Library of Congress
I’m developing this idea, but I wanted to post a rough sketch on here regardless. I think consent as a tool against political institutions could not be more useless or irrelevant.
Locke structured his defense of a limited, liberal government on the basis of consent (Sections 87 to 89 prove relevant). Without consent, Locke cannot move individuals out of the state of nature and cannot justify the establishment of a commonwealth.
Lysander Spooner dismissed Locke’s telling because he saw tacit consent and the social contract as ridiculous (and rightly so) and without binding power (No Treason, NT.6.2.10). David Hume compares the social contract to impression, and John Stuart Mill sees it as a useless rhetorical tool for elucidating social obligations, preferring to interpret the matter as one of paying for the benefits an individual receives in society (paragraph three).
Anyway. Mill approaches my thoughts closest, as he doesn’t codify consent as important. Spooner’s argument is that no legitimate government exists unless citizens express their consent to it (correct me if I’m wrong), and I don’t know the extent of Hume’s arguments on social contract and consent in general. While consent in personal interactions remains of vast importance, it doesn’t provide insight to legitimate structures on an institutional level.
Extending the argument of consent outside of what libertarians normally extend it, I think my point clearly emerges. Consent isn’t relevant for political institutions because libertarians deny its relevance when discussing economic and social institutions. If an individuals claims that he or she doesn’t consent to capitalism or the Puritan society in which he or she dwells as a fact of birth and other practical restrictions, such claims usually get dismissed by libertarians. It becomes a sort of “America: Love it or leave it” sentiment akin to what libertarians hear from neoconservatives when discussing political institutions. We do not consent to birth, we do not consent to living under capitalism or socialism, and we do not consent to living in American society or Czech society or Australian society.
That fact doesn’t mean that society, polity, or economy should accommodate those individuals; indeed, I think it elucidates my point that basing institutions on consent isn’t practicable or terribly useful as a tool to determine their legitimacy.
Low costs to exit a polity, society, or economy reduces the impracticality, but it doesn’t get at the principle.
I’m still unsure as to what should be used to determine the legitimacy of institutions, but consent in general appears unworkable to me; I see too many gaps with it on a level beyond individuals. John Hasnas’ Depoliticization of Law offers a possible solution (or, at least, a better rationale) when he discusses depoliticized law, wherein he means the use of a rule of law defined as
The idea of a government of general, neutral, and equally applied rules suggests a system in which no one is subject to any other human will; one in which men do not rule over men, but all are governed by intelligible, impersonal rules that do not elevate the interests of any citizen or group of citizens over those of others.
or, more simply, a government of laws, not men. How such a principle could be translated to the economy lies in emergent order coupled with a rule of law that aims to protect property rights, and in society, a rule of law rooted in the defense of the individual and the minority against the collective and the majority.
I’m not sure whether that’s clear or lacks convincing logic, but these are more musings than anything. It only appears that consent isn’t the most useful tool, especially as I think it’s obvious that if libertarians reject tacit consent in the political realm, they must reject it in the economic and social realm as well.