The Routledge Handbook of the Ethics of Consent

Peter Schaber, Andreas Müller, Peter Schaber, Andreas Müller

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367734336
• eBook ISBN: 9781351028240
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

While the importance of consent has been discussed widely over the last few decades, interest in its study has received renewed attention in recent years, particularly regarding medical treatment, clinical research and sexual acts. The Routledge Handbook of the Ethics of Consent is an outstanding reference source to this exciting subject and the first collection of its kind. Comprising over thirty chapters by a team of international contributors, the Handbook is divided into five main parts:

• General questions

• Normative ethics

• Legal theory

• Medical ethics

• Political philosophy.

Within these sections central issues, debates and problems are examined, including: the nature and normative importance of consent, paternalism, exploitation and coercion, privacy, sexual consent, consent and criminal law, informed consent, organ donation, clinical research, and consent theory of political obligation and authority.

The Routledge Handbook of the Ethics of Consent is essential reading for students and researchers in moral theory, applied ethics, medical ethics, philosophy of law and political philosophy. This volume will also be very useful for those in related fields, such as political science, law, medicine and social science.

PART I

General questions

1

HISTORICAL PERSPECTIVES ON THE ETHICS OF CONSENT

Daniel Lee

My goal is to provide brief historical perspectives of the idea of consent in the moral, social, and political thought in the West. It is not intended to be comprehensive, but rather only to survey some of the major texts, themes, and interpretive problems to be explored in this volume. While acknowledging the limitations necessary to such a broad discussion as this, I nevertheless hope this chapter will convey points both of continuity as well as discontinuity in the understanding and valuation of consent over time in various philosophical and political traditions.

1.1 Consent in Antiquity

It is tempting to suppose that consent must have always enjoyed a privileged place in the history of moral, social, and political thought. That conventional wisdom, however, bears little relation to the historical reality of ancient ethics, where consent played a relatively minor role. Indeed, ethics in Antiquity, understood as the practical science of the good, operated on the cardinal principle that notions of value and virtue could not be determined simply by the human will, or even the concord of human wills, but only by something beyond human powers – whether in the divine or in nature.

It is true that writers in Antiquity made the occasional appeal to consent as a potential source of justification. The Greek physician, Hippocrates (c.450–c.380 B.C.E.), for example, is believed to have introduced informed consent in framing the moral boundaries of the doctor–patient relationship (Dalla-Vorgia et al. 2001: 60). Plato (c.429–c.347 B.C.E.), to take another well-known example, formulated a theory of political obligation based on a strict notion of “tacit” consent in the Crito, a dialogue depicting the final days of the condemned Socrates. Given the opportunity to escape, Socrates refuses and quietly accepts his fate. Socrates’ reasoning relies on the principle that “when one has come to an agreement that is just with someone … one should fulfill it”, including agreements that bind individuals under the obligation to obey the law (Plato 1997: 44 [Crito 49e]). Socrates, Plato conjectures, voluntarily entered into such an agreement, not by any formal oath or express contract, but simply by enjoying without complaint the many advantages of living in Athens. Socrates “could have gone away”, but he chose to remain and live as a citizen (Plato 1997: 46 [Crito 52e]). In so doing, Socrates, it is thought, voluntarily consented to take up the burdens of citizenship, including the solemn obligation to obey the law – even laws requiring his death.

What must be stressed, however, is the skepticism, even disdain, for the suggestion, advanced by sophists, that social and political institutions, and the duties they define, could be simply the product of consent, just like any commercial transaction in the marketplace. To Plato and many thinkers of Antiquity, there was something base and ignoble about grounding ethical matters upon consent, just as if it were the product of haggling, as in a bargain or barter.

It is thus remarkable that, given this background, consent gradually begins to take on special importance in the history of ideas, so much so that one of the most celebrated moral philosophers of Antiquity, Cicero (104–43 B.C.E.), specifies “consent” as one of the hallmarks defining a well-ordered society (Cicero 1988: 64 [De Re Publica 1.39]). This shift in the evaluation of consent occurs, I argue, for a very practical reason – to facilitate commerce and exchange between the diverse peoples of Antiquity, where, in the absence of shared customs and values, consent between parties engaging in some commercial transaction, hoping to reach a bargain, becomes the only reliable marker to validate a binding obligation.

One important source documenting this shift is to be found in the history of classical Roman law, the cornerstone of Western legal science. Roman law, like many other ancient legal systems, originated as a closed system, based on formal customs exclusively applicable to free Roman citizens. Because of this narrow scope of application, the legal remedies and rights of Roman law remained inaccessible to the foreigner, or peregrinus, who, legally speaking, was “rightless and dutiless” in the eyes of the Roman lawyer (Jolowicz & Nicholas 1972: 102). One of the practical consequences of this arrangement was the near-impossibility for Roman citizens to engage in legal or commercial relations with foreigners.

