Statehood, Power, and the New Face of Consent

Individuals and groups are often subjected to power, both public and private, by eliciting their consent. Debate usually focuses on whether or not that consent is freely given or is vitiated by imbalances of strength between the bargaining parties. This essay focuses on a different issue, one that is largely passed over in legal and moral analyses: how far does and should consent bind one to accepting in advance changes in the future? There are signs of a fundamental shift in answering this question-a shift that particularly concerns the control of power in the economy. Industrial democracies may be abandoning a conception of consent rooted in the model of the social contract. They may be moving toward a conception that requires the consenting parties to take on risks about the future that are more thoroughgoing and potentially damaging than would be allowed under the earlier model. Examples of this phenomenon will be drawn primarily from two domains in which issues of consent to economic power are central: employment law and international investment law. The evolution of legal principles of consent at work here will be critically evaluated with the help of the tools of political theory. It is an analysis that deliberately selects examples in order to illustrate positions rather than to provide an exhaustive account of the prevalence in different countries and sectors of the problems highlighted. The latter is a task for follow-up empirical investigation.