Normative Consent and the Scope of Democratic Authority
| Date | 01 December 2014 |
| Published date | 01 December 2014 |
| DOI | 10.1111/1467-9256.12048 |
| Author | Robert Huseby |
| Subject Matter | Research Article |
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P O L I T I C S : 2 0 1 4 V O L 3 4 ( 4 ) , 3 3 4 – 3 4 4
doi: 10.1111/1467-9256.12048
Research Article
Normative Consent and the Scope of
Democratic Authority
Robert Huseby
University of Oslo
David Estlund’s theory of normative consent attempts to ground democratic authority that extends even to
some decisions and laws that are erroneous, and with which it would be better not to comply, in light of the
goal of achieving justice. This paper argues that the theory of normative consent is unable to ground authority
with such a wide scope (or, as it will be called in the paper, ‘a wide margin of error’). Therefore, democratic
authority must allow that citizens are in principle permitted to disobey laws and policies that are erroneous and
with which compliance is, on the whole, counterproductive. Even though the epistemic threshold for deter-
mining both whether a particular decision is erroneous and whether it would be counterproductive to comply
with it must be high, this does not touch the principled point that citizens would not be wrong not to consent
to proposed authority of the type Estlund has in mind.
Keywords: David Estlund; democracy; democratic authority; normative consent
1. Introduction
In his book Democratic Authority David Estlund (2008) proposes a novel theory of the norma-
tive basis of authority. This theory implies that, within certain limits, citizens have a duty to
comply with democratic decisions, even in some (and perhaps many) cases where these
decisions are substantively wrong and where obedience is not conducive towards achieving
some important moral goal – for instance, justice.1 If democratic decisions were not authori-
tative in this way, citizens would seemingly be free to disregard democratic decisions when-
ever they were flawed and whenever obedience would be counterproductive. Such a
conclusion is shunned by many theorists, in part because it seems to undermine some of the
basic values of democracy itself (see Christiano, 2004; Walzer, 2003). The pull towards
democratic authority is intuitively plausible. However, the idea that we sometimes have moral
reasons to comply with decisions that are wrong, even when obedience would, on the whole,
be counterproductive, seems troubling as well.2 It is worthwhile, then, to consider closely any
proposal that aims to establish authority with that kind of scope.
Estlund proceeds in two steps. First he defends a general theory of authority. On this account,
someone falls under authority when he or she would have been wrong not to consent to the
proposed authority, if consent had been solicited.3 In such cases, the person’s non-consent is
null, and they can be said to have given their normative consent. In the second step Estlund tries
to show what this theory implies in the context of democratic decision making. The idea is
that citizens would be wrong not to consent to the authority of democratic institutions, in part
because (proper) democracy has epistemic value which no one can reasonably deny. Thus,
© 2014 The Author. Politics © 2014 Political Studies Association
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while some democratic decisions may be wrong, citizens should nevertheless comply with
these decisions (within limits) because democracy gets it right in other cases, and more
frequently than do random procedures.
I will argue that the theory of normative consent fails to establish the kind of democratic
authority that Estlund aims to achieve. More specifically, I will show that normative consent
can only ground authority with a narrow margin of error.4 Estlund does not himself employ
the terms of wide and narrow margin of error, and he also leaves it relatively open where
exactly authority runs out. I will therefore engage in some critical reconstruction in order
to make plausible the premise that democratic authority is intended to have a wide margin
of error. Note that I do not criticise the idea of normative consent as such. I accept
that wrongful non-consent is (sometimes) void, and that it can ground authority. My
concern is rather that normative consent achieves less in terms of scope than Estlund seems
to think.5
The paper is organised as follows. First, I briefly present the theory of normative consent and
its extension to democratic authority. Then I defend the premise that normative consent is
intended by Estlund to imply a wide margin of error. After that I present an argument to the
effect that normative consent fails to ground democratic authority with such a wide scope. In
the latter sections of the paper I respond to objections to the argument I have set out before
presenting my conclusions.
2. Normative consent and democratic authority
Drawing on Raz, Estlund defines ‘authority’ as one agent’s moral power to require actions
from others. ‘To say that you have authority over me on certain matters is to say that on those
matters if you tell me to do something, then I am, for that reason, required to do it’ (Estlund,
2008, p. 119; Raz, 1986). Estlund (2008, p. 11) notes that one popular understanding of
authority holds that there is no authority unless someone has (actually) consented to be under
authority. He then asks whether non-consent might sometimes be morally wrong. If you
order me to take part in a rescue mission, I might be plain wrong to refuse. In other words,
sometimes wrongly withheld consent ‘renders the non-consent null’ (Estlund, 2008, p. 117).
Interestingly, this condition of nullity results in a situation that is ‘just as it would have been
if the non-consent had not occurred – that is, just as if consent had occurred’ (Estlund, 2008,
p. 117). The upshot is a theory of authority based on hypothetical (and normative) consent,
which implies that we can fall under authority without having consented.
While it seems plausible that one can sometimes be wrong not to consent, Estlund is trying
to muster support for a more controversial thesis – namely that normative consent does real
philosophical work in the justification of authority. To see this, consider an alternative view,
which Estlund discusses in some detail. This view holds that the source of authority lies in
direct obligation – for instance, the obligation to contribute to some urgent task, or the
obligation to make a fair contribution to valuable projects. On this view, if you ask me to
contribute to a rescue mission, I am obliged to do so not (even partly) because I would have
been wrong to refuse, but rather because I have a moral obligation to contribute to saving
lives in the first place, and if you for some reason end up organising the rescue, and if your
plan is no worse than mine, my best way of contributing is to fall into line. I should therefore
comply with your commands. It makes perfect sense, on this view, to infer that I would be
© 2014 The Author. Politics © 2014 Political Studies Association
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R O B E R T H U S E B Y
wrong not to consent to your authority, but this inference is not taken to justify anything that
is not already justified by the obligation to help reach a morally viable goal (Estlund, 2008,
pp. 128–135).6
Estlund’s extended argument for democratic authority runs like this: because (a) justice is a
valuable goal, (b) a democratic procedure is demographically neutral, (c) democratic pro-
cedures are epistemically valuable and (d) no non-democratic procedures can be agreed by all
qualified points of view to better serve the goal of justice, citizens would be ‘morally required
to consent to the new authority of such a democratic arrangement if they were offered that
choice’ (Estlund, 2008, p. 157).7
Estlund thus attempts to show that political authority can be defended as a solution to the
humanitarian problem of establishing justice in society (Estlund, 2008, pp. 145, 157). One
way of contributing to...
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