Fetishizing Consent

   

Boudewijn Bouckaert observes Jeremy Bentham’s take on “efficient theft”: coerced transfers that increase net benefits when considered in isolation should nevertheless be prohibited since permitting them would produce uncertainty sufficient to reduce net benefits when considered on the whole. I agree.

Bouckaert observes also that to reliably increase net benefits through coerced transfers, a “super-thief would have to be endowed with supernatural ‘panoptical’ gifts by which he could perceive individuals’ valuations and order a switch when he records a possible mutual benefit”—an impossibility. Again I agree.

I’m less sure, however, that “This thought exercise”—pondering the creation of net benefits without consent—“leads us nowhere when discussing the rules and institutions of society.” On the contrary, I suspect it may lead us somewhere important: to a stronger defense of Western legal tradition.

One approach to defending that tradition evaluates it in terms of its relationship to consent:

That’s true, but this defense encounters a problem: legal institutions evolved through Western legal tradition were not historically and are not today consented to by all they govern. Lotteri’s remarks highlight this fact; Bouckaert’s recognize it as well; so does Leoni’s analysis, according to which, claims sustained by common opinion, not unanimous consent, drive law in Western legal tradition. While that tradition’s institutions advance consensual interaction—the desideratum in the consent-centered defense—they are therefore at the same time foundationally in conflict with the desideratum.

It’s possible to retain a consent-centered defense of Western legal tradition despite this fact—but only by weakening the defense: “Western legal tradition’s institutions are nonconsensual means that promote consensual ends. They do more to support consensual interaction than to undermine it; thus they’re acceptable evils.” This modification is coherent. But it renders the institutions of Western legal tradition evil all the same, hence the retained consent-centered defense is weaker.

An alternative approach to defending Western legal tradition evaluates that tradition in terms of its relationship to net benefits: 

This defense appears quite similar to the consent-centered defense, and indeed it is—with an important difference: the wealth-centered defense values consensual interaction facilitated by Western legal tradition as means to the end of wealth rather than as an end in itself. Its desideratum is the creation of net benefits, not consent per se.

The significance of this difference for the relative strength of the two defenses is straightforward. Whereas the consent-centered defense must treat nonconsensual legal institutions evolved by Western legal tradition as acceptable evils, the wealth-centered defense treats them as laudable as the consensual interactions they facilitate. Both those interactions and the institutions that facilitate them create net benefits: the former because all consensual relations create wealth; the latter because some nonconsensual institutions do too—and the evidence shows that those include institutions evolved through Western legal tradition, which facilitate consensual relations. Western legal tradition is therefore praiseworthy piece and quilt.

The wealth-centered defense is stronger. It is only possible, however, if one is willing to acknowledge that not just in hypothetical constructs but also in the world net benefits can be and in some very significant instances are created without consent. My point is not that one therefore should take the wealth-centered approach to defending Western legal tradition, only that considering the creation of net benefits without consent might therefore be useful in discussions about society’s legal institutions.