy or repression, we’re left with a legitimate government whose laws we obey “voluntarily.” That sounds to me as though the laws of a legitimate government are consented-to. If the government’s constitution is law, we would, presumably, consent to that, too.

Claim (2) says that if our government is legitimate, we “willingly” make sacrifices for it. That seems to imply that the sacrifices we make are consented-to along with the laws.

But claim (3) says that legitimacy does not come from consent. It seems to imply that consent is not a necessary condition for legitimacy, either. To avoid tangles about such jargon as “legitimacy,” “authority,” and the like: it says that no one need consent to a government before that government can justly or permissibly govern those it governs.

Maybe there’s no overt contradiction there, but the claims obviously do not cohere. If we obey the laws (including the constitution) by consent, and sacrifice for government by consent, why wouldn’t we consent to the legitimacy of government itself? What rationale is there for saying that people who consent to the constitution of a government don’t consent to the government itself? At a minimum, why wouldn’t we consent to the legitimacy of a government that does all and only legitimate things, or at least approximated doing so? Without an answer to such questions, it’s hard to see how claims (1)-(3) make even minimal sense.

Nothing in Kling’s explication of (3) addresses the relevant issue. You could reject Lockean consent theories and still endorse the claim that consent was a necessary condition for legitimacy. Rejection of Lockean consent isn’t rejection of consent. You could say that consent requires ethno-national “commonality” and still think that consent was a necessary condition for legitimacy: X’s being a necessary condition for Y doesn’t imply that Y can’t be a necessary condition for Z. So my bafflement remains.

Coming the other way around: People could have a sense of ethno-national “commonality” but fail to consent to the state. For instance: lots of Jews have lots of things in common without consenting to the legitimacy of the State of Israel. Is the legitimacy of the state then underwritten by ethno-national commonality sans consent? Does the state govern people simply because they belong to the same ethno-national group, whether they consent to it or not?

Questions in the same vicinity: a majority of the people on some territory might have a sense of commonality and, invoking that, consent to the state while leaving an ethnic or other minority outside of that perceived sense of ethno-national commonality or consenting cohort. Does the state then have the right to govern the minority community that fails to consent? Supposing they do, what did consent have to do with anything? How can it be said that a minority community that happens to live in the same territory as an ethno-national majority “willingly” obeys the laws of the state and “willingly” sacrifices to the state even if it actively refuses to consent to the state and actively rejects the functional equivalent of that state’s constitution?

This isn’t the first time I’ve read Hazony and been baffled, not just by what he says (or in this case, is understood to say) but by others’ reactions to it. I guess the first time was when Hazony brought Meir Kahane to my undergraduate institution, had Kahane defend the proposition that the Palestinians of the West Bank be driven out or killed in the name of “the virtue of nationalism“–and then defended him as the audience nodded in agreement and laughed at Kahane’s jokes. I’m disinclined to show such a person “charity” of any kind even thirty years after the fact, and don’t really see why anyone should. Cruel, I know. But in the world we currently inhabit, prudent.

(Apologies, couldn’t get the “Continue reading” tag to work on this post.)

21 thoughts on “Consent to State Legitimacy vs. Voluntary Obedience to Law?

  1. Here’s my charitable reading/reconstruction: (a) voluntary obedience to law is required for a government to be legitimate, (b) a certain level or kind of commonality of values, custom, etc. is the only realistic way to get (sufficient) voluntary obedience, (c) consent to obey the law is distinct from voluntary obedience to the law and plays no role here (specifically, consent to obey the law is neither necessary nor sufficient for legitimacy). The muddy issues come up in the last bit (does voluntary obedience, or perhaps voluntary obedience for the right reasons, constitute a kind of consent?). But it is the first two bits that constitute the sketch of the positive account. (I, too, have little patience for straight-up defenses of nationalism. However, I think there are important truths that fall under a broadly nationalist umbrella that, if ignored, encourage the familiar, nasty forms of nationalism. I take the conjunction of [a] and [b] to be a good stab at capturing, in a schematic way, something that is important and true in the vicinity of nationalism. Of course, much depends on how the commonality bit is filled in.)