At first, this presented no real difficulty for Romans in the early history of the Republic, where commerce was largely contained within the city walls of Rome. But as Rome grew to become, in effect, a multinational empire and the major military and economic power in the ancient Mediterranean world, the archaic Roman law felt like an obstacle hindering commerce, rather than a catalyst enabling it. The acknowledged need for a pragmatic solution, to address the increasing diversity of the Mediterranean economy, rapidly led to a period of creative jurisprudence in the later Republic, introduced via Praetorian edicts, which gradually removed the traditional barriers legally excluding foreigners and made it easier for legal parties, whether of Roman citizenship or not, to engage in commerce.

Among the most important principles introduced into Roman law by the Praetors was the principle of consent, a doctrine that would become vitally important to the Roman theory of contract [pactum]. Ulpian, the Roman authority first cited in the title, De Pactis, in the Digest of Justinian, declares that the Latin word, pactum, like the word for “peace” [pax], is derived from the more generic notion of “agreement” or “bargain” [pactio]. He explains the common feature of all such pactiones is “the consent of two or more parties concerning the same thing” (D.2.14.1.2; cp. 50.12.3). Because the function of consent is to “collect” and “gather” [convenire] together many wills and unify them as one, the act of consent is to be called conventio [literally, a “coming-together”]. So central is the function of consent that Ulpian feels confident in making an even stronger doctrinal claim: “Unless there is consent”, there can be no contractual obligation (D.2.14.1.3).

This evolution in ancient contract law illustrates not only how consent came to play a central role in the ancient social imagination, but also a more general trend in Antiquity, once famously observed by Sir Henry Sumner Maine, whereby ancient law proceeds “from status to contract” (Maine 1885). Still, despite the elevation of the importance and practical value of consent, it made little difference to various categories of persons in Antiquity, such as women, minors, and especially slaves, whose legal status effectively handicapped their ability to express consent without some form of representation or legal fiction. An underage paterfamilias, though technically the head of the household and empowered with the legal status sui iuris, nevertheless could not legally express consent without the intermediating agency of a legal guardian. So, while the principle of consent may have been theoretically recognized in the ancient world, it misses one key element that is vital to the appraisal of consent in modernity – that is, a genuine respect for the moral autonomy and equality of individuals as consenting agents.

1.2 Consent in medieval thought

The history of ethics often overlooks the Middle Ages as a period critical to the notion of consent. One reason for this exclusion can be traced to nineteenth-century historical scholarship of medievalists such as Guizot, Carlyle, and Gierke, who assumed that medieval references to consent specifically meant collective consent, mediated through representative bodies such as parliaments, estates, or ecclesiastical councils, rather than individual consent. This characterization of medieval Europe as a “collectivist” or “corporative” anti-liberal culture reflected long-settled patterns of collective decision-making, especially in the Church where canons “were established by universal consent” [universali consensu] (Tierney 1982: 16).

Yet, while norms of collective or communal consent were central to medieval thought and practice, it is inaccurate to treat the Middle Ages as wholly antagonistic to individual consent. We can observe this in the feudal contract, so central to the socioeconomic organization and land distribution of medieval Europe. What is so exceptional about the solemn, quasi-ritualistic feudal oath binding a lord to his vassal was its intimately personal nature: The exchange of rights and duties between lord and vassal was an unmediated transaction, requiring the formal expression of consent between individuals (Bloch 1961: 145–62, 219–30; Berman 1983: 298–9, 304–7). The moral force of individual consent was further reflected in the various sources forming the medieval ius commune, the shared legal system of Roman and canon law that would become the foundation for Western legal science. There is perhaps no better illustration of this principle than in the canon law of Gratian’s Decretum, where, in a radical shift, individual consent becomes central to the law of marriage. Citing Isidore of Seville, Gratian declares that only “consent makes marriage” (Gratian 1584: C.27, qu.2); everything else is secondary. And Thomas Aquinas’ Summa Theologiae (1988: S.T. II-I, §15), one of the great documents of Scholastic theology and philosophy, evinces a genuine concern for the authenticity of individual consent when he identifies consent as a capacity exclusive to the rational nature of man.

Consent also performed a vital social and political function in medieval societies, especially in the institutional context of monarchical government, which, revealingly, pictured the relationship between the king and his kingdom as a symbiotic relationship connecting the head of a living being to the rest of its body (e.g., Kantorowicz 1985: 216). Bound in this way, kings were by no means absolute and “exempt from the laws” [legibus soluti], but strictly limited in their ability to govern unilaterally, especially regarding legislation and taxation (Pennington 1993: 113–16). Understood to be more suzerains than sovereigns of the body politic, kings were customarily obligated to seek not only the counsel, but, more importantly, the collective consent of the “great men”, lords both lay and spiritual, of their realms, assembled in such bodies as the Estates General of France and the Reichstag of the Holy Roman Empire. While this did not translate into liberal democracy, it did at least introduce the constitutional norm requiring royal government by consent of the governed.

