What is constitutive dependence?

Some institutions act on people who already have a standing. Others produce it. A clerk who processes your application presupposes that you are an applicant; a system that decides whether you can be recognised as one does something prior. Constitutive dependence is the name I give to the condition of people in the second kind of relation.

The three conditions

A person stands in constitutive dependence on an institution when three conditions jointly obtain.

1. The institution produces her operative recognition as a bearer of the relevant rights, entitlements or claims, rather than recording or administering a recognition that exists independently of it.
2. There is no standpoint of refusal or contestation from which she could decline to take part, or correct the institution’s verdict, without giving up the very standing she would be trying to protect.
3. Her continued recognition is revisable by the institution through mechanisms internal to it, without her being able to appeal to an independent ground of recognition.

The object of ‘constitution’ throughout is operative standing: not personhood, and not abstract legal status.

The paradigm case

India’s Aadhaar is the clearest example. It began as an identification system, but the progressive linkage of food rations, pensions, maternity benefits, scholarships and rural wage payments to Aadhaar authentication has made it, for hundreds of millions of people, the operative interface between themselves and the welfare state.

Consider the elderly manual labourer whose fingerprints, worn by a lifetime of 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 by it as someone who could give or withhold consent to anything. Her standing as an entitlement-bearer has been transferred from her legal status to her biometric substrate, and when the substrate fails, the standing fails with it.

Why it matters

Data protection and AI governance make legitimacy turn on consent: processing is legitimate if the person has authorised it. But consent presupposes a subject who exists prior to and independently of the system, with a standpoint outside it from which refusal would make sense. Under constitutive dependence that standpoint is foreclosed. Refusing the system is not a costly option; it is a category mistake. So consent cannot be what legitimates such a system, and the question becomes what the institution owes the people whose standing it produces.