RoR: Forum

Thanks, Tibor, for this very important article. It seems much right to me.

There is one thing that thing seems not quite right. “The underlying justification of democracy is that individuals have the right to consent of their government.” You emigrated, and I would see that as one way of exercising that right of consent. One might say: “I don’t consent to this government. Therefore, by my right of such consent, I have a right to go elsewhere.”

But wherever one goes, there is going to be a lot one might not be willing to consent to in the government except as in saying “OK, I’ll accept that bundle of disagreeable, incorrect stuff as a compromise with the collection of other individuals here. I’ll accept, so far, this government because the civil peace and other good things here are a sufficient offset of the bad stuff.” The problematic thing is that that sort of accession does not look very much like an individual consenting to his or her government. It looks more like a collective consenting and like many an individual being in the position of wishing the collective was otherwise such that he could say with much more heart that he consents to his government.

Post 1

Thursday, February 7, 2013 - 3:20pm

The business of government getting its moral sanction from the consent of the governed has always been problematic.

I don't think there can be such a thing as a "collective consent" - making a choice is an act that only an individual can make - no matter how many in his group make the same choice or a different choice.

And I don't think we can imply an individual consent from the actions citizens take or don't take. That is, choosing to stay here in this country, or voting, or making use of laws, etc., don't constitute an implied consent.

I believe that consent of the governed doesn't exist anywhere. This or that individual might explicitly "consent" like new citizens being sworn in and granted their citizenship. But most of us, if asked, might consent to some things and not others. We might consent to the mixed set of policies as a whole, taking the good with the bad, but we aren't asked. And our 'representatives' might vote in laws I don't agree with, and I don't think we can derive a strong sense of consent for that law, for the now modified government, by saying 'we' voted for the people who voted for the law that changed the government.

And consent of a majority, or even of everyone in the country, done explicitly, would not make a dictatorship into a moral and proper government. Because an idiot, or many idiots, consent to having this or that right violated - by law, doesn't make the law, or the government right.

The government can, therefore, only acquire and maintain moral status by restricting its use of force to defense of individual rights, and appropriate retaliation for violations of individual rights. That doesn't earn it "consent" or a universal sanction by the governed, but it does make it immune to opposition on moral grounds based upon our rights. So, even a perfect minarchy would not have consent, but then no one could mount a moral argument against it the use of force when it is for defense or appropriate retaliation - not from the context of individual rights.

Post 2

Friday, February 8, 2013 - 3:10am

Speaking of the consent of the governed as a consent of individuals seems feeble in two ways. Such consent any individual has is feeble. Secondly, as in Steve’s point, “the governed” is a collection of individuals, which has no mind for doing such things as consenting. I would say it is rather like speaking of natural selection in evolution. There is no mind selecting the start of a new species or the end of an old one; there is just the result of various natural biological factors. Similarly, the consent of the people as an aggregate (or as a quasi-corporation perhaps) is only a collective action, such as an election, and though that is a resultant of individual choices and individual consents, it is not literally itself a choice or consent.

Post 3

Friday, February 8, 2013 - 10:34am

Stephen,

I'm in favor of throwing out the entire concept of "consent of the governed." I don't think it is workable and it lends itself to abuse by those who excuse this or that violation of rights as a part of a democratic process.

As you point out, an individual's lone consent is meaningless in giving sanction to the governing of an entire nation, and the collective can't consent since consent is an act that can only be performed inside of the mind of an individual.

There are negative side effects from retaining this 'consent of the governed' concept. It muddies the understanding of actual consent and gives to the collective or tribe a claim to a moral sanction it cannot have. By muddying up the idea of consent, a conflict between the real consent of individuals and the faux consent of a collective makes it seem there could be a justification for violating this or that right because of a democratic vote.

Historically, the concept was formed before we had that crystal clear concept of individual rights which is based solely on the initiation of force, fraud and theft. [Ironically, individual rights arise from the fact that man can and must choose and one kind of choice is to consent. Or, maybe it would be more on target to say that 'consent of the governed' functions like a stolen concept and that isn't ironic as much as it is dangerous.]

