Consent : James Miller

As the Nuremberg Code of Ethics makes plain, consent in contemporary usage is often associated not just with a freedom to choose, but also with a freedom from “any element of force, fraud, deceit . . . or other ulterior form of constraint or coercion.”

Yet as even our cursory survey shows, a number of ambiguities surround consent, both in theory and in practice. As its ancient lexical links to an ideal of consensus remind us, consent need not be construed simply as a property of choice-making individuals. Indeed, in practice, and depending on the context, the noun can mean either an active, fully-voluntary agreement made by an autonomous individual who (ideally) is enlightened and “informed,” or a passive acquiescence that is more or less free from “constraint or coercion.” In cases of silent compliance, it is not even clear who it is that consents: the sort of thoughtless conformism some associate with mass societies may well be a more typical consequence of modern regimes of consent than one might expect, despite (or perhaps paradoxically because of) ongoing collective efforts to “make consent cool.”⁶

John Locke famously elaborated some of these ambiguities by distinguishing between what he called “express” and “tacit” consent. In order to be express, consent must be informed and voluntary; for tacit consent, by contrast, acquiescence will suffice.

But Locke did more than draw a fruitful distinction. In the second of his Two Treatises on Government, first published in 1689, Locke theorized that it was via consent that individuals incurred political obligations. He hypothesized an original scene of voluntary consent that was subsequently renewed tacitly. As David Hume remarked a century later, Whig reformers may have imagined an original contract that required an informed act of consent – but in reality “obedience or subjection becomes so familiar, that most men never make any enquiry about its origin or cause, more than about the principle of gravity, resistance, or the most universal laws of nature.”⁷

For Hume, sheer inertia was one of the most salient aspects of human psychology, and he was quick to point out a paradox that followed from this psychological fact: though customs were pliable in principle, hence open to change, in practice human beings were creatures of habit. In fact, customs generally functioned as a profoundly conservative force. That was why a theory of government that seemed prima facie revolutionary and destabilizing turned out in practice to offer an excellent recipe for preserving the status quo in most circumstances. Thus the Whig presupposition of an originally consensual compact could nevertheless lead to a Tory outcome, namely passive obedience – though Hume thought it silly to describe the result as tacit consent.⁸

Can we seriously say that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages that he acquires? We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.⁹

^{6. See Natalie Kitroeff, “Making Consent Cool: Students Advocate for Consensual Sex,” The New York Times Education Life Supplement (February 7, 2014), ED16.↩}

^{7. David Hume, “Of the Original Contract,” in Essays, Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis: Liberty Classics, 1987), 470. ↩}

^{8. cf. David Hume, “Of the Original Contract,” 487.↩}

^{9. David Hume, “Of the Original Contract,” 475.↩}