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Consent as Heresy

Consider the statement: "a government's just powers derive from the consent of the governed".

Is this statement true? It seems not, on first brush. After all, it is the very nature of government to assert coercive authority. And yet it seems true at least in the sense that a government cannot function unless enough people go along: it seems true that a government's powers derive from the consent of enough of the governed to make it stick.

But I was a little sneaky in that last paragraph, because I ignored the word "just". And it is here that the formula really starts to run into trouble. Because when it is just for me to obey my government, my consent doesn't play any role whatsoever in that justice. My obedience expresses my own justness or lack thereof: a just command from my government carries normative force indepenent of my willingness to obey it. When the government is telling me what I want to hear no doubt I consent, but the government power which requires justification is precisely its authority, its power to compel: its power to make my act morally normative independent of whether or not I want to do it. So the idea that the just powers of a government derive from the consent of the governed seems straightforwardly false.

On the other hand, it is straightforwardly true that a wicked government has no power, as a normative matter, to compel obedience to a wicked command. That such a government may kill you if you disobey doesn't confer even a tiny bit of normative force to its command. It isn't possible - it isn't even conceivable - to have a moral obligation to do wrong.

There are in between cases which remain problemmatic. A government may command something that is not a wicked thing for me to do, yet it may still be an unjust command. It isn't wicked for me to sign over all of my property to my rich neighbor, but it would be tyrannical for the government to insist that I do so. The reason why is not the libertarian notion that I am the demigod of my personal property, but rather the notion of subsidiarity. My property is a local concern of mine as its legitimate owner. Subsidiarity as an imperative insists on local sovereignity where it is possible: that affairs which are manageable through local control should remain local affairs. Tyranny isn't a violation of the personal autonomy of the superman: it is a violation of subsidiarity.

And therein lies the heresy. "Consent of the governed" rings true because of its proximity to a legitimate imperative. But as with all heresies, it mixes the truth with a lie.

Comments (16)

I'll have more to say about this later, but quickly I'll just note that there are also in-between cases (if you want to call them that) where you don't want to do something but nevertheless "should" obey. For example, you may want to drive faster than the speed limit because you think sticking to the speed limit is boring, but you shouldn't speed anyway. I wish we could leave our second car parked on the street all night for convenience' sake, but I _should_ try to remember to bring it in to obey city ordinance. I'd _love_ not to have to pay taxes, but tax evasion (on those grounds, at least) is wrong. And so forth. Actually, these sorts of cases seem to me to cover an enormous amount of my interaction with the government at all levels--that sense of nuisance, annoyance, even sometimes anger at the silliness of regulations, but the obligation to obey the rules anyway.

My obedience expresses my own justness or lack thereof: a just command from my government carries normative force independent of my willingness to obey it.

You seem to be assuming the existence of an objective reality of justice which is exterior to any positive law. Some people (would they be called positivists, or post-moderns?) would claim to disagree with this assumption.

For example, you may want to drive faster than the speed limit because you think sticking to the speed limit is boring, but you shouldn't speed anyway.

Well, I guess I wouldn't consider this an in between case.

In general governments are necessary because there has to be rules, even though the permutation space of possible licit rule-sets is large and contains individual rules which may be mutually contradictory. The just functioning of government (well, a particular abstract view of it) is to choose prudently a particular rule-set from the entire permutation space of licit ones. When things go right, the particular rule-set becomes morally obligatory for citizens not because contrary rule sets are evil in principle but because legitimate authority has established this one.

Things can go wrong in a number of ways.

One way in which they can go wrong is for the government to select a rule which attempts to make something morally prohibited into an imperative. In that case the government undermines itself: it literally cannot make evil morally obligatory.

Another way though is when a rule doesn't compel evil as a specific behavior on the part of the citizen, but it violates a principle of good government: in this case subsidiarity. It was this sort of rule that I was calling an in between case: it doesn't attempt to compel me to do something that it would be wicked for me to do of my own volition, but it is nevertheless unjust as compulsion because it violates subsidiarity.

They would be quite wrong, Mr. Field.

