Don't Read It, Sign it!

I recently came across a copy of a paper I wrote at university on how a treatise by Locke dealt with the issue of consent. Having skimmed through it out of mild nostalgic interest it occurred to me that consent was just as relevant now and it was in centuries past, only one of the my key arguments for why Locke's approach was sound no longer applies...

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Consent does a lot of work for legal and political theory. From contracts, to systems of government, to exemptions to evidence acquired by torture the idea that you are responsible for the foreseeable consequences of things you agree to is enshrined in our view of the world. Even our legal concepts of minors and our learned distaste for slavery and coercion stem from consent. To attack the idea that people consent to their social institutions, laws, workplace rules and so forth is to strike a blow against one of the most fundamental cornerstones of western capitalist democracies. Maybe it's time that blow was struck. Consent comes in two main flavours; explicit and tacit (implicit). Both have run into problems in the modern world, though for different reasons.

Explicit Consent 

For a believer in free will and a supporter of hard-core Liberalism (not to be confused with Happy Liberalism), explicit consent should be a free lunch. If you explicitly agree to something (by signing a contract, casting a vote, making a verbal declaration or whatever), your accountable and responsible for the outcomes. This seems pretty straight forward. The problem is in today's world most people are too busy, too short-sighted, too incompetent or simply too lazy to actually consider the outcomes of their actions, then, when something bad happens, they seek to wriggle out of their contractual obligations.

A superb case in point for this is the on-going PPI debacle. Tens of thousands of customers signed up for a product without understanding it, without considering if it was worth what they were paying, and then, upon finding out that actually it wasn't what they wanted they have blamed the person who sold it to them.  This seems to be no different to someone buying a car and then suing the dealership when it turns out you doesn’t actually need a car because they get the train to work. If we as a society valued 'consent' the answer to the PPI whiners would have been simple - 'you signed the contract, tough'. Instead the blame has been shifted from the consumer to the supplier for failing to adequately judge who their product would be suitable for.

There is actually an insidious undercurrent to this; we are institutionalising the concept that while mega-corporations, banks, governments and so on understand the concept of their actions and can take responsibility for their decisions, we, the people, do not. Once this idea gets a foothold where does it stop? If we are treated as minors for the purposes of establishing legal contracts what happens when the concept spreads to other areas of law?

The problem with explicit consent then is that even when situations arise where consent has clearly been given, we, as a society, are increasingly failing to hold people accountable. Consent which can be retrospectively revoked on the basis of a generally assumed inability of individuals to understand the consequences of their actions defeats the whole point of consensual agreements.

Implicit Consent

The paper I mentioned previously focused on implicit consent. The thrust of the argument was relatively simple, if you live in a country are you tacitly consenting to its laws, institutions and systems of government? Does the very fact you choose not to leave the UK imply consent to all the UK's practices and governmental powers?

My argument at the time was "yes", but it was a 'yes' predicated one an assumption which is no longer available - the right to live under no system of government. In the early days of American and Australian colonisation people had a chance to give up their places in the established orders of Europe and immigrate to the colonies, to settle on land which had no government, legal system or social norms. If you’re presented with a choice between governments A, B, C or no government at all this strikes me as a genuine choice, the inclusion of the "none" option allows you to choose to live by your own abilities and morality alone. The same logic applies to many, if not all, other choices. Contracts should be binding not just because they are agreements entered into, but because you have a choice not to sign it.

This defence of tacit concept may have worked 300 years ago, but it’s on very dodgy footing in today's world. About the only land not claimed by one or more governments are uninhabitable rocky outcrops in the Artic or Pacific oceans, and that means our governments no longer have the right to assume we have agreed to their legislative framework, why? Because we don't have a choice anymore.

On a primal level we (society) do recognise that in some things our inability to 'opt out' means that those creating the choices have to be subject to greater scrutiny then when the opt out exists. Water companies, for example, could be global spanning mega-empires capable of destroying towns, cities and villages. If the powers that be in the water-world simply announced a 10,000% cost increase and tens of millions of people where faced with a choice between spending 95% of the their disposable income on securing a source of drinking water, or dying of thirst, the choice really is no choice at all - we pay. The same is not said for the makers of iPads or Kindles, whatever these people choose to charge for the latest techno-gimmicky it is a genuine choice whether to take it or not.

In a roundabout way this leads back to the choices we have for governments. At an election we get to choose (realistically) from three main political parties. We can also choose not to vote. By the power of tacit consent those who win the vote claim they have the full support of the people, after all, we either voted (and thereby explicitly accepted the system), or didn't vote and didn't emigrate (which is taken as tacit acceptance). Elections where the winners claim to have the full support of a people who have no choice but to vote for them go on all around the world, generally under the heading of 'rigged elections,' maybe we should be looking at bit closer to home for the next one?

/Zarl