The Law and Politics of Consent: Legal and Political Subjectivity

It would be hard to overestimate the importance of the roles of consent and contract in modern conceptions of legitimate social, economic, and political relations. The ‘free agreement’ of ‘the individual’ in modernity is expressed through contracting with others in ways that he judges will further his own interests.¹

[M]odern practices of consent through negotiation occur within and reproduce the colonization of indigenous people rather than initiating processes of decolonization. By entering into negotiations under these conditions, indigenous peoples thus appear to consent tacitly to their acquiescence in the imposed institutions … contrary to the generations of resistance. This is the problem of the subordination of one partner and the hegemony of the other. … It is a major reason why so many First Nations refuse to enter into treaty negotiations and so many indigenous people refuse to ratify agreements negotiated by their leaders.²

[Colonial] attitudes towards Aboriginal women deny any agency with which to consent to sexual relations since it is perpetually assumed. This writes out the violence, coercion and duress of white men and the constraints on the agency of Aboriginal women in the colonial context.³

If sexuality is relational, specifically if it is a power relation of gender, consent is a communication under conditions of inequality.⁴

Insofar as consent involves agreeing to something the terms of which one does not determine, consent marks the subordinate status of the consenting party. Consent in this way functions as a sign of legitimate subordination.⁵

[A]n ‘affirmative consent’ standard is the least-bad standard available for sexual assault law, compared to ‘force’, ‘resistance’, or nonconsent standards. So if we should screw consent neither when it comes to sex nor when it comes to sex law, where should we screw it? In our sex politics. In our activism and advocacy for an egalitarian, feminist and more democratically hedonic sexual culture, consent talk at best diminishes and at worst perverts our sexual justice politics. And if we cannot jettison consent from our sexual justice politics altogether, we should … [release] consent’s capture of our imaginations in order to invite more-promising values, norms and concepts into our efforts for building a safer, more democratically hedonic culture.⁶

1.0 Introduction

Current debates on consent in law often focus on sexual violence and intimacy, where consent may be taken for granted as the conceptual pivot between the legitimate and illegitimate. In this #MeToo moment, much important academic work, from Joseph Fischel’s Screw Consent, by which he means ‘tinker, tighten and pressure’ consent,⁷ to Catharine MacKinnon’s arguments for dispensing with consent as a legal concept with at best limited utility in the context of sexual inequality,⁸ has contributed to the debates. But, as the quotes above suggest, consent has in recent times been debated across disciplines and concepts in law, society, economics and politics. Intimacy is not the only domain where consent operates as a legitimating conceptual pivot: in imperial treaties, in doctors’ surgeries, on social media and in the simple act of a handshake we see consent working its ‘moral magic’.⁹ The most prevalent justifications of modern states and democracies, set out by the social contract theorists, share a ‘legitimizing consensuality’ as a ‘crucial common factor’,¹⁰ and consent is also central to the production and structuring of social, economic and political relations within those societies. It played a central role in European imperial and colonial projects, both legitimating imperialism and maintaining the legitimacy of colonial settler societies. It frequently informs, or structures, current contestation on sovereignty, treaties, and racial reparations within settler colonial states. It also features in relation to current ‘social contracts’, such as agreements setting wages or working conditions among governments, unions and employers. Ideas of consent travel across disciplines, bodies of theory and practical applications, including citizenship and areas of both public and private law.¹¹ Feminists analysing consent have often focussed in two areas – those in political theory, ethics and philosophy tend to concentrate on theories and ideas of consent, often in contrast with women’s everyday experiences of it, while feminist legal scholars have focused on consent in sexual encounters and sexual assault.¹²

This special issue grows out of a symposium, co-hosted by the Legal Intersections Research Centre at the University of Wollongong and UTS Law in 2019. The symposium was concerned with foregrounding the politics of consent, asking what engaging with consent as a legal, political, relational, gendered concept can bring to our understanding of it, and of the contests regarding consent across these crucial current debates. In addressing this question, I wanted to start by thinking about how consent in the foundational stories of the social contract theorists constitutes and legitimates political authority in modern democracies. This introduction to the special issue therefore begins, at Section 2.0, by framing the project with an analysis of consent and its gendering in the foundational, and legitimating, stories of origin of modern states, the social contract theorists, focussing on the particularly influential John Locke and Henri Rousseau, and some feminist and critical work excavating gender in these stories. Section 3.0 reflects on consent in settler colonial societies, which situates and provides context for the articles by Maria Giannacopoulos¹³ and Penny Edmonds.¹⁴ Section 4.0 moves to the production and gendering of the legal subject, contract and consent in social contract and liberal theory, highlighting subordination through consent to the state, and in consent more generally. These ideas frame what might be called the cul-de-sac of consent in sexual assault law, and this section introduces the articles from Julia Quilter,¹⁵ Elisabeth McDonald¹⁶ and Sarah Ailwood.¹⁷ Focussing on the production of the legal subject though discourse is the focus, and here Tanja Serisier’s¹⁸ and Kate Seear, Suzanne Fraser and Annie Madden’s¹⁹ contributions highlight the co-constitutive nature of consent and the subject in calling for new forms of recognition of the interests of the dead post-mortem.

My argument, building on the work of Wendy Brown and Carole Pateman and woven through this discussion, is that while consent and agreement are often used interchangeably in these foundation stories and in analyses of law and political obligation more generally, a closer analysis reveals both a distinction and a gendered hierarchy in the terms. This distinction has received more attention from feminist political theorists than from legal feminists. Attention to this gendered hierarchy is a productive starting point for feminist analyses of consent across social, economic, and political relationships.

