The distinction between active and passive consent is not academic hair-splitting — it determines whether a people possess genuine authority over their government or merely rubber-stamp a ruler imposed on them from above. Samuel Rutherford’s Lex Rex drives a wedge through the divine-right theory precisely at this seam. If the people’s role in creating a king is merely passive — a mute acceptance of whoever God or hereditary succession delivers — then they have no grounds on which to hold that ruler accountable, resist tyranny, or establish conditions on the exercise of power. If, however, the people exercise active, causative power in making a man king, then the entire edifice of unlimited monarchy collapses. Rutherford argues forcefully for the latter.
The Argument from Active Verbs
Rutherford builds his case from the plain language of Scripture, noting that the Hebrew text consistently uses active verbs when describing the people’s role in establishing kings. The assembled tribes of Israel “made him king” and “caused him to reign.” These are not descriptions of passive reception. They describe real acts — deliberate choices by assembled people that transform a private man into a public, crowned authority. Even in cases where a prophet had already anointed a specific individual — Saul by Samuel, David by Samuel — the anointed person remained a private citizen until the collective body of the nation formally elected and installed him. Prophetic anointing designated a candidate; popular election completed the kingship. Without the people’s constitutive act, the crown did not exist.
This is a critical structural claim. It means that kingship is not self-generating. A man does not become king merely because God wills it internally or because blood descent entitles him. The formal cause — the act that actually brings the legal reality of kingship into being — is the people’s choice. The prophet identifies, but the nation institutes. The distinction between identification and institution is the hinge on which all of Rutherford’s subsequent arguments about limited government and lawful resistance turn.
Passive Consent as a Fiction
The royalist position Rutherford confronts held that the people possess only “passive approbation” — a ceremonial nod to God’s act. Under this theory, God directly creates the king; the people merely witness and submit. Rutherford dismantles this by pointing to the logical absurdity it creates: if the people’s consent is purely passive, then their presence at a coronation is decorative, their assemblies are theater, and the entire apparatus of oaths, covenants, and conditions that historically accompanied the installation of kings is meaningless.
But history shows otherwise. Coronations involved real negotiations, real conditions, and real oaths — exactly the kind of activity you would expect if the people were performing a causative act rather than passively observing one. The assembled states of Israel chose “this man rather than another,” a phrase Rutherford emphasizes. Choice implies alternatives. Passive approval does not discriminate between candidates; active election does. The very fact that the people could select one man and reject another proves their role was substantive, not ceremonial.
Implications for Constitutional Government
If the people actively create kings, then kingship is a trust — a delegated authority whose terms are set at the moment of delegation. The king holds power because the people granted it, and he holds it on the conditions under which they granted it. This is the philosophical foundation for constitutionalism: that governing authority is derived from and limited by the consent of the governed. When a king violates the terms of his appointment, he does not merely sin against God in some abstract, private sense — he breaches the covenant with the people who made him king, and they retain the authority to address that breach.
This doctrine of active popular consent directly feeds into the broader framework of popular sovereignty that Rutherford develops throughout Lex Rex. It also provides the logical precondition for the right of resistance: if the people never had real authority in the first place, they could never reclaim it. But because their consent was active and constitutive, the authority they delegated can be recalled or reasserted when the trust is violated.
The same logic undergirds Rutherford’s treatment of tyranny as a category distinct from lawful rule. A tyrant is not simply a king who governs badly — he is a man who has functionally un-kinged himself by destroying the covenant that made him king. The people’s active role in creating the office is what makes it possible for the office to be vacated by misconduct.
The Thread to American Constitutionalism
This argument did not remain in the realm of Scottish theology. The principle that legitimate government requires active consent — not passive submission — traveled through the English constitutional tradition, survived the Restoration’s attempt to suppress it, and emerged as a foundational premise of American political thought. The Declaration of Independence does not merely assert that government should serve the people; it asserts that government derives its “just powers from the consent of the governed,” an active, ongoing, conditional consent. That phrase is the direct descendant of Rutherford’s distinction between active and passive approbation.
Understanding this lineage matters because it clarifies why the right to bear arms, the right to assemble, and the right to hold government accountable are not government concessions — they are expressions of the same active popular authority that creates governments in the first place. The citizen-soldier tradition and the moral case for armed citizenship both rest on the premise that the people are not passive subjects but active participants in the political order, possessing real authority and real responsibilities.
Rutherford’s argument also connects forward to the historical examples of lawful civic resistance that demonstrate these principles in practice. When the English barons forced the Magna Carta, when the Scots resisted Stuart overreach, and when the American colonists declared independence, they were not rebels seizing something that did not belong to them. They were a people exercising the same active authority they had possessed all along — the authority to make, condition, and when necessary, unmake their rulers.