what I should have said before about “nullified” non-consent…

One problem with Estlund’s argument (Ch. 1, p. 9) is that only the denial of consent, not mere non-consent, is an event that typically changes the landscape of relevant permission/obligation.  Let’s look at two cases. Suppose that the initial conditions are that we are allowed to touch each other on the shoulder in order to get the attention of person who would be touched. We now have two cases:

(Case 1) Your passive non-consent to my touching you in this way (over some period of time) leaves conditions the same:  I am still allowed to touch you in this way. There is no change here to block or nullify.

(Case 2) You declare that I am no longer allowed to touch you in this way and a normative change happens (I used to be, but due to this declaration by you, I am no longer, permitted to touch you in this way).  There is a change here to block or nullify.

Since mere or passive non-consent is highly relevant to non-consent-based theories of political authority, general metaphysical or metanormative points about moral powers being blocked or nullified (and treating like cases alike) do not apply to the relevant range of cases.  

So I think we are left with only this point: we should not at the outset rule out the possibility that, in some conditions, non-consent (say to your doing as I say in some matter) is correlated with the same permissions/obligations as non-nullified consent (to the same thing). Maybe, in the right conditions, you are obligated to do as I say despite not consenting to it – just as in the right conditions you are permitted not to do as I say even though you agreed to.  But we knew this bare possibility already.  There is no additional leverage to get from general metaphysical or metaethical considerations (and from treating like cases alike).

14 thoughts on “what I should have said before about “nullified” non-consent…

  1. I must be missing something, because I don’t see the relevance of Case 1 to theories of political authority at all, or to anything of political significance. Construed as an argument for political authority, it seems to me to beg the question in a kind of obvious way.

    In the case described in the post, we begin with the initial condition that we’re allowed to touch each other on the shoulder to get one another’s attention, so that in case 1, when you do that, and I don’t object, I’ve “passively non-consented” to your doing so, which leaves the initial condition in tact. Hence you’re permitted to have done it.

    First problem: no one skeptical of political authority is ever going to grant parity between the initial conditions of the two cases. Even if someone granted that it’s permissible to touch someone on the shoulder to get their attention, it’s a gigantic leap from that (itself controversial) assumption to anything in the neighborhood of political authority. So the use of Case 1 seems like a non-starter.

    Second: passive non-consent is such a strange formulation that when I first read it, I thought it was a typo. It’s one thing to say that acquiescence is a form of passive consent; the claim has greater or lesser plausibility in a variety of contexts. But I literally can’t make sense of the phrase “passive non-consent.” Non-consent is an omission. An omission is in a sense passive by definition. So a “passive omission” seems like a redundancy.

    If “passive” means anything, it seems to mean “acquiescent in.” But acquiescing in something without consenting to it in any sense seems normatively meaningless, or normatively epiphenomenal. If the patient is acquiescing in an action that was justified, then the acquiescence seems rational, but if the patient is acquiescing in an action that isn’t justified, then acquiescence just seems like resignation to one’s fate, or helplessness, or whatever. That just brings us back to the justifiability of touching someone to get their attention.

    Third: So take the action itself, touching someone to get their attention. People vary greatly in how they react to this, but it’s worth remembering that some people really hate it. To give you an idea of how much “they” hate it: the last time someone did it to me, I reflexively hit them. (For a more extreme but similar example, consider being kissed or hugged as a greeting when you don’t want to be.) It’s also worth remembering that an unwanted touch is battery, which is a crime. And it’s worth noting that some people are so timid that they’ll tolerate battery or even sexual assault rather than voice an objection. All this to say that (special contexts aside) it’s not uncontroversial or obvious that it is permissible to touch someone on the shoulder to get their attention.

    Bottom line: paradigmatically, the thing that gets genuine authority off the ground is fully informed, explicit consent. It seems to me a lost cause to avoid or deny that, and then try to get authority off the ground by some other, backdoor method. For whatever it’s worth, it seems to me that all such approaches are doomed to failure. The best that can be said is something like what Locke said: explicit consent is the paradigm case for legitimating authority, but tacit consent is (in some contexts at least) a viable second-best or half-way house to authority. Formulating an anti-vigilante principle, then exploiting intuitions about conditions of non-consent in garden variety cases, is not going to do it.

