Can Silence Count as Consent?

Locke distinguished express from tacit consent. He argued that a person who enjoys land, lodging or roads under a government's jurisdiction tacitly agrees to obey its laws during that enjoyment. The argument was meant to explain how political obligation could arise when most people had never formally signed a social contract.

Hume's objection focused on the conditions of choice. Treating continued residence in one's birthplace as consent, he argued, was like saying that a person carried aboard a ship while asleep had agreed to obey the captain, even though leaving meant falling into the sea. When refusal carries an extreme cost, remaining need not be a free choice. Later debate therefore distinguishes expressing consent through conduct from being counted as consenting merely because one did not object. The former can still embody a clear intention; the latter is easily defined by the stronger party.

In everyday life, silence sometimes does communicate acceptance. A meeting may state in advance that a proposal passes without objections, provided everyone understands the rule, has a real opportunity to speak and faces no penalty for dissent. In medical care, intimate relations, privacy permissions or major contracts, however, silence alone will usually not carry the weight of consent.

My judgement is that silence is not naturally a “yes”. It can amount only to limited tacit consent when three conditions hold: the rule is clear in advance, refusal is genuinely possible, and the consequence fits the setting. To judge consent, we must ask not only whether someone said “no”, but whether they were truly able to say it.

https://plato.stanford.edu/entries/locke-political/
https://plato.sydney.edu.au/entries/political-obligation/