Paper Example on Exploring the Philosophy of Consent

Abstract

This report addresses the change in society from the rule of law to consent. Using three research questions, a study is conducted based on the ideas and doctrines of John Locke, Noam Chompksy, and Jean-Paul Sartre and other scholars. The research questions address what these three discussed on the subject of rule of law and consent. The types of consent are also discussed together with the length of consent between the parties. A desk research is used to identify suitable studies that evaluate the work of the three political philosophers. Selection is based on the year of publishing and the details included in the study. Studies should be within the last five years and have more than twenty pages. A review of the studies indicates that originally, society was governed by consent before governments and formal rules existed. As the number of people increased, leadership became more structured. Locke declares that governments have to consent with the citizens by being responsive to their will. Naom Chomsky holds the view of citizens using their majority numbers to gain influence on the direction of the community. On the other hand, Jean-Paul Sartre argued that the government should provide leadership for the way it sees fit. The integration of the citizens and custodians of power comes in different ways including implied consent, informed consent, elective consent and participatory consent. The length of consent depends on the agreement stipulated when the parties reach a consensus.

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Introduction

The rule of law is provided within the constitution and upheld by entities described in the same document. In the United States, the constitution is the nation's fundamental law. It gives general guidance to contentious issues and protects fundamental rights. Important aspects of life, like freedom of religion, equal treatment, and freedom of speech, are protected regardless of the majority opinion. Under the rule of law, all persons are entities, and institutions are accountable to laws that are independently adjudicated, similar to global human rights, publicly promulgated, and equally enforced. Courts play a critical role in sustaining the rule of law by listening and determining grievances. Equality is an indispensable part of the rule of law, and a majority cannot infringe on the rights of the minority. Ideally, people that make the laws are isolated from the social and political pressures. However, society has evolved into numerous facets that are no longer bound by the rule of law; instead, they are guided by consent between individuals. This paper addresses the different types of consent, how the societies with consent function, and the length of the consent. Besides, there is a reference to numerous philosophies that help in the understanding of the communities that operate with consent.

Research Questions

• What do John Locke, Noam Chompksy, and Jean-Paul Sartre talk about rule of law and consent in society?
• What are the types of consent and how are societies consensual without the rule of law?
• How long does consent last within parties or in society in general?

Literature Review

Consent can be defined as the agreement to do something or something to happen. It can also be referred to as permitting something to happen. Many societies are governed by consent between the leaders and the rest of the population. In political philosophy, consent of the governed refers to the notion that the moral right and legitimacy of the government are only lawful and justified when agreed upon by the society or the people over which the power is exercised. In the United States, the Declaration of Independence contains the phrase consent of the governed (Moseley, 2018). The thinking is analogous to that of John Locke with the concept of free and equal citizens. Any state conceived in a manner other than that of the consent of the citizens is considered illegitimate in rational-legal authority (Jeffreys, 2019). Whenever a government becomes destructive of such ways, the citizens have the right to abolish or alter its construction.

The rule of law is an ideal within many values in the liberal society. Other benefits within the same realm include economic freedom, social justice, human rights, and democracy (Craig, 2017). Critical legal philosophers contend that the rule of law ought to be distinguished from social justice and democracy. In their suggestion, the rule of law should be restricted to bureaucratic and official facets of government establishments regardless of the content of policies they implement. However, this point is contentious since some accounts have been created, bringing out the effect of integration of other ideals with the rule of law (Risch, 2018). The most crucial aspect within the rule of law is that people who hold power should exercise it with a framework of consent. Execution of power should conform to public norms instead of being arbitrary, discretionary, and in an ad hoc manner that represents personal ideology and preferences. The government should operate in the law framework, and any suggestion of unauthorized action by custodians of power calls for accountability through law.

