Consent of the governed

In political philosophy, the phrase consent of the governed refers to the idea that a government's legitimacy and moral right to use state power is only justified and legal when consented to by the people or society over which that political power is exercised. This theory of consent is historically contrasted to the divine right of kings and has often been invoked against the legitimacy of colonialism. Article 21 of the United Nation's 1948 Universal Declaration of Human Rights states that "The will of the people shall be the basis of the authority of government".

History

In his book A History of Political Theory, George Sabine collected the views of many political theorists on consent of the governed. He notes the idea mentioned in 1433 by Nicholas of Cusa in De Concordantia Catholica. In 1579 Theodore Beza wrote Vindiciae contra Tyrannos which Sabine paraphrases: "The people lay down the conditions which the king is bound to fulfill. Hence they are bound to obedience only conditionally, namely, upon receiving the protection of just and lawful government…the power of the ruler is delegated by the people and continues only with their consent." In England, the Levellers also held to this principle of government.

John Milton wrote

The power of kings and magistrates is nothing else, but what is only derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power yet remains fundamentally, and cannot be taken from them, without a violation of their natural birthright.

Similarly, Sabine notes the position of John Locke in Essay concerning Human Understanding:

[Civic power] can have no right except as this is derived from the individual right of each man to protect himself and his property. The legislative and executive power used by government to protect property is nothing except the natural power of each man resigned into the hands of the community…and it is justified merely because it is a better way of protecting natural right than the self-help to which each man is naturally entitled.

However, with David Hume a contrary voice is heard. Sabine interprets Hume's skepticism by noting

The political world over, absolute governments which do not even do lip-service to the fiction of consent are more common than free governments, and their subjects rarely question their right except when tyranny becomes too oppressive.

Sabine revived the concept from its status as a political myth after Hume, by referring to Thomas Hill Green. Green wrote that government required "will not force" for administration. As put by Sabine,

Even the most powerful and the most despotic government cannot hold a society together by sheer force; to that extent there was a limited truth to the old belief that governments are produced by consent.

Consent of the governed, within the social liberalism of T. H. Green, was also described by Paul Harris:

The conditions for the existence of a political society have less to do with force and fear of coercion than with the members’ mutual recognition of a good common to themselves and others, although it may not be consciously expressed as such. Thus for the conditions for any civil combination to disappear through resistance to a despotic government or disobedience to law would require such a disastrous upheaval as to be unlikely in all but the most extreme circumstances in which we might agree with Green that the price would be too high to pay, yet sufficiently rare to allow us to acknowledge that there would ordinarily be a moral duty to act to overthrow any state that did not pursue the common good.

In the United States

"Consent of the governed" is a phrase found in the United States Declaration of Independence.

Using thinking similar to that of English philosopher John Locke, the founders of the United States believed in a state built upon the consent of "free and equal" citizens; a state otherwise conceived would lack legitimacy and Rational-legal authority. This was expressed, among other places, in the 2nd paragraph of the Declaration of Independence:

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.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And in the earlier Virginia Declaration of Rights, especially Section 6, quoted below, founding father George Mason wrote:

That elections of members to serve as representatives of the people, in assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, the attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good."

Although the Continental Congress at the outset of the American Revolution had no explicit legal authority to govern, it was delegated by the states with all the functions of a national government, such as appointing ambassadors, signing treaties, raising armies, appointing generals, obtaining loans from Europe, issuing paper money (called "Continentals"), and disbursing funds. The Congress had no authority to levy taxes, and was required to request money, supplies, and troops from the states to support the war effort. Individual states frequently ignored these requests. According to the Cyclopædia of Political Science. New York: Maynard, Merrill, and Co., 1899, commenting on the source of the Congress' power:

The appointment of the delegates to both these congresses was generally by popular conventions, though in some instances by state assemblies. But in neither case can the appointing body be considered the original depositary of the power by which the delegates acted; for the conventions were either self-appointed "committees of safety" or hastily assembled popular gatherings, including but a small fraction of the population to be represented, and the state assemblies had no right to surrender to another body one atom of the power which had been granted to them, or to create a new power which should govern the people without their will. The source of the powers of congress is to be sought solely in the acquiescence of the people, without which every congressional resolution, with or without the benediction of popular conventions or state legislatures, would have been a mere brutum fulmen; and, as the congress unquestionably exercised national powers, operating over the whole country, the conclusion is inevitable that the will of the whole people is the source of national government in the United States, even from its first imperfect appearance in the second continental congress...