2.0 Some Social Contract Theories and Foundational Stories of Consent

The work of social contract theorists provides one of the dominant modes of legitimising political power in modern Western political thought.²⁰ These theories are ‘foundational’ because they tell us, as individuals and legal subjects, stories about the legitimacy of state power – they are stories of origin of the justifications for the exercise of state power and its use of force. These stories, and the idea of a social contract based on consent, have entered our social consciousness and are often invoked, without much explanation, in current debates about democracy, the social welfare state and treaties with indigenous peoples. For example, in Australia it has been argued that COVID-19 requires a new social contract between government, business and the trade union movement.²¹ In 2021 UNESCO called for a new social contract between governments, institutions, organisations and citizens for education to build peaceful, just and sustainable futures.²² Stories of origin shape and limit how we think about ourselves as a society, and about ourselves in relation to the state and its legal order, as legal subjects. Ideas about consent to political obligation in these founding stories influence and are reproduced in current discussions of social contracts, and of politico-legal subjects and of consent in the law. Any discussion of consent in law should therefore attend to its position in a gendered hierarchy with agreement in these foundational stories.

Consent is pivotal to the legitimacy of state authority and power in the work of the theorists most influential in the founding of liberal democracies – John Locke and Henri Rousseau. These theories proceed through two fictions: the fiction of the ‘state of nature’ and the fiction of consent. The fictional ‘state of nature’ is a pre-political, pre-government era, in which individuals were ‘naturally’ born free and equal. The question to be addressed was why and how they might be governed by anyone else, or submit to state, or other, sovereignty and the exercise of power and authority over them. As Locke argues, individuals can retain freedom and equality while submitting to authority by voluntarily consenting to that authority.²³

Consent is a pivotal concept in these stories – it is necessary to legitimate subjection of the individual to the state.²⁴ As a free and voluntary act it gives legitimacy to the power structure. As a constituent element or essential characteristic of modern states, it is said to distinguish democracies from undemocratic regimes:

[T]he idea of ‘consent’ has survived … as a constituent element of democratic ideology: as a specification of an essential characteristic of democratic regimes which distinguish them from the non-democratic.²⁵

The free and equal individuals of liberalism must voluntarily ‘consent, agree contract or promise’²⁶ to assume political obligations necessary to living in an organised society and under the rule of law.

However, the consent necessary to the legitimation of the state is fictional. It is said that consent to the original social contract might be express or implied. Express consent would have been given by fictional individuals in the state of nature, as Pufendorf puts it, by ‘speaking, writing, nodding, etc’.²⁷ The assumption of actual consent by individuals in a fantasy-like pre-social environment, a fictional story, is necessary to legitimise the foundations of liberal democratic states.

The consent of current members of society in these stories is also fictional. In these theories consent by ancestors does not legitimate political obligation over their descendants.²⁸ Therefore the current justification or legitimation of the political obligation of individuals to the state presents a problem. This problem is addressed by Locke through the idea of tacit consent, individuals going about their daily activities in contemporary society in a peaceful manner:

[E]very man that has any possession, or enjoyment of any part of the dominions of any government, doth hereby give his tacit consent, and is … obliged to obedience to the laws of that government … whether this his possession be of land, … or a lodging for only a week, or barely travelling freely on the highway … .²⁹

An activity as insignificant as walking down a highway is taken as tacit consent, legitimising obedience to the state. As Carole Pateman points out in her famous feminist analysis, identification of consent in ‘habitual acquiescence, assent, silent dissent, submission, or even enforced submission’ robs it of meaning. At best, what she calls ‘hypothetical voluntarism’ a fiction of consent to already existing state power, is necessary to these stories.³⁰ She concludes that, ‘[u]nless refusal of consent or withdrawal of consent are real possibilities, we can no longer speak of “consent” in any genuine sense’.³¹

The extent of the problem of hypothetical voluntarism in political obligation, becomes clear when contrasted with these theories’ assumptions about obligations arising from promises.³² Promising, Pateman argues, ‘stands at the opposite pole from hypothetical voluntarism’, which is assumed – it involves an individual taking on explicit obligations and commitments voluntarily, knowingly and deliberately, through the exercise of reason.³³ Consent to political obligation, or to the state, is like only promising to obey, a specific form of promising which places the promisor in a subordinate position, limiting freedom and equality. This consent does not bring relationships of obligation into existence, but is ‘to’ an existing situation:

When consent is given, the object of consent already exists; consent is given to something. Contract brings new relationships into being (and thus reflects the original contract that brings – is said to bring – the modern state and its institutions into being) … .³⁴

Pateman expands on the difference between consent to political obligation and promising, or more specifically contracting, noting that for the former to be analogous to the latter it would be necessary for ‘each individual citizen actually to take part in making the political decisions’ that give rise to the political obligation.³⁵ As social contract theory was about legitimating the existence of the modern state, and is not an agreement in the state of nature, the consent referred to is necessary to legitimate the existing states, and is only ‘said to bring’ a new relationship, the modern state and its institutions, into being. Most importantly for this analysis of consent, Pateman’s comments suggest distinguishing consent and agreement, such as agreement to contract, more clearly. Consent is aligned with the ‘assumed’ hypothetical voluntarism, consent to something that already exists, and contract with the more robust promising, in which individuals may negotiate and agree to specific obligations. As I discuss below, Wendy Brown also distinguishes contract and consent, gendering contract as masculine and consent as feminine. For feminists analysing consent in law, such as in relation to sexual assault, it is important to recognise these embedded, sedimented limitations of the concept of consent in liberal democracies, and not to make assumptions that consent is or can be easily redefined, or tinkered with, to make it look like agreement between equals.

