The Impossibility of Consent: why border control makes government illegitimate

By Rachel Scott

No politician (at least publicly) wants to be a dictator. They want to believe that when they set laws, or lock someone up for breaking them, that it’s morally okay for them to do that. They want to be legitimate. And we want that too. Most of us want to believe that we have a moral obligation to obey laws and maybe even to do societal services like sit on a jury or vote.

It used to be easy. The ruling monarch could just say they were a direct descendant of God and that was why they could tell us what to do. Or they were just really good at killing the previous bloke (in which case who would argue anyway?). But brute strength and holy patronage are no longer appropriate justifications for governance. Nowadays we prefer to think in terms of consent. The idea is that if we all get together and agree to live by a set of rules, then we can also all share in the perks of being part of that society. It’s called Social Contract Theory. Although first recorded in the 2nd Century BC by the Buddhist text The Mahāvastu and reiterated again by Plato, Social Contract Theory has been the predominant explanation for governance since the Enlightenment. It’s a simple and elegant solution, an invisible contract that we all have signed: I will do this in return for that.

The problem with invisible contracts is how do we sign them? When do we consent to be law abiding citizens? It would be easiest if we explicitly consented to be citizens. Perhaps like immigrants do during citizenship ceremonies. Except many of those are refugees who may face torture, imprisonment or death if they return home. Migrants may face poverty and economic ruin. Generally speaking contracts made under duress (like fear of deportation to death or ruin) are not valid. Maybe when people recite the pledge of allegiance in the United States that could be viewed as explicit consent. Except that’s really just ritualistic utterance. People may not even know what they are saying – I spent a few of my childhood years pledging allegiance to ‘one nation underground’.[1]

Because cases of genuine explicit consent seem to be hard to find, some have suggested consent could be hypothetical. This means that we can assume consent when consenting would be the rational thing to do. The perks of society make it rational to consent. So therefore we have all hypothetically consented. But in day-to-day to life we don’t think that just because it would be rational for me to agree to something that I actually have agreed. It might be rational for me to sell my car to this guy offering above market value, but it doesn’t mean I have automatically consented to the sale. It might be rational for me to marry the millionaire but it doesn’t mean I have consented to do so. Hypothetical consent really messes with the idea of free will.

The final possibility is tacit consent. Tacit consent means that certain relevant actions or behaviours indicates consent. So voting for example, or using the perks of society like pavements and street lamps. Except even that is tricky. Imagine a prisoner in a cell: decorating their cell isn’t consent to imprisonment, it’s making the most of a bad situation. We have to live here so we may as well have this person in charge. Maybe voting isn’t consent, it’s just making the most out of a bad situation. And it isn’t realistic to think someone could avoid seeing the light from street lamps.

The thing about a prisoner is that they can’t go anywhere, so anything they do can be just making the most of a bad situation. But if the prisoner isn’t a prisoner – if they are free to leave and then choose to decorate their cell, maybe that is consent. Maybe choosing to stay opens up the possibility of consent. The right to leave is crucial. If you can’t leave then you can’t meaningfully ‘choose’ to stay. Consent in the absence of choice is meaningless. Maybe if we meaningfully choose to stay in a country, and accept its perks, we are consenting? And we certainly don’t think of ourselves as prisoners in our country. And in most places we aren’t. For example the English have had a right to leave since 1215 thanks to Article 42 in the Magna Carta. A more modern reiteration of the right to leave features in Article 13 of the Universal Declaration of Human Rights.

So does that mean we have all been consenting since 1215? Are we sure the Tories aren’t dictators? Well not quite so fast. First it’s important to note that while the right to leave is necessary for consent – it isn’t necessarily sufficient. Yes, I have the legal right to leave but what if I don’t have the money to leave? What if I have family ties and responsibilities binding me here? Perhaps we need a citizens’ version of the IOM’s Assisted Voluntary Return and Reintegration Program (perhaps a Assisted Voluntary Exit and Integration Program?) whereby we would get flights, re-education, job placements or help establishing a business in our new country of residence.

