Contractarian non-voting

Does agreeing to play the game make you complicit in the game's outcome?

I'd argued a contractarian case for conscientious non-voting.

I've a reasonable contractarian foundation. If I agree to a process, then I'm bound to accept the outcome of that process. And voting outside of a context where baseline rights are protected against majoritarianism means I give assent to the process that strips others of their rights, even if I voted against that outcome. It's not Sophie's choice, but it's not a good one.

I often hear arguments of the form "Well, if you don't vote, you can't complain." A contractarian of my stripe would reverse things: if you agreed to the rules of a poker game, you can't whine afterwards that you lost your shirt. If you don't like the game, you shouldn't play it at all: abstention is not unreasonable.

Eli Dourado tries to give me a way out. He agrees with conscientious non-voting, but thinks the contractarian turn unnecessary and, worse, wrong. Here's the first part of his argument, with which I agree entirely:

What Brennan misses (at least in the essay; I have not read the book) is that the cause of all these harms is not just that voters make bad choices. That is a narrow perspective. It is that so many domains are subject to collective choice in the first place. The correct response to the question, “Shall we pass a law that destroys the lives of people who use drugs, especially if they are black?” is not merely “No,” but “Take your democracy and shove it.” Merely responding “No” is collectively harmful, because it fails to challenge the implicit proposition that the domain is rightly subject to collective choice.

When you vote in an election on an issue (or for candidates who can decide an issue) that should not be subject to collective choice in the first place, your vote makes no instrumental difference. It is therefore costless not to participate. By the Clean Hands Principle, you should not vote in such an election.

The libertarian's vote does at least as much to legitimate democratic jurisdiction over personal private choice as it does to move the outcome of that choice. I went a bit farther than that, arguing that voting signifies assent; Eli disagrees:

Does my vote, my “getting my hands dirty,” constitute consent in contractarian terms?

I think it clearly does not. The simplest example is one in which dissenters misunderstand how improbable decisive voting is. Suppose that the question I cited earlier, “Shall we pass a law that destroys the lives of people who use drugs, especially if they are black?” is in fact at issue in an election. A minority of 30% oppose this measure, and half of these correctly believe drug use should not even be subject to collective choice. Nevertheless, the 15% of people who oppose collective choice for drug use incorrectly believe that there is a significant chance that their vote will be decisive. Since the vote is happening no matter what, they show up at the polls to try to avert disaster. Does their voting on the question on the basis of mistaken beliefs about their probability of success constitute consent? I believe it does not.

Another example is the case of the Hail Mary pass; it involves no mistaken beliefs. Suppose you arrive at home to discover that some gunmen have broken into your house and are about to execute your daughter. The gunmen offer you a proposition. They happen to have 100 dice with them; if you roll 100 1s, they will spare your daughter’s life. Now, you know very well that the odds of rolling 100 1s with 100 d6 is 1 in 6^100, a very large number, but you say a Hail Mary and roll them anyway. Are you therefore consenting to your daughter’s execution, or at least to the proposition that rolling dice is a legitimate way of deciding whether your daughter should be executed? Again, I think not.

Like most people, I believe that consent can be a source of obligation, including political obligation. But only real consent counts; if your disgust at political discourse and need for self-expression overcomes your desire to keep your Hands Clean, then yes, your hands are dirty, but no, you haven’t consented. Consent has to be intended. The fact that contractarianism in practice relies so heavily on unintended forms of (fake) consent means that we don’t really have to take it seriously as a source of political obligation.

I agree with Eli that the threshold for consent in contractarianism is pretty low. If we can imagine that individuals sufficiently insulated from their interests by the constitutional veil could have unanimously consented to a set of constitutional rules, then the constitutional move solves democracy's infinite regress problem. Everybody knows that that consent is fake, but it's a useful thought experiment. But if imaginary consent by hypothetical people behind the veil lends moral weight to a constitution,* how can the real voting act not convey some kind of consent?

I'll agree with Eli that nobody would take the Hail Mary example as constituting consent. It's a contract signed under duress. Neither the signer, nor anybody around, nor the gunmen (unless he's utterly insane) would view there as having been consent. The contract wouldn't stand up in court either. Nobody takes coerced consent as real. Even if we imagine a case where a crazed gunman forces somebody to sign a contract that he was already about to sign, we'd still require some second affirmation after the gunman had been locked away that the consent was real. It isn't just what's true in the signer's heart that matters, it's how the community of observers understands the act.

Imagine an alternative case where I undertake something that any reasonable person would understand as constituting consent, but that I hadn't consented in my heart. Then, my only out is if I can demonstrate that it was unreasonable to have expected that I understood the act as signifying consent. So when Firefly's Captain Mal unwittingly wed a local lass by participating in a local ceremony (hit the 2:50 mark), the consequence of which he did not understand, he was eventually able to extricate himself - partially because the local lass wasn't quite what she'd seemed either. But everyone around understood the act as constituting assent, even if he was unaware.

Turn things around a bit. If Mal knew that everybody understood his acceptance of Saffron's gifts as acceptance of marriage, and he still accepted the gifts, he would either be consenting to marriage or engaging in fraud in hopes of a fun wedding night to be followed by an "I didn't know!" annulment. But not having consented in the deepest cockles of your heart isn't a defence to breach of contract.

Alas, I didn't write philosophy as an undergraduate. I'm sure there's a philosophical literature on what's sufficient for consent, and it probably isn't "voluntarily doing something, knowing that most people take the act as constituting consent". But that's my working hackish definition.

In Eli's argument, the voting act can do harm "because it fails to challenge the implicit proposition that the domain is rightly subject to collective choice." If we're in the world in which a libertarian's voting can do harm on this kind of basis, we're also in the world in which people take voting as signifying some agreement with the implicit proposition; I'm not sure how this "failure to challenge" can do harm unless the act of voting goes a bit farther and gives at least some support to the collective choice mechanism. Would we see so much handwringing about the health of democracy when turnout rates dip if the voting act didn't provide at least some kind of support for the system?

Eli gives some nice cases in which someone may vote while not assenting to the domain of collective choice. But pointing out these kinds of cases isn't enough to show that voting doesn't normally demonstrate agreement; lying to the murderous horde at the door that's seeking somebody hiding in your basement doesn't make you a liar, but lying for fun when there's no great reason for doing it just might. Voting when you reject the system is a bit fraudulent, but sometimes there are worse harms to be avoided.

My confidence in the propositions here advanced is pretty weak - philosophy just isn't my absolute or comparative advantage. And note the caveat in my first post: the case here advanced only applies to the anarcho-curious (Dourado @Normative's nice term) and strong minarchists who view most actions of government as illegitimate. Brennan's case is far more general and applies to all would-be voters: if you vote, it is wrong to vote badly.

* Yes, the weight is weak because the assent is hypothetical. But it can rule out at least some potential constitutions - ones that leave an individual worse off than he would be in the state of nature.