3.0 Consent, Imperialism and Settler Colonial States

The social contract theorists provide a founding story of state governments that legitimises the use of force through the fiction of consent – the force of the state, state violence in enforcing criminal laws, but many other types of state violence too. Notions of consent are also imbricated in European imperialism, and the legitimation of resulting state violence. Locke is perhaps the most obvious example of this. Locke lived and wrote at the time of European imperialism and invasion. In public and private service to the colonial administration of Carolina for over 10 years between 1669 and 1700 he ‘actively applied theory to colonial practice’ through his service and his contribution to the writing of the colony’s constitutions.³⁶ Locke facilitated the project of imperialism and colonisation by theorising that Indigenous peoples need not consent to government for it to be legitimate. He based this conclusion on the incorrect assumption that their societies were not developed enough by the European measures of civilisation, which he defined as the acquisition of rights to land by mixing one’s labour with the land (the agriculturalist argument) or by various standards of independent government. These measures were invented by Locke specifically to further the interests of imperialism and were widely used for that purpose.³⁷ However, paradoxically, once Indigenous peoples acquiesce in the colonial government by participating in it through trade and the use of money, they are taken to have consented to it.³⁸

The British used the idea of consent through treaties with Indigenous people to legitimise imperialism. Calling for consent from Indigenous peoples implicitly recognised their societies as civilised, as in this quote from New Zealand:

It is difficult or impossible to find in the History of British Colonization an Example of a Colony having ever been founded in derogation of such rights, whether of Sovereignty or of Property, as are those of the Chiefs and People of New Zealand. They are not Savages living by the Chase, but Tribes who have apportioned the country between them, having fixed Abodes, with an acknowledged Property in the Soil, and with some rude approaches to a regular System of internal Government. It may therefore be assumed … that Great Britain has no legal or moral right to establish a Colony in New Zealand, without the free consent of the Natives, deliberately given, without Compulsion, and without Fraud.³⁹

Here ‘fixed abodes’, ‘Property in the Soil’ and a regular system of government are the markers of both civilisation and the capacity to consent.⁴⁰ Free and voluntary consent is necessary for the legitimation of the imposition of British government over the Indigenous peoples. However, in New Zealand as elsewhere, there is a compelling argument that the consent of the Maori leaders who did sign the Treaty of Waitangi 1840 (the ‘Treaty’) was obtained through deliberate deceit.⁴¹ It was nevertheless taken as sufficient to legitimate the imposition of British sovereignty. Like hypothetical voluntarism, political obligation was imposed through a fictional consent.

Maria Giannacopolous, one of Australia’s most theoretically rigorous and politically uncompromising legal scholars, speaks truth to power in the controversial areas of sovereignty, colonialism, austerity and borders. Her article ‘White Law/Black Deaths: Nomocide and the Foundational Absence of Consent in Australian Law’ in this special issue highlights both the deep imbrication of ideas of consent in establishing legitimacy for the founding stories of settler colonial states, and the current currency of these ideas, resulting in illegitimacy on their own terms, of states such as Australia that lack consent because sovereignty was never ceded. Any ex post facto consent, achieved for example through a present-day treaty, would be as meaningless in legitimising an already existing colonial state as Pateman’s hypothetical voluntarism. Further, as Irene Watson says, ‘if we say [no], how will it roll?’, echoing Pateman’s point that consent is not meaningful if there is no option of refusal.⁴² The link between lack of consent, and legitimacy, in the founding of the state, and the ongoing refusal to engage with its violent origins, Giannacopoulos terms nomocide, or the genocide of law, ‘the killing function performed by law in reproducing colonial conditions in contemporary Australia’.⁴³

Like all stories of origin, social contract theories recognise and privilege some key elements and subjects and subordinate and erase others. Pateman’s work emphasised that the sexual contract preceded the social contract, so that (white) women were not brought into the political order of the modern state in the same way as (white) men. They were included as men’s subordinates, and excluded from political citizenship.⁴⁴ The ‘individual’ in these tales is a property-owning European man – women, slaves, wage labourers and Indigenous peoples are, already, produced as both natural categories and naturally subordinated.⁴⁵ For these groups consent remains fictional, for example, for women ‘their apparent “consent” to the authority of their husbands is only a formal recognition of their “natural” subordination’.⁴⁶ The men who make the original contract are white men, and the pact has three prongs: the social contract, the sexual contract and the slave, or racial, contract that legitimises the rule of white people over black.⁴⁷ Or, building on Mills’ schema, we can imagine the intersecting north south axis of gender with an east west axis of race, which places white women above the race axis but on the subordinate side of the gender axis, non-white men on the dominant side of the gender axis but the subordinate side of the race axis and women of colour on the subordinate side of both race and gender axes.⁴⁸ Mills’ identifies white women and non-white men as ‘subcontractors’ who have some real power in this deal, and women of colour as ‘non-contractors’.

