Libertarianism without inequality (5)

by Chris Bertram on December 6, 2003

Apologies to those of you who followed my first four posts on Michael Otsuka’s “Libertarianism Without Inequality”: (“1”:, “2”: , “3”: , “4”: ). For various reasons — mainly pressure of work — I’ve taken a while to get around to chapter 5 (though I’ve actually read the whole book now). Some comments on that chapter are below the fold. I’ll try to comment on the two remaining chapters over the next week. (Comments are welcome from those who have read or are reading the book).

Chapter 5 of Michael Otsuka’s “Libertarianism Without Inequality”: is an attempt to defend the thesis of political voluntarism, namely that a necessary and sufficient condition of legitimate political authority is that those subject to it have given their free and informed consent. This has looked an implausible thesis, since, as Otsuka informs us, it looks all to easy to evade authority simply by keeping quiet. But, as he also tells us, Locke’s theory of tacit consent is an attempt to remedy this problem.

But Locke’s tacit consent looks to generate legitimate authority claims all too easily and makes it too difficult to avoid being subject to it. If just hanging round, using the roads and so on is sufficient to count as tacit consent, then it is just too hard to avoid giving consent. There’s also a problem about the background against which tacit consent is obtained: we may be worried if people are held to have consented in cirucmstances of oppression and inequality.

The model that Otsuka takes from Locke is one where the state’s rights to interpret law and to punish offenders and to make law within its territory are merely rights that individuals have voluntarily agreed to transfer to the collective. Given the inconveniences of individuals judging in their own cases and the likely consequences of individuals enforcing the law of nature on their own behalf, Otsuka thinks that individuals have an obligation when they live closely intermingled with others to renounce their private rights to legislation and enforcement and to acknowledge the authority of a government.

The thought that individuals who live under such arrangements have tacitly consented to government authority is, however, usually thought of as pretty absurd. After all, as Hume objected, it is costly and difficult for individuals just to pack up their stuff and leave and so we shouldn’t understand their staying as constituting consent to anything.

To this Otsuka counters that while it is a strong objection to Locke’s particular version of tacit consent, it is less of an objection providing that individuals who wish to secede have an acceptable alternative available to them (so long as there is somewhere they can go consistent with having equal opportunity for welfare). So providing individuals have the possibility of withdrawing from life intermingled with others to some self-governed plot of land where they have similar opportunity for welfare to that available within intermingled communities with states, we can infer from their remaining within the boundary of a state that they tacitly consent to its government.

Actually, he sees that is isn’t quite right. After all, many people have strong family ties, are not rugged individualists, and generally couldn’t bear the option of exile to an isolated plot. So another exit option recommends itself: just so long as there is a range of possible states for people to live in which offer them acceptable opportunities, then we can infer from the fact that they remain in the one they remain in that they tacitly consent to the authority of the local government and its laws, accept its right to punish and so on.

(Now I’m simplifying here and Otsuka actually looks more carefully at a range of exit options and at whether we can sometimes infer consent even in the absence of such options. But I think it is fair to say that his basic claim is that we can infer tacit consent and hence legitimate authority just in case people have a sufficiently appetizing menu of exit options available to them.)

What to think about all of this?

1. Many people are going to be sceptical about whether having such exit options is really sufficient to ground legitimate authority. Even with such options, many people will think that some forms of government can never be legitimate just in virtue of their internally oppressive form. A theocratic republic, complete with Inquisition and torture chamber would, many people think, be illegitimate even if people had the option of leaving as a practical alternative to submission. Otsuka is willing to bite the bullet on this one in the following chapter (6), so I’m just going to mention this thought here.

2. Otsuka, by using an “if and only if” clause in setting out the relationship between consent and legitimate authority according to political voluntarism implies such consent in necessary to political authority. But actually, later in the chapter, he concedes some authority to supranational bodies to adjudicate disputes between political entities. Since such bodies gain their legitimate authority from their practical necessity alone without requiring the consent of those subject to that authority, it is clear that, strictly speaking, consent is not necessary to such authority. Otsuka’s espousal of political voluntarism at the level of individual-state relations seems to be based on the following thought: that providing consent is possible, the need to obtain or infer consent may not be overridden by practical necessity. That seems to be something like an empirical claim, but I’m not sure how we’d go about evaluating it.

3. It does lead on, though, to a worry about legitimate authority and existing states. Since, in real life, the exit conditions Otsuka advocates as conditions for the inferral of tacit consent don’t obtain, we might want to draw the conclusion from his discussion that no actual state has legitimate authority over its citizens. But if we take what Otsuka says about the authority of the supranational adjudicating bodies on board, and we also believe both that some co-ordinating function by states and laws is necessary and that implementing the conditions for inferring consent is impractical, then it looks like we are entitled to override political voluntarism and ascribe authority to many actual states as a matter of practical necessity. I doubt, though, that Otsuka would endorse such a conclusion.

4. Finally, I found myself wondering whether this Lockean approach to authority isn’t just misguided. On a different view of things — perhaps one influenced by Joseph Raz — my being subject to authority doesn’t rest on my consent in the sense of some agreement to be bound by laws or directives, but rather in the more tentative and conditional thought that I’m likely better to comply with the reasons that apply to me, to co-ordinate my actions with others, and so on, if I acknowledge the claims of laws to pre-empt my own evaluation of what I have reason to do. Whether a person is actually subject to an authority, on this view, depends on an evaluation of whether, as a matter of fact, they will generally act better by acknowledging that authority or not. That gives us a sort of acknowledgment of authority that is much weaker that states have wanted or that the law has claimed for itself — but it may be the best we can get.



Maureen 12.07.03 at 4:30 am

Why does The State, as in “how many welfare benefits you’ll get”, have to be geographically defined? Personally, I’m interested in a solution where citizens can choose different individual “public welfare plans”, much as people choose between various health care plans. Each little “plan group” would have different regulatory commissions that would put their stamps of approval on stuff–for example, Nicky’s Goat and Rat Shack couldn’t be closed down for business per se if it were infected with rats, but the absence of any of the regulatory boards’ approval stamps (and since we’re talking about many different groups with many different standards, most halfway decent places should be able to get ), along with a nice big sign stating that the place had rejected for approval by groups X, Y, and Z, would deter everyone from going there. Meanwhile Wal-Mart would have a “seal of approval” by the Paleoconservative Labor Board, but would have a big red X from the Leftish Labor Board, the Human Rights Labor Board, the Civil Libertarians, etc.


Michael Otsuka 12.09.03 at 12:34 am

Thanks very much, Chris, once again, for your comments. You’re right that I don’t completely sign on to the voluntarist claim that consent is a necessary condition of legitimate political authority. Nevertheless, I think we each have a stringent right not to be subject to political authority without our own consent. It follows that only extreme practical necessity would legitimize political authority in the absence of consent. The following analogy might be useful: I have a right not to have my kidney removed without my consent (and also, incidentally, a right to transfer my kidney with my consent). There are, however, extreme circumstances in which it would be legitimate to remove my kidney without my consent (e.g., that’s the only way to prevent some disease from killing millions). I don’t think one’s right not to be subject to political authority without one’s consent is as stringent as one’s right not to have one’s kidney removed without one’s consent. Nevertheless, I think it a stringent right which places serious limits on what the state may legitimately do. I think actual states systematically violate this right. It doesn’t, however, follow, that we are entitled to suddenly all stop obeying the laws of actual states, since the ensuing anarchy would be worse than states which violate this right. Nevertheless, states which take our rights seriously must transform themselves into much more voluntarist organizations in the longer term.

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