ABSTRACT
Perhaps no concept is as important in modern political-moral thinking as ‘consent’. The ‘consent of the governed’ is thought to be the necessary and prima facie sufficient condition of political authority. Consent is also deemed to be an or even the most important desideratum in a host of other fields and contexts – contracts, for example, or sexual relations. But is consent sufficiently robust to carry this heavy normative burden?
In this essay, I suggest that it is not – that under the overbearing load that has been imposed on it, consent is faced with a kind of collapse. With two kinds of collapse, actually – one conceptual and the other more practical. Historically, consent has sometimes been viewed as a condition of obligations, powers, or rights that arise primarily from some other source; or consent itself may be regarded as the source or ground of an obligation, power, or right. The second function demands much more from consent than the first does. And yet the distinction – between ‘consent as condition’ and ‘consent as source or ground’ – is easy to blur. Sometimes consent begins by being asked to perform the first function and then somehow finds itself being called upon to perform the second. But consent may not be up to this more demanding task; hence, conceptual collapse can lead to a kind of practical collapse.
These related kinds of collapse may be observed in various contexts where consent is asked to do important work; but this essay will focus on one context– the function of consent in supporting political and hence legal authority. My argument will be that in pre-modern Western thought, consent functioned as a condition of political and legal authority that was primarily grounded in some other source, such as the will of God or the natural law. Then, gradually and almost imperceptibly, these other grounds dropped out, leaving consent to bear the load by itself. For some time now, consent has struggled valiantly to carry that burden. But its continuing ability to perform this Atlas-like task is by now very much in doubt.
Smith, Steven Douglas, The Collapse of Consent (July 9, 2025), San Diego Legal Studies Paper No 25-028; Lisbon Law Review 2025.2 (forthcoming).
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