I would therefore like to introduce a new proviso, which continues in the same vein of these first two: an expression of consent, where there is a credible alternative but said alternative is not viable due to pre-existing conditions, is as invalid as one given without credible alternatives.
There’s more stuff to unpack here, so let me use a simple example to illustrate it. A man (to follow the convention of the first proviso, let’s call him Twain) falls into a well. How this happens is not relevant: it could be distraction, carelessness, or maybe he was pushed in by some miscreant. Either way, he is stuck at the bottom of the well for a few hours, and then a guy (let’s call him Norton) comes by with a bullhorn and tells him something like this:
“Right, this well is kindof out of the way, so no one’s gonna know about it. I, however, intend to help you. No, I’m not actually gonna call for help or anything, in fact I won’t tell anyone else about this. But I will send you food down every day, I’ll send you a flashlight and some reading materials, and I’ll send you a bucket so you can, you know. In exchange, I want you to do a little gig for me for a few minutes. Sounds like a fair deal to me. If you refuse, I’ll just leave and never come back.”
Here we have a credible signal: if Twain refuses Norton’s offer, Norton will treat it as a signal to desist and leave forever. And yet we cannot say that consent is present, because if he refuses, Twain will basically die in horrible sufferings. Even if he resented Norton’s help, or the modalities of his help, he cannot refuse if he wishes to not suffer.
We can clearly attribute this to the pre-existing conditions, which in this case consist of Twain being stuck down a well with no means to get out. If Twain was not stuck in the well in the first place, the question would not arise at all. But given these conditions, his approval to Norton’s plan may very well be voluntary, but it is not consensual.
It would be blindingly obvious to anyone (putting the dumb “anarcho”-capitalists aside, who have zero ethics or compassion) that Norton’s actions are unethical. I may be wrong on this but I don’t think any sane human being would claim that Twain is beholden to the terms of his agreement with Norton. And it’s obviously because no consent exists in this scenario.
If Norton’s voluntary actions are immoral, then what would not be immoral? We must be clear that the only just thing for Norton to do is to help Twain get out of the well as soon as possible. It will do no good for people to complain and whine that Norton is not committing a crime if he doesn’t help Twain, that Norton is under no obligation to do anything at all, and so on. We should not tolerate such anti-social twaddle. It may or may not inherently be a crime for Norton to not help Twain, but that has little relevance to the issue that Norton’s refusal to help is unethical, regardless of whether it should be punished or not.
The analogy should, I hope, be at least somewhat obvious at this point. I am using this as an analogy to all hierarchical work contracts, and since we live under capitalism, the capitalist kind specifically. We exist under a society where a number of pre-existing conditions prevail, caused by the State and, more recently, capitalism. The commons has been appropriated for centuries, creating lower classes which were then attracted to the high demand for workers in the new capitalist order. This created an ever-growing mass of population which could not sustain its own existence, and thus was wholly dependent on selling its labour to the existing ownership class. This in turn accelerated the corporate accumulation of surplus (profits), accelerated inequality, and, coupled with the extermination of the natives and the freed slaves, created the pre-existing conditions that we know today.
The upshot of all this is that the capitalist system we know is an inherently classist system, with a class of rich business owners at the top, controlling the means of production and how they are used, and a class of wage workers at the bottom. The actors may trade places, but the conditions remain. To the person who did not have access to opportunities due to his starting conditions, the economic system is the equivalent of a well.
Sometimes the Nortons of this world do give some Twain a pull upwards. Indeed, without this possibility, there would be a great deal more rebellion against capitalism than there is today. It is the prospect (however tenuous) of one day being on top that keeps people playing. But that being said, there can be no doubt that there’s no other viable alternative for the vast majority of us but to play the game.
We have to distinguish between two kinds of consent in this case: consent to the capitalist system as a whole versus consent to a specific job within that system. Certainly one cannot presume any sort of consent to the capitalist system, as no viable alternative exists (“go live somewhere else” is no argument when moving on this scale is tremendously expensive, not to mention most often made impossible by immigration restrictions, and the fact that there’s no society with a good standard of living that offers the choice). Depending on one’s status, one may or may not be able to choose a specific job: most people can’t.
