Tacit consent and political legitimacy

1. Normative and descriptive legitimacy

When discussing political legitimacy, the distinction between normative and descriptive theories often serves as the fundamental methodological and perhaps even disciplinary divide, distinguishing two basic modes of grasping the concept (Fossen, 2013; Peter, 2017; Thornhill, 2011). Descriptive legitimacy analyses the beliefs of citizens towards their government. What is important is the degree of actual support for the regime. In contrast, normative legitimacy is concerned with the (right kind of) justification of coercive power. Its main concern is the character and exercise of political power, not its popularity. In the literature, the authors regularly stress that normative and descriptive legitimacy, to quote a recent book by Arthur Applbaum “are two different notions, and we need to be clear about when we are using one, when we are using the other, and what, if anything, connects the two.” (Applbaum, 2019: 34) Inevitably, the relative priority of the two approaches to legitimacy is a contested issue, with Applbaum claiming that “normative legitimacy is prior to descriptive legitimacy,” (Applbaum, 2019: 254; Buchanan, 2002: 689) while a host of other philosophers and social scientists denounce normative approaches to legitimacy as moralistic or (politically) irrelevant (Geuss, 2008; Hall, 2017; Hall and Sleat, 2017; Williams, 2005).

However, beyond the discussion of the relative priority of the two approaches lies a fundamental fact that all plausible conceptions of legitimacy need to encompass both descriptive and normative elements, which are equally necessary and neither can be reduced to the other. The reasons why this is so are hardly a novelty, but since they rarely if ever appear together, it bears sketching them out.

From one side, normative principles cannot grant legitimacy by themselves without the actual situation in the society being taken into account. If a political system, no matter how well-constituted, just, or benevolent, is imposed on an unwilling population, then its rule will likely be experienced as oppressive. This might, in certain circumstances, change over time (the regime might “win over” the population), but, at least at its inception, it certainly lacks legitimacy. The reasons for this conclusion are rooted in our conception of political power. Once political power is understood as a power of the people, of the organized political community, ¹ then the actual attitudes of “the people” must be relevant for its justification. A disconnect between the government and the governed has to count against the legitimacy of any regime; it is difficult to justify a mandate to rule if the political system is universally hated, for example (Beetham, 1991a; Sagar, 2018).

Still, some normative conceptions of legitimate political power can do without reference to the people or their wishes. If legitimate rule was built on the divine right of kings, as defended by Robert Filmer (1991), then the attitude of the population or the particularities of the political situation within society would be irrelevant. In this sense, descriptive elements are not logically necessary to build a complete theory of legitimacy. Nonetheless, once we acknowledge that legitimate political power is somehow constituted “by the people,” then the actual relationship between the people and the government (i.e., the descriptive facts about the political situation within the given society) should always matter for legitimacy.

On the other hand, the beliefs of the people, their attitudes towards the government, and the values held within the given society (studied within descriptive theories) are also not able to provide legitimacy by themselves (Erman and Möller, 2015). The fact that a government is popular, for example, does not imply legitimacy unless we postulate a normative theory (of, say, popular sovereignty) that explains such an assertion. A Weberian approach focusing on “the belief in legitimacy” also ignores the fact that beliefs within the population may be manipulated or coerced (Simmons, 1999: 750; Williams, 2005: 6), and avoids pressing normative questions like whose beliefs count toward legitimacy (and whose do not) or how exactly these beliefs gain the normative power to grant the mandate to rule (Beetham, 1991b; Pitkin, 1973: 280–82). In short, we cannot get rid of normativity when discussing political legitimacy, as every government needs to provide a (normative) legitimation story justifying its rule. ²

The need to combine normative and descriptive elements means that a full theory of legitimate political power requires an account of “congruence” between society and its system of government. Such an account should explain how the beliefs, attitudes, or values of citizens connect to the normative justification of political power. In the rest of this paper, I argue that tacit consent is a strong candidate to provide such a connection between factual and normative facets of political legitimacy. But before getting on with the argument, I sketch two alternative approaches, to motivate the account that follows.

