Obligation and Consent Pitkin

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Obligation and Consent--I

Author(s): Hanna PitkinSource: The American Political Science Review, Vol. 59, No. 4 (Dec., 1965), pp. 990-999Published by: American Political Science AssociationStable URL: http://www.jstor.org/stable/1953218 .

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OBLIGATION AND CONSENT-IHANNA PITKIN

University of Wisconsin

One might suppose that if political theoristsare by now clear about anything at all, theyshould be clear about the problem of politicalobligation and the solution to it most commonlyoffered, the doctrine of consent. The greatestmodern political theorists took up this problemand formulated this answer. The resultingtheories are deeply imbedded in our Americanpolitical tradition; as a consequence we are al-ready taught a sort of rudimentary consenttheory in high school. And yet I want to suggestthat we are not even now clear on what "theproblem of political obligation" is, what sorts of"answers" are appropriate to it, what the con-sent answer really says, or whether it is a satis-factory answer. This essay is designed to pointup the extent of our confusion, to explore someof the ground anew as best it can, and to invitefurther effort by others. That such effort isworthwhile, that such political theory is stillworth considering and that it can be madegenuinely relevant to our world, are the assump-tions on which this essay rests and the largermessage it is meant to convey.I. THE PROBLEM OF POLITICAL OBLIGATIONThe difficulties begin with the formulation ofthe problem itself. MWhatexactly is the "prob-lem of political obligation"? It is characteris-tic that we take it for granted there is a singleproblem to be defined here, and that neverthe-less a dozen different formulations clamor forour attention. The classical theorists on thesubject hlave treated it in varying ways; andeven within the writings of a Hobbes, Locke orRousseau it is difficult to say what the theorist's"basic problem" is, or indeed whether he has

one. We tend, I think, to suppose that it doesnot matter very much how you phrase the prob-lem, that the different formulations boil downto the same thing. But my first point will bethat this attitude of arbitrariness or indifferenceshould not be trusted. It is not, in fact, truethat any formulation of the problem is equiva-lent to any other. Rather, this supposed singleproblem is a whole cluster of different ques-tions-questions of quite various kind andscope. And though their answers may turn outto be related, so that an answer to one providesanswers to the others also, it is by no means ob-vious that this must be so. Specifically, I sug-gest that most of the familiar answers to theproblem are satisfactory responses to some of

its questions but not to others, and that theanswer adopted depends a good deal on thequestion stressed.For the purposes of this essay it will be use-ful to distinguish four questions, or rather, fourclusters of questions, all of which are part ofwhat bothers theorists about political obliga-tion.' They range from a relatively concrete andpractical political concern with what is to bedone, through increasing theoretical abstract-ness, to a philosophical concern with the mean-ings of concepts and the paradoxes that ariseout of them. Because we are used to treatingthem all as different versions of one problem,the reader may not at first see any significantdifferences among them; but the differencesshould emerge in the course of the discussion.We are told often enough that the theorists ofpolitical obligation were not merely philoso-phers, but also practical men writing about thepolitical needs of their times. They produced"not simply academic treatises, but essays inadvocacy, adapted to the urgencies of a partic-ular situation. Men rarely question the legi-timacy of established authority when all is go-ing well; the problem of political obligationis urgent when the state is sick, when someoneis seriously contemplating disobedience or re-volt on principle."' Thus we may begin with acluster of questions centered around the limitsof political obligation, the more or less practicalconcern with when, under what circumstances,resistance or revolution is justified. The theo-rist wants to promote or prevent a revolution,or he lives in a time when one is taking place,or he contemplates one in the recent past. So heseeks some fairly general, but still practicallyapplicable principles to guide a man in decid-ing when (if ever) political obligation ends orceases to bind. They must have a certain degreeof generality in order to be principles ratherthan ad hoc considerations in one particularsituation, in order to be recognized by us astheory. But they are also fairly directly tied to

1 No doubt the problem encompasses morethan these four questions, and could be divided upin a number of different ways. Indeed, some as-pects of it not covered by these four questions willemerge in the course of this discussion.

2 S. I. Benn and R. S. Peters, Social Principlesand the Democratic State (London, George Allen &Unwin, 1959), pp. 299-300.

