On Using the Concept of Hypothetical Consent

Abstract

AbstractThis article argues that the concept of hypothetical consent advanced by Hanna Pitkin has little force as a basis for political obligation. It reformulates the meaning of hypothetical consent by emphasizing the subjectivity of consent, and it points out how this subjective meaning expresses the right of actual citizens to dissent. It suggests how subjective hypothetical consent can be used from the perspective of a sovereign as a standard that requires the sovereign to treat citizens as if they had consented, although they have not consented. It concludes by arguing that although this standard may appear to corrode political authority, instead it enhances political authority. It drives the sovereign to relinquish the claim that citizens are obligated to obey, and to treat them so they will have reason to obey.