Before examining the origins of consent and private autonomy, another point
regarding the relationship between consent and legitimacy of government: the
application of consent outside contractual law is related to the consent of
the governed, the notion that the mandate of the sovereign ruler stems from
the consent of the public. As discussed in Chapter 5, social contract theories have
often included this premise within their frameworks. The question arises, to what
extent are sovereignty and consent congruent, or two sides of the same coin? It is
noteworthy that justificatory constructs are not completely unattached from each
other but there can be – and often is – overlap. As discussed in Chapter 5, this
results from the simultaneous application of several justificatory narratives, as they
seldom appear individually. In addition, sovereignty can be interpreted through
private autonomy, as is the case with the fictional consensual element of social
contract theories. We might even claim that establishing the principle of sovereignty requires a contract of private law between the sovereign and the governed,
leading to the point where both consent and sovereignty are different aspects of
the principle of democracy.
However, the shortcomings of social contract theories are numerous. First, it is
unclear whether the foundation of a social contract establishing sovereign power
is, in fact, embedded in free choice and consent of all concerned parties. As social
contract theories imply, the contract on sovereignty is a metaphoric fiction that
aims at explaining the conceptual jump from the state of nature to organised
society. There has been no constitutive social contract in history and there is no
effective opt-out alternative. As such, the social contract does not meet the
requirements of free choice and consent placed by classical contract theory, as
there is no actual meeting of the minds.
7 Second, consent and sovereignty,
although sharing connection points, conform to different rationalities – sovereignty
to that of the political system and consent to that of the economic system – and
thus joint examination would mean an unavoidable oversimplification of these
connections. Third, social contracts tend to subscribe to geographical borders and
presence within them as an outward sign of consent. This logic disintegrates in the
context of technology, where geographical markers lose most of their decisive
meaning and contractual instruments gain ground. Identifying consent with presence has the potential to obscure the complexity of online actions, leading to
unnecessary oversimplifications.
6.1.3 Deconstructing the 0rigins of private autonomy
As this examination focuses on the possibility of compensating the shortcomings of
sovereignty in justifying private enforcement, it is not possible to provide a comprehensive analysis of the formation and evolution of consent and private autonomy.
However, a short introduction to the theoretical context should suffice for the needs
of this study to demonstrate how the constitutive principle of private autonomy has
entered into the debate on dispute resolution in the form of consent.
One of the most influential examinations of the origins of contract law is that
of Henry James Sumner Maine’s in Ancient Law, which was published in 1861.
144 Three quests for justification
regarding the relationship between consent and legitimacy of government: the
application of consent outside contractual law is related to the consent of
the governed, the notion that the mandate of the sovereign ruler stems from
the consent of the public. As discussed in Chapter 5, social contract theories have
often included this premise within their frameworks. The question arises, to what
extent are sovereignty and consent congruent, or two sides of the same coin? It is
noteworthy that justificatory constructs are not completely unattached from each
other but there can be – and often is – overlap. As discussed in Chapter 5, this
results from the simultaneous application of several justificatory narratives, as they
seldom appear individually. In addition, sovereignty can be interpreted through
private autonomy, as is the case with the fictional consensual element of social
contract theories. We might even claim that establishing the principle of sovereignty requires a contract of private law between the sovereign and the governed,
leading to the point where both consent and sovereignty are different aspects of
the principle of democracy.
However, the shortcomings of social contract theories are numerous. First, it is
unclear whether the foundation of a social contract establishing sovereign power
is, in fact, embedded in free choice and consent of all concerned parties. As social
contract theories imply, the contract on sovereignty is a metaphoric fiction that
aims at explaining the conceptual jump from the state of nature to organised
society. There has been no constitutive social contract in history and there is no
effective opt-out alternative. As such, the social contract does not meet the
requirements of free choice and consent placed by classical contract theory, as
there is no actual meeting of the minds.
7 Second, consent and sovereignty,
although sharing connection points, conform to different rationalities – sovereignty
to that of the political system and consent to that of the economic system – and
thus joint examination would mean an unavoidable oversimplification of these
connections. Third, social contracts tend to subscribe to geographical borders and
presence within them as an outward sign of consent. This logic disintegrates in the
context of technology, where geographical markers lose most of their decisive
meaning and contractual instruments gain ground. Identifying consent with presence has the potential to obscure the complexity of online actions, leading to
unnecessary oversimplifications.
6.1.3 Deconstructing the 0rigins of private autonomy
As this examination focuses on the possibility of compensating the shortcomings of
sovereignty in justifying private enforcement, it is not possible to provide a comprehensive analysis of the formation and evolution of consent and private autonomy.
However, a short introduction to the theoretical context should suffice for the needs
of this study to demonstrate how the constitutive principle of private autonomy has
entered into the debate on dispute resolution in the form of consent.
One of the most influential examinations of the origins of contract law is that
of Henry James Sumner Maine’s in Ancient Law, which was published in 1861.
144 Three quests for justification