In the past 15 years, the most popular approach to legitimacy combining descriptive and normative elements has been developed by “realist” political philosophers. Following Bernard Williams, the main line of argument within this tradition stipulates that “moralist” (that is, purely normative) accounts ignore the fundamentally “political” nature of legitimacy. Every justification of power produced by the government, if it is to be successful, must, quite independently from its theoretical qualities, also “make sense” to the governed (Williams, 2005: 10–11). In general, the realists argue that the legitimation of power consists in normative claims that successfully resonate within the given society, although the exact nature of this “resonance” or of “making sense” changes in different accounts. ³

Without going into too much detail, ⁴ one problem with the realist position lies in its excessive permissiveness with regard to legitimacy. While the fact that a justification of political power “makes sense” to the citizens might perhaps serve as a necessary condition for a successful legitimation of power, it is problematic to view it as a sufficient one. The fact that some values the citizens actually endorse are used to justify the political regime is no guarantee that this regime will be acceptable (or even tolerable) to these very citizens. As Eva Erman and Niklas Möller note in their analysis of the “low bar” set by realist legitimacy, most dictatorships in fact work extensively with values or norms that are present in the societies they dominate (otherwise they would be significantly less effective in exercising power) (Erman and Möller, 2018; Finlayson, 2017). While this strategy of governments often “muddies the waters” enough to persuade at least some people to collaborate with them, it surely does not suffice to grant legitimacy; even a political system built on values or ideals actually endorsed by the population might be universally despised and illegitimate.

Perhaps the best real-life example of this phenomenon are the socialist regimes in the Central Europe between 1945 and 1989. While the citizens in Eastern Bloc countries like Hungary or Czechoslovakia were often sympathetic to the ideas and values of socialism, this did not always translate into the support of the actually existing socialist regimes. Quite the contrary. These regimes required repeated outside armed interventions to keep themselves in power and can hardly be described as legitimate (Haraszti, 1978; Hejdánek, 1985).

However, trying to raise the bar for legitimacy from mere “making sense” toward some form of actual endorsement of the ruling regime also soon runs into problems. The explicit consent of the governed, if postulated as a strict condition of legitimacy, is difficult if not impossible to obtain. This approach often results in some form of philosophical anarchism, as shown by A. John Simmons, who, after searching for a workable conception of consent, concluded that “no existing states are legitimate” (Simmons, 1999: 769).

At this point, we can put forward the question that the conception of tacit consent introduced in this paper aims to answer. Since no theory of legitimacy can be purely descriptive or purely normative, all plausible accounts should combine both of these elements. However, conceptualizing “congruence” between norms and convictions is fraught with difficulty. As shown above, if the two elements are too loose (when political power aims to be justified by a normative account that merely “makes sense” to citizens), the resulting “low bar conclusion” means that many dictatorships pass the test of legitimacy. On the other hand, if we require an explicit free endorsement of the structure of government by all citizens, then no regime will be deemed legitimate. What is needed, then, is an account that will occupy the middle ground between these two positions, that will offer something stronger than “making sense” yet stop short of requiring full, explicit consent.

These considerations, apart from setting up a question of tacit consent, also help specify the combined normative/descriptive conception of legitimacy used in this paper. Legitimacy is a complex notion and a full (or perfect) legitimacy occurs when (1) a robust normative justification of existing political power is (2) accepted by the population in the right way, so that a mandate is created for the government to rule. The ambition of a theory of tacit consent presented here concerns mainly the second point. Tacit consent is to serve as a normative tool to grasp and evaluate the actual political situation in the society with regard to the (potential) legitimacy of its system of rule. ⁵

In order to fulfill this role, a theory of tacit consent should explain how, in spite of the consent being tacit (and not explicit), a normatively relevant “mandate” is created for the government to rule. In addition, to be successful this theory should be strict enough to show that repressive regimes do not receive tacit consent, yet be permissive enough to allow for legitimacy to remain an achievable goal for governments. ⁶

2. On tacit consent

As a strategy for asserting the legitimacy of political power, tacit consent has an impressive pedigree in the history of political thought. But, despite being endorsed by both Plato's Socrates (Plato, 1971: 51D) and John Locke (1988: §119), only a few attempts have been made to show its relevance to contemporary debates on legitimacy. ⁷ In fact, in the literature there seems to be an almost overwhelming consensus on the failure of Locke's attempts at establishing legitimacy through tacit consent (Beitz, 1980; Bennett, 1979; Pitkin, 1965; Simmons, 1976). As a result, political theorists often quickly dismiss the approach as obviously implausible. For example, David Beetham, whose book The Legitimation of Power provides perhaps the most influential contemporary account of legitimacy, only mentions tacit consent in one sentence, where, in passing, he comments on “the confusion that some political philosophers have created with the notion of tacit consent” (Beetham, 1991a: 12).

The main reason for this dismissal lies in the fact that Locke's (and Socrates’) account are tied to residence: staying in the country amounts to tacitly consenting to the ruling regime. In the notorious (and notoriously problematic) §119 of the Second Treatise, Locke argues that “every man, that hath any possessions, or enjoyment of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government.” In other words, everyone gives consent to being governed simply by being in an area under the control of the government.