The treatment of Indigenous women as ‘non-contractors’ is evident in obtaining consent to the Treaty in Aotearoa New Zealand. In most cases where the Maori leaders were women, the British emissaries refused to allow them to sign. As Linda Tuhiwai Smith has demonstrated, ‘Maori men were the ones with whom the colonisers negotiated, traded and treatied’ and Maori women leaders were seen as the ‘exception to the rule, not the norm’.⁴⁹ In the context of the imposition of colonial power hierarchies, this resulted in some cases in re-ordering Maori and other Indigenous societies, as recognition of male leaders instead of female leaders conferred more power on men. In other cases, refusal to allow Maori women to sign resulted in anger from Maori women, in Maori male leaders refusing to sign, and in at least one case, in an entire hapu, or subtribe, withdrawing from the Treaty process.⁵⁰

The implications of assumptions about this ‘natural’ and ‘non-contractor’ subordination, particularly at the intersections of race, Indigeneity and gender, are often borne on the bodies of women. Larissa Behrendt makes visible the often ignored history of the prevalent ‘sexual abuse of Aboriginal women on the frontier and in the colony’.⁵¹ She argues that the agency of Aboriginal women to consent in Australia was not recognised during the colonial period, but rather ‘perpetually assumed’, and that this failure to recognise their agency continues today in law and culture.⁵² The colonisers here dispense with even their own legitimating concepts of apparent consent. Nevertheless, Aboriginal women can be seen exercising agency and autonomy in negotiating their various relationships with white men and women within shifting colonial power structures, historically and today.⁵³

In her article in this special issue, ‘The Case of Nie’s Refusal: Gender, Law and Consent in the Shadow of Pacific Slavery’ Penelope Edmonds examines contract and consent at the intersection of colonial law, race and gender in the 1881 Case of Nie. She analyses and contextualises the conditions under which a Pacific Islander woman could give consent to transport from Vanuatu to Queensland, to a verbal labour contract for domestic employment and to the ‘hidden sexual services’ implied within that agreement. Her nuanced analysis builds on the premises of this special issue by carefully tracing, as she so beautifully and perceptively captures it, the ‘ideational and material genealogies of cultural practice and imagining that form the prehistory of any legal “moment”, and especially of contract and consent’. As Edmonds argues, consent plays a politically important role in Nie’s case, producing relationships of subordination and eliciting, at crucial moments, Nie’s refusal, an assertion of her embodied sovereignty.

4.0 Consent, Politico-Legal Subjectivity and Subordination

Edmonds also traces the outlines of Nie’s legal personhood, subjectivity and subordination, shaped and limited by cultural legal processes. Social contract theory and liberal theory produce a dominant white male subject of the law who is said to freely and voluntarily consent to the sovereign state and agree to contracts in the private sphere. Nie’s legal personhood, or subjectivity, Edmonds argues, was both recognised in her ‘political and performative act’ in giving testimony in court, and limited by her subjection to the ‘protective’ measures of the Pacific Labourers Act 1880 (Qld). The legal subjects of social contract theorists such as Rousseau are authorial subjects of the law, in that they consent with each other to surrender certain powers to the sovereign in return for a place in the body politic, as an indivisible part of the sovereign.⁵⁴ In theory they are, at the same time, both part of the sovereign law maker, and subjected to the laws of the sovereign as individuals. These two versions of the subject must be sutured together in citizenship, always precariously.⁵⁵ The splitting and suturing are a fiction that can never be achieved – and the majority of humanity are subject to the laws without meaningfully being authorial subjects of the laws.⁵⁶ Full contracting subjects of the social contract, white propertied men, become the authorial subjects of the law. Women, historically brought into the social contract on a subordinate basis to men, are subjected to the laws without, for the most part even today, being the authors of the law.⁵⁷ White propertied men trade freedom in the state of nature for both a chance as authorial subjects of the law and for what is said to be freedom to contract, or to negotiate agreements that structure their rights and duties in relation to other individuals, in private law. They are feminised to the extent of their subordination to the sovereign, but also always potentially, and in practice, authorial subjects of the law, or lawmakers. They emerge from the social contract as full legal subjects with rights in the public sphere of civil society. For (white) women, the suturing of the two versions of subject into citizenship, and the achievement of moments as authorial subjects of the law, can be precarious indeed, as studies of women as leaders of nations have suggested.⁵⁸

As feminists have argued, necessary to liberal theory’s understanding of civil society, and to the full legal subjects that operate there, is the realm of the family and the role of women in the private sphere. The key, constitutive elements of the state and civil society in liberal theory include equality, liberty, autonomy, the individual, and rights, which are all gendered male and can be opposed to difference, necessity/encumbrance, dependence/dependants, needs/duties, which are all feminised, or associated with women.⁵⁹ To this familiar feminist list Wendy Brown adds contract and consent, gendered masculine and feminine:

Within liberalism, contract is a civil act abstracted from relations of power: it is expressive of, and performs, formal equality and relations of distance.⁶⁰

Conceptually, in abstracting from relations of power, contract proceeds as though the parties are formally equal, and in doing so it expresses and performs what we as a society mean by formal equality. This is not to say that contracts actually are freely negotiated by equal parties, but that ‘contract’ is positioned this way within liberal discourse.

Consent, on the feminine side of the dualism, is mired in subordination. Brown argues that:

[i]nsofar as consent involves agreeing to something the terms of which one does not determine, consent marks the subordinate status of the consenting party. Consent in this way functions as a sign of legitimate subordination.⁶¹

Brown’s point echoes that of Pateman and Mills, discussed above. But Brown goes further to analyse a shift in analysis of the legal subject. She notes that the subjects of social contract and liberal theory are assumed to have existed prior to the social contract, rather than as produced, or interpellated and subjected, in a Foucauldian sense, through discourses of truth, such as in the work of the social contract theorists.⁶² This theoretical perspective recognises law as a powerful discourse of truth and legal subjects as produced through law and language more generally.⁶³ In this sense, consent is ‘a response to power … not a mode of enacting or sharing power … [it is] constitutive of … authority and legitimated by it’.⁶⁴ It is always mediated by authority because it is obtained or registered rather than enacted. Maria Drakopoulou also recognises the problem of consent to the sovereign, in social contract terms, or the social order in terms of discourses of power, and the resulting social practices of self-subjugation.⁶⁵ She suggests that female subjectivity is the historical correlation of processes of subjectification, and argues that much of feminist critique of consent attempts to reclaim it for freedom and voluntariness, ignoring the ‘darker … side’ of the consenting subject’s subjugation to the state, and the ‘watched and self-watching governable self’.⁶⁶ Consent as a subordinate and subordinating concept, opposed to contract, is necessary to, and embedded in, ideas about the social contract and liberal theory.

