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they actually made it. It is a just thing to do so, since no rational being is unjust to herself (Rousseau
n.d. p.8). Expressed consent is given by the citizens unanimously at forming the social compact while
tacit consent to abide by the state's laws is given by residing in its territories (Rousseau n.d. p.16). Like
Locke, Rousseau insists on the importance of the citizen to abide by the laws, even if that means that
she will be punished.
When should the citizen withdraw her support to the government and not obey its authority according
to Rousseau? The government is just the intermediary between the people and the individual with the
main purpose of executing the law ensuring the welfare of the people (Rousseau n.d. p.10). Therefore,
although turmoils are dangerous for the political system (Rousseau n.d. p.14) when the government,
whichever form it has, ceases to perform this function, the people are no longer bound by the social
contract to obey it (Rousseau n.d. p.12).
Critique on the assumptions of Locke and Rousseau and other contract theories
Locke's core assumption that people are only bound by the natural law and are willing to sacrifice that
much could be contested. There are other rights that an individual might be willing to sacrifice in
entering a society which are worth making laws for and abiding by them. For instance, Locke or maybe
mostly his descendant liberal thinkers would probably not be satisfied with the idea of a heavily
redistributive and highly regulated taxation system. This is basically a social construction which is not
provided by the natural law assumption. However, citizens might be highly willing to have legislation
and abide by it in a socialistic society or a non liberal model of democracy. Rousseau on the other hand
would allow for it since it is the general will that his theory is centered around. However, Rousseau's
value of the general will which is associated with the general good can and has actually been contested
by Schumpeter(Schumpeter n.d). The notion of a misconceived citizen who has a different opinion and
not a real interest (since she does not really know her interest which is in accordance with the general
will) might be a too strong argument to support the infallibility of the laws and the logical assumption
that all must follow a correct law.
Other arguments against the notion of consent are presented by Keith Hyams (ed. McKinnon 2008).
According to Hyams most consent theories are based on tacit consent since it is rather hard to have
expressed consent in modern societies. Tacit consent is the uncoerced consent given by the citizen to
the authorities for a useful act that the authorities have the right to prohibit the citizen from performing
if she does not give her consent (ed. McKinnon 2008). Residence in the state's territories and
participation in the voting process are considered tacit consent. The former an argument of both Locke
and Rousseau can be contested on the ground of choice whether to stay or leave the state. The point to
consider is whether citizens really have this choice to leave and let family friends and other social
factors behind, or even in terms of financial ability to leave one's country and whether it remains
uncoerced in such grounds. Another point to consider is whether the state actually has any right of
refusing residence if consent is not given by the citizen which is highly unlikely since right of property
might even precede the formation of a state (ed. McKinnon 2008).
As far as participation in elections is concerned it could be alleged that since the state organizes them
for legislative reasons, it has the right to refuse participation unless the citizen tacitly consents to abide
by the law. But what happens then to the people who disagree with the outcome of the voting or do not
want to participate in the first place? If they are forced to participate simply for the shake of choosing
the least of two evils then a matter of coercion comes into play (ed. McKinnon 2008). Still, one might
claim that it might be dangerous to consent to every law an elected government might legislate as other
reasons are important for abiding or not by laws.
Morality
Moral issues might be some of the other reasons one might obey or not the laws of her state. Theorists
of this argument claim that laws are merely an official representation of moral laws and since moral
laws are likely to be followed by most people, laws should be followed too (ed. McKinnon 2008). This
argument is not a lot against Locke or Rousseau. Locke's natural law presupposes that there exists a
natural law which stems from common sense. Common sense and natural fairness can be associated
with moral laws and the way each human wishes to be treated by others. Accordingly, Rousseau's
general will pursues the general good which can have moral traits. The difference between this theory
and consent is that it puts morality in the center of reasoning why people should abide by the law. The
theory does not explain what happens with morally neutral or immoral laws (ed. McKinnon 2008). For
instance, taxation laws as seen before are rather neutral, while Apartheid laws were totally immoral.
Fairness
The theory of fairness is based on the notion of fair trade between citizens on the grounds of the
benefits they enjoy due to their living in a society (ed. McKinnon 2008). The theory claims that since
the citizen enjoys the benefit of safety for instance because of the existence of a national army, she
should offer her services to the state when asked to join the army. Traits of this notion are also visible
in both Rousseau and Locke. Locke underlines the benefits and conveniences people enjoy in joining a
society (Locke n.d., p.5) while Rousseau stresses the moral obligation of people to offer back what they
receive in a society (Rousseau n.d. p.8). It should also be stated that both consent and fairness theories
have a voluntary character from the point of the individual (ed. Bellamy 2003). They are based on the
voluntary engagement of the citizen in consenting or offering something in return respectively. Again,
however, the fairness theorists put fairness instead of consent in the center of their arguments to
provide reasoning for obeying the laws.
Communities
Finally, some theorists propose the mere participation of the individual in the society as a sufficient
reason to abide by its laws (ed. McKinnon 2008). These theorists claim that participation in a
community gives rise to political obligation to obey the community's laws. It is not important if the
individual chooses to be part of the community which is a subtle difference from both Rousseau and
Locke. The core of this theory comes from the notion of family (ed. McKinnon 2008). By being a
member of a family the individual assumes obligations towards other members. Likewise by being part
of a nation or a state the citizen must assume responsibilities. The major objection to this theory comes
from the morality theory and has to do with abiding by immoral laws simply because they are the laws
of the community (ed. McKinnon 2008). Of course, it is also a different thing to talk about families and
nations; the scales are different and the bonds between the members of these communities might not be
very comparable.
Conclusions
Rousseau's and Locke's reasoning on why the citizens should abide by the law of the state are the most
influential as it can be alleged that all other theories are in most of their parts critics and scrutinizers of
these consent theories. What is more, as seen above, these two theories have room for the inclusion of
morality and fairness theories. It could be alleged that the differences between all these theories are on
what they base their core argument on: consent or the reasoning behind consent. In other words should
the citizen obey the law because she has given her consent or because she has reasons to give her
consent? In these grounds, one might find it fruitful not to reject any of the theories, but rather choose
the ones that apply best to the specific democratic institution or group or society in question.
References
1. Hyams, K., 2008. Political authority and obligation. In C. McKinnon, ed. Issues in political