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OBLIGATION AND CONSENT-I 991what Tussman has called the question "whatshould I do?"3 They are guidelines to action.At other times the same practical concerntends to take a slightly different form: "Whomam I obligated to obey? Which of the persons(or groups) claiming to command me actuallyhas authority to do so?" Put this second way,the problem seems to be one of rival authorities,sometimes identified in political theory as theproblem of the locus of sovereignty. The formerquestion tends to arise in situations of potentialcivil disobedience or nascent revolution, wherethe individual is relatively alone in his con-frontation of a government. The latter questionis more likely to come up in situations of civilwar or when a revolution is more advanced,when the individual is already confronted bytwo "sides" between which he must choose.But as the theorist tries to formulate generalprinciples to guide such a choice, he may be ledto a more abstract version of his problem. Hemay be struck by the seeming arbitrariness orconventionality of human authority: how is itthat some men have the right to command, andothers are obligated to obey? And so the theo-rist looks for the general difference betweenlegitimate authority on the one hand, and illegi-timate, naked coercive force on the other. Hebegins to wonder whether there is really anydifference in principle between a legitimategovernment and a highway robber, pirate, orslave-owner. He begins to suspect that termslike "legitimate," "authority," "obligation"may be parts of ail elaborate social swindle,used to clothe those highway robbers who havethe approval of society with a deceptive man-tle of moralistic sanctity. Essentially, he be-gins to ask whether men are ever truly obli-gated to obey, or only coerced. "Strength is aphysical attribute," says Rousseau, "and Ifail to see how any moral sanction can attachto its effects. To yield to the strong is an act ofnecessity, not of will. At most it is the result of adictate of prudence. How, then, can it becomea duty?"4 Such questions are no longer merelyguides to action; they are attempts to describeand classify parts of the social world. Insteadof focussing on the individual's "what shouldI do?" they focus outward, on the (real or al-leged) authority: "what is legitimate authoritylike?"Finally, behind even this inore abstract ques-

I Joseph Tussman, Obligation and the BodyPolitic (New York, Oxford University Press,1960), p. 12.

4 Jean-Jacques Rousseau, The Social Contract,in Sir Ernest Barker, ed., The Social Contract (NewYork, Oxford, 1960), Bk. 1, iii.

tion, lies what is essentially a philosophicalproblem, a cluster of questions centeringaround the justification of obligation: why areyou obligated to obey even a legitimate gov-ernment? Why is anyone ever obligated to obeyany authority at all? How can such a thing berationalized, explained, defended, justified?What can account for the binding nature ofvalid law and legitimate authority? I call thesequestions philosophical problems because theyno longer seek distinctions or guides to action,but arise out of puzzlement over the nature oflaw, government, obligation as such. They arecategorical questions to which the theorist isled, characteristically, after an extended ab-stract contemplation of the concepts he hasbeen using. They are reminiscent of other phil-osophical puzzles, like "do we ever really knowanything?" or "do other people really exist?"We have, then, four clusters of questions,any or all of which are sometimes taken to de-fine the problem of political obligation:

(1) The limits of obligation (" When are youobligated to obey, and when not?")(2) The locus of sovereignty (" WVhomreyou obligated to obey?")(3) The difference between legitimate au-thority and mere coercion ("Is therereally any difference; are you ever reallyobligated?")(4) The justification of obligation ("Whyare you ever obligated to obey even alegitimate authority?")

Obviously the answers to these questionsmay be connected. If, for example, one answersquestion three in terms of the reductionist real-ism of a Thrasymachus or of vulgar Marxism:"there is no difference," then the other ques-tions become essentially irrelevant. But weshould not take it for granted that any answerto one of these questions will automaticallyprovide consistent answers to the rest; weshould look to see how familiar answers in factperform. Our prime interest is, of course, theconsent answer, but before examining it, wemight look briefly at very abstract, ideal-ty)icalized versions of some of its major rivals.Their brief treatment here would not allow,aand s not meant to be a balanced assessmentof their merits. It is meant only to explore alittle of the complexity of political obligation,and the difficulty of providing a consistenttreatment of it.Theories of Divine Right or the will of God,for example, seem much better designed tocope with some of our questions than with oth-ers. Saying, with St. Paul, that "the powersthat be are ordained of God," seems a decisive



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992 THE AMERICAN POLITICAL SCIENCE REVIEWanswer (at least for a believer) to our questionfour. Granted only that there is a God (in thefull sense of the word), the fact that he com-mands certain actions is surely a decisive justi-fication for our obligation to perform them.But applied to our other questions the doctrineis ambiguous. Taken one way, it seems to implythat there is no difference between mere coer-cive force and legitimate authority, since allpower comes from God. Then resistance isnever justified, even against a heretical rulerwho attacks religion. For times when power isin flux, as in cases of civil war, this version ofthe theory seems to provide very little guid-ance for action. Taking the doctrine a differentway, some divine right theorists have wantedto argue that there is nevertheless a distinctionto be made between divinely ordained powerand illegitimate power, and that there are timeswhen certain kinds of power must be resisted.Prescription, another familiar response tothe problem of obligation, seems more directlydesigned to give an unequivocal answer toquestions one and perhaps three. It teachesthat old, established power is legitimate inevery case, and there are no limits on our obli-gation to obey it. But this again is no guide intimes of successful revolution; is it obedienceor counterrevolution that is then required?And what of occasions when an old, establishedgovernment begins to act in new and tyranni-cal ways? Even Burke was sympathetic to theAmerican Revolution. Further, this doctrinehas real difficulties with our question four; agovernment's age, and our habitual obedienceto it, do not seem to justify an obligation toobey. At most the connection can only be madethrough a number of additional assumptionsconcerning human reason and the nature of so-ciety, and adding up to the thesis that old, ac-cepted government is most likely to be goodgovernment.A third, equally well known response to ourproblem, that of Utilitarianism, is perhaps aneven better illustration of the complexities in-volved. The utilitarian theorist argues thatyou are obligated to obey if and only if the con-sequences of obedience will be best on thewhole, in terms of a calculus of pains and pleas-ures. There are, of course, familiar difficultiesover the manner of calculation and whether allpains and pleasures are to count equally. Buteven beyond these, there is a fundamentalquestion left unclear, namely, whose pains andpleasures are to count: your own personal ones,or those of the (majority of) people in your so-ciety. Bentham himself says that it isallowable to, if not incumbent on every man ...to enter into measures of resistance . . . when the

