It is a pleasing illusion to believe that all our moral and political dilemmas could be resolved by the magic principle of “consent.” Here we have a standard that seems as obvious and incontestable as is attractive. For public purposes (at least), let us count as “right” anything to which the individual consents, and as “wrong” anything that violates his or her consent. Something like this moral position lies at the foundation of our liberal-democratic political order and therefore deeply informs our very sense of justice. So it cannot be surprising when we reach for the principle of “consent” in attempting to adjudicate matters once thought to be too complex and personal to conform to the abstract justice of the law. I am of course referring to questions of sex.
First, political consent: Government by the consent of the governed is a sacred first principle for us, enshrined in the “self-evident” truths of the Declaration of Independence. But the idea of consent embedded in the American Founding did not imply a pure reliance on the arbitrary will or fancy of individuals; consent was presumed to be informed by “the laws of nature and nature’s God,” by a moral universe informed at once by John Locke’s rational politics of individual property rights and by views inherited from Christianity. As no less a political rationalist than James Madison well understood, effective popular government must be shaped and supported by sources of authority above and beyond the vagaries of a purely individual consent: “the reverence that time bestows,” that is, beliefs and traditions inherited apart from any purely individual act of “consent,” are at least as necessary to a liberal constitution as to any form of government.
True consent must be reasonable consent; otherwise any despot or despotic religion that holds effective sway over its subjects might claim the honorific title of “government by consent.”
The limits of “consent” as an adequate principle for governing human life are equally evident in the controversial realm of sexuality. Of course, unwanted advances are offensive, and public entities, as well as private organizations such as businesses and universities, are well within their rights in stigmatizing and punishing real sexual harassment. And rape is rightly considered a very heinous legal offense, as all decent societies have long agreed. So the punishable wrongness of sexual aggression is not in question here. The question is whether “consent” by itself is adequate to define and regulate the domain of human sexuality.
It is precisely because sex involves both lower passions and more sublime possibilities than real estate negotiations that it has traditionally been regulated by complex and subtle cultural codes in no way reducible to a binary yes/no principle. The problem is that in the subtle exchange of romance, “consent” evolves and is discovered through a delicate process in which male and female roles are by nature distinct.
We may be puzzled if in some cases we are rightly shocked today by scenes from romantic movies just a few decades old, since these often involved the hero overcoming the heroine’s resistance with some show of confidence and determination. But we are left to ask whether such scenes do not after all depict a part of the truth of the man/woman problem to which the pure language of “consent” is willfully blind. The idea that sexual commerce can be wholly reduced to a kind of economic-rationalist logic of consent is the real “fantasy.” There are reasons rooted deeply in human nature for the typical male initiative and female reserve (French “pudeur”) in romance. The ideology of “consent” won’t make these reasons go away, but only leave them uncivilized. This, I repeat, is not to deny that the old-fashioned romantic scenario can be taken too far and issue into real harassment, or worse.
In the sexual as well as in the political arena, the policy of consent leads inevitably to the question, what counts as consent? When is consent reasonable, informed, deliberate and therefore authoritative? This is a question that has become a real matter of adjudication on college campuses and elsewhere.15 comments on this story
We can agree at the outset that an underage person should not be considered capable of consent, nor a person so inebriated as to not have command of his or her faculties. (But what to say if the alleged aggressor himself claims that inebriation exempts him from being a rational actor?) Some institutions have tried to further refine the principle of consent by arguing that true consent only exists where there is no “pressure” or “manipulation.” But in what world is it possible objectively to isolate pure “consent” from all shades or all claims of “pressure” or “manipulation”?
The concept of consent will never be by itself an adequate standard of sexual conduct, any more than it can by itself provide the basis of political community.