Consent : James Miller

Michelle Rawlings / Rainbow

The verb consent came into English from an Old French verb (consenter) that itself was derived from the Latin verb consentio (to share in feeling), which is part of a family of Latin terms that includes the nouns consensio (agreement, harmony) and consensus (unanimity, concord). The English verb occurs as early as the twelfth century, in the sense of voluntarily acceding to or acquiescing in what another proposes or desires: to agree, to comply, to yield.¹ In the Middle Ages, to consent in English also sometimes meant to agree together, to be in accord, to be in harmony, to be affected in sympathy – these obsolete senses of the word survive today in the related English noun consensus.

The usage of consent as a noun in English derives from the verb, and is similarly varied, meaning, in different contexts, both active agreement and passive compliance. For example, Hobbes says in the Leviathan: “Silence is sometimes an argument of Consent.”²

In virtually every modern society the passage to adulthood inserts one within a regulated framework of norms that ascribe liberties and correlative duties to each individual. When one is old enough – and reaches the so-called age of consent – one is left alone to decide certain things for oneself, and with this freedom comes responsibility: an adult is expected to behave in certain ways.

At the same time, consent has widely come to be seen as the essence of contract law: “The things which I owe another from pacts and agreements, these I owe for the reason that he has acquired a new right against me from my own consent,” declared Pufendorf in 1672.³

As a term of art, consent in English has also subsequently appeared in a complex variety of similarly rarified contexts: political theories of consent of course; sexual regimes organized around various definitions of explicit consent; and – most rigorously of all – medical and research regimes that adhere to some version of the Code of Ethics first enunciated at the Nuremberg trial of Nazi doctors in 1947:

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

Civil societies are scarcely feasible without some sort of consent playing a key role in constructing rights and duties via granting permissions. As one expert on the “moral magic” of consent has put it, “whether the consent is viewed as opening a gate or as binding oneself, an act or outcome that would not be permissible absent the consent is given a normative sanction.”⁴

In recent decades, political philosophers such as John Rawls, Ronald Dworkin, and Joseph Raz have all debated the precise nature and scope of this normative sanction. More recently, the outstanding British moral philosopher Derek Parfit has proposed a “consent principle,” which suggests that it is wrong to treat people in ways to which they could not “rationally consent.” At the same time, political scientists and economists have refined a so-called “calculus of consent” as one basis of rational-choice theories and of libertarian approaches to public policy.⁵ Opponents of government domination on both the right (the tea party) and the left (Occupy Wall Street) often remark on the evident absence of real consent in many aspects of contemporary life: a calculus of consent, in other words, still offers one basis for a radical critique of social democracy and the modern liberal state.

Meanwhile, standardized consent forms have become a ubiquitous feature of our everyday lives. As software purchasers, participants in social research, and patients facing medical procedures, we are asked to assent with a check mark or signature to pages and pages of text that detail risks, consequences, and forfeited legal rights – verbiage that most often goes unread, even if checking a box indicates that “I agree.”

^{1. Oxford English Dictionary, “Consent,” meaning II.↩}

^{2. Thomas Hobbes, Leviathan, Part II, Chapter XXXVI, §3.↩}

^{3. Samuel Pufendorf, “On the Law of Nature and Nations” (Book III, Chapter 4), in The Political Writings of Samuel Pufendorf, ed. Craig L. Carr (Oxford: Oxford University Press, 1994), 166.↩}

^{4. John Kleinig, “The Nature of Consent,” in The Ethics of Consent, ed. Franklin Miller (Oxford: Oxford University Press, 2010), 4.↩}

^{5. The canonic work is by James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1962).↩}