Such view is very hard to defend. The biggest complaint was articulated already by David Hume: “Can we seriously say, that a poor peasant or artizan 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” (Hume, 1994: 193). Hume's example brings into focus our strong intuition that consenting, in order to be normatively relevant, needs to be done “freely.” In the absence of realistic alternatives, our continuous residence cannot assume legitimacy-producing significance, because it does not imply consent. Simply put, while the consent may be tacit, the choice behind it (and the acceptance it implies) must be real.

The second problem concerns the ambition behind the argument. The main reason for developing a conception of tacit consent is to provide us with a useful tool to distinguish between legitimate and illegitimate governments. However, Hanna Pitkin observes that if we take Locke's argument at face value, then “there no longer seems to be much power in the concept of consent, nor any difference between legitimate government and mere coercion. Being within the territory of the worst tyranny in the world seems to constitute tacit consent to it (…).” (Pitkin, 1965: 995) We can thus see that both Locke and Socrates, perhaps eager to prove that everyone (or at least the vast majority) has in fact consented to being governed, come up with criteria that are too broad. Tacit consent becomes an almost automatic feature of living in any society, which does not help us with legitimacy.

As mentioned above, several accounts published recently try to push back against these arguments and reestablish some value in tacit consent based on residence. However, while they might be persuasive in themselves, they often loosen the connection between tacit consent and legitimacy of actually existing governments, avoiding the main challenge of this paper: to offer a realistic, general grounding for legitimacy that stops short of requiring full, explicit consent.

For example, Michael Otsuka argues that tacit consent based on residence can serve to realize “the Lockean ideal of political societies as voluntary associations.” This would happen if the freedom to change residence could be provided by “decentralized, pluralistic and open confederation of political societies” (Otsuka, 2005: 107–8). In this way, however, Otsuka mostly cedes the main point of Hume's argument: that the present states do not and structurally cannot provide enough freedom to change residence in order for it to assume legitimacy-producing significance. Thus, if legitimacy was defined via Otsuka's tacit consent, it would become only a distant ideal for political societies, much like in the anarchist account of A. John Simmons.

Stephen Puryear's (2021) contribution provides perhaps the strongest recent rebuttal to Hume, showing that residence in contemporary states is largely voluntary (in that people stay because they want, not because they cannot leave). But while this does indeed cast some doubt on the accuracy of Hume's sailor analogy, it in no way ameliorates the excessive permissiveness of tacit consent described above. For example, an overwhelming majority of black residents of apartheid South Africa or the citizens of Stalin's Soviet Union might have stayed voluntarily—not because they could not leave, but because they, for example, liked the relationships they developed or the community they lived in. But this should in no way reflect positively on the legitimacy of either Stalin's or South African government. Staying in the country, even fully voluntarily, presents a very low bar for legitimate governance. If we do not want to grant legitimacy to racist or totalitarian regimes, we need a different starting point. ⁸

The contemporary lack of enthusiasm for tacit consent as providing a ground for legitimacy therefore seems understandable. The problems described above, however, do not stem from the core idea of tacit consent—only from the decision by Locke and Plato to base it on (possible) emigration. If an alternative basis can be found, no such shortcomings might appear.

3. Delegitimation by dissent

The main proposition of this paper is to disregard the traditional association of tacit consent with residence and contrast it with active dissent. This has several distinct advantages. First, tacit consent and active dissent are much more natural opposing notions than consent and emigration. Second, and more importantly, active dissent, especially in the form of large protests and demonstrations, is a major factor when considering the (il)legitimacy of political power.

When David Beetham claims that “popular mobilizations of protest, whether against the rules of political office or the special distribution of power, carry a potent delegitimating force,” (Beetham, 1991a: 135) this can be interpreted descriptively within the Weberian tradition. But it does not need to be. The fact that large protests against the government or the system of rule carry “a potent delegitimating force” can be philosophically underpinned by the understanding of political power mentioned above: If “political power is ultimately the power of the public” (Rawls, 1996: 136), then open, massive protests by the public necessarily undermine the mandate of those who wield power. And if the authorities continue using their power, despite dissent, then it becomes difficult to speak of their legitimacy. ⁹

This is why delegitimation by open dissent is the most common way in which political authorities lose legitimacy in the real world. In 2021, for example, the governments of Hong Kong, Myanmar, and Belarus all faced massive protest movements, suppressed them, and, in the process, lost all the remaining legitimacy they possessed. And while in all of these cases the citizens had valid reasons to be upset—like the tightening of political freedoms in Hong Kong—it was the fact of open dissent by a substantial part of population that conclusively refuted the claims of these governments to legitimate power.

