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To Alter Or To AbolishChapter 10ConsentWritten by Darrell Anderson. I think, therefore I am. René Descartes, Le Discours de la Méthode Wherever two or more individuals form a new system model called a society, that social system includes new boundaries, new elements, and new relational rules. Because individuals differ in their definitions of happiness and trespass, determining the new relational rules of that new system can be challenging. All participants of a society voluntarily agree to abide by a certain set of principles, and those principles often are different from society to society. Those principles evolve and arise by custom and convention. No human is self-sufficient and therefore belongs to at least one society. However, no adult human is required to be a member of any particular society. Despite initially being a member of a particular society because of characteristics such as birth, language, or geographical location, becoming or remaining a member of that society is one of choice. Becoming a member of a different society means each individual provides consent to join or remain a member. What is consent? From Black’s Law Dictionary, sixth edition: Consent: A concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence of compliance therewith. Agreement; approval; permission; the act or result of coming into harmony or accord. From Noah Webster’s 1828 American Dictionary of the English Language: Consent: to be of one mind, to agree; to think, feel or perceive. Agreement of the mind to what is proposed or stated by another; accord; hence, a yielding of the mind or will to that which is proposed . . . We generally use this word in cases where power, rights, and claims are concerned. We give consent, when we yield that which we have a right to withhold; but we do not give consent to a mere opinion, or abstract proposition. Consent is a meeting of the minds — a voluntary willingness, acknowledgment, or permission to participate. Consent is an interpretive process and is subject to numerous variables, such as language, customs, gestures, culture, etc. How is consent established or recognized? Because such human processes are subject to interpretation, there is no absolute method of validating consent. The process of determining consent occurs contextually based upon the confines, conventions, and customs of a specific society. A nod of the head at an auction is a sign of consent to accept a bid. Elsewhere such a nod might be a sign of contempt or perhaps nothing more than sleepiness. In sports, pointing a finger to a teammate might be a sign consenting to psychological and emotional camaraderie, elsewhere pointing a finger is accusatory. Although an act of consent often is a positive action, consent also can be an action of silence or deferment. The act of providing consent through silence or deferment sometimes is called implied or tacit consent. Consent is not always necessary and is sometimes meaningless or irrelevant. For example, consent is immaterial with respect to natural and physical laws of the universe. The sun seeks no human’s consent to burn, nor does a squirrel stop to ask before raiding a bird feeder. Consent is meaningless in the natural world of unconditional reality. All social systems exist by consensus opinion and consent, but those individuals existing or migrating into those environments almost always have little choice but to comply with established customs and conventions. Consider too that every human provides no consent about when or where to be born. Likewise, until each individual matures into adulthood, young people often are denied consent with respect to certain actions or behaviors. Two-year old children are well known for sometimes relieving themselves in the front yard, but such actions usually will be discouraged — regardless of consent. In other words, consent is sometimes irrelevant to how other people expect you to act. Although free to choose otherwise, individual consent is not required or requested with respect to certain social expectations. Humans seek a sense of security by identifying themselves in groups, and that identity often is observed by conformity within that group.[1] Thus, consent often is not required, but nonetheless is always provided. Join an existing community of people, even temporarily, and one will be expected to abide by most of the customs of those people. Failure to provide consent and abide by those customs might result in significant penalties.[2] The individual who could act contrary to accepted norms nonetheless consents to follow most of those traditions in order to best maximize his or her happiness. Although free to choose otherwise, the potential contrarian normally agrees to blend rather than resist because that choice provides the path of least resistance to happiness. At a fundamental level the choice is freely made to adapt and conform. To resist such customs is to increase the risk of trespass. For example, try traveling on the opposite side of a road and see how long your behavior is tolerated. Determining which side of the road to travel requires no individual consent. Your normal actions indicate explicit consent to travel on the same side of a road, but indirectly you provide members of a society implied consent to agree with the custom. Act contrarily and you will discover that your consent is irrelevant. You can choose contrarily, but will cause much commotion. That commotion will raise fears and diminish the sense of security. That diminished sense of security will create tension and conflict. However, most individuals realize and accept that such societal principles are reciprocating and self-enforcing. That is, most individuals embrace such principles because of perceived mutual benefits. The risks of traveling on the opposite side of the road varies from almost none (a remote rural road), to incurring the wrath of many people, to possibly causing serious injury or death. Few individuals would argue that the least risky choice is to consent to established customs because the perceived benefits far outweigh the potential risks of non-conformance. Such principles are useful and promote mutual survival. Regardless, notice that although consent is neither sought nor necessary, consent still plays a pivotal role. Is the idea of consent an unimportant topic because consent often is irrelevant? Or are there times when consent is important? There are two distinct desires regulating human action: the pursuit of happiness and preventing trespass. Both conditions are interpreted conditions by every individual. Most individuals accept the foundational idea that humans individually possess standing to survive and pursue happiness. That idea includes the concept of possessing various resources to sustain that life. Therefore, the concept of consent does provide meaning within certain human interactions. If the concepts of boundaries are to have meaning, then the concept of consent plays an important role in maintaining those concepts. That the concept of contracts exists indicates that most individuals agree that taking property without explicit consent is trespass. Through that concept knowable boundaries appear. Taking property without consent is adversarial raw acquisition and usually encourages conflict. The concept of contracting recognizes the right to use resources under one’s jurisdiction.