We no longer need this idea of 'consent of the governed.' We should throw it out.

Without that concept, we are forced to look more closely at what evolves a government in the right direction. A government that has achieved a moral pinnacle where it violates no rights, requires no consent - just as I need no consent from others to assert my individual rights. This singular focus should accelerate the evolution of a proper government.

Post 4

Friday, February 8, 2013 - 8:00pm

Steve Wolfer lays the foundation of anarchism.

Post 5

Friday, February 8, 2013 - 8:40pm

If only one could say everything necessary in just a paragraph or two. Alas, a lot must remain unsaid, so an author can only hope that readers will not spin his or her words in the least plausible, least rational way. "Consent" is a complex process, not always given explicitly but sometimes tacitly, implicitly. So long as this isn't taken to authorize violation of others' rights, it is quite OK and part of a great many human associations. When it becomes vital to spell it out, we enter the law of contract which, in a free society, is guided by fundamental rights. But there is also the doctrine of the reasonable person, etc., etc. (One reason I have by now written over 40 books and hundreds of papers and probably thousands of columns and comments is to fill out the gaps that often I need to assume others will view generously instead with an attitude of "gotcha." A forum like this one may be approached in such a spirit, I think.)

Post 6

Friday, February 8, 2013 - 9:33pm

No, Michael, I did NOT lay the foundation for anarchy. I gave a more defensible standard for judging government's actions and purpose. You are spouting nonsense and I'd much appreciate it if you wouldn't attempt to put my name out there in that fashion, without even providing a whisper of an argument. Quite rude of you, really.

Post 7

Friday, February 8, 2013 - 10:17pm

Professor Machan,

Stephen Boydstun and I made comments on what was really a very minor part of article. An article that I believe we both agreed with in nearly every aspect and very much appreciated.

You said,

...an author can only hope that readers will not spin his or her words in the least plausible, least rational way. "Consent" is a complex process, not always given explicitly but sometimes tacitly, implicitly. So long as this isn't taken to authorize violation of others' rights, it is quite OK and part of a great many human associations.

Frankly, I don't think either of us spun your words in a 'least plausible, least rational way.' And one of the points I made is that the concept of 'consent of the governed' has been used to justify violations of individual rights. It is an improvement over 'divine right of kings' but I don't think it is the best moral foundation for government.

It is true that consent is not always given explicitly in different human interactions. But in this case, if we say it is given, then we are saying there is a giver. When the giver is everyone within a nation, and the assertion is that they have all consented to be governed, I think the obligation is upon you to explain to us just what was the form of our implicit, tacitly given consent. I certainly can't figure out what it might have been.

Rather than to treat us as bumpkins unable to grasp the author's treatment of a 'complex' subject, maybe you'd be kind enough to enlighten us. Or to point out in a specific fashion where in my posts I made an error.

Some people argue for hypothetical consent where they say that we should obey the laws of this government because our government, net-net, is good enough that we should or would consent if asked. But my point would still stand - that isn't really consent - it is someone's opinion as to whether we would or should consent.

Some people argue for a theoretical, logical, implied consent where if the government is providing freedom, and freedom is a rational value, then we consent by being in favor of freedom and being rational... and, I guess, if we are anti-freedom or irrational our implied consent isn't needed. I don't see that argument meeting the smell test either.

Some people say that if we live in the country instead of leaving, or we are peaceful rather than rebelling, then those non-actions add up to implicit consent. Failing to take up arms, and failing to leave our country are both non-actions and non-consent. My non-actions against criminals who have initiated violent acts in my city doesn't make me someone who consents to their violence.

If something I wrote came across as a "Gotcha" then I apologize for my poor wording because that was not even remotely my intention and I certainly don't remember ever having that kind of frame of mind when reading anything you've written.

