Normative Consent and Authority

Abstract

In his recent book Democratic Authority, David Estlund defends a strikingly new and interesting account of political authority, one that makes use of a distinctive kind of hypothetical consent that he calls 'normative consent': a person can come to have a duty to obey another when it is the case that, were she given the chance to consent to the duty, she would have a duty to consent to it. If successful, Estlund's account promises to provide what has arguably so far remained elusive: the basis for the authority of suitably democratic laws. In this paper, I argue that, despite its promise, the account Estlund develops is, in a crucial respect, incoherent: the principle of normative consent that he offers relies on a claim about a hypothetical situation, but the hypothetical situation at issue is one that, according to the principle itself, is morally impossible.

Against Normative Consent

“…12 Although he does not accept a Rawlsian model of political justice, Estlund is clearly influenced by Rawlsian overlapping consensus from reasonable points of view. 13 The first criticism I have in mind is captured by Koltonski (2013) and Sreenivasan (2009). Gopal Sreenivasan's criticism has significant relevance to the idea of the "nullity of nonconsent," but I discuss his criticism below in relation to the Direct Authority Objection.…”

“… The first criticism I have in mind is captured by Koltonski () and Sreenivasan (). Gopal Sreenivasan's criticism has significant relevance to the idea of the “nullity of nonconsent,” but I discuss his criticism below in relation to the Direct Authority Objection.…”

Mary, did you consent?

“…Saunders (2010) uses Estlund's normative consent to defend an opt-out organ donation public policy. For replies to Estlund, see Koltonski (2013), Manson (2013), and Frank (2016). For a reply to Saunders, see Potts et al (2010).…”

Normative consent and authority 1

“…As will emerge, authority is a limitation of one's moral liberty, not otherwise an interference or imposition on one's person or will. 5 Daniel Koltonski helpfully shows that this must mean that the authority condition is as it would have been if there had been consent in a counterfactual world in which, while everything else relevant is the same, authority depends on consent(Koltonski 2013). He goes on to argue that no such world is possible if authority does not depend on consent in the actual world, since two worlds can't have different moral properties unless they have different non-moral properties.…”