Notes on the Consent Principle

To live freely and in peace, individuals who gather together by mutual consent should adopt the following principle, which all agree to respect.

  1. Does the Consent Principle (CP) replace the NAP (non-aggression principle)?

    1. The libertarian “Non-aggression Principle” (NAP) prohibits aggression against the persons or property of others.

    2. The CP extends the NAP to include cases where a person consents to acts of aggression, such as in contact sports like boxing or satisfying unusual preferences. It also explicitly covers the case of retaliating against prior aggressions, and the protection of property rights.

  2. Does the Consent Principle (CP) replace the Consent Axiom (CA)?

    1. The Consent Axiom has been a mainstay of the South African libertarian environment for nearly a decade. It states “No action without consent”.

    2. The CP extends the CA to explicitly protect only innocent persons and allow retaliation against “consent violations” by guilty persons. It also specifically includes the protection of property rights.

  3. Definition of “action”

    1. For an action against another to require the consent of the other, then that action must be immediate in time and space, must have significant consequences for the other, and must have physical reality.

      1. The request for consent and the subsequent action must be within a reasonable time and distance of each other.

      2. Consent given now does not imply ongoing consent into the future.

      3. Consent given in one place does not imply consent in all places.

      4. Consent for an action is not required from people far removed from the consequences of that action, in space or time.

    2. Daily life involves many actions which have insignificant consequences for those around us, and do not require their consent. These actions are largely covered by the ordinary rules of civility and manners.
      However, both the action and the predictable consequences of that action must be considered. While a gentle shove at the top of a cliff may not be considered murder, the consequences at the bottom certainly are.
      You must take responsibility for the immediate but unintended consequences of any action you take, even when lawful in terms of the consent principle.

    3. Actions requiring consent must have a physical reality. Looking at someone, talking about or to someone, thinking evil thoughts about them, these actions do not require consent. Screaming in their ear would require their consent.

  4. Definition of “Consent”

    1. Denial of consent is normally straightforward and uncontested. No means no.

    2. However, giving consent is much more complicated.

      1. When consent is given, an explicit (preferably) or implicit contract is in force. Disputes arising from a consent contract will be arbitrated by the parties to the contract within the community of their peers. Thus, local community standards will apply to an issue such as the age of consent, or abortion.

      2. The terms of the consent need to be spelled out, limits made clear, exceptions described.

      3. The person giving consent must be competent to do so

        1. Above agreed age of consent

        2. Conscious

        3. Sufficient intelligence to understand consequences

  5. Exceptions and Issues

    1. The consent principle only addresses relationships between human beings. Everything else, including animals and the environment are considered as property, either of individuals, or unowned.

    2. Some actions are considered so overwhelmingly good for society that their performance overrides any individual objections (for example, vaccination, environmental preservation (eg global warming), terrorist apprehension). This argument is inevitably the top of a slippery slope, on which all manner of further consent violations are justified. This argument should be rejected.

    3. In a democracy, the decisions taken by a majority are considered binding on the minority, with or without their consent. In a consenting society this silly concept simply would not apply.

    4. In some cases, such as an accident, a request for consent from the victim has no meaning. In such cases, the person responsible for the accident, even if unintentional, must take responsibility for the consequences of the action precipitating the accident.

  1. Some human beings, such as very young children or the insane or unconscious, are incapable of informed consent. In that case they are considered as the wards and property of a consenting individual, or unowned. If ownership is challenged (by anyone), the decision on ownership must be taken by a duly appointed jury.
    If an individual is considered unowned, by themselves or by anyone else, then they must rely on the charity and intervention of their peers.

  2. What if you do not consent to be bound by the consent principle and its implications? As described below under disputes, both victim and violator have rights to a trial by jury under the consent principle. If a non-consenting consent violator gives up that right, then the violator’s guilt must be automatically presumed, and punishment must follow.

  3. Are you responsible for the unintended consequences of your actions? Well, if not you, then who? God? Fate? Both are difficult to sue. You must take responsibility for the immediate but unintended consequences of any action you take, even when lawful in terms of the consent principle. . However, these consequences must be immediate both in time and place.