probable mischiefs of resistance (speaking withrespect to the community in general) appear lessto him than the probable mischiefs of obedienceBut the phrase in the parentheses is, of course,the crux of the matter. The Utilitarians arenotoriously inconsistent on precisely this point,saying one thing when they speak of personalethics and personal decision, and quite anotheron the subject of legislation and public policy.So it will be well for us to consider both possi-bilities.First, there is what might be called individ-ualistic utilitarianism. Such a theory arguesthat you are obligated when the consequencesof obedience are best on the whole in terms ofyour personal pleasure and pain. As a responseto our question four, this argument has a cer-tain appeal: you are obligated because it is bestfor you in terms of your own pleasure and pain.But the implications for the other questions aremore strange. For they are that each individualis obligated to obey only while it is best for him,and becomes obligated to resist when thatwould promote his personal welfare. Thus thesame government will be a legitimate authorityfor some of its subjects but naked illegitimatepower to others. And anyone is free to disobeyor resist whenever it benefits him to do so; hecan have no obligation to the contrary. Indeed,the sum total of such a doctrine is that youhave no obligation at all, or none except thepursuit of your own welfare. If that happens atone point to entail obeying the law, you shoulddo so; if not, not. And in precisely the sameway, if it happens at one point to entail obey-ing a highway robber, you are "obligated" todo that. Thus, as an answer to question three,individualistic utilitarianism essentially deniesthe existence of authority altogether.The second alternative is what we might callsocial utilitarianism. This position argues thatyou are obligated to obey if and only if the con-sequences of your doing so will be best on thewhole, in terms of the pains and pleasures ofthe people in your society-in terms of thegreatest good for the greatest number. Unlikeindividualistic utilitarianism, this seems afairly reasonable, conventional answer to ques-tions one and two. You must obey while thatpromotes the welfare of society, even if it hurtsyou; and you must resist when that is sociallybest, even if it hurts you. The answer to ques-tion three is less obvious but not, on the faceof it, irrational. A legitimate government is onethat promotes the greatest good for the great-est number; and if a highway robber does that,

5 Jeremy Bentham, Fragment on Government,ch. IV, par. 21.



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OBLIGATION AND CONSENT-I 993then he becomes thereby a legitimate authorityentitled to your obedience. A selfish or (on thewhole) harmful robber or government may ormust be resisted. But as an answer to questionfour, social utilitarianism seems less successful.For it teaches that you are obligated becauseyour obedience will promote the greatest goodfor the greatest number. But if you are both-ered about political obligation, that is just theproblem: why should that criterion mean any-thing to you? Why should it be any easier toaccept that obligation than to accept the obliga-tion to obey law and authority?Sometimes, of course, the utilitarians assumethat there is no problem about individualisticversus social utilitarianism, that the two criteriaare essentially the same because of the invisiblehand, because individual welfare is (in sum)social welfare. When they write about eco-nomics, particularly, this solution tempts them.But in political life, concerning legislation orconcerning political obligation, they are fairlywell aware that this is not the case. Private in-terest must be made to coincide with publicinterest by wise legislation. And instructionsto resist when it is best for society will oftenproduce quite different results than instruc-tions to resist when it is best for you personally.There are bound to be occasions when the pub-lic welfare requires serious sacrifices (perhapseven of life) by some individuals. To supposeotherwise seems incredibly unrealistic.The theorist founding political obligation inconsent responds to our four questions in thisway: you are obligated to obey if and only ifyou have consented. Thus your consent definesthe limits of your obligation as well as the per-son or persons to whom it is owed. Legitimateauthority is distinguished from mere coercivepower precisely by the consent of those sub-ject to it. And the justification for your obliga-tion to obey is your own consent to it; becauseyou have agreed, it is right for you to have anobligation. But the seeming harmonious sim-plicity of these answers is deceptive; when con-sent theory is worked out in detail, its answersto some of our questions begin to interfere withits answers to others.In the first place, there is the problem of ex-actly whose consent is to count. We have allknown, at least since Hume-if it was not al-ready obvious before him-that the historicalorigins of society are essentially irrelevant tothe consent argument. The consent of our an-cestors does not settle the problem about ourobligation today. Or rather, someone who se-riously argues that the consent of our ancestorsdoes settle this problem, is arguing more fromprescription than from consent, and is probably

