Consent : James Miller

Like most essentially-contested categories in our political lexicon, consent has been able to play a leading role in modern civil societies in part because of its ambiguities. As a survey of contemporary cases makes plain, the giving of consent in practice is elastic and – despite the superficially crisp distinction between consent and coercion – easily manipulated in various settings (for example, when someone signs a contract without understanding the fine print; or, when a citizen signals consent after protracted exposure to propaganda and misinformation).

Although prosperous residents of the United States are superficially autonomous individuals with choices to make freely, those of us who use smart phones or websites are also under constant surveillance (often with our unwitting consent, e.g., the mining of meta-data). This makes it easier than ever to identify and reshape our opinions and wants – and invites passive acquiescence rather than the active agreement demanded by the highest standards of informed consent.16 (It is telling in this regard that the mining of meta-data seems poised to replace public opinion polls as the preferred method for monitoring – and trying to influence – public opinion.)

A warrant of radical freedom in some contexts, consent becomes a legal trap in yet others. The autonomy of the individual is routinely eroded by some of the very institutions and practices ostensibly designed to safeguard its liberty. We are constantly being compromised by the demand for consent, as we willy-nilly affirm that we have legally assented to a variety of conditions that we have not really chosen and do not fully understand.17


Skeptical though I try to be about the various prejudices that I have internalized through a set of core ideas, including consent, that I take generally for granted, I cannot help but take pride in my ability to think through the terms of a potential agreement (when I have the time to do so), and come to a reasoned judgment as to whether or not I should assent to a proposition or a state of affairs – a process that would be perfectly pointless if I felt I had no real choice in the matter. In this way I generally assume in practice that consent is a meaningful idea, in part because the idea jibes with my even more deeply-entrenched assumption that I enjoy a certain measure of self-evident freedom, both in how I think, and in how I behave.

Liberal institutions, from our primary schools to our prevailing forms of contract law, by design reinforce such typically modern assumptions about the liberty of the individual, the salience of free choice, and the various forms of consent that follow from these ways of conceiving the world. While it is true that these institutions also chronically produce some perverse and paradoxical consequences, my inward feeling of freedom seems to me as inescapable as my conviction that securing this liberty requires somehow protecting my ability to make key choices without coercion or constraint.

And it is perhaps this purely negative institutional condition for consent, whether passive or active, that I can least imagine consenting to live without.


James Miller is Professor of Politics and Liberal Studies at the New School for Social for Social Research


Published on July 19, 2017

16. Thanks to our brave new interconnected world of data-mining, many of us submit silently to the techniques of self-policing that Michel Foucault called “panopticism.”

17. Cf. Stanley Cavell, Conditions Handsome and Unhandsome (Chicago: University of Chicago Press, 1990), 57.

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