Even if we could figure out adequate help for leaving (and I am not quite sure how you would compensate for the other losses of moving – such as friends, family, ancestral ties, cultural belonging and so on) is there even a ‘right to leave’ without a ‘right to enter’? In what sense do women have the right to work if employers could refuse to hire them? A right to enter seems the logical counterpart to a right to leave. In legislature the right to leave is already linked to a right of entry. A stateless person cannot be deported – where would they go? In a world that is divided into nation states where can we go? Maybe what we need is a stateless anarchic ‘safe zone’ where anyone can go if they chose. But it isn’t likely. The tricky thing is that a state can open its own borders, but it cannot open the borders of another state. It can give its citizens the right to leave, but not the right to enter elsewhere. However, it can enter into reciprocal open border agreements with other nation states. An ‘I’ll show you mine if you show me yours’ type deal. This isn’t far fetched – it is already happening with members of the European Union.

Of course if your choice is between your current nation or a poverty-stricken, drought-ravaged land where you will be in danger of persecution or abuse then that wouldn’t be a significant ‘choice’. It wouldn’t capture the essence of what we mean by ‘rights’ if a woman has the ‘right to work’ but her only option is poorly paid drudgery. So to make the right to leave meaningful, a state should enter into as many reciprocal arrangements as possible. Ideally these other lands should be safe, comfortable, welcoming places with enough variety between them to be agreeable to people of different interests and beliefs. Still this isn’t perfect. To return to the prisoner example: a prisoner’s ability to chose between captors does not mean they consent to imprisonment; they can only chose between prisons. And maybe we are still all prisoners choosing between captors but that’s at least something. A state can still strive towards a degree of legitimacy. By providing it’s citizens a meaningful right to leave (by entering into reciprocal open border arrangements with other countries) a nation state can provide the necessary conditions for tacit consent.

So if Social Contract Theory is how we legitimise governance (which it generally is, and has been for the last 300 years) and if Social Contract Theory requires us to negotiate open borders (to fulfill the conditions necessary for consent) that’s a pretty big deal. In short it means a state with closed borders cannot by definition be legitimate. It is the right to leave, made possible with a right to enter, that brings us closer to freedom. And makes the Prime Minister somewhat less of a dictator.

Rachel Scott has an MSc from the London School of Economics in Political Philosophy and Public Policy where her research focused on the consequences of border control. She is an open border advocate and has held a variety of professional and volunteer roles within refugee, asylum and migration organisations including the Refugees Arrivals Project (UK), Sunrise Project (UK), Refugee Council (UK) and most recently as the Executive Director providing integration support services in the Gulf Islands, Canada. She is a repeat immigrant herself – from the US to the UK to Australia and to Canada. You can follow her on twitter at @RachelsTwits  

[1] Instead of “one nation under God”- oops.

Featured image: Members of the Hungarian Defence Force install barbed wire on the Hungarian-Serbian border near Kelebia village in Hungary on August 17, 2015. © Freedom House

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2 comments

  1. Authors correction: Plato of course died a century before the Mahavastu was written. So SCT was first described by him with the Mahavastu following. Apologies.

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  2. […] Rachel Scott – Philippe Legrain’s Immigrants- Your Country Needs Them is an all encompassing exploration of the economic impact of migration. I love this book for two reasons. The first is that it is entirely devoid of economic jargon. You know the kind of thing that makes you feel like you are a 7 year old who has just woken up and found yourself in a post-grad MIT maths exam. And there are no equations or graphs that you are pretty sure must have been written when a cat wandered over and sat on the the keyboard. In short this is a book about economics which you can read without falling asleep. Legrain uses personal anecdotes and examples from around the world to argue his case, making this a colourful and entertaining read. The second thing I love about this book is the conclusion. That immigration is good for the economy. And not a narrow selective type of immigration, like only letting in people who have fantastic STEM degrees. After exploring the consequences of low skill migration, high skill migration (both for the host and country of origin), employment rates, welfare impacts, and cultural and social cohesion for good measure, Legrain concludes that open migration makes the most sense. And after reading his book it is hard not to agree. […]

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