    • That’s probably the best anyone’s going to be able to do, but I still don’t think it makes sense.

      First, if “obedience” is correlative with “command,” and we take “command” literally as an imperative backed by force, “voluntary obedience” is just an oxymoron: it then becomes “voluntarily agreeing to do something that someone is forcing you to do.” I’m inclined to think that “voluntary obedience” is the equivalent of a Randian anti-concept: a self-contradictory way of referring to tacit consent in Locke’s sense (i.e., a way of referring to tacit consent as though it were express consent).

      But suppose in an act of super-charity that one accepts (a). Take a case like the U.S., where the government in question has a constitution. And suppose that we’re talking about a government whose policies, etc. actually exemplify the constitution’s norms (whether you regard the U.S. as such a case or not). Now imagine that the population engages in “voluntary obedience” to the law, where the law includes the constitution and those laws which are constitutional. This is “voluntary obedience” to a constitution, to constitutional laws, and to the government legislating, executing, adjudcating those laws.

      That’s the content of (a) in a not-so-crazy case. Now compare (a) with (c): in what respect could voluntary “obedience” to the law, the constitution, the government so construed really be distinct from consenting to those things? I mean, either you consent or you don’t. If you do, your voluntary acceptance of the law has an obvious explanation. But if you don’t, in what respect is your acceptance of the law or the government really voluntary? It’s an act of resignation to force majeure. Maybe someone wants to call it a voluntary act of resignation to force majeure. But that’s just to confuse the issue.

      The only semi-plausible claim in the whole account is (b), and even that’s a stretch. At a certain level, (b) is a triviality or truism: the only realistic way to get any set of people voluntarily to make the same decision is to get them to agree to make the same decision. If the decision is consent to government, then they have to agree on fundamental values. But that’s too obvious a claim to belabor; it’s even consistent with Rawlsian anti-perfectionism and public reason. To get a nationalist thesis out of that, you have to think that the commonality in question is ethno-national. But even if you thought that, what bearing does it have on the denial of consent for legitimacy? Maybe ethno-national commonality is a necessary condition for getting large groups of people to consent, but then commonality is a necessary condition for consent, which is a necessary condition for legitimacy. But the claim seems to be that commonality is insufficient for consent, and consent is unnecessary for legitimacy.

      That collides head-long with the questions I asked. Suppose you have commonality but no consent. Then how have you done anything to legitimize a government? How do a bunch of ethnic people doing ethnic things together make a legitimate government?

      Suppose you have majority commonality and consent but minority non-consent. How do the majority bind the recalcitrant minority to obey the government? One way is at gunpoint, but if so, how would that count as “voluntary” anything?

      I have a lot less patience for nationalism than you do. The only truth I see in it is the claim that a constitutional political order presupposes a commonality of moral and other values in those being governed. The question then becomes whether that commonality should be thin in the Rawlsian sense or thick in the Aristotelian or Millian sense (meaning the Mill of On Liberty, not Representative Government). But nationalism confuses that issue with an essentially ethnic concept of “the nation.” Ethno-nationality becomes a proxy for a shared conception of moral values. The contradiction between a shared commitment to moral values and a shared ethnicity is implicit in the American founding, which took place in the name of both inalienable rights and “the ties of consanguinity.” It’s the latter, not the former, that’s the basis of American “nationalism.”

      It’s a weird feature of the political Right that it wants to see “socialism” as a bad word but “nationalism” as a good word. Asked to explain why “socialism” is bad, they say, “Well, look at the track record!” Which is supposed to be self-evidently bad. Pressed to take a look at the track record of nationalism, they invent a “virtuous” conception of nationalism–while attacking anyone who does the same for socialism. I guess I’m content to be a perfectionist multicultural liberal. The nationalists and the socialists deserve each other. But we don’t deserve them.


