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The consent of all men to unite into a community (for mutual safety and comfort), to
create a government incorporating the populace into a body politic.
Somewhat democratic - all men have consented to it + governed by a majority.
Satisfies the voluntary and universal criteria of consent.
Based on express consent; Locke believed there to be an original agreement of men.
Locke also allows for tacit consent; our continuing consent given in the acceptance of
states benefits is grounds for political obligation.
If an individual has tacitly consented to government, he is free to leave at any time
and set up his own new commonwealth - in otherwise unclaimed territory.
Man cannot return to state of nature unless government is dissolved.
One can become a full member of society through positive engagement + express
consent (foreigners).
Jonathan Wolf - Tacit consent & its problems
Everyone within states boundaries are bound to obey its laws - has to be universal
and non-discriminate.
Political obligation is the duty to obey ones country/state, even if the obligation
contradicts ones morals.
Political obligation does not always equal moral obligation.
We are obliged to obey since we live under the state and have consented to it.
Laws are not the basis for our morality - not obeying bigoted legislature is not
morally wrong.
Two are reconciled in moral laws e.g. prohibition of murder.
Kant - Hypothetical consent
Consent has to be both voluntary and universal (preconditions for all types of
consent).
Idea that the social contract is wholly hypothetical; stating what we would do/would
have done in the state of nature.
Idea of breaking the law to increase my utility without decreasing anyone elses.
Not justified since although leads to net increase of happiness in short term, it
would decrease in long term due to more disobedience.
Issue that we need a body of laws that will be respected even when breaking one
could lead to increased happiness.
Issues with scapegoating and miscarriages of justice; net happiness is increased,
even when victim is falsely accused.
Indirect utility; need to follow non-utilitarian reasoning to maximise happiness.
Not the role of the individual to consider effect of following law on happiness.
Sound justification; outperforms state of nature in terms of utility.
However, inherent problems with premises of utilitarianism; many philosophers
challenge premise 1, and anarchists challenge 2 and 3.
H. L. A. Hart - Problems with utilitarianism
Utilitarianism doesnt take into account the obligation to obey laws due to the
cooperation of society.
Seems unjustifiable since relates only to individual political obligation, not collective.
By saying our overriding obligation is to avoid suffering and that obligations can so
easily be overridden, confuses consequences of infringement of peoples
rights/disobedience.
H. L. A. Hart - Fairness
Idea of special rights; rights that arise out of a transaction between two parties,
arising out of voluntary action.
When individuals have submitted to be governed, they have a right to similar
submission from those who benefit from such behaviour.
Obligation to obey covenants arises out of cooperation of society (mutuality of
restriction), not the degree of suffering.
Thus, if one has not consented to be governed, one is under no obligation to accept
the burdens that come with the benefits of a state.
Idea that is one lives under the benefits of the state, there is a need to shoulder the
burdens.
Fairness becomes the rational core of tacit consent.
Jonathan Wolf - Problems with fairness
If one has not consented to be governed, the benefits are free in a state without the
submission of free will, thus cannot deliver universal obligation to obey.
Cant be shown that everyone truly benefits from the state.
Problems with obedience based on premise of punishment.
Hart claims we have a duty of fairness to accept the duty to obey the state but do we
have such a duty; issues with unsolicited benefits (Robert Nozick).
Only accepted benefits give rise to obligations.
Issues with distinguishing between accepted/received benefits and how does one
refuse benefits?
Rights
Legal rights
Agreement with Hobbes; man has unbridled right to protect himself and his interests
in state of nature.
However, for Locke, this right is not surrendered when entering into a political
community.
Mans natural rights are to life, liberty and [claim] estate; inalienable and universal.
No one ought to harm another in his life, health, liberty or possessions; sets limits to
actions of government in interfering in individuals private life.
Purpose of a political community is to protect mans natural rights.
Natural rights are of important since they protect mans interests and promote
equality.
These interests are common to all men, but not too invasive.
Jeremy Bentham - Rights in a utilitarian context
Natural rights could exist, but since there is no evidence of an original agreement, he
disagrees.
