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Consent and Authority

Consent theory takes states to have political authority if and only if they have the consent of the governed. It has a great history in Western philosophy: Thomas Hobbes, John Locke, and Jean-Jacques Rousseau all argued that the state is founded in an original contract among the governed and in that sense based on people’s consent. The roots of this view go as far back as Plato’s Crito.

Explicit consent

It is clear that consent matters morally. It can turn something morally impermissible into something morally permissible. For example, it is morally impermissible for me to bring some scissors to my next ride in a crowded subway and cut other people’s hair when they do not notice. But if I am a hairdresser, then of course people can come to my barbershop and give me permission to do exactly that, when they consent to let me cut their hair. Their consent to have their hair cut by me turns a morally impermissible action into a morally permissible action. Similarly, one can consent to surgery, sex, and many other things, and thereby turn something impermissible into something permissible.

Consent can do this because it is the exercise of a Hohfeldian power (see p. 9). It can create new liberty-rights. When a customer comes to my barbershop and consents to have her hair cut, she thereby gives me the moral liberty-right to cut her hair. But consent can also give rise to new duties, claim-rights, and powers. When a customer comes to my barbershop and consents to have her hair cut, she thereby also incurs a duty to pay me afterwards, and I get a claim-right to be paid. I also get the power to waive my claim-right to be paid.

In general, then, consent can explain how new rights can come into existence. That consent has this power is a widely accepted and commonsensical moral idea. Since explaining political authority means explaining how and why the state could have the right to rule, consent certainly is a highly promising candidate for explaining political authority. It can explain how the powers and liberty-rights that form the state’s right to rule can come into being and thus meets the explanation condition (see p. 15).

In the first chapter, I said that political authority is particularly puzzling because it constitutes an inequality in rights. Consent theory could nicely explain and justify that inequality. Since consent can create new rights, it can obviously result in an unequal distribution of rights. If political authority is grounded in consent, then the inequality that comes with political authority no longer looks problematic.

In a way, consent theory tries to assimilate the authority of the state to the authority of bosses in the economic sphere. The authority of bosses initially looks less problematic than political authority because people voluntarily accept jobs and are free to leave their jobs. Their contract usually specifies that the boss has the rights to give (certain kinds of) orders. This does not mean that there are no moral requirements for the exercise of authority in firms (see McMahon 1994; Anderson 2017), but still the authority of bosses is consensual in an important sense. The authority of religious leaders and the authority of teachers who teach adult persons can arguably be explained as consensual as well. Consent theory tries to show that the authority of the state is based on consent, too.

It is clear that theoretical authorities – for example the authority of physicians – need not be based on consent, since their authority does not constitute any inequality of rights. So consent theory does not account for all kinds of authority, but it has a good explanation for that: It wants to explain the rise of new rights, and so it does not apply to theoretical authorities. But why should the authority of parents not be based on consent as well? As mentioned earlier, the assumed equality of rights holds among sane adults, not among all human beings including small children or human embryos. Small children and human embryos do not even have the power to give consent to the state’s or their parents’ authority. Human embryos and small children do not have the power to give or withhold consent to anything. Slightly older children have the power to give or withhold consent to little things they understand, like whether they would like to go to the zoo, whether they want to have some chocolate ice cream, etc. But they do not have the power to give or withhold consent to authority. For that reason, the authority of parents (and the authority of school teachers) cannot and need not be based on voluntary consent, even though it is a form of practical authority. Consent theory meets the target condition.

Do states have our explicit consent?

Now the question is whether consent theory can show that any real states actually have political authority. It is one thing to claim that states need the consent of the governed in order to have authority; it is quite another to show that any states actually received that consent. But before asking whether some states actually have authority based on consent, I would like to briefly discuss two fundamental objections to consent theory as applied to political authority.

One is that consent cannot be sufficient for political authority, because there are some things – namely grossly immoral things – that no government can require us to do, no matter if we consented to its authority or not (Buchanan 2002: 702). In reply, it is true that one has to invoke moral principles to determine the limits of legitimate authority. But this does not undermine the claim that consent is sufficient for political authority, whatever the limits of political authority are. Similarly, of course there are limits to what a surgeon may do to us, but this does not undermine the claim that consent to undergo surgery is sufficient for making this surgery permissible.

A second fundamental objection is that consent to the state must in the end be based on nonconsensual foundations: We need state institutions to determine what constitutes valid consent to the state, and we need state institutions to determine what precisely one consents to when consenting to the state (see Horton 1992: 42–3; Buchanan 2002: 700–2; Christiano 2004: 283–4). But a defender of consent theory can and should deny that one needs state institutions or any other nonconsensual authorities for expressing valid and determinate consent. Without such institutions, it may be harder to have precise rules for the practice of consent, but it is not impossible. Moreover, even if consent to the state did presuppose state institutions, this would not undermine consent theory. It would still make sense to claim that state institutions need our consent in order to have legitimate authority.

So let us get back to the question of whether any states have the consent of the governed. Locke thinks that some states do indeed have political authority. Let us take a quick look at his theory. Locke makes clear that – in contrast to the authority of parents – the authority of states can only be based on consent because adult persons are equals:

He imagines a pre-political state of nature in which all persons are free and equal, albeit governed by a “law of nature” (which is given by God). This law of nature, among other things, grants people equal natural rights including the right to acquire private property (1689: §§25–7). Accordingly, it also gives everyone natural duties not to harm others in their life, liberty, or possessions (1689: §§6, 87). In the American Declaration of Independence, one of the most famous phrases sounds very Lockean: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The inequality in rights that comes with political society can thus only be vindicated by consent.

But do states have our consent? Locke seemed to assume that some states indeed were founded consensually, and he mentions Rome, Venice, and Peru as examples (1689: §§102–3). But, first of all, this is quite implausible (with some rare and small-scale exceptions like the Mayflower Compact from 1620). States are usually imposed on at least some non-consenting adults. Even the United States of America of course were not founded on actual consent. The Declaration of Independence was not signed by all residents, even though it declares that governments derive “their just powers from the consent of the governed.” Of course the Declaration of Independence was signed by delegates of all colonies who claimed to represent their citizens. But not everyone consented to let the delegates speak for him or her. Moreover, slaves and Native Americans were not represented at all.

Second, and this is a problem Locke recognized as well (1689:...