Consent, both express and tacit (Locke, 1980) are seen as theories upon which obligation to laws can be grounded. Express consent has the same structure as a promise: by promising to obey the state or the states commands, one has a prima facie duty, this does not necessary mean that one has to obey the state if it is against one’s moral values. Tacit consent could be seen by failure to carry out actions, as the existence of a citizen within the territories (Locke, 1980) binds one to the laws of that state. Tacit consent can be seen as non-expressive conduct, including use of public services, such as the police force, and involvement in the functions of the state, such as voting, the result of such actions being the adoption of civil and state obligations.
Though both tacit and express consent appear pragmatic, if seeking a universal account an overwhelming problem is faced as there will always be citizens who do not consent and therefore feel no duty to obey the laws. Thus with no ground for obligation via consent means that, without combination with fairness and gratitude more threat to established law codes and civil harmony maybe evident. The voluntary concept of consent is also undermined by several situations. For example, it is arguable that the choices made by an individual in a position of low social standing in a given state are subject to forced circumstance, as oppose to free will. The individual will consent to any means- whether legal or illegal, willed or forced- by which they can improve their social, economic and political standpoint. Costs involved in leaving the state can also mean that tacit consent cannot always be valid: there is no choice if the cost of a person leaving a state is unaffordable (Hume, 1748). Despite these criticisms, this does not mean that the consent theory should be rejected outright, as the concept does not set out to find a causal relationship between all citizens and their states (Beran 1987: 100 ). If only a minority do not feel a duty to obey certain laws, then they have only a minimal impact on societal objection, thus failing to invalidate the consent theory (Beran 1987). A government that has been democratically elected by the majority is only able to act in accordance to what its citizens want. Due to this notion, democratic governments would hopefully act justly and efficiently, meaning that citizens would gain freedom and equality through the legislation conceptualised and implemented by their governing or representative body. The criticisms highlighted with the consent theory indicate how one concept cannot be relied upon in totality, and that other notions must also be considered. However, without an underlying idea of consent in a democratic society, it is arguable that a state of anarchy, in which no laws or rights over property or person could be legitimised, except perhaps through force and oppression could be evident. The more legitimate a government and its laws are perceived to be, the stronger the obligation by the governed to obey.
‘Fair play’ can be seen as implying consent and therefore the two concepts “overlap.” The principle of fairness is “the just distribution of benefits and burdens.” (Lyons 1965:164) and is seen as an applicable moral principle within a democratic society. A citizen who participates in an activity, which is beneficial to them, is bound by the principle of fair play and should not be a ‘free rider’ (Rawls, 1964). An obligation to fairness can be seen in modern society in the form of laws, which maintain order and co-operation amongst citizens. Nozick criticises this theory on the grounds that those who are not participants in a given activity should not have to carry out one’s ‘fair-share’ of workload or sacrifice. Conversely, those who stand to gain net benefit from a given activity will surely participate in its execution. Governmental provisions with the purpose of serving public interests such as street cleanliness are not actively agreed to by a given citizen, but because these state-provided actions are beneficial, it would seem irrational to actively reject them. Simmons’ distinction between accepting and receiving benefits therefore does not stand if active acceptance is not necessarily applicable to the concept of fair play. Grounding political obligation upon an abstract concept such as ‘gratitude’ would appear to be a weak argument. However, this does provide “mutual support” (Klosko:803) to the fair play concept and therefore should not be completely disregarded. Gratitude in a democratic society should be seen as repayment to the state and thus to fellow citizens, and not be explained by an analogy between family and state relationships, due to there vast differences (Walker: 1988). By seeing gratitude as a repayment, this principle is similar to those seen in the concept of fair play and the idea of ‘sharing burdens’. The concept of fair play functions best when perceiving a democratic state in a positive light; one in which the interests of the citizens are met and positive externalities of government intervention occur, rather than because of self-interest or protection. It could be argued that as citizens, we should obey the laws as a repayment for the benefits we have received from the state, and also to abide by the principle of fair play.
Whether accepting singularity or pluralism of theories as an approach to the obedience of laws, this obligation cannot be understood as absolute, but as prima facie. Absolute obligation is an overly simplistic notion, and does not recognize that duties do coincide meaning that we can never obey all laws. In democratic societies, duty to obey the law can be trumped by superior duties, and perhaps civil disobedience can be seen as occasionally necessary. Civil disobedience can be seen as part of the democratic process as it appeals to the majority for justice and the moral basis for democracy in the form of freedom and equality are put to the test (Rawls, 1972:363). By its very existence, it is arguable that civil disobedience emphasizes the problems within society as a whole, and can promote continual political, judicial and social reform and re-evaluation within a democratic society.
The majority of people within a democratic society that promotes freedom and equality would accept that they have an obligation to obey the law. The basis of this obligation differs between individuals, and as is more likely the case than not, a citizen will be able to list a number of reasons as to why they obey the law. Why rely on a singular theory, then? It perhaps could be argued that the consent theory is the fundamental reason behind obligation to obey laws, as could be highlighted by the concept that ‘the majority rules’, and is therefore the only theory needed. However, a conceptual framework that includes both fairness and gratitude means that a wider range of people, including minorities, can find reasons to obey state laws, and therefore promote a movement to a fairer and more peaceful society. Criticisms arise across all three concepts, combining them enables us to see a multiplicity of motivations for legal and social conformity, or deviance.
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