Consent by residence: A defense
| Author | Stephen Puryear |
| DOI | 10.1177/1474885119833009 |
| Published date | 01 July 2021 |
| Date | 01 July 2021 |
| Subject Matter | Articles |
Article EJPT
Consent by residence:
A defense
Stephen Puryear
North Carolina State University, USA
Abstract
The traditional view according to which we adults tacitly consent to a state’s lawful
actions just by living within its borders—the residence theory—is now widely rejected by
political philosophers. According to the critics, this theory fails because consent must
be (i) intentional, (ii) informed, and (iii) voluntary, whereas one’s continued residence
within a state is typically none of these things. Few people intend to remain within the
state in which they find themselves, and few realize that by remaining they are con-
senting to the state’s lawful actions. Moreover, the various obstacles standing in the way
of us leaving the state render our remaining involuntary. Thus, the critics conclude, few
if any people can be considered to have consented through their residence. I argue that
these objections fail and that the residence theory remains a viable option, at least for
those who are not committed incompatibilists.
Keywords
Consent, political authority, political obligation, social contract, tacit consent
Introduction
An important strand of social contract theory says that we adults tacitly consent to
a state’s lawful actions just by residing within its borders. Intuitively, the idea is
that if we did not agree with these actions, we would have picked up and left, so
that those of us who remain may be taken to have consented to them, even though
we may never have bothered to make that consent explicit. For convenience, I will
call this the residence theory.
Corresponding author:
Stephen Puryear, Associate Professor of Philosophy, North Carolina State University, C.B. 8103, Raleigh,
NC 27695-8103, USA.
Email: smpuryear@ncsu.edu
European Journal of Political Theory
2021, Vol. 20(3) 529–546
!The Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1474885119833009
journals.sagepub.com/home/ept
The main idea behind this theory goes back at least to Plato (Crito, 51c–53a)
and gets picked up much later by early modern social contract theorists such as
Locke (1689: §119) and Rousseau (1762: 4.2). Recently it has been defended in one
form or another by a few philosophers, including Beran (1977, 1987), Boxill (1993),
Davis (2017), and Otsuka (2003: 89–113). But for the most part it has fallen on
hard times. Due primarily to the criticisms of John Simmons (1979: 57–100; 1993),
theories of political authority based on actual consent, including the residence
theory, have almost universally been abandoned by political philosophers. As
Klosko (2005: 122) notes: “In discussions of political obligation, it is now generally
recognized that a workable theory cannot be based on consent. Adequate numbers
of people have not consented to their governments, either expressly or tacitly.”
1
Consent theorists generally agree that in order for an agent S’s u-ing to effect
consent, at least three conditions must be met:
1. S’s u-ing must be voluntary.
2. S must know that by u-ing she consents to the actions of some authority; that is,
she must know both that she consents and, at some level of generality, to what
she is consenting.
3. In u-ing, S must intend to consent (or to communicate consent) to those actions.
We may call these, respectively, the liberty condition, the knowledge condition,
and the intention condition.
Given these constraints, my continued residence can effect consent only if (i) I
remain within the state voluntarily, (ii) I know that I am thereby consenting to
certain actions of the state, and (iii) I intend thereby to consent or to communicate
consent to these actions. According to the critics, however, all three conditions
raise difficulties for the residence theory. For in the first place, most citizens who
remain in the country in which they were raised neither knew that they were
thereby consenting to the government’s actions, nor intended thereby to consent.
Nor did they intend thereby to communicate their consent. In most cases, a per-
son’s continued residence meets neither the knowledge nor the intention condi-
tions. Furthermore, and perhaps most importantly, the critics maintain that those
who remain in a state rarely do so voluntarily because various obstacles make it
difficult if not impossible for them to leave, and insofar as they are unable to do
otherwise, their remaining in the state is not free or voluntary. Hence, in most
cases, a person’s continued residence fails to satisfy the liberty condition as well.
(I call this the liberty objection.)
These objections are typically regarded as fairly quick and decisive refutations
of the residence theory. Critics usually state them briefly, discard the theory, and
move on. Quick though they may be, however, it seems to me that they are any-
thing but decisive. In fact, I think they fail to cast any serious doubt on the res-
idence theory. In what follows, I will attempt to show why by arguing for the
following claims, taking the three conditions and the corresponding objections in
reverse order.
530 European Journal of Political Theory 20(3)
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