The idea of delegitimation by dissent is also supported by a number of recent articles, showing that it can come in many forms, be it incivility (Edyvane, 2020), rioting (Havercroft, 2021), insurgency and crime (Floyd, 2016, 2017), and various forms of civil disobedience (Jubb, 2019). While there are major differences in these approaches, they all show the fact that open dissent can have delegitimating effect irrespective of the justification of political power produced by the regime. As stipulated in the last section, a normative legitimation story, no matter how powerful, cannot produce full legitimacy without popular acceptance. And active dissent by the population, in its many different forms, demonstrates that such acceptance simply is not there.

To further clarify the complex relationship between descriptive and normative legitimacy, consider a not entirely fictional situation. Imagine that, following the 2020 elections, the supporters of Donald Trump actively refused to recognize the Biden presidency. A massive protest movement would form, with demonstrations and acts of civil disobedience happening across the country for months—very much like in Hong Kong or Belarus. It would soon be clear that tens of millions of Americans actively participate in these events, protesting what they perceive as the usurpation of political power.

It is in situations like this one where the entangled nature of political legitimacy is revealed. On one hand, President Biden was elected fairly, and the United States would even under the imagined conditions presumably remain a functional, rights-respecting democracy. In this respect, Biden fulfills all the procedural and normative conditions to be considered a legitimate president. And if his opponents claim that he does not, then they are simply wrong. We can even point out that their professed allegiance to American democracy requires them to accept Biden, on pain of inconsistency.

This, however, is the point where the so-called Thomas theorem, famous among sociologists (“If men define situations as real, they are real in their consequences”) becomes significant (Thomas, 2017: 572). The fact that a substantial portion of the people contest the elected president's mandate to rule means that the second part of the definition of full legitimacy (stipulating some kind of popular acceptance) remains unfulfilled. In a divided society, when a large part of citizenry is, despite active defiance, forced to yield to the ruling party, the legitimacy of political rule is contested as a matter of fact. This phrase is not merely descriptive (in that the power arrangements are actually contested by citizens) but also normative: if legitimate political power is the power of the people, and if the people are bitterly divided, then no regime can be fully legitimate. And while such a political situation is mostly associated with third-world, post-colonial countries with artificially created boundaries, ¹⁰ it is also applicable to the semi-fictional Biden example. When facing active dissent by a substantial part of population, no amount of procedural or normative credence is sufficient to establish full legitimacy. Active dissent thus has a potential to delegitimize even the most stable of governments.

4. Legitimation in the absence of dissent

At this point, having established the relationship between dissent and the delegitimation of political power, I hold that even the inverted, stronger claim is true: the absence of active dissent (that is, tacit consent) can, under certain circumstances, serve to provide legitimacy to political power. This assertion, however, is not automatic. We know that tyrannical governments can be very effective at stifling protest and preventing citizens from publicly expressing their discontent. Once it is dangerous, illegal, socioeconomically burdensome or otherwise problematic to voice dissent, no amount of social peace can help legitimize the ruling regime. Tacit consent can be relevant to legitimacy only if real opportunities to protest are freely allowed, so that citizens can express their grievances without fear. The costs of protesting the government need to be very low.

The main thesis can thus be expressed as follows:

If inhabitants of a state have free access to information and ample options to display active dissent towards their government without fear, yet choose not to do so, then they tacitly consent to the government, contributing to its legitimacy.

The “absence of active dissent” approach to tacit consent is thus centered on two key conditions. First, the possibility to protest against the government must be real and unobstructed, be it by a lack of information concerning the activities of the government, unnecessary restrictions on freedom of association or by difficult social and economic conditions. Second, tacit consent requires that, in spite of this choice, people go along with the political arrangements, peacefully accepting them.

This account avoids both fundamental problems of Locke's (and Socrates’) approach to tacit consent. First, it sidesteps Hume's “lack of choice” objection. If a state grants full freedom of expression, as stipulated above, then citizens are not as powerless as Hume's sailors; their opportunities to act are protected in the public sphere. Second, it counters Hanna Pitkin's objection, as tacit consent is not granted automatically and, through the two conditions, we are able to discern tyrannical from legitimate governments.