Reclaiming consent for freedom and voluntariness has been the focus of much of the debate around sexual assault, where consent is a pivotal element between legitimate and criminal sexual intimacy. Two articles in this special issue collection focus on consent and sexual assault. Quilter’s article, ‘Getting Consent “Right”: Sexual Assault Law Reform in New South Wales’ analyses the modernisation of consent law in relation to sexual assault in Australia, including identifying legislative amendments defining consent as ‘free and voluntary agreement’. This legislative ‘reclaiming’ of consent for freedom and voluntariness, Quilter suggests, has not resulted in practice in significant change to the common law requirement that the complainant resist to communicate lack of consent. She argues, concurring with Churcher and Gatens,⁶⁷ that the sedimented history of rape myths is so deeply embedded in our society that legislative change alone is scant weaponry in the arsenal needed for change. Or, to put it another way, full and voluntary agreement cannot easily be read into consent. Providing more explicit examples of what consent looks like, rather than focussing on what consent is not, is one suggested alternative. She notes that the NSW Criminal Trial Courts Bench Book,⁶⁸ which provides guidance to judges on directions for juries, still refers to an absence of consent as communicated by the complainants’ resistance as the sole example other than using words. Quilter recommends a more holistic approach to implementation of legislative reform, including attention to bench books and ongoing evaluation of reforms facilitated by principles of ‘open justice’ and access to court proceedings by researchers.

Elisabeth McDonald’s article, ‘Communicating Absence of Consent Is Not Enough: The Results of an Examination of Contemporary Rape Trials’, engages in the evaluation of previous law reform, as called for by Quilter, focusing on consent in a powerful and detailed analysis of forty adult jury rape trials in New Zealand. The cases involved complainants who had some social contact with the defendant, which are cases where the complainant typically has the most difficulty with the court process and the ‘justice’ meted out. The evaluation includes a comprehensive review of trial transcripts, including closing arguments and jury directions, as well as rare access to audio recordings of complainants’ evidence and court files including pre-trial rulings and Notes of Evidence. McDonald finds that while in twenty-six of these cases an absence of consent, or an absence of capacity to consent, was clearly communicated, verbally and physically, in only thirteen of these cases was there a conviction. In half of the cases where there was clear communication of a verbal ‘no’ there were no convictions. Her analysis, like Quilter’s, reveals the imbrication of gendered tropes about rape as culturally produced sets of ideas about sexual wrongdoing, that trump legal standards of consent in rape trials. The presence or absence of consent is subordinated to ideas about masculine and feminine sexual behaviour. The regulation of the social order, in Drakopoulou’s terms, trumps the language of law in producing legal subjects. Or, to put it another way, cultural stories about rape are read into, or override legal requirements for consent in rape laws, producing women as not credible politico-legal subjects and men as authorial subjects of the law, whose ‘reasonable’ determination that the woman is consenting is the law. McDonald concludes that neither an affirmative nor a communicative model of consent in rape law alone are likely to overcome this trumping of legal consent by culture.

Pateman identifies the implications of this for both the efficacy of consent and for full political subjectivity:

Consent in a meaningful sense is jeopardized when the words of a certain category of citizens, or half the citizen body, are always open to invalidation. If women’s ‘yes’ and ‘no’ cannot be accepted, how can they take part in political life – or in deliberation – as equal citizens? And if women’s equal participation is in doubt, then so are deliberative claims about legitimacy.⁶⁹

Here Pateman links credibility in relation to sexual assault to credibility more broadly in the body politic, highlighting that full politico-legal subjectivity is not possible unless consent includes the ability to say no, or refuse, and the recognition that ‘no means no’.

Judith Butler, like Drakopoulou and Brown, calls into question the existence of a politico-legal subject prior to the social contract, and theorises the subject as produced through the language of liberal discourses, focusing on the powers that ‘act upon us prior to our willing’ and ‘actually frame and form our will’, and in particular the discourses of contract and consent that are always already ‘colonized’ by law.⁷⁰ We come into being through language and law as crucial discourses of truth that contribute to constituting who we are. Starting from the recognition of the social production of the subject through discourse, in her article in this special issue, ‘From Date Rape Jeopardy to (Not) Drinking Tea: Consent Humour, Ridicule and Cultural Change’, Tanja Serisier analyses two key moments in popular humour on consent and sexual intimacy – a Saturday Night Live skit from the 1970s and the ‘Tea and Consent’ video that went viral on social media in 2015. She notes that humour and ridicule reflect societal heteronormative, patriarchal gender norms, contributing to the regulation and self-regulation of subjects. Both examples of popular humour about affirmative consent standards centre the perspective of a sexually sophisticated middle-class subject and makes those lacking in this ‘cultural capital’ the objects of humour. The well-worn trope of working-class male masculinity as ungovernable lies underneath consent humour in both examples. Serisier also argues that between the 1970s and 2015 consent politics has become respectable through the removal of the feminist figure; its distancing from feminist challenges to the established heteronormative order has mainstreamed consent politics, and this is reflected in these two examples of consent humour.