The most central point in political philosophy comes from Locke's doctrine of natural rights and natural law (McCarthy, 2017). In the time before Locke, natural rights were espoused by thinkers like Pufendorf, Hobbes, and Grotius. Natural law based on duties, while natural rights emphasized the claims or privileges every single individual was entitled to at birth (Palladini 2020). Locke's theory does not provide a clear distinction between these two factors. Leo Strauss declares that rights are paramount and argues that the doctrine of Locke is similar to Hobbes. Strauss further argues that Locke protected the hedonist theory that explained human motivation. He also makes a connection between Locke and Hobbes on the self-serving nature of man and woman. They claim that Lock only identified natural obligations in situations where self-preservation is not compromised, bringing out the idea that self-preservation is above all else.

On the other extreme, the view of Ashcraft, Simmons, Tully, and Dunn is more prevalent. These three argued that natural law and a not natural right is primary. They further state that the emphasis from John Locke on the right to live, freedom, and the assets was an idea towards the obligations that people hold towards each other like do not steal, enslave, or kill (Heyman 2017). Many philosophers debate that Locke identified the general responsibility to help in the conservation of humankind, with the idea of charities for people who lacked the means to secure sustenance. Rights help people to ensure they can accomplish these duties. Simmons has a similar position, but he affirms that privileges do not represent the opposite side of duties in Locke's theory, and neither are they a way of just performing tasks. He believes that duties and rights are equivalent due to Locke's credence in the strong area of indifference in which privileges defend the capability to choose. While the choices do not interrupt the natural law, neither are they merely a means of fulfilling the natural law.

Attempts have been made to find a compromise between the two viewpoints. Michael Zuckert's opinion on the Straussian view acknowledges more distinctions between Locke and Hobbes (Bahnegar 2019). However, he questions the truth of Locke's theism as Locke does not create a position that integrates property rights in the fact that human beings own themselves. Direct reading of the political philosophy presented by Locke identifies the idea of consent as central. His examination starts with people in a state of nature without being subject to any official power that has the mandate to decide or legislate conflicts. Starting the natural state of independence and freedom, Locke stressed that personal approval as the contrivance that aid information of political communities and citizens become a part of those societies. While the law provides general obligations and rights, special requirements pop up when people knowingly agree to them. Locke declares that individuals become full members of society by express consent (Ameson and Stuart, 2016). Locke's theory regarding consent focuses on how he does not answer one crucial objection, which is that few people consented to their governments, which means that most of the governments are not legitimate. The opposition is quite problematic as it contrasts Locke's intention.

Aristotle's work on the rule of law is widely studied. He approached his work from the viewpoint of whether it was better for the best laws or the best man to rule. He employed a realistic approach to the question noting that it did not only depend on the type of law but also the kind of regime that administered and enacted the law. He maintained that laws had particular advantages as a mode of governance (Nascimento, 2018). Laws are generalized terms laid down in advance of the cases that they will be applied. His discussion on the desirability of rules and treatment of equity has a large influence on post-modern jurisprudence. John Locke emphasized the significance of governance executed through established laws that are promulgated and known by the people. He contrasted this view with the rule of extemporary arbitrary decrees. Arbitrary is a loose term that can refer to many things like oppression, but this interpretation was not primary to Locke's thoughts. The arbitrariness he leaned towards was that the ruler figured out things as he went along, and there was not a particular act or event to rely on. In the state of nature, people wanted to get out of the situation where they were subject to the incalculable opinions of others, even if they thought hard to defend the natural law. People hold different views depending on their interests with the interpretation of one individual on the property that belongs to another different from the owner of the property. The main idea behind migrating from the state of nature to that of positive law was to eliminate the unpredictability in the system. However, Locke introduced the principle of respecting private property where the ruler could not take the belongings of any individual without their consent. By insisting that positive law is subject to the substantive constraint, Locke subjected the legislature to an area of uncertainty. The natural right to property was controversial, and the administration of restrictions along such lines would be moot. Albert Venn Dicey studied the relationship between the rule of law and how it impacted consent (Brown, 2018). The provision of law within England distinguished governance from executive domination seen in France and the abstract certainties of scripted constitutions like in Belgium. For Dicey, the main point in the rule of law was equality before the law. The point on the surface is attractive but is shows naivety conce...