Because uncoerced social peace is a universally desirable feature in any political situation, tacit consent, as described above, represents a real achievement for any government. This insight can be further underlined by the fact that politics always has a potential to stir emotions and breed discontent. Bernard Williams stresses this point when he analyzes “a quite basic human phenomenon”—the fact that “the restriction of our activities by the intentional activities of others, as contrasted with the ubiquitous limitations we face in nature, can give rise to a quite specific reaction, resentment … as soon as the authoritative source is indeed empowered and deploys coercion to enforce its rulings.” (Williams, 2005: 82–83) In other words, the state, with its power to regulate and constrain our lives, easily provokes negative emotions and anger. Therefore, political, coercive relations are always (at least potentially) volatile and combustive. If the state is able to overcome this volatility while granting full freedom of expression, it shows a non-trivial level of acceptance of the state by the population. ¹¹

Tacit consent as introduced here bears some similarity with “normative behaviourism”, developed recently by Jonathan Floyd (2016, 2017, 2020), who studies “observable patterns of behaviour” (Floyd, 2020: 1) under different types of regimes. He then argues that “if a set of political principles, in practice, elicits less express discontent, in the form of insurrection and crime, over long periods of time, and for large numbers of people, then they are the best principles (…) (Floyd, 2016: 161). This is an interesting approach and the focus on behavior instead of theoretical strength of the arguments is a sound one. The difference between Floyd's approach and one developed here, however, is the ultimate target of analysis. Floyd is interested in a historical-behavioral justification of political principles and types of regimes, specifically “social-liberal democracies” (Floyd, 2017: chap. 3). An individual, stable liberal democracy presents just one datapoint for him. In contrast, my ambition here is much narrower, less ambitious and more practical: to develop a tool for analyzing legitimacy of particular, existing governments, without broad implications for political philosophy as a discipline.

In this sense, the account of tacit consent introduced here should provide a workable test of legitimacy and generate conclusions that are relevant in the real world. All actual regimes that pass the two conditions (grant freedom of expression while not provoking popular resentment) have a strong claim to legitimacy. On the other hand, the legitimacy of all regimes that fail either of the conditions (prevent their citizens from voicing discontent or face widespread popular protest) can be plausibly described as deficient. Elaborated through tacit consent, political legitimacy is both attainable by governments across the world yet impossible to achieve for tyrannies and dictatorships of various kinds. A theory of tacit consent presented in this paper thus possesses analytical and explanatory power that can be used in evaluating actual political situations and provide some sort of verdict even in complicated real-world cases. That is a distinct (perhaps even unique) advantage among philosophical theories of legitimacy.

5. The normative structure of tacit consent

One of the key stumbling blocks for any theory of tacit consent is the explanation of the way in which tacitly consenting to something has the required normative weight to create a permission to act (or whatever else is required). More specifically, in case of political legitimacy, the question is how a mandate to rule can be created even though there is no express authorization. The plan of this section is, first, to establish tacit consent as a widespread feature of informal, non-institutionalized human interactions and to describe how it works in everyday social settings. The analysis of the specifically political features of tacit consent with regard to legitimacy will then follow.

I will work with an example derived from a context that most readers of this paper will be familiar with: the decision-making process in an academic department. Imagine that the head of the department comes up with a major new initiative; she proposes, for instance, a new joint MA program with the department of religious studies. This will, of course, have long-term consequences for the department as a whole. She circulates a draft proposal and introduces the idea at the departmental meeting. There, some additional questions are asked. Several concerns are expressed, but they are answered to the apparent satisfaction of the people who raised them. Generally, no one protests or expresses disapproval. The head of the department interprets this as a sign of consent (Simmons, 1976: 286) and proceeds with the initiative, scheduling further talks with the university administrators and the partner department.

One key element here is the absence of formal structures. While most universities have one or several governance bodies with rules, elections, voting, abstaining, etc., at the departmental level the decision-making process tends not to be formalized in this way. Members of the department do not vote on proposals and their rights and obligations are not formally defined. Nevertheless, the head of the department is not unconstrained in her actions; there is an expectation that other members of the department will have some say with regard to key decisions with long-term consequences. Thus, the formal power of the head of the department is limited by an informal, non-institutionalized voice of the faculty.

It is in these circumstances that tacit consent shows its normative significance. Once the staff were informed and no one protested, the proposed initiative gained something that it did not have before. Perhaps the best way to describe it is to say that the head of the department now has some sort of “mandate” to follow through on her plan—even though there was no voting or other formalized procedure to produce it (academic departments, as we have established, do not usually work this way).

This conclusion is strengthened if we consider the alternative scenarios. If she pressed forward without informing the department, her actions would be (rightly) seen as a usurpation of power. If there was vocal opposition to her plan within the department, the situation would get complicated, requiring delicate negotiations. The plan might still go through, but something else to justify it and create the mandate to proceed (perhaps an ad hoc, informal vote within the department) would be necessary. But in the absence of active resistance, tacit consent is all that is required. The lack of dissent from the faculty is enough to warrant the pursuit of the given objective (unless, of course, information is purposely withheld or people are afraid to speak up).

