The question Do we have an obligation to obey the laws of the state, and if so, why? People are free and equal - how can they be legitimately coerced? Because it is morally right: do we have a duty to obey laws that are morally wrong? Because we agreed: have we?
Explicit consent Locke: Men being…by nature all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe and peaceable living…they have thereby made that community one body, with a power to act as one body, which is only the will and determination of the majority…
Explicit and tacit consent Locke: And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation to everyone of that society to submit to the determination of the majority… (Second Treatise §§95f.) But, as Locke realized, no one does this; we are born into society. Explicit consent cant be the basis of political obligation. Tacit: not spoken, but understood to have been given: every man that hath any possession or enjoyment of any part of the dominions of any government doth hereby give his tacit consent…whether this his possession be of land to him and his heirs for ever…or whether it be barely travelling freely on the highway (§119)
Tacit consent Hume: how can we express dissent, then? such an implied consent can only have place where a man imagines that the matter depends on his choice… Can we seriously say that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives, from day to day, by the small wages which he acquires? (Of the Original Contract in Essays Moral, Political and Literary) Consent is meaningless unless understood as consent.
Hypothetical consent Perhaps it is not actual consent that is needed for political obligation, but just that consent would be rational or is deserved. E.g. it would be rational to agree to laws if we didnt have any. Freedom: That it would be rational for me to consent does not mean that I do consent. Circumstance: that I would consent in a state of nature does not mean it is rational for me to consent now.
Hypothetical consent Self-interest: if rational means in ones self-interest, we wont establish a secure and stable obligation Dworkin: a hypothetical contract isnt worth the paper it isnt written on
Voting Only democratic governments are legitimate, i.e. we only have political obligation in democracy. Does voting express consent to obey the laws passed by the elected government? What if you voted for a different party? Is voting a blank cheque to obey whatever laws created by whichever party wins? What if you voted for a party that promised revolution? What if you abstain from voting? Is this dissent? Other forms of political activity; but this doesnt respect equal influence
Benefits No theory of consent has provided grounds for political obligation for everyone It is only fair that whoever receives a benefit from the state owes obedience to its laws: –Receiving v. accepting benefits - how can I avoid them? –Is obligation proportional to benefits received? What if the laws are unfair? Utilitarianism: we are better off with society –Overall, yes, but am I? Objections above
Morality Rawls: show that the state is rational, necessary and legitimate Obligation then becomes a moral duty (of justice) But for this, we need a just state