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  2. Thanks.

    I agree with your third point. A special context would be required for the initial conditions here to be of permission to touch.

    On your second point: maybe not the best phrasing, but maybe the contrast between absence-of-consent (e.g., you never ask about whether it is okay to touch me in this way) and denying consent (e.g, you ask and I say ‘no’) is clear enough?

    On the first point: the idea here is merely that mere (or passive) non-consent cases are relevant (or of primary relevance) to non-consent-based theories of authority (and to the idea that what political authority comes to in respect of non-consent to obey, including mere non-consent to obey, being consistent with an obligation to obey in an important range of cases). I’m happy to drop the ‘of primary relevance’ claim for a mere ‘of relevance’ claim. Maybe your thought here is that I’m claiming that Case 1 is a model for thinking about authority? I’m not.

    All of that said, we do differ in our sympathies regarding political authority (and perhaps authority generally). I take it as at least plausible that authority (including political authority) does not require consent. In fact, I think it is plausible that not even Estlund’s “quasi-voluntarist constraint” (p. 133, p. 151) on political authority (and hence it being required that one consent or the “normative authority” view) is required to get political authority (though perhaps this does not yield an ideal, liberal form of political authority). In my enthusiasm in tracking down the ideas and arguments here, I might sometimes slip from ‘is plausible’ to ‘probably true’. I would endorse the idea that it is not only plausible but more likely true than not that political authority does not in all cases require consent, but only in the context of being forced to guess.

    I’m pretty interested in what it would take for an argument like Estlund’s (in Ch. 8) to work without the quasi-voluntarist constraint (and hence without Estlund’s “normative consent” element).

    However, the point I was addressing here (and in my previous post) is relevant precisely to the normative consent view (via it being required that one consent being a “nullifying condition” for non-consent). Do we have some reasonably strong reasons going in to say that we should expect non-consent to yield the same normative results that consent usually does (in certain conditions) because consent yields the same normative results as non-consent (in the broadly similar sorts of conditions)? Estlund says yes, based on his argument from expected symmetry between consent and non-consent in the “nullification” of “moral powers.” I here (more than in my previous post) question these grounds. However, I do find something like the above conditional proposition (shorn of the language of nullifying moral powers) to be plausible. Maybe there is a different, better argument to back up this intuition.

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    • On the “second point” (my second point), I agree that there’s a distinction; I guess I was objecting to the phrasing, which seems confusing.

      On “the third point” (meaning my third point), two things. One is that I actually find the concept of “authority” rather confusing and if I had my way, would be inclined to dispense with it. Estlund defines it as “the moral power of one agent (emphasizing especially the state) to morally require or forbid actions by others through commands” (Democratic Authority, p. 2). I don’t know what a “moral power” means in this context. Nor is it clear to me that anyone can be required to do or not do something through a “command.” Why insist on “authority” rather than “obligation”?

      But if we are going to use it, I would insist that in the paradigm case, consent is a necessary condition for “authority.” There may well be peripheral cases where consent isn’t required, but I find it very implausible to think that there is any such thing as the justified authority of an ongoing institution, like the state or government (or any other kind of institution), in the absence of consent. In the absence of consent, all you have is a quid pro quo that’s accepted for lack of a better alternative, plus acquiescence in that fact. Maybe that’s the best people can do for the foreseeable future, but Estlund himself (correctly) cautions us about taking current feasibility to be a guide to normative truth.

      Authority without consent seems to me to commit the expert/boss fallacy that Estlund claims to reject at the outset (p. 3). Imagine that you and Reisbeck always tracked the truth about politics, and created a constitutional republic based on all the truths you’d tracked. It wouldn’t follow in the least that either you or this republic had even the slightest bit of authority over me. Imagine that I take one look at it, and one look at you, and intone a foot-stamping “No” to both things: you and your republic. Grant ex hypothesi that my “no” is perverse, childish, and even immoral. Fine. But how does my “no” confer authority on you? Put another way: how do you get authority over me despite my “no” to your authority?