Situations similar to the one described above are commonplace in non-formalized social contexts everywhere. In cases where there is no active dissent, plans, actions, or even leadership are often assumed and adopted without any formal decision-making procedures taking place. This is true for a wide variety of human activities, like children playing (when one kid assumes leadership and, if not contested, simply starts setting the rules), board meetings (where some proposals are simply presented and adopted without voting), or group projects of various types (Simmons, 1976: 278–79).

Silence, therefore, can be normatively significant. If we have sufficient options to speak up, and we choose not to, then we go along with the situation. And the simple fact that the relevant people are “going along with” the plan (the leadership, the proposal) is, in informal contexts, sufficient to create a mandate for the activity to continue.

Of course, once dissent appears the situation gets complicated and calls for solutions. These differ widely depending on the particular circumstances. The absence of (tacit) consent may result in the adoption of formalized decision-making procedures (in the case of a troubled department), or even in a complete breakdown of the activity (in the case of children playing). But none of this disputes the significance of tacit consent in situations where it is achieved.

Going back to legitimacy, tacit consent in a political context relies on the same basic principle, although there are fundamental differences. If the population “goes along with” the existing political arrangements, despite being free to protest (which, as was discussed above, is an important and demanding achievement), then its silence creates a mandate for the government to rule. However, there is an important shift between the social and the political cases, which directly affects the nature of this mandate. The examples discussed so far show the power of even a single protesting individual in a small-scale setting. This is not possible on a national level. If a single dissenter was able to challenge the legitimacy of a government, then no legitimate government could exist Therefore, tacit consent on a social scale requires a judgment on a higher level of generality. The question, as analyzed above, is whether “the people” tacitly consent to the government, as political power is ultimately the power of the people. ¹²

Consequently, if dissent is limited to isolated individuals or small groups, then we can claim with confidence that the people as a whole still tacitly consent to the existing political arrangements. However, if a substantial part of society joins the protests, the judgment concerning the government's legitimacy through tacit consent becomes less and less credible. At some point, the position of the government might become untenable, with a significant part of the population experiencing its coercive power as naked, oppressive force. At that point, the government in question will have lost any claim to popular acceptance and, with it, a claim to legitimacy.

In real life however, this picture can quickly become very complicated and hard to discern. After all, aren’t people in liberal democracies protesting constantly? What type of protest, and of what intensity, renders a given regime illegitimate? And what protests are merely a sign of active civil society, of political health rather than disease?

A (partial) answer to this worry requires making a distinction between protesting against some policy, law or a specific corrupt official and protesting against the government, the regime or the system of rule in general. The former types of protest are present in all liberal democracies and should not be counted as active dissent of the relevant kind. Vigorous protesting against, for example, an aggressive redevelopment of a historic city park is fully consistent with tacit consent for the existing government. In order to be relevant for legitimacy, such protests should be motivated by a much deeper discontent.

However, this distinction will in some cases remain inconclusive. The 2020 George Floyd protests could be interpreted as focused on a specific policy issue: the accountability of law enforcement officers for their actions against (predominantly) African Americans. But, at the same time, a much broader interpretation is possible. The protests can be understood as targeting the very nature of political power in the United States. On this interpretation, the very right of the present police authorities to use force is put into question. This would have consequences for the legitimacy of law enforcement, as it faces active protests by a substantial part of the population. The line between protesting against the regime and protesting against a particular law or policy can therefore remain thin and obscure.

Consequently, the application of tacit consent might in some cases remain indeterminate, requiring additional political analysis and judgement depending on the particular circumstances and political culture. A violent riot with police cars being set on fire might signal a profound shift in the attitude of the population towards the government—or it might be a relatively unexceptional Friday night in the French suburbs. Moreover, the means of dissent are varied, can overlap, and be applied very creatively (Edyvane, 2020; Havercroft, 2021; Jubb, 2019). As a result, we cannot define a specific pattern of protest and dissent that delegitimates government in all circumstances. It would be impossible to classify dissent into clear theoretical categories. Therefore, while most cases of tacit consent will be sufficiently clear-cut, with populations either accepting or rejecting the government, sometimes the situation will remain murky, perhaps with the legitimacy of the given government being somewhat eroded.