not very troubled about political obligationanyway.But even if it is the consent of those nowsubject to power (or authority) that matters,there are still several alternatives: is it to bethe individual's personal consent that deter-mines his obligation, or the consent of all (ormost) of those subject to the government? Andis it to be his or their present consent, or con-sent given in the past? Let us consider the pos-sibilities.(1) You are obligated only insofar as youpersonally consent right now. Where your con-senting ends, there ends also your obligation.What this presumably means is that as long asyou accept the government it is wrong for youto disobey it, and right for it to punish any dis-obedience by you. But as soon as you withdrawyour consent, you become free to disobey, andno attempt to punish you can be justified. Thisdoctrine would have the peculiar consequencethat you can never violate your obligation; foras soon as you decide the time has come forrevolution (withdraw your consent), your ob-ligation disappears. It also means that you cannever be mistaken about your obligation, forwhat you think defines it. This answer comesto much the same thing as individualistic utili-tarianism, except that it demands no rationalcalculation, looking to your will rather than toyour welfare.(2) You are obligated only insofar as youpersonally have in the past consented. This iscloser to traditional contract theory. You gaveyour word, and so you are bound for the future,unless (of course) the government changes andbecomes tyrannical. But this position seems toallow the possibility of becoming obligated toa tyrannical government, if you expressly con-sent to one that was already corrupt. One canavoid that problem by saying such promisesare invalid, that you cannot expressly consentto become a slave; but then the argument isalready moving away from a consent theory.Then your obligation is no longer merely a mat-ter of your having consented (tried to consent,intended to consent).Further, there seems to be a real problemabout why and whether your past promiseshould bind you now. The classical contracttheorists provide a law of nature to take careof this difficulty: it is a law of nature that prom-ises oblige. But why should it seem so obvi-ous and "natural" and self-evident that yourpromises oblige you, when it is so doubtful andproblematic and un-"natural" that law andauthority oblige you?(3) You are obligated only insofar as yourfellow-subjects consent. One consequence of



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994 THE AMERICAN POLITICAL SCIENCE REVIEWthis position is that the matter is no longerleft up to you; you can sometimes be obligatedto obey even against your will and your pri-vate judgment, and without ever having con-sented or been consulted. But, if so, howmany of your fellow-subjects must consent?All? That is surely impossible. A majority?But that implies that the way to decide wheth-er you are obligated, or whether you shouldstart a revolution, is to take a public opinionpoll. And can majorities never be wrong? Arethere no occasions in the history of mankindwhen it was right for a dedicated minority tobegin agitating for a revolution, or even to leador make a revolution? And finally, why shouldwhat the majority (or any other proportion)of your fellow-subjects think be binding onyou? What justification is there for that? Whyshould that obligation seem more basic or nat-ural or self-evident than the obligation to obeylaws and authority? Because you have con-sented to majority rule? But then the wholecycle of difficulties begins again.Besides the matter of whose consent is tocount, consent theory is also much troubled bythe difficulty of showing that you, or a major-ity of your fellow-citizens (as the case may be)have in fact consented. MIost of us have notsigned any contract with our government orour society or our fellow-citizens. There is nosuch contract for us to sign. And while we polit-ical theorists may be enlightened about ourobligations, we realize that the largest pro-portion of our fellow-citizens has never contem-plated this sort of question at all. If they haveconsented, it comes as news to most of them.Of course, these facts need not invalidate theconsent argument. Perhaps most of us are notreally obligated in modern, apathetic masssociety; perhaps our government is not reallylegitimate. But such conclusions seem to flyin the face of common sense. Surely, one feels,if the present government of the United Statesis not a legitimate authority, no governmenthas ever been. And surely it is absurd to adopta theory according to which only those peoplewho are most educated and aware of their obli-gations, most moral and sensitive, are obli-gated to obey the law. Surely it is absurd tosuppose that all the rest are free to do what-ever they please, whatever they can get awaywith. A more common move at this stage inthe argument is the introduction of some no-tion of "tacit consent", demonstrating thateven the unaware masses have consented afterall. But it appears to be extremely difficult toformulate a notion of tacit consent strongenough to create the required obligation, yetnot so strong as to destroy the very substanceand meaning of consent.

Let us now examine in more detail how thesedifficulties are encountered and treated in twoconsent arguments: the most famous one of thetradition, made by John Locke, and a recentattempt at revision by Joseph Tussman. Whatshould emerge from a review of their argu-ments is a somewhat unexpected and differentdoctrine of political obligation: perhaps a newinterpretation of consent theory, perhaps a newrival to it.II. LOCKE ON CONSENT

Locke tells us in the preface to his Two Trea-tises that he wants both to "make good" thetitle of William III to the English throne "illthe consent of the People" and also "to justifieto the World, the people of England, whoselove of their Just and Natural Rights, withtheir Resolution to preserve them, saved theNation when it was on the very brink of Slav-ery and Ruine."6 Apart from the exegetic prob-lems of how much of the Treatises may havebeen written before the Glorious Revolutionand for quite other purposes, the thrust ofLocke's argument makes clear enough thatthis dual orientation does pervade the work.7He seeks both to defend the obligation to obeylegitimate authority (which is authority basedon consent), and to defend the right to resistcoercive force in the absence of authority. ButLocke moves easily, and seemingly withoutawareness, from one to another of our fourquestions about obligation and back again.Often when the going gets difficult on one, heswitches to another.Legitimate authority, for Locke, comes fromthe consent of those subject to it, never frommere conquest (force); and even a consent ex-tracted by coercion is invalid.8 Thus the limitsof a government's authority are defined by thesocial contract on which it is based. Strictlyspeaking, of course, Locke's contract sets upsociety and government is established by societyas a trust.9 There is no contract with the gov-ernment. But the government gets its powers(in trust) from "the society", acting by majorityvote. And "the society" has only such powersto give, as it has itself received from the sepa-rate contracting individuals. Thus, even forLocke, it is the contract which ultimately