  2. If the government commands me to do something I would do anyway (like refraining from kidnapping and torturing people), does my acting in conformity with the law count as voluntary obedience? Yes, if it counts as obedience in the first place. Does it? Depends whether obedience just means acting in conformity with the law, or whether the fact that it IS the law has to play a role in explaining my action. If it’s the former, then it’s voluntary obedience, but doesn’t seem to be consent.

    A different case is where the government commands something I wouldn’t otherwise do, and I do what the law requires, and my motivation is neither respect for the law’s authority nor fear of punishment, but just recognising the law’s role as an enabler of coordination. For example, if the government mandated that everyone switch from driving on the right to driving on the left, AND I expected this new mandate to be generally followed, then I would drive on the left too. It’s my expectation of others’ behaviour, not the law itself, that motivates me. But assuming I regard other people as likely to abide by such a rule, the existence of the rule does play a role in my practical reasoning. Is that obedience? Is that voluntary obedience? In any case it seems to fall short of consent.

    So maybe there is daylight between voluntary obedience and consent. It doesn’t seem to be in a way that helps Hazony’s overall case, though.


    • Another case occurred to me: in the more militant or authoritarian karate dojos, one “voluntary obeys” the sensei, who barks commands at his pupils that they’re supposed to execute automatically, without thinking. This is obedience in the literal sense of response to a literal command, but voluntary in the sense that it involves a prior act of consent. Obviously unhelpful to finding daylight between voluntary obedience and consent, but at least a helpfully clear case of the phenomenon of “voluntary obedience.” In other words, the concept of “voluntary obedience” has clearest application to the case in which you consent to be commanded to do something, then voluntarily obey what you’re commanded to do. The application to certain jobs–fire-fighting, nursing, police work, the military–should be obvious.

      I have a feeling that your “different case” is the one most helpful to a nationalist project like Hazony’s. But I actually don’t understand your description of the case, or maybe just find it ambiguous.

      If the government commands something I wouldn’t otherwise do (but for its being commanded), and my motivation is neither respect for the law’s authority nor fear of punishment, there are two different senses in which I might “obey” or conform to the law by “recognizing the law’s role as an enabler of coordination.” I could either follow the law because I endorse that role, or follow the law while acquiescing in the fact that if others follow, I must follow. The first case strikes me as a case of voluntary consent; the second strikes me as neither voluntary nor consenting. If we both agree that the second case isn’t consenting, I don’t get how it can be described as “voluntary.” It’s a case in which I am (reluctantly) acquiescing in the predictable consequences of someone else’s act of force. How is that “voluntary”?

      Suppose I live somewhere, X, and I hear that an invading army is coming. I then hear credible rumors to the effect that this invading army intends very roughly to uproot and expel me–doing what invading armies will do (“armies will be armies”). So I decide to leave well before they get to X. I pack up my things, and go. This is a case where I’m recognizing the invading army’s role as a (likely) creator of chaos and perpetrator of atrocities. But I decidedly don’t endorse these things. In this case (I would say) my departure from X is neither consenting nor voluntary. Nor is it made voluntary by someone’s filming me in the act of decision, then filming me packing my things, and filming my departure–all of it, to all appearances “voluntary.” It may appear voluntary, but it isn’t. It’s a response to the invasion, which is an act of force.

      Now suppose that my next-door neighbor in X knows that I have a really nice guitar, knows that I’m leaving it behind, wants it, and has a good plan for getting it in the chaos of the invasion. He’s willing to take his chances with the invading army because he wants my guitar more than he fears what the army will do to him. He, too, recognizes the army’s role as a creator of chaos, etc., but he endorses it because it promotes his aims. Suppose the army invades; I’ve left, so my neighbor steals my guitar. Even under conditions of an invasion, I’d say that his doing so was voluntary, and his complicity in the invasion consenting.

      Your “switch to driving on the left” example seems ambiguous as between these two possibilities. In one case, perhaps I think the switch is capricious; in this case, I reject legitimacy of the government’s engaging in the switch but recognize that the new law will be followed by all the drivers I encounter on the road. Since government has a monopoly on this kind of coordination, I decide for good reasons to acquiesce in the switch. But my decision is neither voluntary nor consenting. It’s a response to an act of force.

