Abstract
This famous passage from Hume is often quoted approvingly in attacks on the Lockean notion of tacit consent as a foundation for political obligation.3 Even writers who do not quote the passage directly use rhetoric of a similar nature in calling doctrines of implied and tacit consent into serious question.4 I have myself quoted the passage, without comment, as though it constituted a self-explanatory and self-evidently sound refutation of such doctrines.5
Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires? We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, the moment he leaves her.
David Hume2
This paper was prepared for delivery as a lecture at a symposium in honor of Professor A.D. Woozley on the occasion of his retirement from the University of Virginia. I am happy that I was invited to participate, for Tony Woozley is a man whose personal friendship I enjoy and whose philosophical work I admire. I join his university in applauding him and in wishing him well. Knowing (at least hoping) that he realizes that serious criticism is a sincere sign of philosophical respect, I dedicate the present essay to him with esteem and affection.
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References
D. Hume, Of the Original Contract, in 2 Essays and Treatises 268, 281–82 (London 1770).
The most recent instance is A. John Simmons, Moral Principles and Political Obligations 99 (1979).
The best philosophical study of Plato’s Crito (and also one of the most interesting books in recent years on the topic of political obligation) is A. Woozley, Law and Obedience (1979). The discussion of freedom and consent in that book does not mention Hume explicitly, but seems to develop in detail the kind of point that Hume was making. See id. at 104–10.
See J. Murphy, Hume and Kant on the Social Contract, in Retribution, Justice and Therapy 58,63 (1979) .
These doubts were provoked by two remarkable essays on coercion. See Nozick, Coercion, in Philosophy, Politics and Society 101–35 (4th ser. 1972); Haksar, Coercive Proposals [Rawls and Gandhi], 4 Political Theory 65 (1976). My own recent thoughts on coercion can be found in J. Murphy, Total Institutions and the Possibility of Consent to Organic Therapies, in Retribution, Justice and Therapy 183 (1979); Murphy, Blackmail: A Preliminary Inquiry, 63 The Monist _ (1980) [hereinafter cited as Blackmail]; Murphy, Therapy and the Problem of Autonomous Consent, 2 Int’l J.L. & Psych. 41 5(1979).
A. Woozley, supra note 3, at 76–110.
id. at 104,108–09.
id. at 104.
Real complexities arise in cases such as blackmail. Here we are inclined to claim that coercion has taken place, but it is also the case that the threat involved (e.g., to release true information) is a threat to do something that one normally has a right to do. For a discussion of these complexities, see Blacknail, supra note 5.
236 U.S. 1 (1914).
Id. at 17.
A. Woozley, supra note 3, at 106–08.
See, e.g., S.P. Dunham & Co. v. Kudra, 44 N.J. Super. 565,131 A.2d 306 (Super. Ct. App. Div. 1957)(where each of these three issues is involved and where it is not at all clear that the court sees them as different).
For an excellent presentation of the issues involved in duress as a criminal defense (including substantial excerpts from the Model Penal Code drafts and commentaries), see S. Kadish & M. Paulsen, Criminal Law and Its Processes 363–77 (1 st ed. 1962).Most states do not allow the defense of duress in respect to the most serious crimes. The drafters of the Model Penal Code, tending to see duress in mainly psychological terms (what a person of “reasonable firmness” could resist), oppose the states in this matter. See id.
See G. Williams, Criminal Law: The General Part 75 1–70 (2d ed. 1961).
Parrots who say “I agree” are not agreeing to anything. True agreement requires certain mental states in order to occur—e.g., understanding.
See H.L.A. Hart, Punishment and Responsibility 125–26 (1968) (discussion R. v. Steane, [1947] K.B. 997).
I do not want this to appear harder than I intend it to be. I am not saying that people cramped by life’s hard choices make no morally important claim upon us at all. As I shall later suggest, we all have a moral obligation not to exploit the vulnerabilities of such people. My point is simply that made so well by Mr. Farebrother in George Eliot’s Middlemanch: “I don’t translate my own convenience into other people’s duties.” G. Eliot, Middlemarch 130 (G. Haight ed. 1956).
If we say that he does have a prima facie obligation but that he is to be excused or regarded as justified if he fails to perform, what will be the basis for the excuse or justification? Not the initial exploitation, surely, for it was present at the time of agreement—not now at the time of expected performance (where we would expect to find an excuse or justification).
H.L.A. Hart, The Concept of Law 38 (1961).
See, e.g., Graham v. Richardson, 403 U.S. 365 (1971). See generally J. Nowak, R. Rotunda & J. Young, Handbook on Constitutional Law 592–601 (1978).
See generally J. Murray, Murray on Contracts 703–58 (1974).
See, e.g., Williams v. Walter-Thomas furniture Co., 350 F.2d 445 (D.C.Cir.1965). See generally J. Murray, supra note 22, at 738.
See, e.g., Lisi v. Alitalia-Linee Aeree Italiane, S.p.A,370 F.2d 508 (2d cir. 1966), aff’d by an equally divided Court, 390 U.S. 455 (1968). See generally J. Murray, supra note 22, at 738–40.
It is hard to imagine a more unequal bargaining position than one between A (who greatly needs some commodity C) and B (who is the sole source of C).
One rarely feels more abused than in a case where one is led to make an agreement because of the presence of factors having nothing to do with the “point” of the agreement. A certain level of this is, of course, unavoidable. It is when it becomes the dominant reason (where one says “Who cases anymore? I just have to get this over with!”) that one begins to feel strong resentment.
See note 16 supra.
I am in the process of writing a longish work on coercion and unfair bargaining. As a part of this work, I hope to develop some thoughts on the concept of unconscionability. [1991 note: This work never materialized.]
See A. Mueller & A. Rosett, Contract Law and Its Applications 102–09 (2d ed. 1977); J. Murray, supra note 22, at 738.
A. Woozley, supra note 3 at 104.
A. Simmons, supra note 2, at 79–80.What follows is greatly influenced by Simmons’s discussion.
See id. at 81. These are Simmon’s conditions (4) and (5).
See J. Murray, supra note 22, at 119–22.
We may think of a convention as a kind of rule of inference that allows us to infer a judgment of normative importance (e.g., Jones has agreed; Jones is obligated) from some act (or omission) performed in the appropriate circumstances (e.g., Jones said “I’llgo along with it.”).
See Crito 51c–53a. For an illuminating discussion of this point, see A. Woozley, supra note 3, at 76–110.
See J. Locke, The Second Treatise of Civil Government §119, in Two Treatises of Government (T. Cook ed. 1947). See also A. Simmons, supra note 2, at 75–100.
For a general discussion of “the consent tradition,”see A. Simmons, supra note 2, at 57–74.
G. Eliot, supra note 18, at 375.
Crito 50b–54d.
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Murphy, J.G. (1992). Consent, Coercion, and Hard Choices. In: Retribution Reconsidered. Philosophical Studies Series, vol 54. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7922-3_7
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