Post 8

Saturday, February 9, 2013 - 5:24am

Let us drop divine and its unreasonableness as justification for rule of a king (or queen) and consider simply a purported traditional right of a king in some society for comparison with the consent-of-the-governed rationale of the democratic alternative form of government. What reasons of individual rights are there for moving from the former political constitution to the latter? Tibor’s article and comment go some ways to answering that. He reasons that the adult citizens should have ultimate authority concerning certain political matters because they have equal stakes in the political constitution and policies. That is saying simply something complicated indeed, but I’m pretty sure I understand the meaning of the idea.

That idea has a brother in the concept of equal protection under the law, which is also a simple saying of something complicated, nevertheless definite. This concept and ideal might be another way to start the rationale for democracy. If individuals have equal fundamental rights because they each have the same individual rights, then it is right they have equal protection under the law. That pertains not only to laws that prohibit or enjoin, but to laws that confer legal powers, such as making wills and entering contracts. There are no laws that prohibit or enjoin without further laws that give them their legal powers (see Hart’s The Concept of Law). A fully equal status of adult citizens under the law makes them also equals in the making of laws (including constitutions) that confer the legal powers of laws that prohibit and enjoin and that confer the legal powers of laws such as that of contracts, real estate, and evidence, which all, of course, must provide rational and equal protection of individual rights under the law. This line of reasoning, which seems to dovetail pretty well with that in Tibor’s article, has some semblance to the notion of the consent of the governed, although with this line of reasoning, we might hit on some other, perhaps better phrase to encapsulate the rationale of democracy. I suggest calling it the equal-rights rational for democracy.

I’m pretty sure the preceding sort of justification and process excludes monarchy and not for the good auxiliary reason that absolute power corrupts absolutely.

(Edited by Stephen Boydstun on 2/09, 10:24am)

Post 9

Saturday, February 9, 2013 - 7:35am

Machan:

This was outstanding thought; I wish it were more widely embraced. You nailed my attention on one of the very opening lines:

"Democracy is a process by which some decisions are made and in the context of politics it means the kind of system that depends upon the participation of the citizenry for certain purposes."

Not so pure unfettered democracy: pure unfettered democracy is what happens when 6 guys decide to rape one woman. They vote, and it goes down overwhelmingly 6 for and 1 against. That is the ethics of pure democracy.

Democracy unchecked by the principles of free association is the difference between a group of folks willingly coming together to form a socialist compound in the woods of Vermont and national socialism shoved down the throat of the nation, 51% to 49%.

regards,
Fred

Post 10

Saturday, February 9, 2013 - 8:45am

I grant conditional consent; as long as my government is applying law consistent with principles of free association and counter to forced association, I grant my consent to ethical laws in a nation of peers living in freedom.

When an imperfect government, and by that I mean government, steps outside of those ethical bounds, I see no ethical reason to obey those laws.

My consent is not carte blanche.

I've yet to hear an ethical argument from anyone, anywhere, justifying forced association in a nation of peers living in freedom.

Appeals to unseen authorities safely over the horizon -- God, "S"ociety, the Common Good, the General Welfare, the Commerce Clause, the perfect state of unbias behind a veil of ignorance where only Rawls and his may effectively travel to-- are all the ploys of leg lifting carny hucksters.

Not buying any of it from my peers. None of us speaks for any of that drivel, what it wants. what is best for 'it', and so on. That is paternalistic megalomania at best.

regards,
Fred

Post 11

Monday, February 11, 2013 - 11:17am

I had someone else in mind! Sorry. TRM

Post 12

Monday, February 11, 2013 - 2:32pm

Tibor, you wrote:

What I wrote in #8 dovetails nicely with that. Am I missing something ill-fitting between what you wrote and #8? Is what I added without new insight or information? Do you have the impression that no respondents here understood much of what you were pulling together? Sorry, if any of those should be answered Yes.

Post 13

Monday, February 11, 2013 - 5:56pm