      In another case, let’s say, I think the switch is an improvement; in this case, I endorse it, so that my compliance/conformity/obedience is both voluntary and consenting. But then there is no daylight between voluntariness and consent.

      I suppose that there are intermediate or hybrid cases where I have no particular opinion on the switch; I just follow it because I’ve internalized the government’s monopoly on traffic coordination, and am indifferent to this particular switch. This strikes me as the most plausible case of “voluntary obedience,” but its plausibility turns on the stipulation that those engaged in “voluntary obedience” are either uninformed about or indifferent to what their government is doing (ideally both).

      Upshot: “voluntary obedience” seems a concept ready-made for confusion. It applies best to cases where you voluntarily consent to be commanded to do something (and then obey), or to cases where you mindlessly do something that someone commands because it hasn’t occurred to you to have a view on the merits of the command, hence hasn’t occurred to you either to consent or dissent from it. The first case is an exemplification of Lockean consent; the second is unhelpful to establishing the legitimacy of a government.

      Interestingly, in American criminal procedure, something like the second case is regarded as full fledged consent. If a police officer approaches you and says, “I need to talk to you about something,” and you unthinkingly decide to have the conversation, the conversation is thought both voluntary and consenting (there’s no daylight between the two). Same with search and seizure (in the legal senses of those terms). Where “X” is a search or seizure, “I need to X” is conveniently ambiguous as between a command and a request. But unless the recipient treats “I need to…” as a command, it is treated, by default, as a request. If the recipient “voluntarily” satisfies the request, he’s thought to have done so by consent. Of course, if it really was a command from the start, failure to comply with it is a crime. And the officer has no legal obligation to tell the recipient which situation he’s in–command or request.

      I think you can see the problem. When you deal with the state, requests are phrased as commands, and commands are phrased as requests. Often, the issuing agent has no obligation to disambiguate requests from commands. So every dealing is a crap-shoot. If it was just a request, and you treat it as a command, you’ve consented to it. But if it was a command, and you treat it as a request, you’re failing to comply. An account of state legitimacy that fails to deal with this problem has, as far as I’m concerned, punted on the basics.


  3. The last time I tried to engage in discussion about a book I hadn’t read, things didn’t go so well, so I’ll try to be brief and stay on the general level. First, I think Roderick’s points are enough to show how voluntary obedience might be different from consent, and in any case I don’t see that voluntary obedience would be an oxymoron or an anti-concept even in cases that Roderick’s examples don’t cover. Setting aside the role that enabling coordination might play in making law authoritative, it seems clear that I can, in fact, do something that the law commands me to do, and that I would not otherwise do, without being motivated by fear of punishment. Maybe that’s foolish, but it’s possible. In such cases, I am obeying, rather than just happening to do what the law commands for reasons independent of its command; but I am not obeying simply because I’ll be punished otherwise, which, I take it, would amount to involuntary obedience.

    As to how voluntary obedience is supposed to differ from consent, I won’t try to guess what Hazony means, but here’s two thoughts about what someone saying things like he’s reported to say might mean and that don’t seem crazy. First, voluntary obedience might differ from consent in the way Roderick suggests; I can obey a law that I do not think should be a law, yet obey it voluntarily, while consent would involve my agreeing that the law should be what it is. But, maybe more importantly, the claim that legitimacy does not ‘come from’ consent might just mean that consent isn’t what makes government legitimate, not that consent, or at least widespread consent, isn’t a necessary condition for legitimacy. If consent involves agreeing that the law should be what it is, but voluntary obedience does not, then the claim that it is voluntary obedience, and not consent, that confers legitimacy is at least not obviously a non-starter. But even if consent and voluntary obedience come to the same thing – if, say, consent is agreement to the basic constitutional structure and institutions rather than the shape of the laws at any given time, as seems more plausible anyway — it may still not be consent that makes government legitimate, even if consent is a necessary condition. (As you no doubt recall from your careful re-reading of Aristotle on Political Community, I take Aristotle to have held something like this sort of view).

