The Fallacy of Consent

Abstract

Central to some theories of liberal states is a commitment to two major ideas. The first idea is that the fundamental rights of individuals to their persons and property which a legitimate state protects are pre-existing rights. The pre-existing rights are usually taken to include some form of enforcement rights, the function of which is to allow individuals to repel and rectify aggressions by others to their most basic rights. The second idea is that the fundamental rights of individuals may be infringed neither on paternalistic nor on consequentialist grounds. The rights of an individual are thus taken to establish an area of moral freedom or sovereignty that has normative preeminence over considerations having to do with the social or even personal good. Thus, according to this perspective, a state is merely in charge of assuring its residents that their pre-existing moral claims to individual sovereignty are respected. Yet if we hold such a particular liberal doctrine, it is not initially clear how the existence of a state could be morally permissible in the first place. Typically, a state collects taxes and monopolizes the provision of justice. If, indeed, people have such previous pre-political rights, however, it is not initially clear how a state could permissibly do such things. At least, we are faced with a clear explanatory task. If individuals would be morally entitled to allocate whatever proportion of their resources for purposes of protection, we would need to explain how a state could have a right to force individuals, by means of taxation, to allocate a particular portion of the resources to such an end. Also, if individuals have enforcement rights prior to the existence of the state, it is necessary to explain how public officials could acquire a right to prohibit individuals from exercising such rights in a private manner. One way in which proponents of liberal theories have argued for the legitimacy or justification of states is by means of a principle of implicit consent. Since Hume, critics have argued that the price of dissent would be too high for such a strategy to