Political Democracy

Why is Non-democratic Government Wrong? Involuntariness or Treating Persons as Things?

Is Democracy Government based only on the Consent of the Governed?

David Ellerman

Classical liberalism takes the most basic question about a social institution as: “consent or coercion.” Democracy is often characterized as “government based on the consent of the governed” so non-democratic government is then typically condemned as being involuntary and coercive.

This common condemnation of non-democratic government on the basis of involuntariness has caused much intellectual history to just go “down the memory hole.” Those who routinely condemn autocracy on coercive grounds have either forgotten or never knew that from Antiquity down almost to the present there have always been those anti-democratic (or non-democratic) writers who: (1) presented a defense of non-democratic government based on consent or contract, and (2) interpreted much of historical autocracy as being based on implicit or explicit social contracts of subjection.

My focus here is not on (2), the empirical question of whether or not any historical autocracy could be interpreted as being voluntary, but (1), the fact of intellectual history that so many classical authorities defended non-democratic government if based on consent.

The social contract or constitution establishing a non-democratic government was traditionally called the pactum subjectionis, the pact of subjection wherein a people voluntarily alienated their right of self-government to some ruler or sovereign who would then rule the people as subjects, not citizens, and who would rule in his own name (i.e., not as a delegate, representative, or trustee of the people). In the history of democratic thought, the key distinction, that is often now overlooked, is between a voluntary constitution that alienates and transfers (translatio) the right of government from the people to a sovereign and a voluntary constitution that only establishes a relation of delegation, representation, or trust (concessio) between the people and the governors who would then only govern as the delegates, representatives, or trustees for the governed.

Intellectual History of the Pactum Subjectionis

The Old Testament of the Bible is a convenient starting point since it contains the idea of a contract of rulership between a king and a people.

So all the elders of Israel came to the king at Hebron; and King David made a covenant with them at Hebron before the Lord, and they anointed David king over Israel. [2 Samuel 5:3]

Just before he died, King David said of his son, Solomon,

he shall come and sit upon my throne; for he shall be king in my stead; and I have appointed him to be ruler over Israel and over Judah. [1 Kings 1:35]

Thus the elective kingship became hereditary like property (“my throne”) passing from father to son indicating the covenant was an alienation of authority rather than a delegation.

Western jurisprudence is founded on Roman law. The sovereignty of the Roman emperor was usually seen as being founded on a contract of rulership enacted by the Roman people.  The Roman jurist Ulpian gave the classic and oft-quoted statement of this view in the Institutes of Justinian:

Whatever has pleased the prince has the force of law, since the Roman people by the lex regia enacted concerning his imperium, have yielded up to him all their power and authority. [Lib. I, Tit. II, 6; Quoted in: Corwin 1955, 4; or in: Sabine 1958, 171]

The American constitutional scholar, Edward S. Corwin, noted the questions that arose in the Middle Ages about the nature of this pact.

During the Middle Ages the question was much debated whether the lex regia effected an absolute alienation (translatio) of the legislative power to the Emperor, or was a revocable delegation (cessio).  The champions of popular sovereignty at the end of this period, like Marsiglio of Padua in his Defensor Pacis, took the latter view. [Corwin 1955, 4, fn.8]

Alienation versus Delegation

It is precisely this question of translatio versus concessio—alienation versus delegation of the right of government in the contract—that is the key question, not consent versus coercion.  Of course consent is a necessary condition for a legitimate government. But consent is on both sides of that alienation (translatio) versus delegation (concessio) question.  The alienation version of the contract became a sophisticated tacit contract defense of non-democratic government wherever the latter existed as a settled condition.  And the delegation version of the contract became the foundation for democratic theory.

The German legal thinker, Otto Gierke, was quite clear about the alienation-vs.-delegation question.

This dispute also reaches far back into the Middle Ages.  It first took a strictly juristic form in the dispute … as to the legal nature of the ancient “translatio imperii” from the Roman people to the Princeps.  One school explained this as a definitive and irrevocable alienation of power, the other as a mere concession of its use and exercise. … On the one hand from the people’s abdication the most absolute sovereignty of the prince might be deduced, … .  On the other hand the assumption of a mere “concessio imperii” led to the doctrine of popular sovereignty. [Gierke 1966, 93-4]

The contractarian defense of non-democratic government was based on the translatio interpretation of the tacit social contract.

In contrast to theories which would insist more or less emphatically on the usurpatory and illegitimate origin of Temporal Lordship, there was developed a doctrine which taught that the State had a rightful beginning in a Contract of Subjection to which the People was party. [Gierke 1958, 38-9]

In terms of the “coercion or contract” dichotomy, this tradition was grounded on contract.

Indeed that the legal title to all Rulership lies in the voluntary and contractual submission of the Ruled could therefore be propounded as a philosophic axiom. [Gierke 1958, 39-40]

A state of government which had been settled for many years was ex post facto legitimated by the tacit consent of the people.  Thomas Aquinas (1225-74) expressed the canonical medieval view.

Aquinas had laid it down in his Summary of Theology that, although the consent of the people is essential in order to establish a legitimate political society, the act of instituting a ruler always involves the citizens in alienating—rather than merely delegating—their original sovereign authority. [Skinner 1978, Vol. 1, 62]

In about 1310, according to Gierke, “Engelbert of Volkersdorf is the first to declare in a general way that all regna et principatus originated in a pactum subjectionis which satisfied a natural want and instinct.” [1958, 146]

After noting that an individual could sell himself into slavery under Hebrew and Roman law, Hugo Grotius extends the possibility to the political level.