[3] Thus, all exchanges of property titles are contracts, even when the contract is unwritten. Consent is necessary to transfer title. Therefore, explicit consent to transfer property is important. Any transfer through force or fraud is trespass of knowable boundaries. Likewise, if the concept of consent recognizes title to resources and the right to contract, then the concept of consent also means recognizing the right not to contract or not to transfer the rights associated with a particular resource.[4] The concept of first possession is irrelevant because if a resource is not titled or in possession then the resource is not classified as property and the concept of exchange is meaningless. However, many individuals disagree about whether property titles can be coercively transferred under implied consent. This confusion arises because many individuals fail to recognize that most people are members of several concurrent societies. Not recognizing those concurrent societies often results in assuming implied consent is being granted. Confusion arises because many agreements are mistaken as contracts. Additionally, the concept of implied or tacit consent makes sense only when people fully possess the ability to travel freely and vote with their feet. There is a difference between pragmatic submission and explicit consent. Consider an individual who has a job, is married, and has chosen a particular neighborhood in which to live. Additional societal characteristics also might contribute to where an individual lives and works, such as language, family, religion, status, recreational pursuits, geographical, and environmental preferences. All of those choices are defined by the boundaries of different societal systems. No societal system model in particular implies consent to participate with respect to the other societal systems. An individual can change jobs, get divorced, move to a different neighborhood or geographical area, change religions, or even learn to speak a different language. Do church elders have standing to expect this individual to pay tithes because the individual lives in the same neighborhood? No, those people can expect tithes only when the individual has voluntarily chosen to participate in associated church activities. Does the local bridge club have standing to expect membership fees? Only if the individual voluntarily chooses to be a member. Does an individual who is a member of the local bowling league provide implied consent to whatever transpires in the local bridge club? Hardly. Can people operating a neighborhood watch program demand participation? Not without an explicit contract or agreement. Physically “being in the neighborhood” does not mean implied consent is automatically provided. Although implied consent might indeed be provided, other people cannot assume that. Although consent is irrelevant to some human actions, property titles cannot be exchanged without explicit consent or because of trespass. Conflict and violence increase when property titles are coercively transferred and violate knowable boundaries. Critical to avoiding those conflicts is how those property titles were derived. All social institutions depend upon individual consent and voluntary participation. All people always are free to choose or reject ideas and beliefs — including choices that are contrary to established societal norms. Just as a potential robbery victim is free to reject the robber’s demands, so too can an individual choose to travel on the opposite side of the road contrary to common practice. In each example, there are risks involved. The age-old question is what perceived benefits might arise from the contrary decision versus the risk involved? Although explicit consent is not always sought or necessary, all people nonetheless provide their consent (consciously or subconsciously) in order to shift the scales of risk in favor of the perceived benefits. Although a minority of people form communities through explicit contract, more often the guidelines by which members of a society decide to abide and function are not necessarily contractual principles but agreements. A contractual relationship requires explicit, positive consent. An agreement merely requires acceptance. Some relationships within a society might be created and regulated by contract. Paying membership dues with the local bridge club creates certain reciprocating obligations. The fee buys access to certain club privileges, and each participant agrees to abide by published and unpublished guidelines and bylaws. Likewise, many individuals in a community might obligate themselves by contract. However, most often when new formal physical community boundaries are created, previous inhabitants are assumed to be under the new jurisdiction and explicit consent is ignored by those who created the new physical boundaries. Ask the American Indians about that; or more recently, the inhabitants of Afghanistan or Iraq. Such social systems are nothing more than “might makes right.” Such systems reject the concepts of self, property, rights, contracts, and consent. Implied consent within a society is possible, but only when the members of that society behave and act consistently with natural or established guidelines. In other words, as long as property titles are not transferred forcibly without consent, and an individual concurrently agrees to abide by the whims and fancies of that particular society, then implied consent can succeed. Conflicts arise when implied consent is assumed and when property titles are transferred without explicit consent. Finis. Next: Chapter 11 — Wealth and Debt Endnotes [1] Fromm, The Sane Society, pp. 196–197. [2] Sowell, Knowledge and Decisions, p. 21. [3] Barnett, The Structure of Liberty p. 66. [4] Barnett, The Structure of Liberty, p. 66. |
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