6 Peter Laslett, ed., John Locke, Two Treatisesof Government (Cambridge University Press, 1960)p. 155.

7 For a discussion of the evidence on when theTreatises were written, see ibid., Introduction, esp.part III.

8 John Locke, Second Treatise of Civil Govern-went, in Barker, op. cit., par. 176.9 Ibid., p.ars. 132, 149. 199 211.



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OBLIGATION AND CONSENT-I 995determines what powers the government canhave. He himself makes this assumption and Ishall follow suit, since it simplifies thergus-ment.'0Although Locke sometimes seems to takecontract seriously as an account of the histori-cal origins of society, he is nevertheless quiteexplicit about the requirement that no personis obligated to obey today unless he has himselfconsented.1 Most of us have not consented ex-pressly? Ah, but there is tacit consent, and itsscope turns out to be very wide indeed. Al-though a father may not consent for his son, hecan make consent to the community a condi-tion on inheritance of the property he leaves be-hind; then in accepting the property the sontacitly consents to obey the government. Butthe final definition of tacit consent is evenwider, for land is not the only form of property,and property not the only form of right thatmen enjoy:

livery man that hath any possession or enjoy-ment of any part of the dominions of any govern-ment doth thereby give his tacit consent, and is asfar forth obliged to obedience to the laws of thatgovernment, during such enjoyment, as any oneunder it, whether this his possession be of land tohim and his heirs forever, or a lodging only for aweek; or whether it be barely traveling freely onthe highway; and, in effect, it reaches as far as thevery being of anyone within the territories of thatgovernment3Just as Locke maintained earlier in the Trea-tise that men have tacitly consented to all in-equalities in property, simply by accepting andusing money as a medium of exchange; so in thepolitical realm he argues that men have tacitlyconsented to obey a government, simply byremaining within its territory.'4 But now thereno longer seems to be much power in the con-cept of consent, nor any difference between

legitimate government and mere coercion. Be-ing within the territory of the worst tyranny in10 For example, ibid., par. 171: "political

power" is spoken of as that power which everyioan has "in the state of Nature given up into thehands of the society, and therein to the governorswhom the society hath set over it self......11Ibid., par. 116.12 Ibid., and also par. 73.13 Ibid., par. 119.14 "But since gold and silver, being little useful

to the life of man, in proportion to food, raiment,and carriage, has its value only from the consentof men, whereof labour yet makes in great part themeasure, it is plain that the consent of men haveagreed to a disproportionate and unequal posses-sion of the earth.... " Ibid., par. 50.

the world seems to constitute tacit consent to itand create an obligation to obey it. Only phys-ical withdrawal -emigration- and the aban-doning of all property frees you from that obli-gation; there is no such thing as tacit dissent.At this point we are likely to feel cheated byLocke's argument: why all the stress on con-sent if it is to include everything we do; why gothrough the whole social contract argument ifit turns out in the end that everyone is auto-matically obligated? It seems that in his eager-ness to save the consent answer to our questionfour (because only your own consent can justifyyour obligation), Locke has been forced so towiden the definition of consent as to make italmost unrecognizable. He has been forced toabandon his answers to our other questions aswell as one of his own initial purposes: the jus-tification of an (occasional) right of revolution.But clearly this is not Locke's real position. Ihave developed it this way only because thecorrections we must now make are so revealingabout consent theory. For despite his doctrineof tacit consent, Locke does not want to aban-don either the right of revolution or the distinc-tion between legitimate authority and coercivepower. His position is not, in fact, that livingwithin the territory of a tyrannical governmentor holding property under it constitutes tacitconsent to it.Suppose that we ask: to what have you con-sented when you live in a country and use itshighways? Unfortunately, Locke is less thanclear on this question. What he says explicitlyin the crucial section on tacit consent is that youhave "consented," period; he does not say towhat.'5 But apparently, what you consent to isa kind of associate membership in the common-wealth. Full membership, achieved only by ex-press consent, is an indissoluble bond for life.The obligation of a tacit consented, however,terminates if he leaves the country and gives up

his property there.' Locke also variously de-scribes tacit consent as a joining oneself to asociety, putting oneself under a commonwealthand submitting to a government. Sometimes hesimply equates its "joining up" aspects withsubmission to a government; at other times heregards submission as an immediate conse-quence of joining.'7But in the context of the problems we haveencountered, a better interpretation of Locke'sintention here would be this: what you consentto tacitly is the terms of the original contractwhich thefounders of the commonwealthmade, nomore and no less. You append your "signature,"

"Ibid., par. 119.16 Ibid., par. 121.17 Ibid., pars. 73, 119, 120.



