Consent of the governed
Encyclopedia
"Consent of the governed" is a phrase synonymous with a political theory
wherein a government
's legitimacy and moral right to use state power
is only justified and legal when derived from 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 Universal Declaration of Human Rights
states that "The will of the people shall be the basis of the authority of government."
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 overt 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.
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.
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 counter-argument 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 the 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.
, 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 legal authority
. This was expressed, among other places, The 2nd paragraph of the Declaration of Independence and in the Virginia Bill of Rights, especially Section 6, quoted below:
Although the Continental Congress
at the outset of the American Revolution
had no explicit legal authority to govern, it assumed 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:
Akhil Amar has argued that the people have a right to change the U.S. Constitution by majority vote, without regard to the supermajority
of state legislatures required by Article V of the U.S. Constitution.
Political philosophy
Political philosophy is the study of such topics as liberty, justice, property, rights, law, and the enforcement of a legal code by authority: what they are, why they are needed, what, if anything, makes a government legitimate, what rights and freedoms it should protect and why, what form it...
wherein a government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
's legitimacy and moral right to use state power
State power
State power may refer to:*Police power, the capacity of a state to regulate behaviours and enforce order within its territory*Government force, state coercion to induce conforming social results* The extroverted concept of power in international relations...
is only justified and legal when derived from the people
People
People is a plurality of human beings or other beings possessing enough qualities constituting personhood. It has two usages:* as the plural of person or a group of people People is a plurality of human beings or other beings possessing enough qualities constituting personhood. It has two usages:*...
or society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
over which that political power
Political power
Political power is a type of power held by a group in a society which allows administration of some or all of public resources, including labour, and wealth. There are many ways to obtain possession of such power. At the nation-state level political legitimacy for political power is held by the...
is exercised. This theory of "consent" is historically contrasted to the divine right of kings
Divine Right of Kings
The divine right of kings or divine-right theory of kingship is a political and religious doctrine of royal and political legitimacy. It asserts that a monarch is subject to no earthly authority, deriving his right to rule directly from the will of God...
and has often been invoked against the legitimacy of colonialism
Colonialism
Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory. It is a process whereby the metropole claims sovereignty over the colony and the social structure, government, and economics of the colony are changed by...
. Article 21 of the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
states that "The will of the people shall be the basis of the authority of government."
Types of consent
A key question is whether the unanimous consentUnanimous consent
In parliamentary procedure, unanimous consent, also known as general consent, or in the case of the parliaments under the Westminster system, leave of the house, is a situation in which no one present objects to a proposal. The chair may state, for instance: "If there is no objection, the motion...
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 overt 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.
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
State of nature
State of nature is a term in political philosophy used in social contract theories to describe the hypothetical condition that preceded governments...
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.
Another division that is sometimes made is between overt consent and tacit consent. Overt consent, to be valid, would require voluntariness
Voluntariness
Voluntariness is a legal and philosophical concept referring to a choice being made of a person's free will, as opposed to being made as the result of coercion or duress. Philosophies such as libertarianism and voluntaryism, as well as many legal systems, hold that a contract must be voluntarily...
, 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
Proportional representation
Proportional representation is a concept in voting systems used to elect an assembly or council. PR means that the number of seats won by a party or group of candidates is proportionate to the number of votes received. For example, under a PR voting system if 30% of voters support a particular...
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 counter-argument is that, by failing to act through the process of constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
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 the 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.
In the United States
Using thinking similar to that of English philosopher John LockeJohn Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
, the founders of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
believed in a state built upon the consent of "free and equal" citizens; a state otherwise conceived would lack legitimacy and legal authority
Authority (sociology)
Authority is the legitimate or socially approved use of power.It is the legitimate power which one person or a group holds over another. The element of legitimacy is vital to the notion of authority and is the main means by which authority is distinguished from the more general concept of power....
. This was expressed, among other places, The 2nd paragraph of the Declaration of Independence and in the Virginia Bill of Rights, especially Section 6, quoted below:
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 publick 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
Continental Congress
The Continental Congress was a convention of delegates called together from the Thirteen Colonies that became the governing body of the United States during the American Revolution....
at the outset of the American Revolution
American Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
had no explicit legal authority to govern, it assumed 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...
Akhil Amar has argued that the people have a right to change the U.S. Constitution by majority vote, without regard to the supermajority
Supermajority
A supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority...
of state legislatures required by Article V of the U.S. Constitution.
See also
- United States Declaration of IndependenceUnited States Declaration of IndependenceThe Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
- Mandate (politics)Mandate (politics)In politics, a mandate is the authority granted by a constituency to act as its representative.The concept of a government having a legitimate mandate to govern via the fair winning of a democratic election is a central idea of democracy...
- Sovereign citizen movementSovereign citizen movementThe sovereign citizen movement is a loose network of American litigants, commentators and financial scheme promoters, classified as an "extremist anti-government group" by the United States Federal Bureau of Investigation....