Problem 1
Justification of the state
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4. The theory of hypothetical consent


But there may be a better way to solve this problem. Hanna Pitkin, a contemporary American political philosopher, proposes revising the classical consent theory such that the theory becomes a theory of "hypothetical consent."  This version of the social contract theory, he proposes, solves not only the scope problem, but also the problem of when citizens give their consent.   Thus he envisions the hypothetical consent theory as a comprehensive revision of the classical consent theory.

What is this new version of the theory? Here is Pitkin's statement of his position:

It is not so much your consent or even the consent of the majority of the aware few in your society that obligates you.  You do not consent to be obligated, but rather are obligated to consent, if the government is just.  Your obligation has something to do with the objective character of the government--whether, for example, its 'tribunals' are or are not 'corrupt.' . . .  The relevant consent seems to be best interpreted as hypothetical or constructive--the abstract consent that would be given by rational men.

. . . Your obligation to obey depends not on any special relationship (consent) between you and your government, but on the nature of that government itself.  If it is a good, just government doing what a government should, then you must obey it; if it is a tyrannical, unjust government trying to do what no government should, then you have no such obligation.  In one sense, this 'nature of the government' theory is thus a substitute for the doctrine of consent. But it may also be regarded as a new interpretation of consent theory, what we may call the doctrine of hypothetical consent.   For a legitimate government, a truth authority, one whose subjects are obligated to obey it, emerges as being one to which they ought to consent, quite apart from whether they have done so.  Legitimate government acts within the limits of the authority rational men would, abstractly and hypothetically, have to give a government they are founding. Legitimate government is government which deserves consent.5

Let us now try to formulate the core of this new version of the social contract theory.   The new theory places the emphasis on the merits of the government, rather than on the consent of the governed. It states that if the citizens of a nation are living under a good and just government, then they are obligated to give their consent.  The important aspect of this new theory is that it does not matter whether the citizens actually give their consent.  They ought to consent, and therefore they are obligated to obey the laws of the nation.  With this shift in emphasis, the revised social contract theory makes irrelevant the question of the age at which the citizens should give their consent, the question of whether the unwitting slobs of society are somehow covered by the consent theory.  The theory of hypothetical consent states that all of these questions are irrelevant because one need not give one's consent, not even tacitly.   If the government under which one lives is good and just, then citizens ought to give their consent, and whether they actually or tacitly do or do not is irrelevant.

5.   Hanna Pitkin, "Obligation and Consent," in Philosophy, Politics and Society, 4th series, ed. by Peter Laslett, W. G. Runciman, and Quentin Skinner (Oxford: Basil Blackwell, 1972), pp. 46-53. Pitkin states that he believes this theory is implicit in the social contract theories of Locke and Tussman, but that neither of these philosophers extrapolated the full implications of their positions.

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