Constitutive dependence

Constitutive dependence is the condition of a person whose operative standing as a bearer of rights or entitlements is produced by an institution, rather than merely recorded or administered by it. I introduced the concept in Beyond Consent, through the case of Aadhaar, India’s biometric identification system, which now stands between hundreds of millions of people and their rations, pensions and wages.

An elderly labourer’s fingerprints, worn by a life of manual work, fail to authenticate at the ration shop. She is not failing to give informed consent to a biometric system. She is failing to be recognised as a subject who could give or withhold consent to anything at all. She remains a person, a citizen and a legal claimant; what the system produces, and has withheld, is her standing at the interface, in virtue of which she counts as one to whom the ration is owed.

Three conditions hold jointly. The institution produces the person’s operative recognition as an entitlement-bearer. There is no standpoint of refusal or contestation from which she could decline the institution, or correct its verdict, without relinquishing the very standing she seeks to protect. And her continued recognition is revisable through operations internal to the institution, with no independent ground of recognition to appeal to.

The concept is easily confused with its neighbours. It is not instrumental dependence: if the electricity grid fails I remain a citizen with rights against the utility. It is not operational dependence: when a bank’s card reader fails, I am still owed my balance, and the bank must answer for the fault. It is not lock-in, which concerns the durability of infrastructure rather than the standing of persons. It is not coercion, since the coerced agent keeps a standpoint from which refusal is coherent, however costly. And it is not background inequality: a wealthy, educated citizen stands in it too.

Where it obtains, consent is not merely strained but conceptually misplaced, because the standpoint from which consent would be given is what the institution produces. Legitimacy must then rest on what the institution owes, which is the Constitutive Obligation Principle.