Universal State Pension Schemes and the Duties of Retirees

Because they are funded on a pay-as-you-go basis, universal state pension schemes are long-term intergenerational contracts. In them, one working generation (G2) contracts with retirees (G1) to fund their retirement. Unlike in a standard contract, G1 does not offer anything to G2. Rather, G3 (G2’s children and grandchildren) will be expected to fund G2’s retirement in turn. In this way, G1 and G2 have bound G3 into a contract without their tacit or express consent (because they do not exist to give it at the time of the contract). In this chapter the author interrogates the foundational question of whether an intergenerational contract of this nature is just. The author anticipates that a model of hypothetical consent will help make sense of the binding nature of such a contract. However, the author also argues that if hypothetical consent is relied upon to justify such contracts, it will place unexpected obligations on G2, including the obligation to reproduce or support high levels of immigration, and rights for G3, including the right to heavily tax G2 if they do not discharge the aforementioned duties.

Unwanted Compatriots: Alienation, Migration, and Political Autonomy

In Territorial Sovereignty: A Philosophical Exploration, Anna Stilz argues that legitimate political authority requires the actual—rather than hypothetical—consent of the governed. I argue, however, that her analysis of that consent is inconsistent, in the weight it ascribes to the felt desire to refrain from doing politics with some particular group of people. In the context of secession and self-determination, the lack of actual consent to shared political institutions is weighty enough to render such institutions presumptively illegitimate. In the context of migration, however, a lack of actual consent to the presence of newcomers is ascribed nearly no weight, and instead is taken as evidence of irrationality or immoral preferences. I argue that this apparent contradiction must be clarified before Stilz's overall account of self-governance can be accepted.

Hypothetical Consent and Political Obligation

Hypothetical Consent Situations are widely employed in normative argument as if they help to justify normative claims or to explain normative facts. Historically, however, there is plenty of suspicion about them. In this light, there is a tendency to prefer theories of political obligation that do not depend upon hypothetical consent to explain political obligations – those that appeal, for instance, a general moral principle (like a natural duty) or to actual consent. This paper makes no full-throated defense of hypothetical consent. But it does try to identify more carefully than is usually done what sorts of cases they represent and to show that at least two concerns about them are unwarranted.

Participatory constitution-making: Introduction

At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.

A Two-Level Account of Executive Authority

This chapter will consider whether an inhabitant of a liberal state needs to be informed of all her government’s policies in order for that government to have legitimate authority to compel her actions. Another way of putting this question is whether government authority in a liberal state depends on full transparency. Security actors in a liberal state are charged with maintaining a relatively crime-free and peaceful society because such an environment is a necessary precondition for a person’s full enjoyment of her rights over time. State agents should pick consent-worthy tactics indexed to this consent-worthy end. Since efficacious tactics may be in tension with respect for people’s rights, consent-worthy tactics will be those that are the most efficacious, effective, reliable, proportionate, and rights-respecting available. Transparency is not necessary for legitimacy since legitimate government actions are indexed to the hypothetical consent of a generic person rather than the explicit consent of particular people. Transparency is necessary for inhabitants to ensure that state agents do not err or become corrupt in the pursuit of otherwise legitimate aims. Yet the complete disclosure of government actions will compromise some legitimate security-seeking missions. In these cases, the moral need for secrecy trumps the need for disclosure. Liberal governments then can conceal the existence of certain programs without compromising their authority to implement them. Secrecy opens the door to corruption, but thankfully, these parameters apply to few tactics.

Normative Consent and Authority

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.