Positive Liberty

Many libertarians have a problem with the social compact theory because of its reliance on “tacit consent”: that is, if government derives its just powers from the consent of the governed, then virtually no government would be just, given that virtually none of us has expressed consent. (Assuming, of course, that the Pledge of Allegiance is not binding….)

The Lockean answer to this was that we have still consented, tacitly: by remaining in the country and living by its standards, knowing the rules to be such and so. When Jefferson asked Madison why we shouldn’t tear up the Constitution every generation, Madison answered,

I find no relief from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred, where no positive dissent appears. It seems less impracticable to remedy, by wise plans of Government, the dangerous operation of this doctrine, than to find a remedy for the difficulties inseparable from the other. [That’s Madison for you, always the empiricist.]

May it not be questioned whether it be possible to exclude wholly the idea of tacit assent, without subverting the foundation of civil Society? On what principle does the voice of the majority bind the minority? It does not result I conceive from the law of nature, but from compact founded on conveniency. A greater proportion might be required by the fundamental constitution of a Society, if it were judged eligible. Prior then to the establishment of this principle, unanimity was necessary; and strict Theory at all times presupposes the assent of every member to the establishment of the rule itself. If this assent can not be given tacitly, or be not implied where no positive evidence forbids, persons born in Society would not on attaining ripe age be bound by acts of the Majority; and either a unanimous repetition of every law would be necessary on the accession of new members, or an express assent must be obtained from these to the rule by which the voice of the Majority is made the voice of the whole.

Letter to Thomas Jefferson, Feb. 4, 1790.

The law recognizes tacit consent in many ways. There are arguments to be made against it, of course, and Randy Barnett does a good job in Restoring The Lost Constitution, ultimately rejecting the need for consent entirely. But it seems to me that the problem might be better thought of if we analogize it to language. Language is, after all, a matter of consent, in some ways: we all consent to use the letters “duck” to represent a duck, and a particular sequence of sounds to represent the letters “duck.” There is no inherent reason that “duck” must represent a duck—but it is simply the word that we have chosen. But none of us actually chose it. We arrived in a world that already used the word “duck,” and we adopted that usage. We are, of course, free at any time to act like Humpty Dumpty and use whatever word we want to represent a duck. We would render ourselves incomprehensible to others if we tried, so we would need to persuade others to drop the word if that’s what we wanted to do. But it cannot be argued that the word “duck” has any more, um, ,duckiness about it than any other word, or that we are compelled to use it to represent the aquatic quacker. The word derives its “just” meaning from the consent of language users. That does not mean that other forms would not be just; it merely means that what “justice,” or what legitimate content it does have, comes from the consent of those who use it.

We could push the analogy further. Like Lockean consent, linguistic consent is limited: we cannot use the word “duck” to represent both a duck and some other animal, without there being some way to distinguish the two. We cannot use the word (per se) to mean both duck and not-duck at the same time. Although we can expect others to use the same system we do, if they choose to speak this language, we cannot force others to adopt the same usage if they really insist on not doing so.

I don’t know how useful this idea is; most ideas I come up with while on the treadmill aren’t very. But there it is, for what it’s worth.

Trackback URI |