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996 THE AMERICAN POLITICAL SCIENCE REVIEWas it were, to the original "document." Then ifyou live or use the roads or hold property undera government which is violating its trust, ex-ceeding its authority, taking property withoutdue compensation, "altering the legislative," orgenerally acting in a tyrannical manner, youhave consented to none of these things. You arenot obligated to obey one inch beyond thelimits of the original contract, any more thanits original signatories were. You retain theright of revolution, as they did, in case thegovernment oversteps the limits of its author-ity.So we seem to be led to the position that youare obligated to obey not really because youhave consented; your consent is virtually auto-matic. Rather, you are obligated to obey be-cause of certain characteristics of the govern-ment-that it is acting within the bounds of atrusteeship based on an original contract. Andhere it seems to me that interpreters of Lockehave given far too little attention to the degreeto which he regards the terms of the originalcontract as inevitably determined. In truth, theoriginal contract could not have read any other-wise than it did, and the powers it gave andlimits it placed can be logically deduced fromthe laws of nature and conditions in the state ofnature. Not only does Locke himself confident-ly deduce them in this way, sure that he can tellus what the terms of that original contract were,must have been; but he says explictitly tha theycould not have been otherwise. For men had togive up sufficient of their rights to make an ef-fective government possible, to allow a govern-ment to remedy the "inconveniences" of thestate of nature. Nothing short of this wouldcreate a society, a government. "There, andthere only, is political society, where every oneof the members" has given up the powers neces-sary to a society:'8

Whosoever therefore out of a state of natureunite into a community, must be understood togive up all the power necessary to the needs forwhich they unite into society....19

More power than this, on the other hand,men cannot be supposed to have given; and, in-deed, they are forbidden by the law of nature togive more. When the limits of authority are tobe defined, Locke invokes the purpose for whichthe contract was made, the intention whichthose making it must have had:But though men when they enter into societygive up the equality, liberty and executive powerthey had in the state of nature into the hands of18 Ibid., par. 87.19Ibid., par. 99.

the society, to be so far disposed of by the legisla-tive as the good of society shall require, yet itbeing only with an intention in everyone thebetter to preserve himself, his liberty and hisproperty (for no rational creature can be supposed tochange his condition with an intention to the worse),the power of the society or legislative constitutedby them can never be supposed to extend fartherthan the common good, but is obliged to secureeveryone's property by providing against thosethree defects above-mentioned that made thestate of nature so unsafe and uneasy.20Thus men cannot sell themselves into slavery"for nobody has an absolute arbitrary powerover himself" to give to another; he "cannotsubject himself to the arbitrary power of an-other."21 Arbitrary or absolute power can neverbe legitimate, consented to, because "God andNature" do not allow "a man so to abandonhimself as to neglect his own preservation."'22"Thus," says Locke, "the law of nature standsas an eternal rule to all men, legislators as wellas others."23If the terms of the original contract are, as Iam arguing, "self-evident" truths to Locke,which could not be or have been otherwise, thenthe historical veracity of the contract theorybecomes in a new and more profound senseirrelevant. For now the Lockean doctrine be-comes this: your personal consent is essentiallyirrelevant to your obligation to obey, or its ab-sence. Your obligation to obey depends on thecharacter of the government-whether it isacting within the bounds of the (only possible)contract. If it is, and you are in its territory,you must obey. If it is not, then no amount ofpersonal consent from you, no matter how ex-plicit, can create an obligation to obey it. Nomatter how often you pledge allegiance to a ty-ranny, those pledges cannot constitute a validobligation, because they violate the law of na-ture. So, not only is your personal consent irrel-evant, but it actually no longer matters whetherthis government or any government was reallyfounded by a group of men deciding to leavethe state of nature by means of a contract. Aslong as a government's actions are within thebounds of what such a contract hypotheticallywould haveprovided, would have had to provide,those living within its territory must obey. Thisis the true significance of what we have alllearned to say in political theory: that the his-torical accuracy of the contract doctrine is

20 Ibid., par. 131, italics mine. See also pars. 90,135, 137, 149, 164.21 Ibid., pars. 135, 23.22 Ibid., pars. 90, 168.23 Ibid., par. 135; see also par. 142.



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OBLIGATION AND CONSENT-I 997basically irrelevant-that the contract is alogical construct. The only "consent" that isrelevant is the hypothetical consent imputed tohypothetical, timeless, abstract, rational men.

III. TUSSMAN ON CONSENTA more modern version of the story is told byJoseph Tussman in his excellent and provoca-tive book, Obligation and the Body Politic. Tuss-man, too, seeks to found political obligation inthe consent of the governed. Only on that basis,he maintains, is political obligation "distin-guishable from captivity," for "obligations are,or even must be voluntarily assumed.'"24Tuss-man acknowledges the rarity of express consentexcept in the case of naturalized citizens whotake an oath of citizenship. But, like Locke,

he introduces a notion of tacit consent. UnlikeLocke's, however, Tussman's tacit consentdoes not include merely walking on a country'shighway; he insists that even tacit consentmust be "knowing," made with awareness ofwhat one is doing and of its significance.25 Agreat many different actions, done with aware-ness and intent, can constitute such tacit con-sent: pledging allegiance to the flag, voting inan election, and so on. But even this doctrine,as Tussman admits, produces only a relativelysmall number of persons who can be said tohave consented. Reluctantly he accepts thisconclusion, which he calls the notion of "shrink-age."If it is insisted that only those who have con-sented are members of the body politic then thebody politic may shrink alarmingly.. But]any description of a body politic, like the UnitedStates, would have to recognize that there aresome, or many, "citizens" who could not be de-scribed as having consented. There is no point toresorting to fiction to conceal this fact.26

