Revitalizing consent.

• Author: Somin, Ilya

"Governments are instituted among Men, deriving their just Powers from the Consent of the Governed...."

-- The Declaration of Independence.(1)

"When we assert, that all lawful government arises from the consent of the people, we certainly do them a great deal more honor than they deserve, or even expect and desire from us."

-- David Hume.(2)

1. INTRODUCTION

   The ideal of the consent of the governed is of fundamental importance to both political philosophy and legal theory. It is an important, even if not always exclusive, source of the legitimacy of the state and its authority to make laws that we have an obligation to obey. Historically, the consent of the governed has been fundamental to the legitimation of the state and its lawmaking powers in the liberal tradition.(3) Early liberals such as John Locke and the Founding Fathers believed that no one could be required to accept the authority and obey the laws of a government to which he had not consented.(4)

   The consent of the governed, however, has increasingly become superfluous in modern liberal political and legal theory. Many theorists deny the need for consent to legitimate government and its laws,(5) or subordinate it in a "hypothetical contract" model in which actual consent is unnecessary so long as government is sufficiently similar to that which would theoretically result from a bargaining process between "ideally" situated parties.(6) Others reduce consent to one or another version of "tacit" consent based on residency, voting, or some other criterion which serves as a proxy for voluntary individual agreement to the basic structure of political and legal institutions.(7) Even legal theorists who deny the existence of a general obligation to obey the law seldom rest their case on lack of consent.(8) As one commentator observed: "In recent years the view that political obligation stems from voluntary consent has fallen upon hard times."(9)

   In this Article, I argue against recent efforts to water down consent or deny its importance to the legitimation of law and government in the liberal tradition of political thought.(10) I further contend that the principle of consent can be revitalized through a process of disaggregation. Although a fully consensual state may be impossible because the state is, in part, a public good realizable only through centralized coercion, most aspects of modern government can be rendered consensual through the creation of a system of exit rights that give individuals wide discretion to reject a broad range of government policies. The right to exit also implies the absence of an obligation to obey laws passed by governments on matters where exit rights are illegitimately denied by the state. The claim that consent is a necessary prerequisite of an obligation to obey the laws of the state is not equivalent to saying that the state may never act against one who has not consented to its rule; rather, it is only to say that with respect to such persons, the state has no presumptive right to obedience and may use coercion only where a private individual would be justified in doing so (e.g., to prevent murder).(11) To deny that the state could use coercion in such circumstances would be to make the extreme and untenable claim that only consent -- and no other value -- can ever justify mandatory obedience to the state and its laws.(12)

   Part II analyzes the dilemma posed for consent theory by the public goods justification of the state, which implies that government simply cannot be fully voluntary. It also explains why liberal thought nonetheless cannot easily dispense with consent theory. To facilitate analysis, I draw a distinction between "exit" and "voice" models of consent: "Exit" models base consent on an individual right to refuse submission to the authority of the state; "voice" models base consent on the right to participate in the state's decision-making process (e.g., by voting).(13) This Article applies the exit/voice distinction to the study of the consent of the governed. I consider and reject the possibility that consent can be established by voice alone. This conclusion has important implications for contemporary theories of constitutional law that attempt to legitimate constitutional structures by "voice-only" expressions of the will of the "people," usually voting. Part II considers and rejects various models of "tacit consent," which seek to replace exit consent with a more easily achievable alternative that may not run afoul of public goods problems. I argue that models of tacit consent based on residency, voting, and conceptions of fairness all fail to capture the values consent embodies.

   In Part III, I criticize the major alternatives to consent: anarchism and "nonconsensualism." This family of theories holds that consent is irrelevant to the justification of the state. Part IV contends that consent theory can be revitalized if it is no longer viewed as an all-or-nothing affair. Even if the state cannot be entirely consensual, its coercive nature can be mitigated by allowing "exit rights" from a variety of government programs and regulations for both individuals and voluntarily formed groups. In Part IV, I also consider limits on the scope of this proposal arising from the demands of distributive justice, the provision of public goods, and the protection of children. I argue that the voice model of consent can be integrated as a necessary complement to the exit model of consent advocated here. Contrary to conventional wisdom, exit and voice are mutually reinforcing, not mutually exclusive. The final two sections of Part IV address implementation issues. As an illustration of the way that the integration of exit and voice might work in practice, I apply it to the problem of determining the proper scope of private provision of local public goods, an important issue that has yet to be resolved.

   The ideal of the consent of the governed is of fundamental importance to the legitimacy of the state and its power to make laws in liberal political philosophy and legal theory. This Article attempts to solve the problem of consent theory by disaggregating the state into consensual and coercive functions. This disaggregated model of consent cannot resolve all the problems of implementation that might potentially arise, but I offer the idea as a framework for future analysis and refinement. It is likewise not possible in this Article to provide a complete analysis of the relationships between my conception of the consent of the governed and other elements of a liberal theory of politics and justice. Instead, the present analysis is limited to a demonstration that recent attempts to reject or diminish consent are misguided, and an argument that the principle of consent can remain viable despite the challenge posed by the public good theory of the state.

2. THE CRISIS OF LIBERAL CONSENT THEORY

   Liberal consent theory fails to successfully address the dangers posed to it by the public goods theory, which views the state as a collective benefit that cannot be provided in a voluntary manner. Attempts to defuse this problem by reducing consent to voice-only political participation or tacit consent -- based on such actions as residency, acceptance of government benefits, or voting -- can succeed only at the price of sacrificing the very values that make consent important.

   1. Consent and the Public Goods Justification for Government

      The principal reasons for the gradual decline of consent in recent liberal political thought are readily discernible. If government legitimacy required the consent of each (prospective) individual citizen, the result would be anarchy.

      1. The State as a Public Good

         To the extent that they are non-excludable, non-rivalrous public goods, the most basic traditional functions of government -- external defense, the prevention of internal violence, and the establishment of a legal system protecting basic rights of property and contract -- will not be provided spontaneously without centralized coercion.(14) By definition, a public good cannot be produced without the contributions of people whose individual efforts have only a negligible influence on the outcome. Thus, each person has an incentive to free ride on the efforts of others: If enough people contribute to the provision of the good, the individual's effort will be superfluous; conversely, if not enough people contribute, the individual's effort seldom will be enough to close the gap between success and failure.(15) Ironically, the principle of consent seems to be internally contradictory when applied to the provision of public goods. By assumption, each member of the population wants the public good to be provided and would rather "consent" to contribute resources to its provision than simply accept the status quo. Yet, at the same time, the good cannot be provided without coercion because no individual or group has any incentive to provide the good voluntarily.

         Despite the arguments of some anarchists to the contrary, a transformation of human nature towards greater cooperation does not eliminate the need for government to provide public goods, even as a matter of theory.(16) Public goods problems persist even among groups of completely unselfish individuals.(17) Even if a group member does not free ride out of selfishness, she may realize the insignificance of her own effort in achieving the outcome and rationally choose to apply her time and resources elsewhere.(18)

      2. Why Consent Still Matters

         While recognizing the force of these and other objections, liberal theorists have not been able wholly to dispense with two compelling justifications for consent in political systems: (1) the sacrifice of individual liberty under nonconsensual government;(19) and (2) the risk that the interests of involuntary subjects will be neglected, thus threatening utilitarian values. In the end, liberals find themselves in the unenviable position of asserting...