Consent to be governed

We have long ago reached the point where no human has the realistic option not to live subject to the power of some state or other. Every square centimetre of land is claimed as territory by some nation. There remains the sea, or at least the areas of the sea designated 'international waters', but a life continuously at sea is hardly a realistic option for more than a handful of the 8 billion people populating the world. Of course, it is possible to withdraw to remote places, go 'off gird' etc. in order to minimise the impact of being subject to state powers, but only insofar as the state in question tolerates such behaviour or lacks resources to prevent it.

This means that the traditional question of political philosophy, 'Why should a free and autonomous person subject themselves to state power?', is at best an exercise of trying to find the unattainable ideal state and at worst a distraction from pressing problems real people face.

It also creates the risk of concluding that only an ideal state would be legitimate and consequently that few, if any, actual states even approximate to legitimacy. And that is a conclusion which rubs hard against the fact that most people, now and through history, have not doubted the legitimacy of the states they are subject to. There is a clear sense in which people appear to consent to be governed as they are, whether that be in monarchies, theocracies, oligarchies and some tyrannies as much as they do in democracies and republics. It is that sense of consent to be governed, and its limits, which I attempt to articulate here.

What is Consent?

Suppose we take as a starting point that these appearances are not misleading and there is actual consent to be governed across a broad range of states, historical and present. And let us also suppose the normative claim that consent to be governed makes a state legitimate. Then we need to ask what this consent consists in so that we can identify cases where is breaks down and a state is illegitimate (and also, should we have moral objections to a legitimate state, understand what actions and processes might undermine its legitimacy).

In western, largely anglophone political philosophy, consent is deemed to take one of three forms: explicit, implicit, or hypothetical. None of these seem to adequately account for the actual phenomenon of consent to be governed we observe. Perhaps elections might be interpreted as a form of explicit consent, but the problem is that no actual democracy counts abstentions as withdrawal of consent to be governed. One can only have given explicit consent to something if not consenting has some effect.

Implicit consent would require a realistic option to opt-out, and as already been observed, no one can opt-out entirely. Furthermore, the option to opt-out of one state and join another, rather than opt-out entirely, presupposes the other will welcome you, which makes it unavailable to most people. Finally, hypothetical consent clearly presupposes a model of ideally rational beings. Even if that is coherent, most people are not ideally rational and we face the ethical problem that their consent is being said to rest on the decision of someone very different from themselves.

When faced with a degenerating research programme like this, the right thing to do is to ask if all the options being considered have common assumptions which can be rejected. And in this case they do: consent is assumed to be an action or event, performed by and for an individual, to be contractual or transactional, and to endure for a significant time after it has been given. In short, it has taken the character of a legal concept. What happens if we reject these four assumptions?

Non-transactional Consent

How can consent not be contractual or transactional? Surely to consent is to give someone permission to do something they didn't otherwise have permission to do and the consent is given for a reason, usually a benefit to the person who consents? That seems unavoidably transactional.

However, consider an action fundamental to human relationships: giving someone a hug. This needs consent, but to understand that as transactional would be to undermine the very purpose of a hug. A successful hug makes the hugged person feel better and it may also make the hugging person feel better. It is also an expression of the hugging person's desire to make the hugged person feel better. Now we could say that hugging takes the following transactional form:

• A wants X and believes doing H will bring about X
• Doing H requires B's consent
• B wants X and believes A doing H will bring about X
• So B consents to A doing H

However, any person A who conceptualized making B feel better by hugging them in this way would probably fail to make B feel better by hugging them. And what goes for hugging goes for any other action which is an expression of how one feels towards another person. Consent does not have to be transactional.

Continuous consent

Equally, in such circumstances consent needs to be continuous. It is not given and then endures for a while with no further input, not even for as long as the act takes to complete. If you let someone hug you and it feels wrong or you just change your mind and pull away, they would have misunderstood the nature of that consent if they said 'But I haven't finished the hug yet!'. This is much more obvious in forms of sexual intimacy and now a standard part of consent training given to students, but it applies to any physical expression of feelings.

A legal conception of consent may allow for conditions under which consent can be withdrawn, but the basic presupposition is that it is consent to do something and absent one of those conditions, the agent can go ahead as if they have a right to do that thing. That works well for borrowing someone's car but not for touching their body or interfering with their autonomy. Which tells us that there is another notion of consent than the legalistic one, a notion on which consent has to be continually created.¹

Dispositional Consent

Some people like surprise birthday parties, others hate them. If you are considering whether to hold a surprise birthday party for someone, you need to consider their disposition to consent to your doing that. You don't want to seek their actual consent for obvious reasons, so you have to consider the conditional: if I were to ask them, would they consent?