      My answer: You don’t. That’s the magic of that one word. Possession of truth and even possession of an institution based on truth, doesn’t by itself entail authority over anyone.

      A government is an institution that provides a range of services. Citizenship and legal residency are relationships that one bears to this institution. With allowance for certain paternalistic relationships, consent is a necessary condition for entering into relationships involving the provision of morally significant services: medicine, mental health care, marriage, friendship, adult education, commercial exchange, and so on. Doctors do not acquire authority over non-consenting patients simply by virtue of being medically proficient. Therapists do not acquire authority over non-consenting clients simply by virtue of being therapeutic geniuses. Chase Bank can’t make a customer because it happens to be the greatest bank ever and I happen to be greatest bank customer ever. People aren’t in a state of matrimony because they’re “perfect” for each other. Etc.

      There are exceptions to this general rule, but I take it as clear that they are exceptions to a general rule. It seems to me a serious methodological inversion to try to justify government on the basis of marginal exceptions to a general rule where paternalism has a certain plausibility only because of highly contingent and exceptional features of particular cases. Someone who wanted to do that would explicitly have to accept and justify one of the following claims:

      1. Yes, there is a general rule of requiring consent to be a party to a service-providing relationship, but government is totally different. So consent is not required for government, even if it’s required elsewhere.
      2. No, there is no general rule of requiring consent to be a party to a service-providing relationship. In fact, as a general rule, human life is a thoroughly paternalistic affair, government being one instance of a normatively ubiquitous phenomenon: most of us have to be ruled by some of us, for our own good, whether we consent or not. Our reason is defective, can’t be relied on, and has to be violated in perpetuity. As a general rule, people can be recruited into morally significant, ongoing relationships without their consent.
      3. There are no general rules or presumptions in this moral vicinity at all. Some things are paternalistic; some things aren’t. No general principles decide which parts of life ought to be run on paternalistic grounds, and which things shouldn’t. We just have to go on a case by case basis.

      My examples above are all cases where someone refuses consent. My view is: if someone refuses consent to an institution all the way down, so to speak, refusing to deal with or cooperate with it at all, and can manage to be consistent about doing so, then barring some commission of the boss/expert fallacy, it makes no sense to insist that the institution has “authority” over him. That’s just a confused way of saying that the institution is just or justified. But an institution’s being just or justified doesn’t entail that it has “authority” over anyone. (If someone now wants to insist that it does, I’d come back and question the point of having the concept of “authority.”)

      Now take cases of non-consent (where no explicit refusal of consent is involved). Cases where non-consent-without-explicit-refusal-of-consent seems to generate authority-like relationships are by definition highly ambiguous in their normative implications. The clearest cases are those in which non-consent-without-explicit-refusal-of-consent can be re-described as a kind of implicit consent. Otherwise, as far as government is concerned, non-consent-without-explicit-refusal seems to reduce either to sheer residency within the government’s proclaimed jurisdiction, or acceptance of benefits from the government. It seems obvious to me that sheer residency justifies almost nothing. But acceptance of benefits only yields authority if the acceptance is not involuntary. The clearest case of “not involuntary acceptance of benefits” is consenting acceptance of benefit. The further the acceptance of benefits is from explicitly consenting acceptance of benefit, the closer you get, by degrees, to benefits that are refused or would be refused. What makes acceptance of benefits a plausible basis for authority is the surmise that the person accepting them is voluntarily accepting them and then trying to free ride on the acceptance. But if the person is trying not to accept them as the government insists on cramming them down his throat, I don’t see how that justifies “authority,” any more than a doctor’s showing up at my door, flashing his impeccable credentials, and then proclaiming himself my Primary Care Physician at gunpoint.

      The paradigm case of a dealing with “government” is a police stop: an officer stops someone and compels him to follow orders in order to resolve the suspicion that led to the stop. In that case, the idea that an officer has authority over the subject simply because the subject has not objected to each micro-action undertaken by the officer, strikes me as having zero plausibility.

      As a general proposition, non-consent as a basis for political authority strikes me as hopeless.

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      • I should have read your reply here before I responded to the other. It’s been a long week.

