Modern political obligation theories, that is, theories trying to explain why we have a general moral obligation to obey the law, fall, roughly speaking, into two categories. Transactional theorists believe that there should be some morally significant transaction between you and the state that establishes your duty of obedience. Non-transactional theorists believe that this is not necessary - you may find yourself in a situation where you owe obedience, even though you did not do anything.
There is a third camp too. They are saying that there is no general moral obligation to obey the laws. We will discuss these dissenters, the so-called philosophical anarchists, in our last article. But first let us introduce you to the theories that argue that we have strong moral reasons to obey the law just because it is the law - that is, to the theories arguing that the reason why we ought to respect the law is not (or not only) that they happen to require us to do the right thing.
Transactional theories hold that our obligation to obey the laws has to do with something we have done. Consent theories belong to the category of transactional theories. Consent theorists believe that the reason we ought to respect the laws is that we voluntarily consented to them in some way or another.
The requirement of voluntariness comes from the belief that people are born equal and free. Since we are born free, certain duties cannot be forced onto us. Consent theorists think that the obligation to obey the law is such a duty, it can only come from voluntary acceptance. If it can be shown that we have indeed consented to obey the laws, their case is made.
If we accept that consent does form the basis of political obligation, does this allow room for whistleblowing? Notice that when we consent to something, this is not normally absolute. You may have agreed to meet your friend in front of the cinema at 6 p.m., but if on the way you witnessed an accident and your expertise in first aid was needed to save the victim, your not showing up will be justified. By the same token, you may have agreed to obeying the laws. But when you can save lives by revealing, for example, the mismanagement of a pension fund, your not obeying them may be well justified.
The big problem
There is a big problem with the consent theory though. Only very few citizens of modern societies, characteristically, naturalized citizens, give express consent to the laws of a country. To avoid this problem, consent theorists have tried to argue that in the past our ancestors agreed to establish a state and obeying its laws. But this doesn’t really work either because if we are born free and equal, how could we be bound by promises made generations ago on our behalf?
Some consent theorists have argued that people do consent, but not expressly. You can agree to obey the laws by performing certain kinds of acts (or omissions). The enlightenment philosopher John Locke believed that owning land, living in a house, enjoying certain benefits that the government provides are such acts. Modern consent theorist argue that taking part in elections, running for office, applying for a passport signify your consent.
The problem with this solution, the so-called tacit consent theory, is that if you have no idea that by certain act or omission you agree to obeying the laws, you are hardly under an obligation established by your consent to obeying them. In addition, in order for your consent to be free and voluntary, you must have the opportunity to withhold it without great personal cost. Residence clearly fails both criteria, and arguably, all the other candidate actions fail at least one.
If you are still sympathetic to consent theories, we suggest that you read this book. Of course, there are other theories explaining why we should obey the law. Look out for our next article discussing the fairness and the gratitude theories of political obligation.