Sarah Ailwood’s article in this special issue, ‘“Collateral Damage”: Consent, Subjectivity and Australia’s #MeToo Moment’, explores in detail some of the implications of the constitutive production of the subject through language, focusing on narrative, the stories that we tell about ourselves and that others tell about us. These stories draw on the available dominant gendered narratives about women, who we are, what we are capable of and can achieve, and where we belong, as well as more subversive narratives such as those that feminists tell about ourselves. All of these narratives may also be resisted, and reshaped. Ailwood traces the weaponisation of the #MeToo movement in Australia; claims of sexual harassment made public by men against other powerful men through particularly masculine forms of competition and brinksmanship. She argues that stories told about three women survivors of alleged sexual harassment were commodified for power and profit while naming and objectifying the women as victims without their consent, through the exercise of male power, over which they have no control. They object in part because they recognise, like Tess in Thomas Hardy’s classic, that in some senses ‘Once a victim, always victim: that’s the law’.⁷¹ The argument here is that the loss of control and commodification of the narratives of these deeply personal and traumatic life-changing events is a gendered harm to the women’s subjectivity for which the law provides no redress. This harm may be contrasted with the harms protected through defamation laws, where reputation has historically, and still largely today, been a matter of concern to men, not women.⁷²

Finally in this special issue, Kate Seear, Suzanne Fraser and Annie Madden, in their article ‘The Problem of the Subject: The Politics of Post-Mortem Rights in the Aftermath of Drug-Related Deaths’, pick up on both this gendered critique of defamation law, and Ailwood’s identification of a harm without legal redress, turning to the use of images of deaths from drug overdoses or state violence integral to the ‘war on drugs’. These images may be widely circulated without the consent of the people featured post-mortem, and often produce the lives of drug users as ‘not quite legitimate, not quite sustainable’. How should the law respond? Defamation law, sometimes used to argue for post-mortem rights, relies on the humanist, masculine ideas of individual subjects, leading to the problem of identifying to whom rights might attach after the individual has died, as well as the problem of the gendering of reputations deserving of protection, which may disadvantage women. But if the dead have the power to act upon the living, as the use of images seems to assume, then there are broader considerations. We need new conceptualisations of the subject of law. They turn to Spinoza’s idea that matter, the world and humans are one, a ‘monistic worldview’ and Sara Ahmed’s articulation of the productive power of affect and emotion in producing subjects and collectivities, arguing that these ideas can assist with rethinking post-mortem interests as effecting and affecting those beyond the dead.

5.0 Concluding Thoughts

This special issue sets out to broaden our perspective on the current debates on consent, from examining consent in the foundations of liberal democracies and in the resulting social, economic and political relationships, to a focus on it as a legitimising pivot between sexual intimacy and assault. This perspective demonstrates that sex politics, or political subjects, and law, or legal subjects are cut from the same cloth in liberal theory. As a result of the imbrication of both the politico-legal subject and its exercise of consent and agreement in liberal theory, rethinking conceptualisations of the subject and consent are themes that run through much of the feminist theorising on consent. Serisier agrees with Fischel that the response to problems with consent in the law of sexual assault is often arguments for more, or better, versions of consent. The contributors to this issue are at best sceptical about the project of reclaiming consent from its subordinate position in liberal theory to fix, correct or add more of it to sexual assault law.

Fischel may be correct that the problem in our societies with sex is about how ‘access to pleasure and intimacy is … so systematically and unfairly apportioned to the privileged few’,⁷³ by whom he means mostly privileged white men. But his suggestion that sex law and sex politics be distinguished, and that we ‘screw consent’ in sex politics, aiming for a more democratic hedonism may, the contributors to this special issue suggest, distract us from the politics of consent in law, and of the subject of law, long a focus of feminists in law for good reason. For many feminists, it is the context of consent, whether that is the cultural context of rape tropes or myths, or the broader context of the societal and cultural gendered distribution of power, or the foundational context of liberal theory, that is crucial.⁷⁴

Both Pateman and Brown have turned to rethinking these contexts of consent, hoping, and gesturing towards new forms of democratic possibility. In Brown’s terms, new democracies will be forged, inevitably, from two current trends: the neoliberal re-entrenchment of masculinist liberal norms in deeper commodification and individualism; and challenges to the fiction of the sovereign rights-bearing masculine subject that decentre neoliberal norms and draw on mutual dependency and need.⁷⁵

Pateman highlights the growing gulf between ‘citizens’ and ‘official democracy’ and cautions against turning from consent to contract as the answer. Consent cannot be erased from the systems of meaning in which it is so deeply embedded with contract and ‘contract and markets cannot be the model for an entire social order’.⁷⁶ Turning to participatory democracy, and recent interest in deliberative democracy, she is sceptical of the ‘tacit acceptance’ of existing power structures of most deliberative democracy work.⁷⁷ Addressing the existing power structures and meaningfully renewing democracy might start, she suggests, with the right to a basic income, especially for women, and all of those in impoverished countries. Provision of the material basis for meaningful autonomy and democratic participation is a necessary first step.