    I can’t say what Hazony means, and I don’t claim to understand his view as reported, but what strikes me about it isn’t that there’s some obvious incoherence, but that these claims aren’t going to be nearly enough to justify any strong form of nationalism. So I’m suspicious of how Hazony wants to put these claims to use, and I can’t claim to understand what he means without seeing the claims elaborated, but I don’t see any obvious incoherence in the three claims themselves. The third claim in particular might be perfectly consistent with Hayekian observations about the shared social background of informal rules and shared values that we need for peaceful co-operation. Presumably, since Hazony wants to go on to defend a strong form of nationalism, he’s got some rather more robust uniformity in mind that I imagine none of us commenting here will agree is necessary or desirable. But if so, then the problem (well, one problem) would lie in the kind of cultural uniformity he takes to be necessary for a well functioning society, not in the claim that some shared tradition or cultural focal points are necessary or important contributors, and not in the claim that those, rather than consent (or voluntary obedience rather than consent) are what confer legitimacy on government.

    But I’m getting too close now to arguing about a book I haven’t read, so I’ll quit. Maybe the more important question is: would that book be worth reading? Doesn’t look that way. Not when I still haven’t read Political Liberalism or finished Aquinas on angels.


    • Well, the proviso of not having read the book applies to every party to this conversation so far. We’re really just mulling over Hazony-via-Kling. I’d say the book is worth reading if only because nationalism now seems to be getting a new lease on life in revisionary guise. Might as well discover what new noose is being slipped around our necks.

      I think this either doesn’t contradict what I said or leaves the motivations of the obeying person too opaque to be helpful:

      I can, in fact, do something that the law commands me to do, and that I would not otherwise do, without being motivated by fear of punishment. Maybe that’s foolish, but it’s possible. In such cases, I am obeying, rather than just happening to do what the law commands for reasons independent of its command; but I am not obeying simply because I’ll be punished otherwise, which, I take it, would amount to involuntary obedience.

      I’ve already said that “voluntary obedience” has application in the case where you’ve so habituated obedience that you obey commands without thinking about them. Though I granted that, it actually seems charitable to grant it: it isn’t obvious that following a “command” (=a law) is a clear case of obedience rather than conformity. It depends on the example.

      To use Roderick’s example: how much “obedience” to the law is required to follow a traffic regulation that everybody else is following? Let’s say that everyone is driving on the left, so you drive on the left. Exclude fear of punishment as the motivation. So what then is the motivation? My point was, the clearest case of “voluntary obedience” seems to be the person whose motivational structure is thinnest–the person who simply doesn’t care about what the law says one way or another, or doesn’t know what it says, or doesn’t know that it’s there, and follows it without thinking because he’s formed no evaluation about it at all.

      But once you introduce more motivational structure than that–once you introduce attitudes toward the law, whether positive or negative–the supposed space between “voluntary” and “consenting” closes. The more positive the attitude, the closer to consent to the law; the more negative the attitude, the closer to dissent from it. I think reflection on Roderick’s example suggests that literal indifference is going to be the rare and implausible case. No one can really be said to obey a law while being totally neutral about it. If some lawmaker announced tomorrow that we’d have to drive on the left side of the street, almost no one would just say, “Well, OK,” and do it without a second thought. There are laws that we do “obey” without a second thought (often because we don’t know they exist), but those are more obviously described as cases of conformity to the law for essentially non-legal reasons, not as obedience to the law.

      On this point:

      First, voluntary obedience might differ from consent in the way Roderick suggests; I can obey a law that I do not think should be a law, yet obey it voluntarily, while consent would involve my agreeing that the law should be what it is.