Still, the picture of eroding legitimacy through eroding social consent makes very good sense when judging the complex, real-life situations of societies. Once descriptive features are used in a conception of legitimacy, it becomes difficult to frame it as an all-or-nothing notion, as social facts are never all-or-nothing and sometimes resist classification into clear categories. Legitimacy is therefore better understood as a scalar concept. Between clearly legitimate and clearly illegitimate regimes, there is a space for cases where legitimacy can become unclear, contested, or imperfect without completely disappearing (as shown in the semi-fictitious Biden example). Still, if society remains overwhelmingly peaceful under the conditions specified above, then the existence of tacit consent should not be overly controversial.

6. Tacit consent and political obligation

The idea of tacit consent providing a mandate from the people, ensuring legitimacy of the government, might also be considered problematic—or at least idiosyncratic—because it entirely bypasses the question of political obligation. Viewing tacit consent as a political action “of the people” (a necessarily collective exercise) means that it loses the direct connection to individual actions and individual will. It therefore cannot be understood as fully analogous to express consent, promise or contract. This represents a break between the argument introduced in this paper and the earlier tradition, whose main goal was to establish a firm analogy between promising and tacit consent (Beran, 1977; Simmons, 1976). As elaborated and defended here, tacit consent does not create political obligation (a moral duty of individuals to support the government), which was often viewed as equivalent to, or a basis of, legitimacy.

The relative normative weakness of tacit consent (lying in its inability to create political obligations) is, however, not a problem of this account—it is its feature and there are several good reasons for it, well-established in the literature. First, as mentioned above, political legitimacy is best understood as a “system-level property” and does not need to be reducible to personal obligations. When the government is fully legitimate, it possesses a mandate to rule and it is not necessary to interpret this mandate into a series of individual moral predicaments.

Moreover, interpreting legitimacy in terms of political obligation is a textbook example of “moralism,” analyzed repeatedly and in detail by the realist tradition (Hall, 2020: chap. 6). Something is lost when we reduce a quintessentially political concept such as legitimacy into a series of individual moral obligations. The fact that tacit consent, as analyzed above, stays at the political level can be therefore considered an advantage.

Lastly, the major problem with pairing legitimacy and political obligation is that such approach “seems to lead to a form of philosophical anarchism” (Copp. 1999: 11). By presupposing that legitimate governance must create strong, moral, binding, individualized obligation for every citizen to respect its laws, the bar for legitimacy is set too high. Adopting this strategy results in an already quoted admission by A. John Simmons that “no existing states are legitimate” (Simmons, 1999: 769). Thus, if we want legitimacy to be a workable concept that can inform actual political practice, dwelling on political obligation as its basis is not the way to go. ¹³ In this sense, tacit consent remains the best we can hope for—a way for us to conceptualize how descriptive facts about society can realistically create a normative mandate for legitimate rule.

Yet, even if tacit consent as introduced here can do without political obligation to help establish legitimate rule, there are still powerful counterexamples that could undermine its importance. An objectively despotic government may be nonetheless tacitly consented to by the population (perhaps because of an embedded culture of obedience, perhaps because the people would be simply too apathetic to protest). In that case, tacit consent and legitimacy will not overlap, showing that one does not follow from the other and that the mandate provided by tacit consent is insufficient to guarantee legitimacy.

This is true. While tacit consent ensures that society accepts the government in the right way (which, to reiterate, is a significant normative achievement), tacit consent and legitimacy are not meant to overlap. Every government still needs to produce a normative legitimation story which can be judged on its own merit. To explain this point, imagine a “flipped” Biden example: a government that is tacitly consented to by the population, yet it came to power by secretly rigging the elections in its favor. Here, achieving social peace is not enough to establish full legitimacy, as the legitimation story produced by the government clearly rests on a fraud. As a (quasi) democratic government, it professes to rule with a democratic mandate, in the name of the people. Yet, in reality, it does not. In this sense, it is clearly illegitimate, on normative grounds.

However, I want to reiterate that examples like the last one are mostly theoretical. Given the inherent potential of politics to create popular resentment and anger (especially when full freedom of information is secured), I could find no regime, past or present, capable of maintaining tacit consent while cheating the elections, oppressing the population or not giving it due respect. Therefore, even though achieving tacit consent is not sufficient to establish full legitimacy in theory, the presence of tacit consent always indicates legitimacy in practice.

7. On the necessity of legitimacy being informal

I argued above that in informal settings, where formal procedures do not exist, tacit consent creates an important pathway for authoritative decisions to be made and legitimate political power to be created and maintained. A natural question to ask, then, is whether the informality stipulated there is necessary when analyzing political legitimacy. A democratic procedure, for example, can create a government that does not merely have the tacit support of the people—it was voted in by the people directly and willfully, with a strong democratic mandate to rule. If some support of the people is required for political power to be legitimate, then democratic regimes seem to provide it, which is why democratic theories of legitimacy hold a lot of appeal (Buchanan, 2002; Christiano, 2004; Estlund, 2009). Even within the framework defended in this paper, it might be claimed that democratic regimes can provide both robust normative justification of existing political power and its popular acceptance, ensuring full legitimacy. That would make a theory of tacit consent superfluous, at best.