Existing power structures would also hinder participation in any move to reclaim democracy for its participatory aspirations. Discussing participation in a First Nations’ governing in northwest British Columbia, Val Napoleon identifies a dialogic process of deliberation that ‘served the roles often attributed by political theorists to consent’.⁷⁸ A system of laws allowing a large group of people to manage themselves and their political, social and economic institutions is accompanied by engaged legal reasoning where discussion, disagreement, affirmation and reconciliation:

can be seen as a continual renewal of adherence, a continual and purposeful re-creation of the fabric of community, through deliberation on that community’s structure and commitments, all against a backdrop of kin relations and an ethic of respect.⁷⁹

This deliberative process can be seen as combining political and legal participation that subjects members of the society to governance by the rules. The process is informed by, and actions are interpreted considering a deeply layered and sedimented collective history. Like any form of democracy or legal reasoning, it is messy.⁸⁰ Politico-legal subjects are produced through law and language. A collective process of renewal of adherence to political and legal obligation through participatory dialogue, supported by provision of the material basis for meaningful autonomy and attention to the distortions of existing power structures, aspiring to continually re-create the fabric of society, is a useful starting point for rethinking consent in law and politics.

Notes

1 Moira Gatens, ‘Paradoxes of Liberal Politics: Contracts, Rights and Consent’ in Daniel I O’Neill, Mary Lyndon Shanley and Iris Marion Young (eds) Illusion of Consent: Engaging with Carole Pateman (Pennsylvania State University Press 2008) 31 at 31.

2 James Tully, ‘Consent, Hegemony, and Dissent in Treaty Negotiations’ in Jeremy Webber and Colin M Macleod (eds) Between Consenting Peoples: Political Community and the Meaning of Consent (UBC Press 2011) 233 at 242.

3 Larissa Behrendt, ‘Consent in a (Neo)Colonial Society: Aboriginal Women as Sexual and Legal “Other”’ (2000) 15(33) Australian Feminist Studies 353 at 355.

4 Catharine A MacKinnon, ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence’ (1983) 8(4) Signs 635 at 652.

5 Wendy Brown, States of Injury: Power and Freedom in Later Modernity (Princeton University Press 1995) 163.

6 Joseph J Fischel, Screw Consent: A Better Politics of Sexual Justice (University of California Press 2019) 3–4.

7 As above at 4.

8 Catharine A MacKinnon, ‘Rape Redefined’ (2016) 10(2) Harvard Law & Policy Review 431.

9 Heidi M Hurd, ‘The Moral Magic of Consent’ (1996) 2(2) Legal Theory 121.

10 Charles Mills, ‘The Domination Contract’ in Carole Pateman and Charles Mills (eds) Contract and Domination (Polity Press 2007) 79 at 82.

11 See Maria Drakopoulou, ‘Feminism and Consent: A Genealogical Inquiry’ in Rosemary Hunter and Sharon Cowan (eds) Choice and Consent: Feminist Engagements with Law and Subjectivity (Routledge-Cavendish 2007) 9.

12 As above at 9; see also Clare Dalton, ‘An Essay in the Deconstruction of Contract Doctrine’ (1985) 94(5) Yale Law Journal 997; Hazel Biggs and Robin Mackenzie, ‘Gendered Readings of Obligations: Social Lore or Strict Legal Forms?’ (2000) 8(1) Feminist Legal Studies 1; Anne Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (Cavendish Publishing 1996).

13 Maria Giannacopoulos, ‘White Law/Black Deaths: Nomocide and the Foundational Absence of Consent in Australian Law’ (2020) 46(2) Australian Feminist Law Journal 249.

14 Penelope Edmonds, ‘The Case of Nie’s Refusal: Gender, Law and Consent in the Shadow of Pacific Slavery’ (2020) 46(2) Australian Feminist Law Journal 265.

15 Julia Quilter, ‘Getting Consent “Right”: Sexual Assault Law Reform in New South Wales’ (2020) 46(2) Australian Feminist Law Journal 225.

16 Elisabeth McDonald, ‘Communicating Absence of Consent Is Not Enough: The Results of an Examination of Contemporary Rape Trials’ (2020) 46(2) Australian Feminist Law Journal 205.

17 Sarah Ailwood, ‘“Collateral Damage”: Consent, Subjectivity and Australia’s #MeToo Moment’ (2020) 46(2) Australian Feminist Law Journal 285.

18 Tanya Serisier, ‘From Date Rape Jeopardy to (Not) Drinking Tea: Consent Humour, Ridicule and Cultural Change’ (2020) 46(2) Australian Feminist Law Journal 189.

19 Kate Seear, Suzanne Fraser and Annie Madden, ‘The Problem of the Subject: The Politics of Post-Mortem Rights in the Aftermath of Drug-Related Deaths’ (2020) 46(2) Australian Feminist Law Journal 169.

20 Daniel I O’Neill, Mary Lyndon Shanley and Iris Marion Young (eds), Illusion of Consent: Engaging with Carole Pateman (Pennysylvania State University Press 2008) 4.

21 Russell Lansbury, ‘Time for a New Social Contract’ Sydney Morning Herald (online) 29 May 2020 <https://www.smh.com.au/business/workplace/time-for-a-new-social-contract-20200505-p54q5g.html> (last accessed 12 March 2022).

22 International Commission on the Futures of Education, Reimagining Our Futures Together: A New Social Contract for Education Report to UNESCO 2021.

23 John Locke, The Second Treatise of Government (Liberal Arts Press, first published 1690, 1952 ed) [54].

24 As above at [121]–[122].

25 P H Partridge, Consent and Consensus (Macmillan 1971) 23.

26 Carole Pateman, The Problem of Political Obligation: A Critical Analysis of Liberal Theory (John Wiley & Sons 1985) 14.