The only rights worthy of mention are those created by general utility.
Natural rights are irreconcilable with Benthams legal rights; to promote utility in a
society, rights would need to evolve with its interests, not be absolutes/inflexible.
Edmund Burke - Development of rights
Disagreed with the inflexibility of natural rights, favoured legal rights.
Due to complex nature of human life, government is about compromise and securing
balances.
However, natural rights are all extremes.
Proposed rights of Englishmen; rights relative to our time and place, society.
H. L. A. Hart - Rights from freedom
Rights need to exist since they best promote freedom.
By providing protection of human interests, parties become free from exploitation.
Choice Theory is reconcilable with Harts theory; right can only be valid if the duty
incurred is waiverable.
Morally acceptable; no draconian obligation, increased freedom.
Choice theory is opposite of benefit theory (rights as a misnomer); Xs right to
some good is just another way of talking about Ys duty to provide that good for X.
Ronald Dworkin - Taking rights seriously
Why do inalienable natural rights promote freedom, when legal rights seem more
flexible?
The weaker members of a political community are entitled to the same concern and
respect of their government as the more powerful members have secured for
themselves.
Rights are essential, since they promote equality.
Dworkins aim with rights is to establish certain human interests and give them a
greater priority than interests generally in political justification..
Rights as trumps.
Immanuel Kant - Rights from autonomy
Natural rights are reconcilable with his concept of the categorical imperative.
Idea that as moral and rational beings, our existence is the ultimate goal.
Natural, inalienable rights, help to achieve this.
Human rights help us to remain moral and rational.
Rights are a necessary precondition to moral thinking and moral agency.
Human rights are a part of human nature, which is an end in and of itself.
Karl Marx - Bourgeois rights
Superstructure of society is based on its economic base. Rights are a part of this.
In a capitalist society, right are merely part of the bourgeois morality; a bourgeois
sham.
Rights as a construct as opposed to part of human nature.
Like anarchists, Marx believes that in a stateless society, rights would cease to exist.
To have a right implies that without it, an individual would be not free to lay such a
claim. For Marx, legal rights distract us from this notion. Used to repress.
Representative democracy as a medium; the indirect rule of the demos coupled with
the freedom and expertise of the representative figures.
Condorcet - Voting and the common good
Argues people will vote in line with peoples estimates or opinions of the common
good, not on the basis of their own views; not representative method.
Condorcet states that if we have a better than even change of getting things right, a
large electorate will vote to produce a correct result.
Dubious assumptions; that people will always vote in the common good, and that
they have a better than 50% chance of being right.
J. S. Mill - The democratic citizen
An individuals life typically is limited by non-involvement in political affairs.
Self-interest in an elementary form by satisfaction of personal wants.
For Mill, involvement of the Athenians in direct democracy raised their intellectual
standard, the variety of ideas and the development of their faculties.
Private citizens will benefit from engagement in public affairs by;
Application of principles that are in the interest of the common good.
Learning of the processes of politics from experts.
Made to feel one of the public, lack of disaffection from the political process.
His introverted, personal morality is challenged.
Mill is thus in favour of democracy because of the intrinsic benefits of participation.
However, Mill argues in favour of a representative model due to issues of practicality
with a large electorate; risk of voters becoming demotivated.
Mill, like Pateman, sees the intrinsic benefits of democracy.
Aristotle - Mans political life
Favoured mans active involvement in the political processes of his government.
However, believed ruling only benefited the ruling classes.
No guarantee people will respect the laws they have passed (through voting).
Jean-Jacques Rousseau - The general will
Man will be more free in a democratic society since he has passed/been involved in
the passing of laws.
Economic equality is essential for this, since allows each individual independence.
Laws are made in light of the general will; the common aims and desires of all men
in society.
We will be free obeying laws made on the basis of the general will since it is in all
of our interests; democratic.
General will is a manifestation of our rational interests, not out short-term desires.
John Locke - Protective democracy
Governments purpose is to protect the natural rights of its citizens.
Consent is given to such a government in the social contract (follows that we will obey
the state since we brought it about).
Government would be ruled by determination of the majority.