The doctrine of consent is what Eric Voegelin termed a hieroglyph, a fragment of a political discourse, or evocation, which has become detached from the circumstances of which it was an evocation. That is to say, it has become an abstraction, a piece of ideological flotsam, which instead of reflecting a discrete bit of reality distorts realities to which it was never intended to refer.

The doctrine of consent derives ultimately from that atmosphere of seditious, Whiggish, parliamentary enthusiasm in Seventeenth-century Britain, in which the rising gentry/merchant/capitalist class sought to "adjust" the balance of power and secure for themselves greater liberty of action. "Consent" was merely a trope for, "The King (and the masses over whom we lord our wealth) have no power over us save what we cede to them."

The doctrine was risible as a piece of propoaganda, and it is scarcely any better as philosophy, as a hieroglyph, when it is analyzed.

They would be quite wrong, Mr. Field.

I don't dispute that. I only intended to clarify Zippy's unstated assumptions. You'll note that I don't even think that they actually believe in their position, only that they claim to.

Glad to hear it Mr. Field. And yes, you may rest assured that Zippy -- and all of us -- believe in the "existence of an objective reality of justice."

Yep, even me, and I'm supposed to be a legal positivist. :-) (That is, even I believe in an objective reality of justice.)

I suppose the doctrine of consent was partly related to the question of when revolution is legitimate or even, more fundamentally, _how_ revolution can ever be justified. There would be one view on which one can never rightly overthrow or rebel against a hereditary king. On this view, if Zippy inherits the crown by rightful succession, his subjects never _get_ to behead him. :-)

The doctrine of consent is what Eric Voegelin termed a hieroglyph, a fragment of a political discourse, or evocation, which has become detached from the circumstances of which it was an evocation.

True enough, but even as a particular evocation in particular circumstances there are better ways of understanding it as a legitimate complaint, if you will. "Taxation without representation" isn't unjust as a formal matter: that is, it is not inherently unjust to levy a tax without the existence of a representative parlaiment in which specific representatives from the party taxed preside. It is unjust to treat a community as nothing but raw materials for grand projects though: to use local communities without representation of their own good carrying into the decisions which impact them.

But you raise an important point: the adoption of a particular slogan in a particular dispute does not on the one hand justify abstraction into a principle, because a war cry is as brutish and crude an instrument as any of the other instruments of war; yet on the other hand, that a war cry doesn't translate well into abstract principle doesn't imply injustice on the part of the warriors in a particular dispute.

There would be one view on which one can never rightly overthrow or rebel against a hereditary king.

It seems impossible to categorically rule out patricide in self defense though, so one's royal head is never perfectly safe even in a world where citizens act with normative perfection.

And yes, you may rest assured that Zippy -- and all of us -- believe in the "existence of an objective reality of justice."

Oh, trust me, I know that Zippy believes in an objective reality of justice. In fact, it was he who first introduced me to the fact that there is an objective reality of the number 3 (or any other number).

The reason I mentioned it, however, was that the comment thread from which this post grew out of was one regarding whether or not a public official should allow the objective reality of justice to have the same footing as the positive law. And, what was not resolved (or even brought up extensively) in the previous thread was the question of who gets to decide what that objective reality is. The answer, naturally, can not be "the government", but neither can it be "the people".

True enough, but even as a particular evocation in particular circumstances there are better ways of understanding it as a legitimate complaint, if you will.

Yes. I'm simply taking it for granted that, since the parliamentary faction had been getting its way for over a century by the time the Civil War erupted, this was not so much a case of the King riding roughshod over their estates as it was their attempt to subordinate the entire government to their interests and designs. So, in my judgment, the material conditions for a legitimate form of the complaint still did not obtain.

Brandon,
Re: objective reality of the the number 3.
Did he post that on his blog? I'd be interested in reading about that.

Aaron,

I don't think he ever made any single post to that effect. What he did do was introduce me to the Platonic concept of mathematics. Or more precisely, comments he made on various weblogs made me curious enough that I sat in on a Philosophy of Math course that discussed the Platonic concept of mathematics, including Frege, Hilbert and Russell. But I don't remember the details partly because I wasn't taking the course for credit, and partly because it was several semesters ago.

I admit that the extent of Zippy's influence is at once pervasive and unknowable, but this is almost too much to believe.

How about a post on what this "objective justice" is?

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