      I think that misconstrues what “consent to a law” is. Take contract law. If someone makes me a contractual offer, my consent to the offer (and to the contract) is not agreement with or assent to every proposition asserted by the contract. It’s agreement that: signing the contract is better than not doing so. Suppose that the contract has ten provisions, and I disagree with the tenth, but I sign it because I can live with nine, and grit my teeth through the tenth. In this case, my signing the contract is both consenting and voluntary. But its being consenting does not imply agreement “with the contract” in the sense of agreeing with everything in it. I’ve stipulated 90% agreement in the example, but it wouldn’t even imply agreement with half of what was in it. It just implies that signing the contract is better than the alternative.

      By parity of reasoning: in a political context, the object of consent is not “a law,” but a government. When I consent to a government, I am not agreeing with any set proportion of the contents of its constitution–whether 90% of the propositions in it, or 83% or whatever. I may hope to live under a constitution with which I have 100% agreement, but if it’s better to consent to one with which I have lesser agreement, I’m still voluntarily consenting to that government. Ex hypothesi, I’m agreeing under uncoerced conditions that it’s better for me to accept the offer of living under the constitution of this government than not.

      Either I voluntarily consent to accept the offer, or not. If I do, voluntariness and consent go together, not just in that act, but for every subsequent law generated by the constitution. It makes no difference at all whether I agree with a given law or reject it in toto. Even the laws I reject in toto are laws I have voluntarily consented to accept. So when I “obey” them, I voluntarily obey them only because I consented to obey them.

      If I don’t accept the offer, then I don’t voluntarily consent to the government in question, and any conformity to its laws is rendered involuntary and unconsenting.

      So I find the distinction you’re making misleading or problematic, partly because our whole discussion here has been operating with the false borrowed premise of “consent to a law.” The relevant issue is not whether you consent to “a law,” but whether you consent to the legitimacy of the government that passes the laws that bind you. If you do consent, what you are consenting to in part is that you’ll eventually face, and be required to obey, individual laws you wouldn’t otherwise have accepted. When you confront such a law, you are not following it “voluntarily but without consent.” You’re confronting (the least pleasant part of) something you voluntarily consented to. Of course, if you never consented, then all bets are off.

      I agree that consent is a necessary condition for legitimacy, not the whole thing. And agree with much of what you say about nationalism. But the concept of “voluntary obedience” strikes me as less coherent than any of you are suggesting.


      • I agree (I think) with all that. On your understanding of consent, there’s little or no daylight between consent and ‘voluntary obedience,’ especially if we exclude cases of thoughtless conformity, so we may as well just call it consent. That works for me, because it preserves a distinction between obeying the laws because I consent to the government and obeying them simply because I’m afraid of being punished. (At least I think it preserves that distinction; some of what you say seems not to, e.g., “signing the contract is better than not doing so,” though I take it that with qualifications like “under uncoerced conditions” you’re preserving something like this distinction, at least in principle). So if Hazony uses ‘consent’ in the same way and means to distinguish consent from ‘voluntary obedience,’ then I’m as puzzled as you are about what the latter is supposed to be. It’s just not clear to me that he uses ‘consent’ that way or even whether he really means to distinguish consent from voluntary obedience. As I said, his three points, as Kling formulates them, don’t seem to me to clearly require that they be different, since the point might be that consent (= voluntary obedience) is not what confers legitimacy, even if it’s necessary for legitimacy.

        I’m not sure that your characterization of consent is common coin among all theorists of consent, though, quite apart from whatever Hazony says. To know whether Hazony shares it, we’d have to read his book. I’m, uhm, gonna take a while to get on that.

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        • I do intend to preserve the distinction you mention, between obeying because I consent and obeying out of fear of the consequences. In retrospect, taking a broad view of this entire discussion, I wonder whether it was a mistake on my part to try to discuss a book none of us have read, even in this provisional way. In the form presented by Kling, it provokes questions that ultimately none of us can answer without reading the book. It’s just hard to imagine that the book leaves questions of this nature unaddressed.