        Here’s how I understand authority: a person or institution is authoritative for me if and only if that person or institution’s command by itself gives me an exclusionary reason for action, where an exclusionary reason for action is one that excludes my acting otherwise despite my having (or taking myself to have) either no reason to act this way or strong reason to act otherwise in the absence of this person or institution’s command. I fail to see how any adequate description of social life could do without the notion that some people regard other people or institutions as authoritative in this sense. To take a humdrum example: why am I going to teach Rousseau’s Discourse on the Origin of Inequality in a few weeks rather than teaching Kant’s Groundwork of the Metaphysics of Morals? Not because I have decided independently that it is better to teach the Rousseau than the Kant, but because my institution’s curriculum requires that I teach Rousseau and not Kant. I am not entirely sure, but I am inclined to think that Kant is a better choice: Kant is a more important philosopher than Rousseau, and Kant’s ideas in the Groundwork are more worth discussing than Rousseau’s in the second Discourse. But my judgment about what is best here will not determine what I do; the rules of my institution will. Why? Because I accept those rules as authoritative. No descriptively adequate account of what I am doing or why could do without the notion of authority in this way. I also think that I am right to accept my institution’s rules as authoritative for me in my decisions about what to teach. I might, of course, be mistaken, but I might not; if I’m not, then the concept of practical authority will also have an ineliminable role to play in a normative account of what I have reason to do and not do.

        This case of authority might not be a moral case, and so it might not help us understand what Estlund means by a “moral power,” but it is, I think, a straightforward case of authority. I don’t know whether I have a moral reason to recognize the authority of my institution; for me, it’s the concept of the moral that I would rather do without. I have serious doubts about the story Estlund himself tells about why we have a moral obligation to consent to political authority. But I think we can easily see why we shouldn’t reduce authority to obligation: I can and do have obligations — decisive reasons — to do things quite independently of authority, i.e., quite independently of any person or institution’s giving me an exclusionary reason to act in a certain way via commanding me to act in that way. I take it, for instance, that I have decisive reason to pursue truth and avoid error in my beliefs, not because anybody has commanded me to, but because knowledge is a good that contributes constitutively to my own well-being, and because my most basic reasons for action are to pursue what contributes to my own well-being and to avoid what obstructs or hinders it. Of course, I might be wildly mistaken about this. But unless it’s not just false, but wildly incoherent, it’s enough to show why we should distinguish between obligation and authority. Even if we want to insist that ‘obligation’ needs to pick out some sort of distinctively other-regarding decisive reasons, we should still distinguish obligation from authority: I take it that I have decisive reason to seek a mutually beneficial relationship with you, and therefore not to intentionally kill you, but I do not suppose that this reason depends on anybody’s commanding me not to kill you or to seek mutually beneficial relations with you. Again, I might be wrong about this, but unless I’m just incoherent, we should distinguish this sort of obligation from authority.

        I’m running on fumes and fairly sure that I’m painting in overly broad strokes. So I’ll stop here before I get myself into more trouble.

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        • I take authority to involve someone’s entitlement to control or at least have veto power over your actions. For someone X to have authority is for X to have authority over Y, where X is entitled to control Y in specified ways. Setting aside cases of incapacity, I don’t think authority can be underwritten by anything but consent, meaning that consent is, as I see it, almost always a necessary condition of authority. (And the exceptional cases don’t help with justifying the authority of government.)

          Where there is no consent, there is no authority. I just flatly deny that anyone’s command, simply considered as a command, gives a functioning moral agent reason to do anything. A rational agent responds to reasons, and commands qua commands are not reason-affording. The sheer fact that someone issues a command is a normatively meaningless state of affairs. He may as well be yawning or making noise.

          I would also flatly deny that social life is impossible without a non-consent-based conception of authority. I don’t see anything impossible about functioning without that at all. I’m inclined to say just the reverse: the quality of human social life would be greatly improved if people stopped trying to claim authority (including or maybe especially political authority) over people who haven’t consented to accept it. My advice to any would-be authority figure would be: either demonstrate the incapacity of the persons over which you wish to exercise authority, or elicit their consent before you exercise it, or (if you can’t elicit their consent), leave them alone. If you find that people have someone become “entangled” within what you regard as your sphere of authority who absolutely refuse to consent, devise an arrangement that disentangles you from them before things get worse.

