Withdrawing Consent: Polycentric Defenses against Domination.

• Author: Lemke, Jayme
• Position: Report

The "consent of the governed" is an idea that is better understood in theory than in practice. In social contract theory, government gains its legitimacy by virtue of the fact that it is an enterprise undertaken by the consent of the parties involved (e.g., Locke [1689] 1821; Raz 1987; Hobbes [1651] 2017). Similarly, in the contractarian paradigm of the constitutional political economy framework, the values and choices of the people involved give a government or any other collective enterprise both its purpose and its claim to efficiency or at least productivity (Buchanan and Tullock 1962; Buchanan 1975, 1988). Yet many collective enterprises often operate at a great distance from the majority of the governed, who know little of what their votes and allegiance have purchased and have even less authority to bring about meaningful change. Unlike in market contexts, where consumers are generally free to take or leave the options in front of them, most of us are never given the option to affirm or deny our consent to the political decisions that are made for us.

If a constitutional process is not one in which the entirety of a society is included, the situation becomes even more troublesome. If only a subset of the population has the opportunity to offer their ideas, their concerns, and ultimately their consent, then there is no justification for imagining the collective enterprise to be a legitimate and mutually beneficial one for the entire society (Holcombe 2014). Those whose interests are disregarded during the constitutional process may find that the rules decided upon have entrenched or introduced new political inequalities of the type that kept them away from the table in the first place. As a consequence, critics of social contract theory have objected to the contractarian program on the historical grounds that constitutional processes have rarely been inclusive of women and minority populations (Pateman 1988; Mills 1997).

The absence of the consent of so many of the governed is indeed disturbing for constitutional political economy and other contractarian theories, but hope is not lost. Comparative analysis resurrects the opportunity to meaningfully incorporate ideas of consent into the study of contractarian and self-governing systems. Instead of asking about consent as if it is a switch turned either "on" or "off," the comparative approach asks for specifics about the extent to which the system is based on the consent of the governed and how the decision to offer or deny consent plays out in a particular institutional context. What are the conditions under which there will be more opportunities to offer or withdraw consent? When will the stakes of the individual decision have a greater impact on collective decision-making processes? The process will inevitably fall short of the contractarian ideal, but the opportunity to identify processes wherein the choice to offer or withdraw consent to be governed is more or less impactful remains.

The search for institutional characteristics that increase the opportunities and stakes of consent has particular salience for people currently on the order-taking end of existing political hierarchies. Where majorities or elites rule, being the "little guy" means having to comply with rules that contradict your own values and interests. This type of domination is limited within consent-based collective processes where action is undertaken only when the whole group can agree.

As such, to increase opportunities to offer or deny consent is to increase the power of the dominated, disenfranchised, and oppressed. Elise Boulding writes, "The discovery by the oppressed that they have power is the discovery that they can gain a kind of dominance through the withdrawal of compliance. This is the power of the women's liberation movement, and of all liberation movements" (1976, 48). This is also the power of institutional characteristics that operationalize consent. Where the governed have choice, they have a defense against their own domination. As imperfect as that defense may be, it is a tool that would not otherwise be available and that has at times been put to great use.

In this article, I focus on the way that the set of institutional characteristics often grouped under the label polycentricity enable consent-based processes. The case of women in American history will serve as an exemplar of how consent can and has worked where polycentric institutional characteristics are present. In polycentric systems, there are multiple and overlapping chains of command (Ostrom [1972] 1999, [1991] 2014; Aligica and Tarko 2012). Decision making between these centers can be linked in many different ways, but if one chain of command sufficiently frustrates, citizens can turn to alterative decision-making processes. The polycentric components of institutional systems are therefore the only ones for which a discussion of choice and consent is relevant. Without a division of authority in which institutional alternatives exist or are at least permitted to emerge, the idea of an individual choosing between institutional alternatives loses its meaning.

It is within these polycentric spaces that we see nineteenth-century American women--a group by and large excluded from formal economic and political institution building--able to meaningfully offer or withdraw consent from alternative governance arrangements. This argument is developed in the remainder of the article. In the next section, I review the literature on the notion of consent within political economy. Next I explore in greater detail the relationship between polycentric institutional characteristics and consent. After that, I draw on examples from the history of women's economic rights in U.S. history to illustrate how polycentric institutional features have opened up opportunities for women to express or decline to consent to be governed in ways that would have otherwise been inaccessible to them. I focus on three particular polycentric institutional features and their role in amplifying women's role in collective decision making in the nineteenth century: (1) the federalist structure of government, which permits variation in law through decentralization of authority; (2) openness to selforganization and civil society, which permits variation in norms and informal processes of governance; and (3) scope for public entrepreneurship along the frontier, in which institutional experimentation was not just permitted but also rewarded. Finally, I conclude with some thoughts on the nature of consent and the implications of the fact that it exists only in weak forms in most modern political systems.

Consent and Social Contract

John Locke was among the first to propose that people are born free and that because they are born free, government can gain legitimacy only through the consent of the governed: "Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent" ([1689] 1821, 269). This social contract theory proposes that the relationship between ruler and ruled is not unalterably decreed but instead a mutual agreement among the members of a community that life will be better or more peaceful with government than without. From this contractarian point of view, the individual members of a community voluntarily give up some measure of their freedom of choice in exchange for others doing the same (Munger 2018).

This paradigm came to serve as the foundation for a wide range of contemporary democratic theories, including constitutional political economy. James Buchanan and Gordon Tullock's Calculus of Consent (1962) invites us to imagine government as a cooperative venture between individuals who voluntarily sign on to the set of constitutional rules that will enable them to most effectively accomplish their shared ends. The title of the book is well chosen in that consent is critical to the constitutional

enterprise. In Buchanan and Tullock's framework, a group of people can be sure that they have selected the cost-minimizing--that is, benefit-maximizing--institutional arrangement only if they have chosen that arrangement through unanimous agreement. Under a unanimous-decision rule, it is impossible for a collective endeavor to generate net harm because agreement will obtain only if all members of the society believe themselves either to gain through the effort or to be adequately compensated for any expected losses.

Yet as beautiful as this type of consent may be in theory, it remains...