Beyond illusion : a juridical genealogy of consent in criminal and medical law
Consent is a concept used frequently and with great significance in a wide array of legal fields. It serves to regulate relationships, legitimize authority, delimit normality, and entrench idealized ways of being in the world. Yet despite the consequence of these functions, there is very little precision within legal scholarship about just what consent is. Few investigations of its definitional content depart from presumptive statements about personal autonomy. These associations are often described as the ‘common sense’ of consent and serve to secure a foundationalist discourse about what consent is, rendering alternative conceptions of its meaning or functions unintelligible. This is perhaps best evidenced in more critical approaches to consent, where despite widespread acknowledgement of the concept as a legal and political fiction, its status as a signifier of autonomy is maintained. This creates an imperative to move beyond the notion of consent as merely an illusion, to an understanding of it as something more operative. Not only does the story of autonomy that is told about consent obscure the social realities of inequality, difference, and subordination that might threaten a notion of a homogenous citizenry (and thus, governmental action made in its name), but it also conceals the historically specific conditions of existence which have brought consent’s ‘common sense’ story of autonomy into being. This thesis explores how this dominant narrative of consent, while producing certain ‘ideal’ subjectivities, also necessarily produces subjectivities which don’t fall within the ambit of consent. Moreover, this project asks what is achieved when the meaning of consent is positioned as a matter of ‘common sense’? What does its apparent transparency keep obscure?
In contrast to conventional approaches to consent, this project positions consent as an historical artefact rather than a concept with doctrinal, cognitive, or communicative certainty and seeks to investigate its operations across legal fields rather than strictly within them. This includes an examination of consent to sex, the doctrine of informed consent in medical jurisprudence, and the defence of consent to assault in professional sporting contexts. Further, the project engages in a ‘juridical genealogy’ of consent, studying its use in three vastly different historical periods in search of how it might perform different socio-political functions than understandings of its role within contemporary medical and criminal law suggest it should. How these counter-narratives of consent serve to challenge the dominant autonomy story are investigated for what they reveal about the frames of cultural and legal intelligibility at work in consent law today.