          The example you give in the comment above isn’t helpful, because its applicability depends on your consent through and through. You’re teaching Rousseau rather than Kant because you’ve consensually signed a contract that requires adherence to rules that require you to do that. But if someone just walked up to you and commanded you to teach Rousseau not Kant, the command would have zero “authority.”

          Suppose that someone just walked up to you and made a flawlessly sound/cogent argument for teaching Rousseau rather than Kant. In that case, you’d be rationally obliged to agree with the conclusion (assuming you’d agreed to listen to the argument), but the concept of authority does no work here. You don’t even need it if the person who makes the argument is the curriculum director of your school. All you need is the concept of a sound/cogent argument and a conception of epistemic obligation (to accept the conclusion of a sound/cogent argument). But I’m assuming that the “someone” in this example is giving you reasons, not commands. If he does give you reasons, you follow his reasons. You don’t need the concept of authority to explain the obligation to make rational inferences while following an argument, or the obligation to bring about the conclusion of a practical argument.

          In the example at hand, you’re not making the independent judgment to teach Rousseau rather than Kant; that’s dictated to you. But it’s not as though you’re not making one. The relevant independent judgment you’re making in your example is not whether to teach Rousseau rather than Kant, but whether to teach at Tempe or not. I take it that you regard teaching at Tempe to be better than the alternatives, so that the “Rousseau rather than Kant” rule has authority over you in virtue both of your judgment of what’s best as well as your consenting to do what you take to be best.

          But that doesn’t contradict what I’m saying, and it supplies no rationale for a non-consent-based conception of authority. To supply one, you’d need an example of a command that we’re obliged to follow, not because the reasons given in defense of following the command deserve our rational allegiance, but simply because the command is a command. But even in cases of commands whose content could in principle be justified, I don’t see that command binds anyone as an authoritative command independently of someone’s consenting to accept the authority of the authority figure in question.

          Now, I do think people can have obligations that they don’t consent to–though this is made tricky by the number of obligations that are incurred by consent, and also made tricky by how tricky implicit consent can be. When I walk into a sandwich shop and ask for a sandwich, I don’t explicitly consent to pay for it. I could ask for the sandwich, take it, and walk away with it (without paying) on the (true but irrelevant) premise that I never explicitly consented to pay. This is a case where the obligation to pay is best construed as involving a form of tacit consent, not as involving no consent at all. The issue is also made tricky by the possibility that internalism about reasons is true, in which case it starts to look like all obligations involve something like consent of some kind. But setting those complications aside, I don’t mean to be denying that we can have obligations without consenting to the obligation. Assume ex hypothesi that we have some.

          What I would still insist on is this:

          1. There’s a distinction between having an obligation and being under authority.
          2. There is no immediate inference from “S has an obligation to phi” to “Some authority figure can coerce S’s phi-ing.”

          If you put this all together, I would insist that even if we have an obligation not to free ride on the efforts of others in a common endeavor, this obligation doesn’t yield authority in the absence of consent, and certainly does not justify the State (or State coercion) in the absence of consent. Take the case in which we’re “thrown together,” so to speak, and engaged in common enterprises in an involuntary fashion (without our consent). We may have obligations not to free ride, but these obligations arise out fairness, not through the “authority” of the law or the State. Where the obligation can’t plausibly be said to arise through justice, or fairness, or some such non-authority-based value, I would say that there is no such obligation: its appearance is an illusion justified by an internalized, habituated sense that the law has “authority,” when in fact it has no such thing.

          Since the law often promotes fairness or justice, this fact misleads us into thinking it has “authority.” But when the law is just, we have an obligation to follow it, not because it has authority, but because justice does, and it exemplifies justice. Where that isn’t the case, we have no obligation to follow it except the prudential one of not getting caught violating it. But if you’re sure you won’t get caught, and the law is unjust, I would heartily, enthusiastically counsel violating it just as often as you can. There is no “authority” there worth respecting.

