Eric Nelson, a Professor Government at Harvard, has published this year a brilliant and imaginative book, The Theology of Liberalism (Harvard University Press, 2019). Nelson, it should be said, is no leftist, despite what you might expect from his Harvard affiliation. To the contrary, he is a conservative and favors, though not to the fullest extent, the free market and private property rights. I hope to address on future occasions his penetrating and original views on the theological roots of “luck egalitarianism” and on libertarian theories of property acquisition and rectification.
For now, though, I propose to consider two arguments that Nelson gives in favor of tacit consent as a basis for political sovereignty. In the first of these arguments, Nelson with characteristic ingenuity turns a standard objection to tacit consent into a point in favor of that very doctrine. Nelson says, “Any plausible theory of popular self-government must … make use of the concept of tacit consent. But it of course does not follow from this fact that the concept is tenable. Perhaps we should simply concede, as Rawlsians do, that there are no self-governing peoples, if by a ‘self-governing people’ we mean one that has actually consented to be governed by the basic structure of society.” (pp.161–62) If by “basic structure” Nelson means a society governed by a state, libertarians will for once be allied with the Rawlsians in rejecting it.
According to tacit consent theory, you consent to obey the state by remaining in the state’s territory for a substantial period of time and participating in various of its activities, such as voting, using the court system, and paying taxes. In brief, the state in effect says to you, “If you stay here, you must follow our rules. If you do follow our rules, you have tacitly consented to obey us. If you don’t want to do so, you can leave and try your luck elsewhere.”
The great eighteenth-century philosopher David Hume raised a classic objection to this claim. What if it is very difficult for you to leave? Circumstances might be such that you have no real choice but to remain in a country. In that case, your remaining cannot reasonably be taken as accepting the rules the state establishes.
Nelson quotes the famous passage from Hume that states this objection:
Can we seriously say that a poor peasant or artizan [sic] has 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. (p. 162)
Nelson uses Hume’s objection against him by pointing out that there are some people who would not find it hard to leave. They know several foreign languages, for example; they have a great deal of money available to them in foreign countries; and their services are in widespread demand abroad. Does it not follow by Hume’s own objection that these people, by freely remaining in a country, have tacitly consented to obey the state? “The Humean claim is therefore not that no one could be said to have consented tacitly, but rather that ‘every individual’ could not.” (p. 163, emphasis in original)
Can Hume’s objection be used, as Nelson proposes to do, to show that some people have tacitly consented to the state? No, it cannot. Nelson has committed a logical fallacy. The tacit consent argument is “By freely remaining within the state’s territory, you have tacitly consented to obey the state.” Hume’s objection is that some people are not free to leave, so the tacit consent argument does not apply to them. But this does not commit him, one way or the other, on whether the people who are free to leave have tacitly consented to obey the state. To say that some people do not meet a condition for an argument to apply to them is not to say that for those who do meet it the argument holds good.
An analogy may make the point clearer. Suppose I were to say, “If you voluntarily click on my article, you must send me a check for $150.” To point out that there may be people who clicked on my column accidently does not imply that I have given a good argument that those who clicked on it voluntarily owe me the money.
Nelson goes on to suggest that Hume himself believed that those who voluntarily participated in a common enterprise are bound by its rules, a claim that even if true is irrelevant to the logical fallacy I have just discussed. Nelson says, “‘Two men,’ he [Hume] famously observes, ‘who pull the oars of a boat, do it by an agreement or convention, tho’ they have never given promises to each other.'” (p. 162, quoting Hume)
Hume’s example is a good one, but it is irrelevant to the issue of political allegiance. People can certainly make tacit agreements to cooperate, but it does not follow from their doing so that they are bound to continue the scheme of cooperation. In Hume’s example, if the two rowers stop rowing together, the boat will stop, but why would that be a bad thing? We may imagine cases where it would be bad, for example that if they stop rowing together they will be left adrift in the ocean to die. To make the example closer to obedience to the state, we may suppose that unless the rowers obey the orders of the captain, they will perish.
Here, though, we must ask, how close is this case to that of people who live within the territorial limits of a modern state? Would they perish, or return to a Hobbesian war of all against all, if they ceased to obey the state? Libertarians, who believe that people can establish voluntary defense agencies without benefit of the state, do not think so, and Nelson has done nothing to show that we are mistaken in so thinking.
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