The inference from “democratically elected government” to “legitimate government” is, however, not as straightforward as it might seem, because legitimacy necessarily lies beyond procedures, laws, and institutions. This insight is almost analytic in nature. Institutions give us laws and regulations, yet it is their very right to do this that is under scrutiny when the question of legitimacy is invoked. Thus, while a legitimate parliament can certainly produce a valid law, no parliament can legitimate itself with a law. There can be no legal procedure to achieve legitimacy, given that the very notion of legal procedure already presupposes legitimacy: the institution must be in the position to produce binding decrees in the first place. Generally speaking, no institutional procedure or formal process can produce legitimacy in and of itself.

Democratic theories of legitimacy share this problem with accounts working with express consent. The problem lies in the fact that express consent requires something that can be consented to, some preformulated alternatives. The circumstances of and for such an act need to be set up. Formalized consent can be achieved only with an institutional background that fixes the conditions and interprets the results.

Therefore, for a democratic system to function, general rules need to be formulated. The key “who gets to vote” question needs to be answered (convicted felons? people over the age of 16/18/21?). The electoral system (majority/proportional) needs to be chosen. Boundaries of voting districts need to be drawn. The process of voter registration must be established. All of these processes and options heavily influence the possible outcomes of the ensuing vote, and, for any democratic system to work, they have to be sorted out. Some consequential decisions need to be taken.

Moreover, the decisions shaping the vote can never be neutral. In fact, they are often fiercely disputed. So much so that a poorly conceived or ill-fitting electoral process can make the results of an election irrelevant even when the voting itself is conducted under the best possible circumstances. Consequently, and this is important, the institutions shaping the electoral process must already command some legitimacy in order for such process to yield legitimate results.

For example, contemporary, democratically elected political bodies in the United States are, on balance, still legitimate. However, we can easily imagine a situation where massive popular unrest breaks out after yet another president is elected despite heavily losing the popular vote. Then, the system would start losing legitimacy despite “free and fair” elections taking place. At that point, the situation would need to be redressed by amending the election rules because the present ones would prove to be incapable of creating a legitimate government. This is not because the Electoral College is a priori illegitimate. But it can become illegitimate when facing popular discontent.

Therefore, even democratic systems must have legitimacy that goes over and above the simple casting of ballots. A regime cannot bootstrap itself into legitimacy simply by establishing a government that has been (in one way or another) voted in by the citizens. The legitimacy of the system must precede the elections—or indeed any other formal process of creating a government. The value of voting is established by something that should be in place both before the voting starts and after the voting is done. In short, any express consent or approval from citizens toward their government is possible only within legitimate institutional structure. And since this structure must already possess legitimacy, express consent, approval, or voting cannot be its source.

Proponents of democratic legitimacy, of course, disagree. David Estlund, for example, argues explicitly that if a democratic authority is established, citizens are “morally required to consent” to it, while their “non-consent would be null.” (Estlund, 2009: 12). In other words, even an active dissent of a substantial part of the population does not undermine the legitimacy of a democratic regime because such “non-consent” is “disqualified.” (Estlund, 2009: 9). It is the procedure itself that does the normative work and there is nothing beyond it.

A theory of tacit consent, as described in this paper, goes directly against such approach. Democratic procedures, even the best ones, are vulnerable, can be hijacked, get out of tune with society, or, in adverse conditions, simply cease to fulfill their function. That is why there can be no moral requirement to conform to a result of an electoral procedure, and the eventual dissent of the people is never “null.” Legitimacy is a delicate, continuous achievement of political powers in maintaining their relationship with the people they govern. It therefore cannot be simply decided, voted on, or enacted. And while a functioning, popular, democratic system greatly enhances legitimacy of the governments it produces, it does so only as long as the people identify with it. As such, legitimacy always lies beyond formal structures and transcends the rules and the institutions.

To make the point from a different perspective: at any moment in time, any government is continuously liable to lose its mandate to rule. All that is required is that the people rise against it. In acting against a manifest will of the people, no government can claim the right to wield political power, regardless of whether it was elected in nominally fair elections. Even a functioning, democratic political system therefore requires the people to tacitly consent to the existing power arrangements in order maintain legitimacy.