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          • There’s a lot going on there, so I’ll try to stick to a few points for now.

            1. The notion that my consent is required for others to be “entitled to control or at least have veto powers” over my action has literally zero intuitive purchase on me. Why do you think it’s true? It seems plainly absurd to me; as if you would not have adequate moral grounds to object to my killing you unless I somehow consented to something (to what, exactly?).

            2. Your arguments against authority seem to be supposing that if someone had authority over someone else in the absence of consent, their command must be reason-giving simply because it is a command, with no further normative background. But that is not at all how anti-voluntarists about authority think of commands as authoritative; a genuinely authoritative command must be issued by some person or institution that meets certain normative criteria for deserving to be obeyed. So of course the sheer fact that someone issues a command is, by itself, normatively meaningless. But nobody has said otherwise. Likewise, it’s no part of my view that authority is unconditional, such that we would be obligated to follow every law or other authoritative rule no matter how unjust or otherwise flawed it is, or to follow every law in absolutely every circumstance, and so on. So the alternative you’re arguing against is at least not what I’m intending to defend; at best I’m just failing to see why I can’t avoid this alternative unless I accept your consent conditions.

            3. I do not understand what implicit consent is supposed to be. I understand the idea that, in virtue of having done certain things, I acquire obligations whether I realized it or not and whether I am willing to accept them or not. If that’s all implicit consent is, then that’s fair enough, but why think of it as consent at all when it doesn’t involve consenting? It seems instead to be a way of noting that, given that I’ve done something, I should consent to something else; but that’s hardly a sort of consent. (I was curious to hear your thoughts on Estlund’s treatment of this question; I found them a bit abrupt).

            4. I take the right to coerce to be distinct from authority, strictly speaking. X is authoritative over Y if X’s command gives Y an exclusionary reason to act in accordance with that command; but X’s command can give Y an exclusionary reason to act in accordance with the command even if X has no right to coerce Y to act accordingly. Am I right that you agree with this? You think my consent is required before anybody else’s command can have this sort of reason-giving force — or, in your alternative formulation, can be entitled to control or have veto power over my action — but do you agree that this kind of relationship can exist even without a right to coerce?

            That’s probably complicated enough for now.

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      • There is a lot here. I’ll respond, for now, to just one bit, Estlund’s definition of authority. I, too, find ‘moral power to require’ pretty opaque. I find ‘moral power’ clear enough: something having the power to change the landscape of obligations and permissions. Agreements have moral power in this sense. What I find unclear is the use of ‘to require’ in a moral sense. The descriptive sense of requiring is clear enough: “I hereby require that Irfan Khawaja go play with Hugo now.” But this does not make it such that you are required to go play with Hugo now. Estlund seems to mean by ‘to require’ something like ‘make it required that X perform A by requiring that X perform A’. I think he should just say something like the latter instead using ‘to require’ in a weird way.

        My rewrite (that I take to be equivalent): authority = the power (of some person or institution) to make it such that relevant agents are required to perform A by requiring that they perform action A. That’s a serviceable definition of authority that reduces authority to (a) moral obligation and (b) powers to create obligations to perform A via speech-act or perhaps other action-involving events that constitute requiring agents to perform A.

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        • I’m more or less content with that account of authority so far as it goes. ‘Obligation’ might need some unpacking, but in any case I wouldn’t describe what you say here as reducing authority to obligation. Authority involves obligation, but it isn’t just a matter of obligation. Authority can involve me in obligations to do things that I do not judge to be best, because when I accept authority I take the commands of some person or institutional rules to give me a decisive reason for action that excludes my acting otherwise even when I judge that acting otherwise would be better. Of course I would not deny that we can have obligations not deriving from authority even when we judge otherwise. But obligations deriving from authority have the peculiar feature that I can accept them as decisive reasons despite judging that things would be better otherwise. Promises and the like might be similar, but I’m not sure promises should be taken to be cases of authority. A promise might obligate me to act in a way that I do not judge to be best, but in the promise I have obligated myself, while the reasons I get from authority, if I really do get such reasons, do not come from me in the same way, even if some sort of consent-based justification of authority is necessary. Your rewrite seems to apply to promises just as much as it does to authority, though I take it that you’re assuming here that the agent doing the requiring is not the agent of whom the act is required. However that may be, I don’t think this story would reduce authority to obligation, because we need to appeal to features other than obligation — to the authoritative agent’s commands, for one — to explain the obligation; we aren’t explaining all those other features simply in terms of obligation. We might have a reductive account if we were to hold that authority never creates obligation but only ever directs our focus to obligations that we already have; but I don’t think that’s a remotely plausible view of authority, at least of practical as opposed to epistemic authority (though one of the many ways in which I get perplexed in thinking about authority lies in understanding the relationship between practical and epistemic authority). I suspect, though, that this is just a difference in how you and I understand what it would be to reduce authority to obligation.