  1. Disputes and Juries

As with all human endeavours, disputes will arise. The resolution of these disputes is a task for a jury of your peers when other avenues such as compensation and apology have failed.

  1. The size and composition of the jury must be consented to by both parties to the dispute.

  2. If agreement on a jury cannot be reached in a reasonable time (7 days, for example), both sides select six jurors, and a foreman with a casting vote is chosen by random lottery of the jury members.

  3. Jury decisions are made by a simple majority vote.

  4. Any jury decision may be appealed to another jury until one side or the other has 3 identical decisions in its favour. Thereafter the jury decision becomes binding upon both parties to the dispute, and is added to the set of legal precedents for that society which defines the common law.

  5. The members of the jury alone determine the rules for the hearing. They may be guided by well-established rules of legal procedure and evidence, but they are not bound by it. They may appoint a judge or judges to guide them, they may invite or allow lawyers to represent the parties, they may call witnesses, conduct investigations, seek the opinion of experts, or do whatever is required to reach a decision.

  6. They will be funded equally by the parties to the dispute during the hearing, but may finally decide on any allocation of costs they see fit.

  7. Because it is a matter of chance as to which side obtains the casting vote on the jury, it will be important for both sides to select jurors committed to acting on the merits of the case, rather than jurors blindly supporting the side which appointed them.
    I believe that a class of professional, impartial jurors will arise whose primary asset will be their reputation for fair decisions. This class of jurors will provide the pool from which most parties to a dispute will make their jury selection.

  1. Consent violations

If someone does take action without consent, then that action is unlawful and should be punished. Who will punish such a violation?

  1. In the first instance, the victim of the violation, if capable, is the most obvious candidate for exacting judgement and punishment. The punishment may vary from an apology, or compensation, through to capture and removal from the consenting society.

  2. Failing this, in the second instance, members of the victim’s social network, such as family, friends and colleagues will assist in exacting judgement and punishment against a consent violator.

  3. If this second group is not capable, then in the final instance, the unrelated members of the consenting society must take responsibility for the consent violation, as a cost and obligation that they bear by virtue of their membership of that society.

  4. It is likely that formal structures, such as police forces and judiciaries, would be setup by most societies to fulfil this obligation, funded by consenting members of that society.

  5. It is likely that any response by a victim or society against a consent violator may not enjoy the violator’s consent. In this case, the original violator may declare a dispute and the matter would be decided by a jury, as described above. In other words, responses to consent violations are themselves subject to the consent principle, and must not violate a jury’s sense of reasonableness.

  1. Punishment

What punishments may a jury impose on a convicted consent violator?

    1. A jury may impose any punishment it pleases (subject to later appeal), except one.

    2. A jury may not decide to take the life of any individual under any circumstances.

    3. Generally, a jury would be guided by existing precedents for crimes and punishments.

A possible scale of punishments is as follows:

  1. Apology - the violator apologises to the victim

  2. Compensation - the violator compensates the victim

  3. Humiliation - the violator is humiliated before the victim and society

  4. Incarceration - the violator’s freedom of movement is restricted for a period

  5. Removal - the violator is removed from the society, by exile or internal imprisonment

  1. Morality

  1. Morality arises from choice, not coercion. I believe there are discoverable "absolute" moral values. Such an absolute value would optimise the success (survival, comfort, wealth, happiness) of its adherents in the majority of environments, whether they be humans, microbes or aliens from Alpha Centauri. I believe the consent principle represents such an absolute moral value or proposition.

  1. It has been shown mathematically, using game theory, that the optimum strategy for survival in a competitive environment is the so-called "tit for tat" strategy. Both the "trust everyone" and "trust no one" strategies are inferior.

  1. Conclusion

The implications of this principle incorporate most libertarian beliefs in a non-contradictory manner, viz

  1. Prohibition on the initiation of violence (unless consented to eg in contact sports)

  2. Property rights

  3. Contracts

  4. Appropriate response to violations

  5. Primacy of the individual

  6. Dispute resolution

  7. Limits on governments and groups

  8. Freedom of speech and belief