Consent : James Miller

If the status of political consent seems fraught in contemporary societies, so does the practice of consent in numerous other contexts. Here it will be useful to review a few specific cases.12 Consider, for example, the creation of carefully-structured “architectures of choice,” meant to “nudge” agents into consenting to alternatives that policy makers believe will “influence choices in a way that will make choosers better off, as judged by themselves.”13 But isn’t such “libertarian paternalism” (as Cass Sunstein and Richard Thaler put it) in itself a subtly coercive form of manipulation, however well-intentioned, geared de facto to producing passive acquiescence rather than fully voluntary and informed consent?14

Consider next the evolution of informed consent as a policy in modern American medicine: how much does a patient need to know, and in what detail, before the granting of consent can be regarded as truly (or sufficiently) free, and hence legally binding? The evidence is that recipients of standardized language detailing the risks of a specific medical procedure are likely to interpret it far more variably than one might hope. Should doctors therefore insist on an explicit dialogue that verifies that a patient understands the risks? Disturbingly, research suggests that the more a patient is engaged in dialogue to fully understand the risks detailed in a medical consent form, the less likely he or she may be to choose the procedure recommended by doctors, and therefore the worse the ultimate health outcome. Is this case, where informed consent isn’t actually desirable, is a more paternalist approach preferable?

Consider, as well, changing views on the age of consent in legislation regulating sexual encounters and the ambiguities of what linguistic and behavioral moves count as consent at moments of sexual excitement. Newly proposed (and sometimes enacted) codes for sexual consent on US college campuses, requiring explicit verbal requests and explicit verbal assent for every ongoing behavior, suggest that an explicit linguistic statement is the only way of verifying genuine consent. But explicit verbal assent at every change of state would be unusual in many other collaborative acts that require both parties to join (dancing together, shaking hands). This observation raises the question of what kinds of collaborative activities should require consent and what degree of explicit consent is required. Making choices is often presented as if it necessarily entails a rational calculation of interests; the ambiguity of choice-making at moments of erotic ardor (or is it a surrender to one’s passions?) raises larger questions about how individuals make choices, as well as questions about agency and self-understanding.

Consider, finally, the development of consent forms on the Internet and in digital contexts, where “agreements” that nobody seriously reads have become the norm for establishing legal consent. Consenting to the fine print is essential for joining the modern age, as one simply can’t buy or upgrade software without formal consent. Most vendors have tried to make clear that the user is consenting, by certifying that one has read a detailed agreement. Still, most users lack the patience to plow through all the fine print; in practice most are unaware of the uses to which their personal data may be put.

As one expert on contract law has noted, “one might argue that consent, in the robust sense expressed by the ideal of ‘freedom of contract’, is absent in the vast majority of the contracts we enter into these days, but its absence does little to affect the enforceability of the contracts.”15 In effect, consent is no longer a reliable criterion for the settling of disputes in a private contractual relationship, especially when one party has unfairly influenced the other’s decisions (as in many of the subprime mortgage transactions that led to the great recession of 2008).

In each of these cases, it seems at first glance that institutions and policies ostensibly devoted to soliciting voluntary agreement and informed consent in practice often secure passive acquiescence, contrary to assumptions – about free choice and moral responsibility – deeply held by many citizens in modern, liberal regimes.

All of these cases raise questions about what counts as voluntary, what counts as informed, and what counts as consent at all. Why is a more stringent understanding of consent required in one context, while in others, policy makers and sometimes even ordinary citizens seem happy to settle for passive acquiescence?

12. The examples that follow all come from a current research project on consent that I am pursuing in collaboration with my colleague Michael Schober, Professor of Psychology, New School for Social Research.

13. Richard Thaler and Cass Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven: Yale University Press, 2008), 5.

14. See, e.g., David Brooks, “Beware Stubby Glasses,” The New York Times (January 10, 2013), A23, who concludes enthusiastically that “The 21st century could be a great period for behavior change” – without worrying for a moment about the paternalist implications.

15. Brian H. Bix, “Contracts,” in The Ethics of Consent, 251.

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