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          • Yes. No disagreement.

            You mentioned an in some ways similar structure for how agreement generates obligation. I think that is spot on. If I were coming up with a formula for obligations to comply with a social rule even when the purposes served by the rule being in force would be better served by not following the rule, the rule of keeping one’s promises or agreements would be covered by the formula. At this level, the only thing special about obligation via agreement is that one provides the context-specific content of the obligation for oneself. So there is a unified account, I believe, for obligations to comply with social rules (of the right sort, that are good enough, rational enough, etc.).

            At least up to a point and in many respects, having more rather than less such compliance obligations set via voluntary agreement has benefits relative to the ends of free self-development (ability to opt out, content produced at least in part through one’s own will). So perhaps even if we can and do have compliance-type obligations (including authority obligations) independently of voluntary consent, it might be that we do well to make a social world in which obligations generated via voluntary consent have pride of place (and in which as many compliance-obligations as possible are generated in this manner). Of course, there are limits here (insert calm, grandmotherly wisdom about how what some people need more than anything else is structure; insert point about consent just not be practical or worthwhile in many no-big-deal cases of social rule-following or having someone who functions as a boss) but still.

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  3. I’ll just leave a few remarks to register where I’m at in thinking about this currently, having read only the first two chapters of Estlund’s book once through.

    I find the terminology here pretty difficult to keep straight, and I think I share some of Irfan’s perplexity about “passive non-consent.” I’m not quite so ready to dismiss the distinction or its relevance, but I do at times lose track of what we’re supposed to be talking about. So I may just be fixing on different issues.

    If (a) active and (b) passive non-consent are supposed to track the difference between (a) explicitly refusing or rejecting something (dissenting?) and (b) simply not consenting, not because I’ve explicitly withheld my consent, but because I haven’t actively consented, either explicitly or implicitly, then I think it would be quite wrong to suppose that the distinction is normatively irrelevant. The shoulder-touching example is a bit tricky for reasons Irfan’s given, but it seems fair to say that in at least a wide range of cases in our culture, a person who touches my shoulder to get my attention without first getting my permission to touch my shoulder does not do anything unreasonable or unjustified, whereas a person who touches my shoulder after I have told him that I do not want him to touch me does do something unreasonable: what makes it unreasonable is that I have explicitly told him that I don’t want him to touch me, he knows that, and there is not some extremely pressing reason for him to touch me despite my feelings about it. By contrast, and more dramatically, we seem to need to recognize a distinction like this to think straight about sexual assault, precisely because a person does not need to actively and explicitly withhold consent in order for another person to be guilty of sexually assaulting him — unlike touching my shoulder to get my attention, initiating sexual contact with a person is not something that is reasonable provided that the person hasn’t explicitly refused you; you need permission of a sort that you do not need to touch my shoulder to get my attention (perhaps differing intuitions on this point would explain some apparently outrageous behavior?).

    I’m not sure if that’s the kind of difference that the language of passive and active non-consent is supposed to be getting at. If it is, it seems like an important distinction. If it isn’t, then I’m definitely confused by the terminology.