This is not, in fact, the right conditional when considering political consent. Better would be: if they were given an opportunity to dissent, would they take it? But even then we have to pitch the opportunity;' at the right point. It needs to involve taking some political action: mere grumbling in private is not sufficient though it does not need to be public: organising a private group of like-minded people would. Furthermore, if the only opportunities for dissent involved significant risk to oneself or one's family and friends, then turning it down would not be sufficient for consent.

When considering dispositions to consent, it is important that we consider the disposition of this actual person, with all their strengths and weaknesses, quirks and particularities, in the actual circumstances you and they are now in. This is how dispositions to consent differ from the much discussed idea of hypothetical consent. Hypothetical consent involves idealisation away from these contingent situations, this rich and specific historical context. To this extent, the dispositional account is closer to a mental state theory of explicit consent if that were to allow non-occurrent mental states like belief rather than occurrent ones like judgement. However, that would not be quite right, because thinking in terms of mental states narrows the range of relevant dispositions too much. What matters for political consent, as we have seen, is dispositions to a certain type of action.

In day to day life we have to consider dispositions to consent in a range of complex situations. The surprise birthday party is one where seeking explicit consent would be self-defeating, but there are also cases where seeking consent would be impractical or even unwelcome. Of course, when acting on dispositional consent, you need to be very confident you have understood the person well enough to get their dispositions right (the degree of confidence here will be proportional to the potential harm) and so caution should be exercised. But even then, we do it all the time, whether these are trivial cases of picking up someone's pen to write a note, or urgent ones like pulling someone away from danger, or intimate ones like holding someone's hand in a moment of anxiety or distress.

Of course, there is always a risk of getting it wrong and it is important to be sensitive to that. But there is also a chance of getting it wrong with explicit consent, which might be given under pressure or in ignorance, and it is equally important to be sensitive to that.

Collective Consent as Consensus

Those of us brought up in cultures which reduce democracy to voting tend to assume the only answer to whether some group of people consent to something is to aggregate their individual consent by counting, usually one vote per person. We might aim for a majority or a supermajority or even allow vetoes, but in each case we are applying some arithmetic formula, an algorithmic function, from the individual to the collective.

The fundamental problem with majoritarian or other voting based ways of coming to collective decisions is that they only seek information about each individual's view of the correct or best answer. Even preference-ranking systems like STV only aggregate information about each individual's answer to the question: 'What would I do if it was up to me?' And if you stop to think about it, that is an odd way to make a collective decision, as if social choice is trying to decide which person(s) should make the decision on behalf of everyone else.

Consensus is something different. When someone assesses 'the mood of the meeting', they are not trying to guess the result of a vote. They are trying to ascertain something else, something which wouldn't be captured by a vote. This is because each person will not only have a view about what they would do if left to decide, but also what might be a decision which the group as a whole can get behind, even if it is for many, or even most, not the one they would have made if it was theirs to make. That is what is needed to achieve a consensus. Someone who recognises a consensus but would prefer a different outcome may take a variety of different attitudes to that consensus. They might welcome it in a spirit of solidarity, or accept with with epistemic humility, or feel defeated and resigned, or even just think it is not worth the effort of challenging. In contrast, someone who is outvoted will find it hard to resist the thought that the world would be a better place if only they were in power. After all, they were asked what they would do if they were in power, and it was ignored.

If you explicitly set out to seek consensus rather than a majority decision, it will also lead to a different quality of debate. Instead of trying to persuade others to adopt one's own views, contributors will be exploring positions which can unify the group. What each individual would do if left to decide for the group is not relevant.

Consent to be governed

There is a long tradition in philosophical thought that if a government is legitimate, then there is a moral obligation to obey the law. While I disagree with that, what is important for present purposes is that aligning legitimacy with moral authority narrows the scope of legitimate government. And moral authority is hard to come by in people let alone governments.

However, we can also consider an empirical sense of legitimacy, whereby a legitimate state or government is one that succeeds in maintaining its power. All states use force and ultimately violence to maintain their power because all have laws with correlative sanctions for non-compliance, which require policing and punishment systems. So the use of force itself cannot be inconsistent with legitimacy. We will come back to the question of whether some uses of force do undermine legitimacy.

My hypothesis is that legitimacy in this empirical sense requires consent to be governed from the subjects of the state, where that consent is understood as a continuous, non-transactional, dispositional consensus.

Legitimacy in this sense does not confer moral authority on a state, its government or the laws that government enacts and enforces, and there may be good moral reasons to challenge any of those. But what legitimacy in this sense does do is to provide a constraint upon permissible ways of bringing about change of state, government or law: legitimate overthrow of a legitimate state, government or law requires consent to the change, which amounts to delegitimation. Since the consent which made the state, government or law legitimate in the first place had to be continuous, it is always fragile: at any point the consensus might change.

