Consent is Golden

I recently brought the reader’s attention to Gary Chartier’s excellent post on New Classical Natural Law (NCNL) and its relation to anarchism. In the comments, I asked Gary:

As for [arguments against the state], I see that you relied mostly on consequentialist arguments “guaged in light of the Golden Rule.” That’s fine of course but would it also help to use arguments like Charles Johnson’s argument that it is impossible to consent to a state? That seems like it gets around the need to talk about who best can serve the “social order and coordinate social interaction.”

Gary replied:

As regards the state: I think Charles’s arguments are entirely persuasive. But the NCNLs clearly don’t generally think consent is required for political authority: one is just obligated to obey whoever can maintain social order […] So my goal was to respond to them on their own terms. For an argument like Charles’s to work, I’d have needed to show first that consent to the state was required for its legitimacy, and then demonstrate the impossibility of consent. Or so it seems to me: do you see another way I might have proceeded here? I’m going to turn this into an article so I welcome all the input you want to offer.

I was surprised that the NCNLs “don’t generally think consent is required for political authority” since it seemed intuitive to me that it was somehow involved in the whole structure the Golden Rule (GR). I could not until now, however, put my finger on why. Well, Gary, this is my first weak attempt at articulating another way. I will not try to defend NCNL but will assume NCNL, for the sake of argument, so as to see if we can derive a commitment to consent from the tools it gives us. I warn the reader that I have not spent much time thinking this through. I welcome any corrections if I have committed an error somewhere.

I’ll use Charles’ conventions of Norton and Twain. It seems clear from the GR that if Norton wants Twain not to place Norton’s person or property under some burden without Norton’s consent, it would violate the GR for Norton to place Twain’s person or property under some burden without Twain’s consent. The GR

demands that we not impose on others burdens we would not be willing that they impose on us or our loved ones. It clearly prescribes active concern for others and it provides a credible basis for resisting oppression and subordination.¹

– Gary Chartier, Economic Justice and Natural Law, draft, p. 19

However, we might want something stronger. We might be concerned that Norton is willing to be placed under the burden of not consenting. That would open us up to state authority given the right Norton, intent on ruling and content with being ruled. But is that even coherent? I would like to argue that it is not coherent.

To make matters clearer, first let us put the GR in to Harry J. Gensler’s words:

Gensler’s GR: Treat others only as you consent to being treated in the same situation.

The GR forbids both of the following from obtaining at the same time:

• I place Twain under condition C.
• In the same situation, I would not consent to her placing me under condition C.

What condition C is in all respects doesn’t matter as much for our purpose as that it has the property of being ‘contrary to that to which Twain would consent.’²

If we substitute our key property for condition C (and clear up the language), we get:

• I place Twain under a condition that is contrary to that to which she would consent.
• In the same situation, I would not consent to her placing me under a condition that is contrary to that to which I would consent.

Obviously, the latter condition as reduced to a tautology. Conversely, it is incoherent to say that, in the same situation (or any situation), that you would consent to being placed in a condition that is contrary to that to which you would consent. (Another way of thinking of it is that the tautological nature of the second condition means that both automatically obtain if the first obtains, which was the state of affairs that must not occur if we are to be consistent with the GR.)

Therefore, if NCNL requires that we follow the Golden Rule, then NCNL cannot coherently justify Norton placing Twain under a condition that is contrary to that to which she would consent by referring to his consent under the same conditions. Returning to the original question of whether consent to the state was required for its legitimacy, if my argument is correct, it is required to the extent that the GR is required. I defer to Gary (since I’m not clear on this) to tell us if the GR is universally in play under the NCNL scheme, or at least so in any context involving the question of state authority.

One objection to my argument might be that by adopting Gensler’s wording, I’ve guaranteed my success without first showing that Gensler’s GR is the GR as NCNL proponents see it. I find this objection unconvincing. It is hard for me to see how other formulations or terms – “accept”, “willing” etc. – aren’t synonymous with or imply “consent.”

¹The last sentence sounds dangerously close to a requirement for consent, or at least to the legitimacy of resisting an action taken without consent.

²The solution should also work as well with the property of being ‘without knowledge of whether or not Twain consents.’