27 Paul Russell, ‘Locke on Express and Tacit Consent: Misinterpretations and Inconsistencies’ (1986) 14(2) Political Theory 291 at 294.

28 Pateman above note 26 at 22.

29 Locke above note 23 at [119].

30 Carole Pateman, ‘Women and Consent’ (1980) 8(2) Political Theory 149 at 150–1.

31 As above at 150.

32 Pateman above note 26 at 17.

33 As above; Carole Pateman, Nancy J Hirschmann and G Bingham Powell Jr, ‘Political Obligation, Freedom and Feminism’ (1992) 86(1) American Political Science Review 179 at 179.

34 Carole Pateman, ‘Afterword’ in Daniel I O’Neill, Mary Lyndon Shanley and Iris Marion Young (eds) Illusion of Consent: Engaging with Carole Pateman (Pennsylvania State University Press 2008) 231 at 238.

35 Carole Pateman, ‘Political Obligation and Conceptual Analysis’ (1973) 21(2) Political Studies 199, 207.

36 David Armitage, ‘John Locke, Carolina, and the Two Treatises of Government’ (2004) 32(5) Political Theory 602, 603.

37 Barbara Arneil, John Locke and America: The Defence of English Colonialism (Oxford University Press 1996); Armitage above note 36 at 618–19.

38 Tully above note 2 at 235; Carole Pateman, The Sexual Contract (Stanford University Press 1988) 220–1.

39 Lord Glenelg, Memorandum of 14 June 1837, CO 209/2:409, quoted in Paul McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press 1991) 29 (emphasis added).

40 Nan Seuffert, ‘Contract, Consent and Imperialism in New Zealand’s Founding Narrative’ (2015) 2 Law & History 1, 20–1.

41 Nan Seuffert, ‘Colonising Concepts of the Good Citizen, Law’s Deceptions, and the Treaty of Waitangi’ (1998) 4(2) Law Text Culture 69; Seuffert above note 40 at 25; Claudia Orange, The Treaty of Waitangi (Allen & Unwin 1987) 33, 40, 42.

42 Irene Watson, ‘Aboriginal Recognition: Treaties and Colonial Constitutions, “We Have Been Here Forever  … ”’ (2018) 30(1) Bond Law Review 7, 13.

43 Giannacopoulos above note 13 at 250.

44 Pateman and others, above note 33 at 181.

45 O’Neill and others, above note 20 at 9; Pateman above note 38 at 220–1; Pateman above note 30 at 153; Gatens above note 1 at 33.

46 Pateman above note 30 at 153; Pateman above note 38 at 226.

47 Pateman above note 38 at 221; Charles W Mills, The Racial Contract (Cornell University Press 1997).

48 Mills above note 10 at 173.

49 Linda Tuhiwai Smith, ‘Maori Women: Discourses, Projects and Mana Wahine’ in Sue Middleton and Alison Jones (eds) Women and Education in Aotearoa 2 (Bridget Williams Books 1992, 1st ed) 33, 48–9.

50 Seuffert above note 40 at 27.

51 Behrendt above note 3 at 353.

52 As above at 353, 355.

53 As above.

54 Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Hart Publishing 2000) 222.

55 As above at 222–3.

56 As above.

57 See Macarena Iribarne and Nan Seuffert, ‘Imagined Legal Subjects and the Regulation of Female Genital Surgery’ (2018) 44(2) Australian Feminist Law Journal 175.

58 As above; Nan Seuffert, Jurisprudence of National Identity: Kaleidoscopes of Imperialism and Globalisation from Aotearoa New Zealand (Ashgate 2007).

59 Brown above note 5 at 152–64.

60 As above at 162.

61 As above at 163.

62 As above at 144–6.

63 Law is a powerful voice or signifier which has the authority to assert that the version of events it allows to prevail is the only truth of the event: see Carol Smart, Feminism and the Power of Law (Routledge 1989) 34; Peter Goodrich, ‘Maladies of the Legal Soul: Psychoanalysis and Interpretation in Law’ (1997) 54(3) Washington & Lee Law Review 1035, 1038.

64 Brown above note 5 at 163.

65 Drakopoulou above note 11 at 13.

66 As above at 29–30.

67 Millicent Churcher and Moira Gatens, ‘Reframing Honour in Heterosexual Relations’ (2019) 24(4) Angelaki 151.

68 Judicial Commission of NSW, Criminal Trial Courts Bench Book Update 62 (May 2020).

69 Pateman above note 34 at 237–8.

70 Judith Butler, ‘Sexual Consent: Some Thoughts on Psychoanalysis and Law’ (2012) 21(2) Columbia Journal of Gender and the Law 3, 8, 13.

71 Penelope Pether, ‘Sex, Lies and Defamation: The Bush Lawyer of Wessex’ (1994) 6(2) Cardozo Studies in Law and Literature 171, 195.

72 As above at 176.

73 Fischel above note 6 at vii.

74 Rosemary Hunter, ‘Consent in Violent Relationships’ in Rosemary Hunter and Sharon Cowan (eds) Choice and Consent: Feminist Engagements with Law and Subjectivity (Routledge-Cavendish 2007) 158 at 160.

75 Brown above note 5 at 165.

76 Pateman above note 34 at 233–4.

77 As above at 237.

78 Val Napoleon, ‘Living Together: Gitksan Legal Reasoning as a Foundation for Consent’ in Jeremy Webber and Colin M Macleod (eds) Between Consenting Peoples: Political Community and the Meaning of Consent (UBC Press 2011) 45 at 46.

79 As above.

80 As above at 62.