Thus it is Tussman's position that only thosewho have consented (perhaps tacitly, butknowingly) are truly members, and that thesemay be relatively small proportion of the popu-lation.27 But, of course, he is not willing to con-elude that only those few consenting membersare bound to obey the laws and accept theactions of the government as authoritative. Hetakes it for granted that everyone must obey, isobligated to obey, ought to be punished for dis-obeying-even the man who has never given24 Op. cit., pp. 24, 8. I hope it is clear, in spite of

all the criticisms I make of Tussman's argument,how greatly this essay is indebted to his work.25 Ibid., p. 36.26 Ibid., p. 37.27 Ibid., p. 127.

government or obligation a single thought.Tussman allows for the possibility of with-drawal, emigration, as an express refusal toconsent; but (as with Locke) there is no suchthing as tacit dissent. The clods who merelylive in a country without ever being sufficientlyaware of public life to consent even tacitly, arenot members of the body politic, but they arenevertheless bound to obey the law. The clodsare obligated, Tussman says, like children."Non-consenting-adult citizens are, in effect,like minors who are governed without their ownconsent. The period of tutelage and dependenceis unduly prolonged."28The interesting thing is that this doctrinedoes not seem to bother Tussman; he sees noinconsistency in it. He is not disturbed by say-ing on the one hand that membership in a bodypolitic can only be distinguished from mere cap-tivity if it is voluntary, and on the other handthat large masses of people must obey thoughthey have not consented and are consequentlynot members. He does not seem to be botheredby saying that great masses of adults are ob-ligated like children; he does not discuss why orhow children are obligated, how their obliga-tion-let alone its continuation into adult life-can be justified. To be sure, he obviously re-grets the state of affairs that makes so large aproportion of our population clods who are nottruly members. In a sense his whole book iswritten to advocate a more adequate system ofpolitical education, which would make morepeople aware of morality and public life, so thatthey would truly consent.This is his ideal; but we have a right to askwhat happens in the meantime, and how satis-factorily Tussman's account explains politicalobligation in the meantime. And when we do,we have the same feeling of betrayal as withLocke: why all the liberal protestations at theoutset about the need for voluntary consent, ifthe net result in the end is that everyone hasto obey anyway? In Locke the betrayal seemsto center in the way he stretches the notion oftacit consent; Tussman avoids this, but insteadintroduces a second, childlike kind of obliga-tion.Now, there are good reasons why Tussman'sargument proceeds as it does, why he does notseem to see these difficulties. For, although hisbook purports to be about obligation (as thetitle indeed indicates) the primary thrust of itsargument, the question Tussman really seemsto have asked himself, is about membership in abody politic. He takes it for granted that ex-ploring the nature of membership will also pro-

28 Ibid., pp. 37, 39-41.



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998 THE AMERICAN POLITICAL SCIENCE REVIEWduce answers about political obligation. At theoutset of the book, confronting the question ofwhat membership in a body politic is like, Tuss-man suggests three alternative possibilities:that membership be construed as subordina-tion to a single coercive power; or as sharing ina common set of habits or customs; or as beingparty to (consenting to) a system of agreementson the model of a voluntary association. Giventhese three alternatives, he opts for the lastone, because only if membership rests on con-sent can it be related to concepts like legitimacyand obligation. " 'I have a duty to . . .' seemsto follow from 'I have agreed to' in a way thatit does not follow from 'I am forced to' or 'I amin the habit of.' "29In terms of our classification, Tussmandirects his inquiry at question three, the differ-ence between legitimate authority and coercivepower. As an answer to that question, as an ac-count of membership, his theory surely is verycompelling. Confronted with unaware, non-consenting clods, it seems reasonable then tosay that not everyone is truly a member; thatno body politic is entirely legitimate, based onthe consent of every single subject; that polit-ical education might make our nation a better,truer political association in the future. Butapproached from our question four, for instance,the theory seems arbitrary and inadequate. If"obligations are, or even must be voluntarilyassumed," then how can one consistently main-tain that children or the non-consenting clodsare obligated to obey the law? How is theirsituation different from captivity, and how canit be justified? Tussman is not interested in ourquestion four. Or perhaps that statement is notstrong enough; he refuses to consider the ques-tion, because he regards it as "a symptom ofmoral disorder."30Tussman is right to be suspicious of the ques-tion; there is something strange about it, aswe shall later see. But it is a symptom less ofmoral disorder than of philosophical disorder;and it needs to be considered, not rejected. Foralthough Tussman explicitly rejects the ques-tion, he is already profoundly committed toone particular answer to it: that only consentcan justify obligation, distinguish it from cap-tivity. And this commitment conflicts with histreatment of the clods in society. As a result,Tussman's theory also has difficulties with ourquestions one and two, concerning the limitsand location of authority.For Tussman wants to maintain that all per-sons in a country-consenting members and

291Ibid., p. 8.30 Ibid., p. 29.