Now if an individual may do so, why may not a whole people, for the benefit of better government and more certain protection, completely transfer their sovereign rights to one or more persons, without reserving any portion to themselves? [Grotius 1901 (1625), 63; quoted in Rousseau 1973, 185]

He goes on to cite some explicit examples.

For if the Campanians, formerly, when reduced by necessity surrendered themselves to the Roman people in the following terms: — “Senators of Rome, we consign to your dominion the people of Campania, and the city of Capua, our lands, our temples, and all things both divine and human,” and if another people as Appian relates, offered to submit to the Romans, and were refused, what is there to prevent any nation from submitting in the same manner to one powerful sovereign? [Grotius 1901 (1625), 63-4]

Thomas Hobbes (1588-1679) made the best-known attempt to found non-democratic government on the consent of the governed.  Without an overarching power to hold people in awe, life would be a constant war of all against all.  To prevent this state of chaos and strife, men should join together and voluntarily alienate and transfer the right of self-government to a person or body of persons as the sovereign.  This pactum subjectionis would be a

covenant of every man with every man, in such manner as if every man should say to every man, I authorize and give up my right of governing myself to this man, or to this assembly of men, on this condition, that you give up your right to him and authorize all his actions in like manner. [Hobbes 1958 (1651), 142]

The consent-based contractarian tradition is brought fully up to date in the work of the Harvard philosopher, Robert Nozick, who gave a contemporary libertarian defense of the contract to alienate one’s right of self-determination to a “dominant protective association” [Nozick 1974,  113].

Why is this intellectual history important?

Outside of the family, adults spend most of their time in the workplace. Since the United States and all the other industrialized political democracies proclaim to one and all their moral devotion to democratic self-government, it is a question of some importance whether or not the organizations where people spend most of their lives are in fact democratic. The governance or management of the people working in almost all firms is legally based on the voluntary employment contract.

If democracy is based on the consent of the governed, then since the management rights of the employers over the employees are also based on the consent of the governed via the employment contract, then there is no moral contradiction between the conventional corporation (based on the employment contract) and political democracy. But when we recall the intellectual history of autocracy based on the voluntary contracts of subjection, then we see that the key distinction in democratic theory was not “consent versus coercion” but consent to a contract to alienate self-governance rights versus consent to a contract which merely delegates governance rights to representatives to govern in the name of the governed.

But now we see why liberal intellectual history has such a penchant to focus only on the “consent versus coercion” question. The real roots of democratic theory are in the “translatio versus concessio” distinction (as emphasized in the modern civic republican tradition, e.g., Quentin Skinner), and in the argument that the translatio contract, the pactum subjectionis, is an inherently invalid contract like the voluntary slavery contract since it treats persons as things—and thus the right of self-government is inalienable.

There is, at least, one right that cannot be ceded or abandoned: the right to personality.  Arguing upon this principle the most influential writers on politics in the seventeenth century rejected the conclusions drawn by Hobbes.  They charged the great logician with a contradiction in terms.  If a man could give up his personality he would cease being a moral being. …  This fundamental right, the right to personality, includes in a sense all the others.  To maintain and to develop his personality is a universal right.  It … cannot, therefore, be transferred from one individual to another. … There is no pactum subjectionis, no act of submission by which man can give up the state of a free agent and enslave himself. [Cassirer 1963, p. 175]

The “problem” is that the employment contract now appears in a different light. Yes, it is voluntary but it is a translatio contract of alienation, not a contract of delegation. There is no writer on economic or business affairs who is so dim-witted as to think that the employer is the representative or delegate of the employees. Hence it is “better” to put much of democratic theory, e.g., the alienation versus delegation distinction, down the memory hole and to pretend that it is only a question of consent versus coercion. Then democratic government and the conventional corporation can be seen as resting on the same moral footing of voluntariness, so there is no basic moral contradiction running down the middle of modern society.

References

Cassirer, Ernst 1963. The Myth of the State. New Haven: Yale University Press.

Corwin, Edward S. 1955. The ‘Higher Law’ Background of American Constitutional Law. Ithaca: Cornell University Press.

Ellerman, David 1992. Property & Contract in Economics: The Case for Economic Democracy. Cambridge MA: Blackwell.

Ellerman, David 2005. Translatio versus Concessio: Retrieving the Debate about Contracts of Alienation with an Application to Today’s Employment Contract. Politics & Society. 33: 449-80.

Gierke, Otto von 1958. Political Theories of the Middle Age. F. W. Maitland (trans.), Boston: Beacon Press.

Gierke, Otto von 1966. The Development of Political Theory. B. Freyd (trans.), New York: Howard Fertig.

Grotius, Hugo 1901 (1625). The Rights of War and Peace. A. C. Campbell (trans.), Washington: M. Walter Dunne.

Hobbes, Thomas 1958 (1651). Leviathan. Indianapolis: Bobbs-Merrill.

Nozick, Robert 1974. Anarchy, State, and Utopia. New York: Basic Books.

Rousseau, J.J. 1973. The Social Contract and Discourses. G.D.H. Cole (trans.), London: J.M. Dent & Sons.

Sabine, George H. 1958. A History of Political Theory. New York: Henry  Holt and Company.

Skinner, Quentin 1978. The foundations of modern political thought. Two volumes. Cambridge: Cambridge University Press.

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