          I find it hard to read Kling’s point (2) as anything like a coherent gloss on “voluntary obedience”: how is willingly paying taxes a case of voluntary obedience but not of consenting to pay them? (Not just paying taxes, full stop, but willingly doing so.) If you put aside the sort of “willingness” that arises from resigned acquiescence to established authority, the most natural reading of “willingness to pay taxes” is the felt desire to pay one’s taxes out of the internalized sense that it is right to do so, e.g., one doesn’t want to free ride, or wants to pay one’s fair share, or whatever. But can it really make sense to say the following?

          I am paying my taxes because I think it’s right to do so; I want to pay them; I willingly pay them; I realized that they’re forced on me, in the sense that if I don’t pay, I will be punished, but that is not why I pay them; nonetheless, I do not consent to pay them.

          The only sense I can make of it is an objection to the fact that force is involved at all. So to be clear, one might add: “I am perfectly willing to pay the taxes, but I object to the force used to exact payment.” That is not a withdrawal of consent but a limitation on or specification of what one is consenting to. The speaker is consenting to the taxes (in the sense of payment in a given dollar amount for given purposes) but objecting to the coercion involved. But now imagine that the speaker was offered the option of consenting to taxation in the same amount for the same purposes (and assume both legitimate amounts and legitimate purposes, for simplicity). It would make no sense to say: “I’d willingly pay these taxes if only coercion were part of the picture, but now that you’re offering me the option of consent, I refuse!”

          As a coda to this conversation, fast forward to about minute 39, and enjoy (about five minutes long):

          Now that I have a “TV set,” I use it to watch Fox News. I also listen to Mark Levin on the drive home. Viewpoint diversity!

          I guess there’s nothing Hitlerian or despicable about spreading false rumors or otherwise telling lies to cement nationalist sentiment. And when you refer to other countries as “shitholes,” refer to their inhabitants “criminals, rapists, drug dealers, etc.” or start a trade war with Canada, you’re really promoting goodwill among nations. So while none of us have read the book, at least we know where it’s going.


          • “But can it really make sense to say the following? ‘I am paying my taxes because I think it’s right to do so; I want to pay them; I willingly pay them; I realized that they’re forced on me, in the sense that if I don’t pay, I will be punished, but that is not why I pay them; nonetheless, I do not consent to pay them.’”

            The piece I linked to from Charles argues precisely that. And without its depending on the person objecting to the force.


        • Incidentally, not meaning to depress you, but Felician University Library still has not processed my order of Aristotle on Political Community. There is, I fully realize, such a thing as making an independent purchase of so deserving and worthwhile a book as yours, but having just made a house purchase, and been schooled by my wife on the clutter produced by my inordinately large book collection, clutter unwelcome in our new home….I’m not sure how to end this sentence, but it’s offered as an excuse of some kind.


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  5. While covering the issue of consent in a class on criminal procedure, a couple of thoughts belatedly occurred to me, so I thought I’d throw them out there, lest I lose them. I’m just thinking out loud here; not obvious how relevant any of this will be. (And I haven’t read Charles Johnson’s critique of consent to government yet, so I’m bracketing anything he says there.)

    If you study case law on criminal procedure, there is one very clear and recurring referent for the concept of “voluntary obedience”: the police show up at some scene, take on an authoritative air (without, say, brandishing weapons or overtly bullying anyone), and begin to elicit the cooperation of people at the scene. The people at the scene then cooperate with the police, even in cases where they have a right not to cooperate, and where the cooperation is or may likely be incriminating of them. What becomes obvious from these cases is that many, many people are mesmerized into obedience to and/or cooperation with the police by the sheer physical presence of legally-constituted authority figures with badges and uniforms. Something about an authoritative manner induces cooperation without necessarily inducing fear of punishment. (I agree with a lot of what Michael Huemer says on this topic in The Problem of Political Authority.)

    Put it this way: if people feared punishment in police contexts, the fear might induce them not to cooperate so willingly. Granted, in some cases people cooperate for fear of extra-judicial punishment. But in an overwhelmingly large number of cases, the issue of fear just drops out of the equation altogether; the motivation seems to be a kind of auto-pilot reflex induced by the authoritativeness of an authority figure.