Likewise, we are all subject to the democratic system, and thus we can ask whether the individual consents to democracy as a whole, which we have already discussed. But when a person votes, we can also ask whether that voting represents some form of consent, for instance consent to a specific party ruling over them. Lysander Spooner famously argued against this notion (paragraph break mine):
The consent, therefore, that has been given, whether by individuals, or by the States, has been, at most, only a consent for the time being; not an engagement for the future. In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having ever been asked, a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practise this tyranny over him by the use of the ballot. He sees further that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, be finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former.
His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot – which is a mere substitute for a bullet – because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency, into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him.
Okay so I am giving you two choices: My Way, or my way as well. Notice I wrote the second one in a slightly different fashion, and so it looks like a totally different option, feel free to mix and match your choices any way you choose.
GASP! I CHOOSE THE SECOND ONE!
First Issue, there is a legal obligation towards the man if the well for the person who owns the well or land that the well is located on. If twain was on the land for a legal purpose the landowner would also owe for damages.
And the Spooner quote is a bit out of Context although I’m absolutely thrilled anytime somebody makes a reference to him. Spooner’s focus is on consent because it is needed to in order for a written instrument to be binding or obligatory in any way
“NT.6.4.1The constitution not only binds nobody now, but it never did bind anybody. It never bound anybody, because it was never agreed to by anybody in such a manner as to make it, on general principles of law and reason, binding upon him.
NT.6.4.2 It is a general principle of law and reason, that a written instrument binds no one until he has signed it. This principle is so inflexible a one, that even though a man is unable to write his name, he must still “make his mark,” before he is bound by a written contract. This custom was established ages ago, when few men could write their names; when a clerk – that is, a man who could write – was so rare and valuable a person, that even if he were guilty of high crimes, he was entitled to pardon, on the ground that the public could not afford to lose his services. Even at that time, a written contract must be signed; and men who could not write, either “made their mark,” or signed their contracts by stamping their seals upon wax affixed to the parchment on which their contracts were written. Hence the custom of affixing seals, that has continued to this time. ”
The reason why no consent is necessary for a purely free market, is that it claims no general obligation to it and does not claim to be a legal instrument or agreement..
Now I would consider an ethical though not legal duty to prevent or end easily avoidable suffering, as in the case of pulling Twain out of the well, as
I would consider it and ethical need to develop alternative institutions of mutualist or syndicalist flavor if a more entrepreneurial flavor exacerbates or fails to correct the easily avoidable framework of suffering that the current system inflicts on the lowest classes.
The legal situation between Twain and Norton is not the point. The fact that you make your own distinction between what is an ethical duty and a legal duty merely proves it. My point is ethical, not legal. I’m an Anarchist, so I am not concerned with what the law says.
“Though the words contain the law, the words themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combination of senses, in which each and all the words were capable of being taken. … It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, no one can know what the written law is, until he knows what it ought to be; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words ought to be taken. And this true legal sense is the sense that is most nearly consistent with natural law …. (Unconstitutionality of Slavery II. 14, p. 138.)”
Spooner defines natural law as a set of principles whose rough application leads to peace within society. And in this context, the study of law is indispensable to any anarchist system, and anyone who embraces law for it’s own sake and on it’s own terms becomes an anarchist.
Just as an example law requires third party arbitration. A full embrace of this notion would require you to reject also the concept of a final arbiter.
To value law for it’s own sake is to value peace between man and man.
I consider ethics to be far more of a personal and subjective pursuit based on value and feeling.
When I say X is a legal duty I am making an objective claim that X is necessary for peace within society.
When I say Y is an ethical duty, I am making a value claim that no person with values on the topic of humanity compatible with mine would leave Twain in the well.
Stop equivocating natural law with legal duty. Do you really think I’m that stupid? When you talk about legal duty, you’re obviously talking about State law.