The hypothesis is impossible to prove. Even if one was willing and able to survey all candidate legitimate states, how would one test whether consent to be governed in the relevant sense was present? However, we may be able to make it plausible by looking at cases where legitimacy is challenged or even lost.

My examples reveal my narrow knowledge of global history, but hopefully give a template to complete with a richer range of examples. The American Revolution and the French Revolution are examples where the state loses legitimacy by losing consent and is replaced with another state which has consent. The English Civil War and the American Civil War are examples where the state loses legitimacy and it takes much time and bloodshed to reach a point where a new consensus is reached.

The last few years give us some examples of challenges with varying effects. The White Paper Protests of November 2022 in China threw into doubt whether there was consent for the Zero Covid policy and were, in that respect, highly effective in bringing about an immediate reverse of the policy. Perhaps some protestors were also challenging the legitimacy of Xi Jinping's government or even the Chinese Communist state, but is seems they failed to change the consensus about those and both state and government maintain consent and legitimacy.

The Women-Life-Freedom protests in Iran which began in September 2022 and continue to this day appeared to start as a challenge to the legitimacy of a particular policy - mandatory hijabs - and how it was enforced - the 'Morality Police'. Some protesters were also challenging the legitimacy of the hard-line government and seeking a softer government, while others were challenging the legitimacy of the state itself, the Islamic Republic. None of these challenges succeeded beyond a temporary softening of the policing of dress codes. They failed because consent to the policy, let alone the government or the state, had not in fact broken down: the protesters did not change the consensus driven by the religiously conservative population.

On 6 Jan 2021 there was an 'insurrection' at the Capitol in Washington. The protesters here did not challenge the state - in fact most are very keen on the American constitution taken quite literally - but they did challenge the legitimacy of the election of President Biden and thus the legitimacy of his government. That challenge continued for years afterwards, but never changed the consensus and the desired change of government was actually achieved without overthrowing the legitimacy of Biden's Presidency.

Regime Change

The effects, or otherwise, of the Women-Life-Freedom protests in Iran show that the Islamic Republic and the Ayatollah Khamenei government have maintained their legitimacy in the empirical sense. They had to use considerable violence to put down many of the protests, but the level of violence used, including the judicial executions, seem to have the consent of the governed.

This raises two questions:

(1) Is there a use of force or violence by a state or government in order to maintain its power which would undermine its legitimacy?
(2) If there are legitimate states which some of the citizens, and their supporters elsewhere, find morally objectionable, what can be done about that?

I have already suggested the answer to (2): if one has a moral (or other) objection to a state or government which in fact has consent of the people it governs, then the only acceptable thing to do is to try to change that consent. The consent we are talking about is continuous and thus fragile. At any moment the consensus can start to change. The White Paper Protests in China are a good example of the government realising this and acting quickly to change a single policy in order to maintain consent to the government. With that consent still in place, those who want there to be greater change will have to engage in political activism: consciousness-raising, organising, civil disobedience, nonviolent direct action etc. They may even conclude that violent direct action is necessary to force the state into a response which will be shocking enough to undermine consent.

And this answer gives a basis for answering (1). When a state uses its power in such a way that it makes political activism, the expression of dissent, impossible, then it has lost legitimacy. This is usually achieved by highly effective mass surveillance backed up by strong sanctions. Orwell described this in 1984, which describes a state where no one can let another know they want political change. The DDR in East Germany managed this for many years by having a huge secret police force and an army of paid informers. Where a state is using mass surveillance to suppress expressions of dissent, then there can be no evidence for or against dispositional consent to be governed. Such (ab)use of state power would be sufficient to undermine legitimacy by undermining the possibility of meaningful consent.

Contemporary China is a bit more complicated. Here the state uses technology, from ubiquitous facial recognition to monitoring all internet activity and digital payments,² to achieve a similar level of mass surveillance, tied to a social credit scoring system which can affect everything from travel to university entry. However, it is not completely obvious that this delegitimises the Chinese state since there seems to be consent to being surveilled like this. The evidence for dispositional consent to the surveillance is how few make an effort to escape it. However, it is a delicate matter. Unlike Orwell's Big Brother forcing 'telescreens' into everyone's home, no one is forced to use WeChat to conduct their lives or WeixinPay to make transactions. And yet, as any foreign visitor quickly discovers, it is very hard to function without those technologies. There remains some limited space for dissent to the mass surveillance, but the practical costs are very high and the widespread use of facial recognition combined with the requirement for state issued photo ID for basic necessities have probably tipped the situation into one where no dissent to mass surveillance is possible any more and legitimacy is undermined.