Implied consent means that what one may or may not do is understood without having to ask or say explicitly. In personal relationships, having established some interactions, it is implied that one may continue doing these. If a store is open for business, it is implied that customers may enter, and also that the customers will pay for what they take.
Implied consent has also been applied to the relationship between a resident and the government. The idea is that a person may not agree with some policies, but benefits from others, so it all evens out, and therefore there is an implied consent by all regarding government policies. Some say that if one does not move out, one implicitly agrees with the laws.
Being under the jurisdiction of a government is a major “state” of affairs. We might consider what Lysander Spooner, a 19th-century American philosopher, had to say in his book No Treason: The Constitution of No Authority.
“Neither law nor reason requires or expects a man to agree to an instrument, until it is written; for until it is written, he cannot know its precise legal meaning. And when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not. And if he do not then sign it, his reason is supposed to be, that he does not choose to enter into such a contract.”
In the laws of the United States and many other countries, important relationships are required to be in writing and signed. When one buys real estate, the new buyer must sign a contract. When one gets married, there is a signed agreement. Being under the jurisdiction of a government is just as important.
When one buys a unit of a condominium or homeowners association, one is presented with the community documents, the master deed and bylaws, and the buyer signs an agreement. But this is not done when one moves into a governmental jurisdiction. Why not? Spooner says:
“The most they can say, in answer to this question, is, that some half, two-thirds, or three-fourths of the … adults of the country have a tacit understanding that they will maintain a government under the Constitution; that they will select, by ballot, the persons to administer it; and that those persons who may receive a majority, or a plurality, of their ballots, shall act as their representatives, and administer the Constitution in their name, and by their authority.”
But, says Spooner:
“No body of men can be said to authorize a man to act as their agent, to the injury of a third person, unless they do it in so open and authentic a manner as to make themselves personally responsible for his acts. None of the voters in this country appoint their political agents in any open, authentic manner, or in any manner to make themselves responsible for their acts. Therefore these pretended agents cannot legitimately claim to be really agents. Somebody must be responsible for the acts of these pretended agents; and if they cannot show any open and authentic credentials from their principals, they cannot, in law or reason, be said to have any principals. The maxim applies here, that what does not appear, does not exist. If they can show no principals, they have none.”
Although Spooner thought that his arguments against a governmental implied consent supported anarchism or voluntary governance under explicit contracts, there is another possibility. Coercion is the opposite of consent, and no consent is needed to defend against invasions. Therefore if there is a government whose sole function is to protect people from coercive harm, and that government does not itself commit coercive harm both in its laws and its public finances, then no consent is needed.
The function of natural moral law is the proper governance of humanity, to prohibit coercive harm. Therefore, as I wrote in Soul of Liberty, “There is no moral authority for government other than to enforce the Universal Ethic.” If government only enforces natural moral law, as expressed by the Universal Ethic, then no consent is needed, regardless of how the governors are selected, even if the governor is a dictator, as there is only protection from coercive harm.
However, in human reality, there is no perfect governance, and people disagree on the details of law, and so, as a practical matter, if we take human equality to its logical conclusion, no person should be above any other. That implies a voluntary governance among peaceful persons, enacted with the explicit consent of signed contracts. As to those who choose to not be peaceful, since they do not honor consent, they implicitly agree to be punished. That is the real implied consent in governance – those who coercively harm others imply that they may be resisted, put on trial, and punished.
This article also appears in progress.org under “Implied Consent.”
4 thoughts on “Is there an Implied Consent to be Governed?”
I basically agree with this post, but I think there’s a nuance or wrinkle that needs to be added. Professor Foldvary’s argument is fair enough as far as it goes: implied consent is insufficient to ground something as significant as consent to government. Ideally, consent would be expressly given. But implied consent has some binding power, and I think that applies to government as well.
We don’t expressly consent to the legitimacy of the institution of money, and yet we use it, and that use confers an implied consent. The same thing is true of individual commercial transactions, especially in retail contexts, as the original post says.
So if I walk into a store and simply leave with merchandise without paying, that’s theft, and its being theft involves implied consent two at least two things: not just my coming into a commercial relationship with this particular store, but my assenting to the legitimacy of money as a medium of exchange in the first place.
If I were stopped on the way out of the store with the unpaid-for merchandise, I might say, “Well, I never consented to any commercial exchange or requirement to pay. They left the door open and stuff was lying around, so I took what I wanted.” But the implicit understanding is that a store invites you in to engage in a paying transaction. There’s implied consent to taking merchandise only if you pay. Underlying that, however, is that that particular implied consent presupposes the broader one: by using money you commit yourself to the norms that govern it. Professor Foldvary’s post identifies one implied consent but misses the other.
Maybe ideally, stores should have express consent signs for those who need them: “payment due upon selection of merchandise.” (Doctor’s offices sometimes have an equivalent. So do mechanics.) And maybe money should come with an explicit proviso, “In using this bill, you are consenting to the norms of money.” But in the absence of that, we’re still justified in regarding implied consent as binding.
I think this has some application to government. Ideally, there should be express consent to government. But since there isn’t, implied consent is a kind of second-best that prevents people from engaging in the blatant kind of free-riding in my previous example (walking out of a store with merchandise). What exactly counts as blatant free-riding in the governmental case is a long story, but some things do.
There’s a certain kind of libertarian rhetoric that valorizes free riding. The claim seems to be, “I’ve never consented to government, so I can take what I want, do what I want, and refuse to contribute if I can get away with it.” In its extreme form, I think that’s as illegitimate as walking into a store and taking merchandise you haven’t paid for.
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“Implied Consent” is a ruse of governments. A scam. A confidence trick. Even in America’s founding, where the ONLY consent garnered was that of wealthy land owners and the “educated.” The represented form of government was to a select few, no where near the entire population.
Nothing new in modern times.