Holding up Hayek for abuse allows both right and left postliberals to substitute ideological argument for data and analysis of specific policies.
Liberalism, both classical and modern, has always had difficulty fitting children into its consent-based theories. In modern consent theories, “consent” is a theoretical fiction, one used as a proxy for “reasonableness.” Thus John Rawls’ veil of ignorance behind which deracinated humans choose principles of justice. Or Buchanan and Tullock’s original position in which individuals choose a constitution uncertain of what their endowments will be in the post-constitution world.
Earlier social contract theorists used the state of nature in a similar fashion. They used the idea not so much as a description of some sort of real original position, but as a useful fiction to help themselves and their readers think through reasonable political institutions, meaning institutions they would identify as optimal due to abstract considerations rather than choose them because those institutions would protect their already vested interests. It’s unclear whether “consent” ever referred to something real.
But when the American Declaration of Independence affirms that the “just powers” of government derive from the “consent of the governed,” it’s not clear, however the phrase be understood, that there is not supposed to be empirically observable consent of one form or another. Thus, the actual nature of consent, and who can—and cannot—consent, and what is consented to, becomes a pivotal issue in the American political tradition.
In her book, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority, historian Holly Brewer provides an absolutely fascinating account of the change in Anglo-American relationships—legal, political, ecclesial, and social—from sounding in status to sounding in consent. She describes this transition through the lens of historically evolving views of the ability of children to consent in these different spheres. Brewer does nothing less than trace the evolution of the central postulate of liberalism from theory to practice.
The scope of this legal and social transformation is breathtaking. Brewer provides evidence of child “consent” throughout the Anglo-American world of the 16th and 17th centuries. Children themselves could contract, and so legally oblige themselves, to marriage as young as seven:
Four-year-olds could make wills to give away their goods and chattels. Children of any age could bind themselves into apprenticeships. Eight-year-olds could be hanged for arson or any other felony. Teenagers were routinely elected to Parliament.
And the list of adult responsibilities that children could undertake goes on.
The issue was not limited to law and government. Brewer devotes a chapter to a heated debate in Protestant ecclesiology, the argument over infant baptism. (The alternative to infant baptism was limiting baptism to individuals who have reached some ill-defined age of accountability.) It wasn’t a simple dualism, however. The debate even roiled the circles of those who continued to practice infant baptism but could not agree on its import: What did baptism mean for an infant? Which infants could be baptized—those whose parents were believers, or could believing grandparents qualify an infant for baptism? What obligations, if any, did undergoing the rite as an infant imply when the child matured?
Brewer shows the interconnection of republican political theory with changing conceptions of church membership and ecclesiology, and she demonstrates that “consent” was the byword connecting debates in both civil and ecclesiastical spheres.
Understandably given the distant in time of the documents with which she works, Brewer concedes her “study does not show prevalence, which is nearly impossible to discern.” Rather, “it sketches the big picture—establishing that assumptions were very different from our own, and that we, whether social or political historians, should not take our own norms for granted.” Getting a glimpse into a mindset alien to today’s liberalism is the treat this volume offers. Brewer’s work underscores just how fundamentally liberal all Americans are today, whether they identify as liberal or conservative, religious or not. “Consent” is the god to whom all Americans genuflect today.
Fetching as well is the thread Brewer recurs to through her book tracing ironic implications of the reorientation of so much of life around the notion of mature consent. Not least, she points out children were systematically infantilized by the decisional shift from the authority of status to the authority of consent. The move to “consent” took choice away from children, whether they were capable of exercising mature consent or not. The result was that their lives were placed firmly in the hands of others. To be sure, the reader can ask whether many children were truly exercising their own agency when, say, contracting a marriage at age eight, or whether parents or guardians were already exercising real agency, binding children to future courses of action under the guise of the children’s decision.
Moreover, by reorienting the authority for making a binding decision from status to mature consent, Brewer argues the debate over children carried metaphorical resonances into other relationships. By analogizing women and slaves to “children” in their ostensible inability to provide mature consent, the changing legal status of children’s decisions provided a rhetorical framework used to justify deprivation of choice to infantilized adults.
I do have a quibble or two, as well as thoughts on the implications of Brewer’s argument for liberalism today. I’ll take those up in a subsequent post or two.