    I’ll also say that I’m not generally skeptical of authority or political authority, but that I am deeply skeptical of consent-based theories of legitimate authority. My response to Estlund’s summary argument in chapter 1 is that he’s basically deprived consent of any fundamental role in legitimating authority but mistakenly insists on writing as though it has such a role. His view, as I understand it, is that I am under the legitimate authority of another if I ought to consent to it, whether or not I do. I agree with that much. But surely if I ought to consent to some authority, then there are reasons why I ought so to consent. Whatever those reasons are, they plainly do not include the fact that I have consented or even the fact that I should consent, since they allegedly justify my consent even when I fail to consent. But if so, then it is those reasons, and not my actual or hypothetical consent, that does the work of justifying authority. Perhaps consent isn’t eliminable from the story, but it’s not doing the justifying work. So far, I can’t see how Estlund can avoid this conclusion.

    I’m also inclined to think that we’re bound to go wrong if we take political authority as the paradigm case of authority and try to build a general theory around it, rather than thinking about political authority as a special case of a more general social and normative phenomenon. I take it, for instance, that I accept authority at work, and that I am reasonable in so doing (I also take it that I am an authority over certain others at work, and that those others are reasonable in taking me as such). Of course, authority in a school is unlike political authority in numerous ways, not least important of which is that my acceptance of it is optional because my working as a teacher is optional. No doubt the apparently non-optional character of political authority is one of the most important things that a theoretical treatment needs to deal with, even if only by insisting that all legitimate political authority is in some way actually optional. But, though it may simply be because I haven’t thought enough about authority yet and am still confused, it seems to me that we’ll be better placed to think about the apparently non-optional character of political authority if we first have a good understanding of authority in cases where acceptance of it is optional. I don’t think consent as such really plays a fundamental role in the optional cases, either; I’m under authority at work only because I freely chose to work there, and I can freely choose not to work there, but what makes this authority legitimate is not fundamentally that I have agreed to it, but that some form of authority is necessary for efficient coordination in the running of the institution, the form of authority actually adopted is a reasonable one, and working as a teacher at this institution is a reasonable choice for me — consent plays a limited role here not only because it is not sufficient to justify authority, but because the fact of my consent or agreement does little to explain the reasonableness of my accepting the authority, of the form the authority takes, or of the involvement of authority in this particular form of social co-operation in the first place.

    Perhaps that’s all consistent with whatever Irfan would want to say. It doesn’t seem to be. But one thing I’m certain of here is that Irfan has spent more time thinking about authority than I have.

    So I’ll stop making claims now before I dig myself into too deep a hole. I fully expect to end up not knowing what to think about this at various points in the process of working through Estlund’s book.

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  4. Thanks, David. I, too, wonder about what work non-actual (but obligatory) consent does, above and beyond the reasons for consent (or the worthwhile or valuable things that would be achieved or promoted by consent). But it is also sometimes murky to me what this differences comes to. I also agree that the better approach here is to think of authority generally and look at the widest possible variety of cases. I like your work-related cases. I suspect that there is authority that is optional and non-optional, consent-based and non-consent-based; I suspect as well that there are weak and strong cases of authority (the relevant varying dimension here being how strong the ‘because she said so’ reason is; or, equivalently, how far the obligation to obey strays from the merits of the command and other competing reasons to disobey). To your workplace cases, I would add military organization cases and the authority that parents have over their children. I also suspect that agents having authority over other agents is related to custom (and law) having authority over agents (and that this comes to a compliance issue – justifying authority in essence being a special case of justifying compliance with rules, adequate compliance with which is required to achieve valuable social conditions).

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    • I find the characterization in your last sentence pretty congenial, though of course we’d have to flesh it out a great deal. I’m inclined to think that genuine authority is in fact primarily a matter of what is needed for effective, efficient, and fair co-operation in many conditions. The relevance of consent varies with the form of co-operation under consideration and the reasonableness of opting out of it. Many forms of community require participants to recognize some sort of authority, but most forms of community are in large measure rationally optional. A successful justification of political authority, by contrast, would involve showing that subjects of authority have decisive reasons against opting out of political community — at least if political community necessarily involves a state or something close enough. By the same token, the thought that members of a political community must have decisive reasons against opting out of political community might be taken to restrain the forms that authority can take. I’m not so sure, though, how far it takes us in the direction of Estlund’s general acceptability constraint.

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