    In my previous comments, I’d described this as a “thin” motivation, but “thinness” may or may not be the essential or the invariable pattern involved. In some cases (a lot of cases), I think it’s plausible to regard the motivation as pretty thick, at least in the psychodynamic sense: a deeply internalized eagerness to please, that is, to demonstrate to Authority that one’s “voluntary obedience” is proof of one’s moral goodness–where the internalized eagerness to please has a kind of infantile aspect, or involves a regression to childhood.

    Once you immerse yourself in the case law, the (to me) unmistakable pattern on the part of a lot of people confronted by the police is:

    Daddy is here. I must show him that I am basically a good boy. Then he will do with me as he sees fit. But that’s OK. I trust him, because Daddy knows best.

    That may well be an instance of “voluntary obedience,” but it also strikes me as an instance of psychopathology. And it’s a great recipe for doing a lot of jail time.

    Separate but related point: according to American jurisprudence (and probably most jurisprudence) a person is thought to be capable of voluntary consent when they are being held involuntarily, whether in custody, or in prison, or under post-correctional supervision (e.g., parole). The background condition is involuntary, but discrete acts of consent under that condition are regarded as genuine instances of uncoerced consent. So if there’s such a thing as “voluntary obedience,” there’s also such a thing as “involuntary consent,” regarded as an elliptical expression for “a discrete act of consent that takes place under involuntarily-imposed background conditions.” But as far as I’m concerned, it’s unclear what work voluntary obedience or involuntary consent can do in justifying the state, much less a nationalist state.

    And of course, any elliptical expression is going to lead to inevitable confusion, such as when the textbook says:

    Consent must be voluntary to be valid–a coerced waiver [of search or seizure] is not an effective abandonment of any constitutional right. (Robert M Bloom and Mark S Brodin, Criminal Procedure: The Constitution and the Police, 8th ed., p. 171)

    Followed forty pages later by:

    Although the Court warned in Nix v. Williams that inevitable discovery cannot rest on mere speculation as to what might have been, some courts seem to be doing just that. See, e.g., United States v. Hammond, 152 F 3rd 1025 (8th Cir. 1998): cocaine inside envelope found during search of defendant’s garment bag was admissible, despite officer misconduct in opening envelope after obtaining defendant’s involuntary consent [!], given that officer would have summoned a drug-canine unit if defendant had not consented to search, as he informed defendant he would do, and the dog would have alerted to the presence of drugs. (p. 210)

    Voluntary consent may be dispensable, but I guess every dog has his day.


  6. From the “proliferating textual puzzles” file:

    According to Nowrasteh’s point (5), Hazony claims that nation-states are governed by consent. I guess one virtue of reading reviews before reading the book is to figure out how it inspires such divergent interpretations on one and the same topic.

    Not much on consent in this review, but useful on the relation of ethnicity to nationhood:

    I wonder how many reviews of this book will be written that do an end-run around the content and history of Zionism, as though the issue of Israel and the Palestinians were somehow incidental to the book’s claims.

    Of course, these reviews just push us up against the questions I always ask my students: “Did you actually do the reading? Or were you hoping to get by without it?”


  7. Pingback: DUI, Refusal, and Procedural Rights | Policy of Truth

  8. I LOL’d at reading this. “Mr Plamenatz” is John Plamenatz, author of Consent, Freedom, and Political Obligation (Oxford, 1938).

    I think that Mr Plamenatz has restricted the meaning of consent too narrowly, and that we might quite properly call some governments governments by consent without implying that they need the permission of the people in order to be entitled to govern. Consent, according to the dictionary, means voluntary agreement to or acquiescence in what someone desires; and if we accept this definition, a government like Queen Elizabeth’s may be called a government by consent after all, even though she reigned by permission not of the people but of God. (J.W. Gough, John Locke’s Political Philosophy: Eight Studies [Oxford, 1950], p. 55)


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