Graduated consent in contract and tort law: toward a theory of justification.

Author:Bell, Tom W.


We often speak of consent in binary terms, boiling it down to "yes" or "no." In truth, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions, too. Those gradations of consent mark a deep structure of our social world, one especially evident in the contours of contract and tort law. This article draws on those and other sources to outline a theory of graduated consent, one that establishes a standard for measuring the justification of a wide variety of human relationships. Though its basic tenets comfortably agree with everyday common sense, graduated-consent theory offers surprising answers to such old problem as enforcing standardized agreements, justifying political coercion, and discerning the meaning of a constitution. In those and other applications, graduated-consent theory promises to enrich our understanding of contract and tort law, as well as other areas of legal moral, and economic reasoning.

CONTENTS INTRODUCTION I. WHY VALUE CONSENT'?. A. The Legal Value of Consent B. The Moral Value of Consent 1. Consequentialist Arguments About Consent 2. Deontological Arguments About Consent 3. Aretaic Arguments About Consent 4. A Transcendental Argument for Consent C. The Economic Value of Consent II. THE SCALE OF CONSENT A. Gradations of Consent 1. Express Consent 2. Implied Consent 3. Hypothetical Consent 4. Varieties of Unconsent 5. Nonconsent B. Evaluating the Justificatory Force of Different Types of Consent 1. Types and Subtypes of Consent 2. Types and Subtypes of Unconsent 3. Shades of Justification III. GRADUATED-CONSENT THEORY IN PRACTICE A. Standard Form Agreements B. The Problem of Justifying Political Coercion 1. The Difficulties of Justifying the State by Actual Consent 2. Relativity and Political Justification a) Relativity in Degree of Justification b) Relativity to Subjects 3. Making the United States More Consent Rich a) Easing Exit b) Amending the Pledge of Allegiance c) Citizen Courts C. Toward a Consensualist Theory of Constitutional Law 1. Questions for Originalists 2. Questions for Living Constitutionalists CONCLUSION


We often speak of consent in binary terms, boiling it down to "yes" or "no." That reflects one of the most fundamental features of social life, a phenomenon so widely observed as almost to escape mention: we generally smile on consensual transactions but frown on unconsensual ones. Unsurprisingly, given their common-law roots, the principles of contract and tort law reflect that same, deep structure of our world. Thus does contract law enforce express agreements, whereas tort law remedies unconsensual exchanges. Viewed in this low-resolution snapshot, consent exhibits a strictly binary, on-or-off nature.

When we study it in more detail, however, examining how consent works in actual practice, we see that it ebbs and flows by degrees. (1) We tend to afford expressly consensual transactions more respect than those backed by only implied consent, for instance, which we in turn regard as more worthy of enforcement than transactions justified by mere hypothetical consent. A similar ordinal ranking--a mirror of our judgments about consensual transactions--surfaces in our judgments about unconsensual ones. In those, the characteristic concerns of contract and tort law, we see proof that consent varies by degrees and measures the justification of human relationships. Drawing on examples from the common law and other sources, we can frame a theory of graduated consent, one that offers a useful tool for legal, ethical, and economic reasoning.

How does graduated consent work? Consider how it can explain the case of a delivery gone sorely amiss. (2) Suppose that an expectant mother contracts with a hospital to receive medical care during her childbirth. Her express consent suffices to turn what might otherwise look like a case of battery--the impliedly unconsensual poking and prodding administered by nurses and doctors--into justifiable aid. About that basic sort of transaction, the common law and graduated consent theory agree. Let us complicate matters, though, by further supposing that this particular patient emphatically objects in advance to receiving an episiotomy, going so far as to cross out the procedure on the hospital's paperwork, but that the physician attending the birth, calculating that only an episiotomy can save the patient from a lifethreatening complication, performs the procedure. When the patient later sues for battery, the doctor responds that any reasonable person would have agreed to receive an episiotomy under such circumstances and that doctors such as himself customarily have authority to render emergency medical care.

Should the physician thereby escape liability? Almost certainly not. The patient's express nonconsent to the episiotomy would presumptively (absent a showing of insanity or some other incapacitating factor) trump the merely hypothetical and implied consent on other side of the equation. As a common-law court would put it, "[I]n the face of a clear refusal to submit to a medical procedure, the emergency exception is inapplicable." (3) Graduatedconsent theory concurs, explaining that the case demonstrates how express unconsent outweighs hypothetical and implied consent, thereby rendering the transaction unjustified. By carefully defining those and related terms, and by describing how they interact to afford assessments of the justifiability of a wide range of social transactions, graduated-consent theory can both explain common-law precedents and extend their underlying reasoning to other contexts.

This Article explains and demonstrates graduated-consent theory in three basic steps: first, it establishes consent's value; second, its qualities; and third, its utility as a means for evaluating and improving social life. Part I reviews the case for consent, illustrating the important role that consent plays in legal, moral, and economic reasoning. That is not to say that everyone everywhere ranks consent as the supreme good that should be pursued above all else. Nonetheless, we can trace consent's influence on the face of most legal, moral, and economic theories. That interesting discovery alone merits attention. Consent grows still more interesting when we also consider that most legal, moral, and economic theories treat it as a prima facie good, one that they subordinate to other, more important goals only in exceptional cases. (4)

Part II describes the many gradations of consent and their order on a scale of justification. In the positive range, the scale runs from express consent, through implied consent, and down to hypothetical consent. Express consent bears more power to justify a transaction than either of those two lesser forms of consent can muster, while implied consent has more power to justify than merely hypothetical consent does. A similar ranking repeats, in reverse order, in justification's negative range. There, unconsent (5) increases in the steps from hypothetical unconsent, through implied unconsent, down to express unconsent. (As discussed later in the article, closer scrutiny reveals even finer gradations in the scale of consent, allowing us to subdivide these types into subtypes.(6)) Each type of consent tends to have a particular power to justify social exchanges--whether it evokes from observers' affirmative support, respectful noninterference, skeptical disapproval, or forceful objection. Consent and justification thus come in degrees and vary in step, one with the other. Figure 1, below, illustrates.


Part III puts this theory of graduated consent to work, applying it to such puzzles as the enforceability of standardized agreements, the justification of political coercion, and the reading of a constitution. That effort generates some interesting results. It explains the weighing process that courts use in deciding whether to enforce a standard form agreement, while supported by proofs of express consent, bears marks of hypothetical, implied, and (after the fact) express unconsent. Looking at political justification through the lens of graduated-consent theory reveals some trenchant criticisms of institutionalized coercion as well as some ways to render the United States more justified in taking action, such as increasing our freedom to exit certain government programs or instituting citizen courts. Thus might we, as good patriots, improve our country. (7)

Relatedly, in the context of constitutional decision making, a theory of graduated consent suggests that we can maximize the justification of a constitution by reading it to maximize the consent of the governed. Meaning, among other things, that we should enforce a constitution as a court would enforce a standard form agreement drafted and offered on a take-it-or-leave-it basis by one powerful party to many various weak ones. We should try, in other words, to forget that it is a constitution we expound, (8) and instead enforce it (or not) as we would any contract for the provision of governing services.

Those and other conclusions, some of them quite surprising, follow from adopting a graduated view of consent. Though it may seem obvious in retrospect that consent varies by degrees and justifies social relations, that deep structural feature of legal, moral, and economic reasoning has hitherto escaped careful and sustained attention. Graduated-consent theory can thus help us both to understand old truths and to uncover new ones.


    We value consent for many and good reasons. This Part explains the important role that consent plays in legal, moral, and economic reasoning. That is not to say that any...

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