clods alike-are obligated to obey law andgovernment, except when occasions for revolu-tion arise. He recognizes that there are occa-sions and situations when revolution is justified,that there is a right of revolution. He talksabout the need to "exhaust the remedies" avail-able within a system, about what happenswhen there are only "corrupt tribunals" left toappeal to; and he says "where government isbased on force, forceful opposition needs nospecial permit."3' Thus we may legitimately askhim, who has the right to revolt when the occa-sion for revolution arises. The members pre-sumably do. Surely they never consented totyranny, and a tyrannical government is actingultra vires, beyond any consent they have given.But surely, too, the clods, who have never con-sented, ought also to be morally free to resista "government" that has become a tyranny.Though they may ordinarily be obligated toobey as children are, yet surely Tussman can-not mean that they continue to be obligated nomatter what the government does or how itdegenerates. Surely a clod who suddenly awak-ens to moral awareness under a Hitler govern-ment is right to resist it.But why, when, how does their childlike ob-ligation come to an end? Tussman does not tellus, because he does not consider the question.He seems, thus, to be saying: you are obligatedto obey a government that is legitimate author-ity, whether you personally consented to it or not.If you have consented, you are obligated as amember; if not, as a child. In either case yourobligation ends if the government abuses itspower or ceases to be a legitimate authority. Andwhat defines a legitimate authority? Why, con-sent, of course. Then we are all of us obligatedto obey a government based on our consent,whether or not we have consented to it.Though he never makes it explicit, the posi-tion that Tussman really seems to want to takeis that we are all obligated to obey a govern-ment based on the consent of the aware elite, thetrue members, whether or not we ourselves haveconsented. A government is legitimate whenthose who are aware consent to it, and it thenbecomes legitimate for all its subjects; a gov-ernment is tyrannical if it lacks this consent ofthe aware ones, or oversteps the limits of it. Andthen all its former subjects are released fromtheir obligation. Some evidence for the conten-tion that this is what Tussman means to saymay be drawn from his treatment of the child'sobligation. For he says "Non-consenting adultcitizens are, in effect, like minors who are gov-

31Ibid., p. 44.



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OBLIGATION AND CONSENT-1 999erned without their own consent."32But again Tussman fails to tell us who doesconsent for minors, how and why the consentof some can legitimately be taken to bindothers. Thus saying that the aware few consentfor the rest is by no means a satisfactory an-swer, but from it I believe a more satisfactoryanswer can be reached by one further step. Wemust ask Tussman whether the aware fewcould conceivablyconsent to a tyranny, whethersuch consent would count, would be binding onthem or the clods. I think clearly Tussmanwould want to say no, that such an actionwould not be a genuine consent, that an at-tempt to consent to tyranny does not createvalid obligation either for the aware few or forthe many clods for whom they are said to act.Thus a different doctrine begins to emerge be-tween the lines of Tussman's book, as it didwith Locke. It is not so much your consent noreven the consent of a majority of the awarefew in your society that obligates you. Youdo not consent to be obligated, but rather areobligated to consent, if the government isjust. Your obligation has something to do withthe objective characteristics of the governmentwhether, for example, its "tribunals" are orare not "corrupt." Again the relevant consentseems to be best interpreted as hypothetical orconstructive-the abstract consent that wouldbe given by rational men. Like Locke, Tuss-man can be pushed back to this position: youare obligated neither by your own consent norby that of the majority, but by the consent ra-tional men in a hypothetical "state of nature"would have to give. A government actingwithin the bounds of such a hypothetical con-sent is legitimate and we are all obligated toobey it. A government systematically violatingthose limits is tyrannical, and we are free toresist it.

32 Ibid., 1'. 37, italics mine.

Both Locke's and Tussman's argument, thenlead us to a somewhat surprising new doctrine:that your obligation to obey depends not onany special relationship (consent) between youand your government, but on the nature of thatgovernment itself. If it is a good, just govern-ment doing what a government should, thenyou must obey it; if it is a tyrannical, unjustgovernment trying to do what no governmentshould, then you have no such obligation. Inone sense this "nature of the government"theory is thus a substitute for the doctrine ofconsent. But it may also be regarded as a newinterpretation of consent theory, what we maycall the doctrine of hypothetical consent. For alegitimate government, a true authority, onewhose subjects are obligated to obey it, emergesas being one to which they ought to consent,33quite apart from whether they have done so.Legitimate government acts within the limitsof the authority rational men would, abstractlyand hypothetically, have to give a governmentthey are founding. Legitimate government isgovernment which deservesconsent.I do not mean to suggest that the "nature ofthe government" theory which thus emerges isreally Locke's and Tussman's secret doctrine,which they hide from the casual reader andwhich has only now been unearthed. Probablyneither of them saw that his argument wasmoving in this direction. Rather I suggest thatthis theory is a better response to the problemof political obligation from their own premises-that it is the truth toward which they werestriving, but which they saw only indistinctly.Only in that sense is it "what they really meantto say," and of course both of them also sayother things incompatible with it.

(Part I of a two-part article)33 Cf. Benn and Peters, op. cit., pp. 323, 329.

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Obligation and Consent Pitkin