(If you have studied basic political philosophy, feel free to jump to paragraph four!)

Why should I obey the law? Social contract theory suggests that the answer lies in the fact that I have – at some point – given my consent to being governed. Having consented, I thus have a duty to submit to all the decisions made by the government even if I disagree with some individual law. It has been pretty popular. The details vary but if you asked Hobbes or Locke or Rousseau or Kant or Rawls why you should obey the law, you’d probably get a version of this argument.

There is obviously a problem with this. Namely that I didn’t consent. David Hume noticed this one in 1742. At no point was I asked if I wanted to be governed. Nor if this is a form of government to which I am content to submit. I was born. I grew up. At some point I learned that it’s a good idea to obey the law and that I’ll be punished if I don’t. This was – certainly in my case – tied up with learning about notions of fairness and justice but let’s not get too philosophical.

So what’s the solution? In short, we haven’t found one yet. Some suggest that certain acts should be taken as consent – perhaps voting fulfills this criterion. Others that we tacitly give our consent – either by not rebelling, or by choosing to remain within the state in question. None of these are entirely satisfactory.

800px-Gibraltar_BorderSo what has social contract theory got to do with Gibraltar or the Falklands?

In short, they provide a fascinating example of a community actually giving consent. When 99.8% of people living on the Falkland Islands voted to remain a party of the United Kingdom, they clearly gave consent to being governed from London. Similar arguments can be made about Gibraltar.

The geography which at first sight renders the notion implausible, is itself rendered irrelevant in the face of such overwhelming public opinion. An accident of history has resulted in one of the few utterly defensible social contracts. On the face of it, we should be looking to roll out a similar system – not doubt with more regular referenda – across the world. Every community should be free to determine who governs it. It should no more be determined by history than by force. Social contract theory lives!

Unfortunately we have not saved the theory yet. We have merely shifted the problem. Where the question was ‘how do we get consent?’ it is now ‘what is an acceptable boundary within which to ask a community if it consents?’.

In the case of the Falklands it is quite easy. A small island community has clear and sensible boundaries. But what of the UK – a large island community? We are, in effect, allowing the Scots an opportunity to consent to a social contract – albeit with a limited choice of just two options. But why shouldn’t joining the USA be on the ballot paper next year? If that’s what the Scots want and Washington is happy to extend its reach, who are we to object? Perhaps they’d vote to join Norway on the basis of a shared oil economy? Or the French due to a mutual, dubious but inextricable relationship with the English? Then what if Newcastle wanted to join Scotland? Would a single city be allowed to change sovereignty? How does one draw the boundary? Based on a parliamentary constituency? A council district?

Even if we could agree on a suitable answer to this question, it is not an entirely pure solution for two reasons. First, it rests on a community not an individual. Although, despite this, it could certainly be argued that partial, community based consent would be an improvement on the current situation. Second, it would require some sort of constitution setting out how frequently each community would be asked to consent and so on. This could lead to some asking by what social contract this constitution derives its legitimacy.

It is an interesting idea nonetheless. It certainly seems to make more sense to decide who governs a community based on the wishes of that community rather than the outcome of a battle fought centuries ago. As Gibraltar and the Falklands have known for some time, geography and history need not govern who governs us.

 

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