And if you mean natural law, then you definitely do have a “legal duty” to save the man.
How is that pointing out the words of the statute are not law an equivocation of natural law with an aspect of state law?
Learn what spooner actually means by law. If a statute of a legislature merely repeats an aspect or requirement of natural law they add nothing to it’s obligation.
“Natural Law 3.4.1 What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they call subject to their power. It is the assumption by one man, or body of men, of a right to subject all other men to their will and their service. It is the assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of all other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not, do; what they may, and may not, have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as human legislation that is obligatory upon those upon whom it is imposed. ”
I am not talking about legislation when I talk about law, because legislation as a process is either of no consequence whatsoever if it merely repeats natural law, and a criminal usurpation if in contradiction of it.
Keeping an open well on your land is an act of negligence weather a group of men called legislatures consider it to be such or not.
Spooner explains why he considers duty of law as separate and more narrow than the duty of morality, ethics, or virtue.
” Man, no doubt, owes many other moral duties to his fellow men; such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenseless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each man must be his own judge, in each particular case, as to whether, and how, and how far, he can, or will, perform them. But of his legal duty – that is, of his duty to live honestly towards his fellow men – his fellow men not only may judge, but, for their own protection, must judge. And, if need be, they may rightfully compel him to perform it…”
[…] nature of an action or system is a necessary but not sufficient ethical condition. I have shown in a past entry that what the author glibly labels “unequal negotiating positions” (read: widespread […]
[…] Go to part 2. Possibly related posts: (automatically generated)Some considerations on consent. [part 2/2]WITNESS Guidelines for Informed Consent in Audiovisual Human Rights Documen… […]
I don’t know if you’re familiar with A. John Simmons ON THE EDGE OF ANARCHY . . . but if you’re not, you should give it a look. The book is devoted to a critique of Lockean social-contract theory, and a number of his arguments are strikingly similar to those you’re advancing here.
Thank you for your nice comment. I was not aware of this book and I have not been able to find a review of it. Do you know any?
I haven’t checked myself for internet reviews, but it doesn’t surprise me. It is an often overlooked book, but it is the best libertarian critique of Lockean consent theory (and social-contract theory generally) that I have ever read. I believe the book is now out of print, but it appears used copies, at least, can be obtained from Amazon and Barnes & Noble.
[…] It has no more validity than any contract predicated on the principle that 1+1=3. It also precludes the possibility of consent by its very existence. Therefore there is no reason for any libsoc court or mediation to recognize […]
[…] 11. Some considerations on consent part 1, part 2. […]
[…] 4. The term “voluntary” is weaker than the term “consensual.” What is consensual is necessarily voluntary, but what is voluntary is not necessarily consensual. For a person to perform a voluntary choice only requires acceptance on the part of the person, but for a person to perform a consensual choice requires a viable possibility of refusal. This means that the concept of consent includes consideration of structural issues (such as whether a viable alternative exists) which are not part of voluntariness. I have examined the issue of consent in detail in my entry Some considerations on consent (see part 1 and part 2). […]
Interesting discussion. Not sure what the implications are though.
Yes, I could go along with an ethical mandate of sorts for Norton to haul Twain out of the well or at least tell others, assuming no significant danger to himself in doing so. It’s easy to see the ethics of it by looking at how a third party would react. A third party seeing Norton take advantage would have a very low opinion of Norton, as he would seeing Norton walk away. On the other hand if Norton took significant risk to get Train out, Norton would be considered a hero.
But this is just an analogy, and analogies sometimes do not well reflect life. We could think of another analogy, e.g. Twain, instead of being in a well, is in a lounge chair, eating potato chips and watching the idiot box. He tells Norton that if he cannot get food he will starve, and the only way to get food is if Norton gives it to him. Is Norton still ethically obligated? Is Norton being evil if he offers Twain a quid pro quo in this case?
Normally in the first case we’d say yes, in the second, no. So between these two extremes we have a lot of cases, and it is up to Norton to use his judgment, based on things like what third parties would think of him, or internal feelings like empathy.