Securing communal consent of magnates was particularly important in medieval English thought, where Parliament’s consent-granting function was reinforced in the Roman-law text appended by clerks in Chancery to Parliamentary writs declaring the purpose for such assemblies: Quod omnes tangit ab omnibus approbetur (Post 1964: 163–240). Henry de Bracton (c.1210–c.1268), the medieval jurist cited with approval by John Milton and John Locke, would identify these “counts and barons” of the king’s Parliamentary curia as the “king’s partners” [socii regis] and treat their collective consilium as one of the principal limitations upon a potentially tyrannical royal will (Bracton 1915: 110). Nearly two centuries later, the English chief justice Sir John Fortescue (c.1395–c.1477) would highlight Parliamentary consent as the key feature distinguishing the English monarchy from all other monarchies, such as the French, where the king is able to “change the laws of his kingdom at pleasure … and also impose on [subjects] tallages and other burdens without consulting them” (Fortescue 1997: 17). In England, by contrast, the monarch governs only by “such [laws] as [the people] assent to” (Fortescue 1997: 83).

Some of the most important contributions to medieval theories of consent are to be found in theories concerning the ecclesiastical government of the medieval Church. Officially, the Church was classified as a monarchy, with supreme authority vested in the Pope, as Christ’s sole representative on earth. The extreme version of this theory appeared in the 1302 Bull of Boniface VIII, Unam Sanctam, which outlined the so-called “hierocratic” theory of Papal plenitude of power, elevating the Papacy to a position theoretically unaccountable to any human authority (Black 1992: 44). It was against this background that medieval theologians and jurists crafted an alternative theory specifically designed to target the hierocratic theory by relocating the source of political legitimacy in the consent of the community.

The most important theorist of consent in this controversy was Marsilius of Padua, whose critique, developed in his treatise Defensor Pacis, involved a careful appeal to the anti-clerical notion that coercive powers of temporal government are derived entirely from popular consent, not from the episcopacy acting as the sole intermediaries distributing all powers exercised on earth. For Marsilius, all such temporal powers actually originate in political communities, which he designates “the human legislator”, since they are the sole origin of temporal lawful authority. Only by consent of “the people or the whole body of citizens, or the weightier [valentior] part thereof” can it be possible for governments to be legitimately established and laws to be enacted (Marsilius of Padua 2001: 45).

In this way, Marsilius developed a theory that positioned communal consent as the foundation for political legitimacy in medieval constitutional thought. For this reason, commentators have sometimes seen Marsilius as a key progenitor of the modern social contract tradition. But Marsilius’ theory had a more direct influence in the most important constitutional crisis of the Middle Ages – that is, the Great Schism in the medieval Church, which produced two (and briefly three) competing Popes with claims to the throne of St. Peter. Who decides which claimant has the best title to the Papacy? Marsilius’ answer is that such supreme decision-making powers in the Church belong ultimately to the concilium, the universal council of the Church.

Through this doctrine, known generally as “Conciliarism”, consent emerges as the governing principle even for the Church. The doctrine is best summarized in the decree Sacrosancta, published by the Council of Constance in 1415 as the theoretical justification for Conciliar authority to end the Great Schism. Jean Gerson, the Parisian theologian who was one of the principal authors of the decree, summarized the basic tenets of the theory: God intends the Church to be governed through conciliar bodies. Power, thus, descends from God, first to the whole membership of the Church as one mystical body represented in council, and then, only secondarily, to prelates commissioned to serve the Church. Since the power of all prelates, including the Pope, derives ultimately from this general community of the faithful [universitas fidelium], any executive decision or action made by a prelate without consent of the community is to be treated as unauthorized and without force.

Consent of the whole [universi] body of the Church, as represented in Council, becomes therefore the unique source of Papal legitimacy, just as it was for kingly legitimacy. And it is upon this basis that Conciliarists introduce the formulation that, while the Pope may be greater than any single member of the Church [maior singuli], he nevertheless remains subordinate to the whole Church as one body [minor universi]. The German canonist and cardinal Nicholas of Cusa, writing in the years after the enactment of Sacrosancta, formalizes the principle of consent in his treatise De Concordantia Cathol...

Table of contents

• Cover
• Half-title Page
• Title Page
• Copyright
• Contents
• Acknowledgements
• I General questions
• II Normative ethics
• III Legal theory
• IV Medical ethics
• V Political philosophy
• Index