Types of consent

Unanimous consent

A key question is whether the unanimous consent of the governed is required; if so, this would imply the right of secession for those who do not want to be governed by a particular collective. All democratic governments today allow decisions to be made even over the blatant dissent of a minority of voters, which in some theorists' view, calls into question whether said governments can rightfully claim, in all circumstances, to act with the consent of the governed.

Hypothetical consent

The theory of hypothetical consent of the governed holds that one's obligation to obey government depends on whether the government is such that one ought to consent to it, or whether the people, if placed in a state of nature without government, would agree to said government. This theory has been rejected by some scholars, who argue that, since government itself can commit aggression, creating a government to safeguard the people from aggression would be similar to the people, if given the choice of what animals to be attacked by, trading "polecats and foxes for a lion", a trade that they would not make.

Overt versus tacit consent

Another division that is sometimes made is between overt consent and tacit consent. Overt consent, to be valid, would require voluntariness, a specific act on the part of the consenters, a particular act consented to, and specific agents who perform this action. Immigrating into a particular jurisdiction is sometimes regarded as an overt act indicating consent to be ruled by that jurisdiction's government. Not all who are ruled by a particular government have immigrated to that jurisdiction, however; some were born there.

It has been pointed out that in jurisdictions where proportional representation is not used, but candidates are instead elected by plurality vote, a candidate can be elected despite the overt dissent of a majority of the people. Not every voter has necessarily had an opportunity to vote on the constitutional provisions specifying that plurality voting should be used; according to some theorists, this calls into question whether said voters have consented to be governed by the candidates who obtain plurality support. A counterargument is that, by failing to act through the process of constitutional amendment to change such provisions, the people have consented to them. A rebuttal to this is that in some jurisdictions, the means of amending the constitution are not completely in the hands of the electorate; the same issues arise, in claiming that the constitution left in place by the decisions of the people's elected representatives is consented to by the people, as arise in claiming that any other actions taken by said representatives are consented to by the people. Some proponents of the "overt consent" theory hold that the act of voting implies consent, while others question the connection between voting and consenting to a particular scheme of representative, since some voters may oppose the system as a whole but desire to influence decisions on particular issues or candidates.

The theory of tacit consent of the governed holds that if the people live in a country that is not undergoing a rebellion, they have consented to the rule of that country's government.

Engineered consent

In 1988, Edward S. Herman and Noam Chomsky described a propaganda model of news media in the United States in which coverage of current events was skewed by corporations and the state in order to manufacture the consent of the governed. According to the propagandist Edward L. Bernays, the public may be manipulated by its subconscious desires to render votes to a political candidate. The public relations techniques were described in his essay and book The Engineering of Consent (1955). Consent thus obtained undermines the legitimacy of government: "The basic principle involved is simple but important: If the opinions of the public are to control the government, these opinions must not be controlled by the government."

Literal consent

The theory of Literal consent holds the logical position that, valid consent must, by definition be both continuous and revocable; this therefore implies that the People have the absolute sovereign power to overrule their government at any time, via popular vote (or as stated in the Declaration of Independence, "the right of the People to alter or abolish" their government). Without this unfettered power, theorists hold that true consent cannot exist; and that any government is therefore despotism, via governing the People by force without their actual consent.

See also

• Consent of the Networked (2012)
• Mandate (politics)
• Social contract
• Popular sovereignty

Further reading

• John Locke, Second Treatise of Civil Government, chapter 8 section 95 (1690)
• Etienne de La Boétie, Discourse of Voluntary Servitude
• David Hume, Of the Original Contract
• Philip Pettit, Republicanism: A Theory of Freedom and Government. Oxford: Clarendon Press, 1997 (in which he argues, against a theory of the consent of the governed, in favour of a theory of the lack of explicit rebellion; following a Popperian view on falsifiability, Pettit considers that as consent of the governed is always implicitly supposed, thus trapping the social contract in a vicious circle, it should be replaced by the lack of explicit rebellion.
• Jean-Jacques Rousseau, The Social Contract, or Principles of Political Right (1762)