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Authority & Democracy Political Obligation I: Consent and Fair Play.

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1 Authority & Democracy Political Obligation I: Consent and Fair Play

2 Consent Hobbes: “The Right of all Sovereigns is derived originally from the consent of everyone of those that are to be governed.” (Leviathan, chap. 42) 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.” (Second Treatise, § 95)

3 Three kinds of consent Actual Consent: given through oaths and promises Tacit Consent: our behaviour (sometimes inaction) conveys our consent not through an express performance (oaths or promise), but rather because of consent can be inferred given the context. Hypothetical Consent: grounds obligations in what we: -should have consented to; -would have consented to under some idealized conditions (e.g. had we been more rational, better informed). NB: Tacit consent ≠ Hypothetical consent

4 Tacit Consent Ways of giving tacit consent continued residence within a political community (together with the enjoyment of the benefits provided by the political community); voting in democratic elections.

5 Continued Residence Can we take our staying as an “informed choice” to consent? Are we aware that our staying on its territory will be taken as a way of consenting to the state? Costs of leaving (financial, practical and emotional) Where could someone who doesn’t want to be part of any state go? This view presupposes that states have authority over the territory (thereby having the right to offer the choice between leaving or obeying)

6 Hume, “Of the Original Contract” “Should it be said, that, by living under the dominion of a prince, which one might leave, every individual has given his tacit consent to his authority, and promised him obedience; it may be answered, that such an implied consent can only have a 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? We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep, and must leap into the ocean, and perish the moment he leaves her.”

7 Tacit consent through voting Do we think of voting as a way of consenting to the state? What about those who do not vote? Is voting about consenting to the state or about choosing the rulers? Can a philosophical anarchist have moral reasons to vote?

8 Hypothetical Consent Is Hypothetical consent a form of consent? “Hypothetical contracts do not supply an independent argument for the fairness of enforcing their terms. A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all“ (Ronald Dworkin) Is Hypothetical Consent ultimately a version of a natural duty view?

9 David Estlund on Normative Consent There are conditions that disqualify consent (duress, immorality, etc.) If you should have not consented, your consent is not valid! Why cannot there be conditions that disqualify consent? If you should have consented, your non-consent is not valid! Objection: When is it that you should have consented? Aren’t the reasons for consent, once again, doing all the work?

10 H.L.A. Hart “[W]hen a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission “

11 Fair Play (Rawls) Everyone who participates in a reasonably just, mutually beneficial scheme of social cooperation has an obligation to bear a fair share of the burdens of the scheme provided that: a) the benefits produced by the scheme can be obtained if everyone, or nearly everyone cooperates; b) cooperation requires certain sacrifice from each member of the scheme (at least a restriction of one’s liberty); c) the benefits produced by the scheme can be received, at least in some cases, by those who do not do their part in maintaining the scheme.

12 Fair-play vs Consent PO is grounded in certain goods and benefits that we receive from the state provides ↓ No need to identify an act of consent. We have duties of fairness simply because are part of the cooperative scheme constituted by the state, without any need to appeal to an act of consent. Problem: how we can establish who is a member of the cooperative scheme?

13 Receipt vs Acceptance Two answers: Receipt views: Whoever receives benefits from the scheme is a member of the cooperative scheme. Problem: this would allow anyone to place us under an obligation by simply thrusting more or less desirable benefits on us (Nozick’s examples). Acceptance views: In order to be members of the scheme is not enough merely to benefit from it. The benefits must also be accepted.

14 What is it to accept the benefits? We accept the benefits when: we try to get them and succeed in getting them; or (when this is not possible) we take them ‘willingly and knowingly’, i.e., we understand the source and the cost of these benefits, and still want to receive them (A.J. Simmons).

15 Excludable vs Non-excludable goods Excludable goods: can be easily provided only to those who intend to receive them. The class of recipients and the class of those who accept the goods are extensionally equivalent ↓ Acceptance-based views and the receipt-based views tend to converge on how to treat these cases. Non-excludable goods: cannot be easily supplied to those who intend to receive them without being supplied at the same time to those who do not. ↓ The class of those who accept the goods is a proper subset of the lass of recipients

16 Presumptive benefits Presumptive benefits: benefits required for a minimally acceptable life. ↓ We can presume that everyone wants them, regardless of whatever else they want (Klosko) Is this view different from hypothetical consent? Is this view paternalistic?

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