Some considerations on consent. [part 1/2]

When discussing issues related to our actions within hierarchies, such as voting, working, being subject to laws and workplace rules, propertarian laws, and so on, our opponents inevitably bring up the concepts of “voluntary” and “consent.” In order to properly understand these issues, we must therefore consider the concepts of what is “voluntary” and what is “consent.”

It is often believed by the proponents of this or that hierarchy that they are based on consent, they are voluntary, and that this assumed fact wipes out any further objections. This, in their opinion, is the ultimate freedom, and therefore it does not matter what the results are; as long as we all consent to being exploited physically, mentally and financially, it’s not exploitation at all, just a different form of freedom.

There are two ways to answer this. One is to point out that the consensual or voluntary nature of a hierarchy does not justify its existence, that hierarchies are undesirable regardless of consent and that they are great barriers to general freedom and equality. The other is to point out that these hierarchies are not really consensual or voluntary at all in the first place, by showing how they fail to fulfill some fundamental property of a consensual system. I have done the former in a previous entry; now, I intend to discuss the latter.

In his excellent entry on the topic of consent (which I have linked in the past as one of the best blog entries I’ve ever read), Charles Johnson proposes something he calls the Opt-Out Principle:

If Norton wants to place Twain’s person or property under a condition C, then Twain’s performing an action A expresses consent to C only if there is some alternative action B, which Twain could have performed, which would have counted as refusing consent to C, and which Twain can reasonably expect Norton to accept as a decisive reason not to place Twain’s person or property under C.

This may be a little complicated, but basically says that in order for there to be consent, there must be not only an alternative, but the alternative must be recognized by the other party as a signal to desist.

One example that can illustrate this is consent to the State (and by extension, the laws, the justice system, taxation, wars, and so on and so forth). Statists may argue, as it has traditionally been argued, that the State is not immoral because its subjects give their consent, either by voting, paying taxes, obeying the laws, using the roads, or whatever other signal the statist believes is a valid form of consent.

But this is invalid, since there is no signal that the State recognizes as a signal to desist. Nothing you do will make the State stop imposing its power on you. Whether you vote or not, pay taxes or not, obey the laws or not, use the roads or not, the State will always try to punish you for disobeying it. Since there is no credible signal to desist, there therefore cannot be any consent. Consent can only exist in the presence of a choice between two possibilities, otherwise we’re not talking about choice at all, but rather about obedience, loyalty, or some such.

Rad Geek explains the situation very clearly:

Again, I take this principle to be a necessary condition for a performance to count as expressing consent; just as the lack of a possible refusal makes the issue one of obligation rather than consent, if Twain performs an expressive act without any expectation that there is some expression of refusal that Norton would consider himself bound to respect, then the issue is no longer one of consent, but rather of unilateral command. And again, it hardly matters what Twain’s personal feelings about the command may be. Maybe he’s into that kind of thing. But whatever he is doing, he is not succeeding at doing anything that would count as expressing consent. You can’t consent if you’re never asked, and if there really is nothing that Norton would count as a binding refusal, then Twain has never even been asked, in any meaningful way.

Before explaining this one, Charles Johnson give us another proviso, which can be stated this way: any seeming expression of consent, if given under a standing threat of force against refusers, is given under duress, and cannot be treated as a genuine expression of consent.

I think this is pretty self-explanatory. If someone’s holding a gun to your head and demanding that you agree to something, your agreement is not consent. You’re probably doing it because you don’t want to get shot, not because you actually consent to it, and there’s really no way for anyone to figure out if you’re saying “yes” out of fear or consent. The same applies to the State.

In fact, this proviso is similar to the first one. In the first, we point out that consent can only exist where an alternative exists, and that the threat of force confirms the actual lack of alternatives. In this one, we’re addressing the existence of the threat itself as making it impossible to distinguish obedience from consent, which is more of an epistemic issue.

Go to part 2.

9 thoughts on “Some considerations on consent. [part 1/2]

  1. Matt Crandall November 16, 2009 at 11:16

    Good stuff – and I’d add that the choices themselves must be desirable – in other words, you can’t call it consent, even if there is a choice, if the alternatives offered to me aren’t something I desire.

    If I’m offered the choice of a bag of M&M’s, or an Ice Cream Sandwich for dessert (both of which I like), then I can make a valid choice. If I’m offered to be either a) beaten, or b) imprisoned — well sure, it’s a choice, but it’s there’s no way that you can truly consider me ‘consenting’ to either one.

    -olly

  2. kentmcmanigal November 18, 2009 at 02:52

    I wrote on this topic a while back, if anyone would be interested in a comparison: http://tinyurl.com/yf27zk9

  3. […] Some considerations on consent part 1, part […]

  4. […] under the pretense of being “based on the consent of the governed,” but we know this is logically impossible. A society which supports freedom must be based on consent. What form this consent takes depends on […]

  5. […] I have examined the issue of consent in detail in my entry Some considerations on consent (see part 1 and part […]

  6. n8chz June 27, 2011 at 01:45

    Navigated to this page from the page announcing the new blog name. So, if the state were to announce recognition of a signal to desist, your relationship with the state would be sort of like a BDSM relationship. Absent that, it’s equivalent to rape. Right?

    • Francois Tremblay June 27, 2011 at 01:46

      While I wouldn’t really compare the violent intensity and terror of rape to the tedious bureaucratic tyranny of democracy, the answer is basically yes.

  7. […] also brings out the confusion between something being voluntary and something being consensual. As I’ve discussed before, consent is a much, much more specific criterion than voluntary agreement. To take one example from […]

  8. […] The absence of a viable signal of refusal. If there is no signal that one or the other party would accept as a refusal (i.e. there is no […]

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