An Inherent Agreement Between a Person and the Laws - Essay Example

Consent In dealing with consent in the terms of obligatory merit, one must first define and analyze the word itself. The word consent can be a noun or a verb and it can be defined as giving permission or agreeing with something or someone. In terms of the word in relation to political theory, or more specifically obligation, the term is less definitive and becomes less clear. (According to Powell 2012), “Merely living on land within the border claimed by a government may yet create obligations through one of the other four theories, but it’s difficult to argue that they come via consent.” (Carneades 2007) states, “Should it be said, that, by living under the dominion of a prince, which one might leave, every individual has given a tacit consent to his authority, and promised him obedience; it may be answered, that such an implied consent can only have place, where a man imagines, that the matter depends on his choice.” (Hirschhorn 2004), further demonstrates consent and notes, “Failure to follow ethical principles in the informed consent process can result in serious legal action through tort law (civil wrongdoing) and even criminal law, the lack of informed consent constitutes assault and battery.” Related to political theory, there are three main types of consent that will be explored. They are express, tactic and hypothetical. Although there are other forms in political theory, these are three main to be explored as they are the primary cause for debate within the spectrum. Express consent can be defined as total agreement with an order, demand or request. An example of this would be if someone was asked to meet at a location and they agreed. Another example would be if a state law required that all drivers wore their seatbelt and every driver of that state did while driving. Complying, agreeing and deciding to comply with a request, is express consent. In democratic nations, this is easier to define as the people elect officials to represent them in their best interest. If they do not, then the elected official is not re-elected. People in democratic nations also have the ability to live where they chose and states have individual laws that are not applicable beyond their bounds. (Allsop 2011) states, “The reasons to obey the law may be either prudential or moral. Prudential reasons are related to self-interest. This theory states members of society conform to the law out of fear of punishment or being socially outcast for being labeled a criminal.” Although people will inherently have express consent for many laws in that state, they may not understand or be aware of all laws they are subject to abide by. In non-democratic nations, express consent by the people may be less due to the fact that a governing body may not be in the best interest of the people, thus acting in a way non-conducive to the populace. For this discrepancy, express consent is harder to explain ones obligation to a state or governing body. On the other hand, tacit consent is based off a certain set of facts, actions or premises. It can be defined as such as is better defined by example. If two people establish and agree on a certain set of stipulations, such as a time or location for a meeting over several weeks, then even if no communication transpires weekly, it is assumed the time and location are in effect. The predetermined standard has already been established and unless indicated, the time and location are in effect and need no additional conformation. In relation to political terms, it can be defined as a bill passed into law and governing a municipality. It would be implied that all people living in such area, whether aware or not, fall under such law and even if no verbal or written agreement was made, they would be in accordance with such law unless specifically and legally vindicated from the statute. Similar to explicit consent, this form does not fully define ones obligation to a government body in both democratic and other forms of government. Hypothetical consent can be defined as a consent from an individual to a superseding authority or body based off the agreement that said authority is great enough to agree with. This relies on the underlying agreement of people and an authority on all matters. This can be defined as a group of people having the ability to choose something that best supports themselves and the authority or governing body. This in itself is hypothetical under the pretense that both the people and a governing body equally agree to equality without bias, favor or a violation of safeguards. In defining the three states of consent related to authority or government by obligation, the question is raised as to the relationship between them and one’s personal obligation. Although one may never fully define or justify ones obligation through these channels as the variations in the terms and state bodies differ widely, there is a fundamental undertone that is consistent. Understanding that key factor, which is defined below, will help justify the rationalization of the conclusion which is consent of any pretext forms an obligation to legal authority and the laws they impose. Legal obligation of the people is an inherent agreement or consent between a person and the laws they encumber when within said state. Regardless of the form of consent, a personal has a legal obligation to the state when within its border based off legality, aside from consenting to each individual law. It can be debated that laws influence and sway people to act in certain ways, therefore coercing them into an action or state. Although this is true, it is also widely accepted that people and animals, free of laws, form their own hierarchy from which certain actions form and support a “state” of being or expectations that from a social norm. This in itself becomes an untold obligation to a hierarchy and whether in consent or not, influences the group to act in a certain way. In popular debate over the obligation of people within a state to obey the laws or just a specific law that they consent too is folly. Although it is true that people chose which laws to follow and not to follow, their consent or agreement with those laws can only be properly dealt with through legislation and reform. This may be harder in non-democratic nations, but it is not impossible and only supports the theory of hierarchical structure, that leads to an official state governance or unofficial set of conditions. If people in a non-democratic nation were subject to strict laws by a state that none of them agreed with, then the people would form groups within the state that held no obligation or consent outside their groups. The groups themselves would then form beliefs and conditions that would join or form them, requiring an obligation by its members. The question remains, does consent explain our obligation to state laws and commands and the answer is yes. Clearly, not all people will agree with all laws or facets to those laws. It is true that laws and commands shape and conform people’s actions within a society. It is also true that an obligation can be defined as a duty and if consent can be an action, then one may find themselves obligated to do something. It can appear that a person, in the form of contractual obligation by laws, may theoretically be forced by said obligation to perform or act in accordance. This is fundamentally true regardless of a democratic or authoritarian governance and does inhibit or work against a person’s consent, but it is true in every form of state laws or commands as people will always interpret and have their own opinion’s that may differ. To look at the latter side of the pendulum, if consent did not define our obligation to state laws and commands then what would? The only logical answer would be fear. If people did not agree or consent with state laws or commands under any pretense then there would be a law of stability within a body of people. Lack of stability would lead to crises that would give way to huge unrest and anarchy. In the wave of such a condition, things would come to a pinnacle before eventually crashing down, but in the process, a system would develop. Differing bodies would clash, as they do now in politics, but things would begin moving forward in a process based approach and the victor would be the process that had the most consenting votes. Note that the victor would have the “most” not all the votes, requiring some to obey laws or conditions that they do not agree with. It is hard to determine the fairness of consent in non-democratic nations that have no say in the political process of their state or commanding authority, as one would hope that governing body would act in the best interest of the people, but the truth is this matters little in the obligation of those people habituating or traveling through said boundaries. Providing a clear, common-sense test of enforceability that may avoid the need for courts to distinguish what is reasonable and unreasonable when determining certain reliance in determining whether a contract was formed or constitutes a consent theory. By enabling parties to calculate better who bears the risk of reliance and facilitates a certain reliance on interpersonal commitments is formed. Lastly, a consent theorys account of a contractual obligation could explain and justify the historically recognized defenses to contractual obligation. Consent is the foundation of obligation in terms of political governance. To view it otherwise is not logical and only takes society in a reverse direction. From a hybrid of consent theories or from an entirety of explicitness, the obligation is clearly identifiable. Without an official government body, an unofficial “state” will form with similar properties and expectations. One should always remember that even if they do not agree with a law, statue or regulation within a state’s boundaries, their personal agreement is trivial to the fact that they are still violating said law and are subject to punishment hence forth. Reference: Allsop, L. 2011. Is there a moral obligation to comply with legal rules? Available from: http://www.sjol.co.uk/issue-3/moral-law Carneadas, P. 2007. Consent and Legal Obligation. Available from: http://carneades.pomona.edu/2007-Law/SocratesHume.pdf Hirschhorn, W. 2004. Informed Consent. Available from: http://www.socra.org/pdf/200405_Informed_Consent_Obligation.pdf Powell, A. 2012. Theories of Political Obligation: Consent. Available from: http://www.libertarianism.org/blog/theories-political-obligation-consent Read More