Another thing is, one can only go so far with the pre-existing condition argument. Everyone at birth has some advantages and disadvantages. It’s not just a matter of ethics how far people go helping each other, it is also things like internal motivation to better oneself. Some people face few challenges in life, but should we envy them for it? Aren’t humans really most human when they can fact challenges and overcome them?
That’s why I am confused about what the implications of all this are supposed to be. You don’t like the pre-existing conditions of “capitalism” (whatever you mean by that). OK, drop the other shoe. What do you want to do to remedy it?
Confession: I have just started reading this blog, so I will look around some more to see what answers I can find.
“Interesting discussion. Not sure what the implications are though.”
i think the implications are pretty clear: it’s not consent if there’s no viable alternative.
“We could think of another analogy, e.g. Twain, instead of being in a well, is in a lounge chair, eating potato chips and watching the idiot box. He tells Norton that if he cannot get food he will starve, and the only way to get food is if Norton gives it to him. Is Norton still ethically obligated? Is Norton being evil if he offers Twain a quid pro quo in this case?”
No. Unless we know that Twain arrived at such a situation against his will, there’s no reason to believe his claim that he will starve unless Norton gives him food.
“Normally in the first case we’d say yes, in the second, no. So between these two extremes we have a lot of cases, and it is up to Norton to use his judgment, based on things like what third parties would think of him, or internal feelings like empathy.”
This is entirely subjective, so I’m not gonna get into it.
“Another thing is, one can only go so far with the pre-existing condition argument. Everyone at birth has some advantages and disadvantages. It’s not just a matter of ethics how far people go helping each other, it is also things like internal motivation to better oneself.”
Um, you do realize you’re just proving my point, right?
“Some people face few challenges in life, but should we envy them for it? Aren’t humans really most human when they can fact challenges and overcome them?”
Now you’re going headlong into the whole “you can only really know a person when they’re suffering” except you’re replacing “suffering” with “challenges.” So let’s just give everyone cancer, that should help them… if they overcome the “challenge.” I mean, this is rationalization for harm, nothing more. Of course life would be better if we faced fewer challenges. How can you even deny that?
“That’s why I am confused about what the implications of all this are supposed to be. You don’t like the pre-existing conditions of “capitalism” (whatever you mean by that). OK, drop the other shoe. What do you want to do to remedy it?”
As a replacement for capitalism? Libertarian socialism.
And you know very well what I mean by “capitalism.” Capitalism is an economic system where the means of production are privately owned. And that’s wrong. That’s evil. That leads to the repugnant neo-liberalist world we have now. That needs to be exterminated.
Well, I found your “faq for ancaps”. I was particularly amused at this statement: “But we emphasize that we have yet to encounter a single coherent propertarian argument as of this time.” What an effective method of outreach, right out of Dale Carnegie!
I looked through the faq, and you know, I don’t really care about all your answers there (you might as well get rid of the faq because no ancap will swallow any of it). I only want to know one thing: do “libsocs” intend to war on “ancaps” because “ancaps” think “libsocs” are full of shit (and vice versa)? Or will “libsocs” leave “ancaps” alone, maybe outside of some sneers now and then?
I just need to know if I should shoot the next “libsoc” I see.
“I was particularly amused at this statement: “But we emphasize that we have yet to encounter a single coherent propertarian argument as of this time.”
Well then, can you give a coherent propertarian argument? Or are you just here to bluster? My guess is, the latter is true.
“I just need to know if I should shoot the next “libsoc” I see.”
You are a fine specimen of propertarian logic.
[…] often refer to this entry because it shatters the myth of consent under capitalism; without any viable alternative to consent […]
[…] contracts be a valid means of formalizing agreement? Sure, but we have to introduce issues of consent. Consent cannot exist unless viable alternatives exist as well. Much like we shouldn’t […]
[…] Any signal given under a threat of force is the product of duress, and is therefore not consent. 3. A signal given where there is a credible alternative but said alternative is not viable due to pre-e… 4. In a situation where there is no possibility of consent, one should never infer consent (this […]