Consent Theory Research Articles

A Case for Statutorily Recognition of Irretrievable Breakdown of Marriage

Since antiquity, the concept of union in Hindu marriage has always been considered sacred and indissoluble. The Shastri-religious understanding of Hindu marriage is that heavenly-made unions are merely united and tied into a knot on this earth. Hence, once the union is formed, and the ceremonies and rites concluded, there is no scope for a couple to seek “divorce”. The traditional concept of Hindu marriage, although altered by India's post-colonial enactment of the Hindu Marriage Act in 1955 (“the Act”), aimed to reflect the country's identity as a liberal constitutional democracy by providing for certain grounds for seeking divorce, including mutual consent. However, the state's broader policy reflected in the overall objective scheme of the Act remained incongruent with the Shastri-religious understanding of Hindu marriage. Thus, divorce was only the last remedy, and was granted by the courts only after the aggrieved couples fulfilled due procedural requirements as per the mandate of the Act. Hence, it is against this backdrop that the recent constitutional bench judgment in <i>Shilpa Sailesh v. Varun Sreenivasan (2023)</i> of the apex court regarding the waiver of the procedural requirements under section 13-B of the Act by the court using its constitutional powers of ‘complete justice” under Article 142 of the Indian Consitution, is limited only to certain exceptional circumstances. This paper argues for recognising the Irretrievable Breakdown of Marriage (“IRB”) as a legal ground in the Hindu Marriage Act of 1955 (“the Act”). It traces the evolution of Hindu marriage and discusses why Fault, Frustration, and Consent theories are inadequate, advocating for IRB to accommodate diverse situations. It analyses the Act's scheme, shows the presence of breakdown theory, and examines legal developments regarding IRB as a divorce ground, noting some limitations. It addresses objections from women's groups and calls for social reforms ensuring women's financial independence and reducing divorce stigma.

Sexual Agency and Sexual Wrongs: A Dilemma for Consent Theory

On a version of consent theory that tempts many, predatory sexual relations involving significant power imbalances (e.g. between professors and students, adults and teenagers, or employers and employees) are wrong because they violate consent-centric norms. In particular, the wronged party is said to have been incapable of consenting to the predation, and the sexual wrong is located in the encounter’s nonconsensuality. Although we agree that these are sexual wrongs, we resist the idea that they are always nonconsensual. We argue instead that it is possible for students, teenagers, employees, etc. to fully consent to sexually predatory encounters; denying as much renders survivors of predation vulnerable to compounding harms. Survivors face a dilemma: give up either their understanding of their experience as wrong, or their self-conception as an agent capable of consenting. We call the latter phenomenon agential demotion. 

"You kind of blame it on the alcohol, but. . .": A discourse analysis of alcohol use and sexual consent among young men in Vancouver, Canada.

There is growing awareness about issues of sexual consent, especially in autonomy-compromising or "non-ideal" contexts, including sex involving alcohol. Understanding the conditions needed for consensual sex to occur in this emergent milieu is critically important, especially for young men (ages 18-30 years) who normatively combine drinking alcohol with sex and are most often perpetrators of sexual violence. This study offers a discourse analysis of young men's alcohol use and sexual consent. Data are drawn from qualitative interviews with 76 young men (including gay, bisexual, queer, and straight men) in Vancouver, Canada, from 2018 to 2021. Informed by Kukla's non-ideal theory of sexual consent and critical and inclusive masculinities, this analysis identified three discursive frames: careful connections, watering it down, and blurred lines. In careful connections young men discussed their efforts to actively promote sexual and decisional autonomy for themselves and their sexual partners when drinking. Yet, in watering it down young men invoked discourses of disinhibition, deflection, and denial to normalize alcohol use as being somewhat excusatory for sexual violence, downplaying the role and responsibility of men. Lastly, men operationalized blurred lines through a continuum of consent and of "meeting (masculine) expectations" when discussing sexual violence and victimization while intoxicated. Together, these discursive frames provide insights into the gendered nature of sexual violence and the extent to which idealized notions of sexual consent play out in the everyday lives of young men who use alcohol with sex. Findings hold philosophical and pragmatic implications for contemporary efforts to scaffold sexual consent.

Green Light Ethics: A Theory of Permissive Consent and its Moral Metaphysics by Hallie Liberto (review)

Green Light Ethics: A Theory of Permissive Consent and its Moral Metaphysics by Hallie Liberto (review)

Consent-deception: a feminist cultural media theory of commonsense consent

This article draws on feminist cultural studies, media and cultural theory, and engages with feminist law and criminology, to argue for a newly invigorated conceptualisation of consent in feminist theory. Rather than advance a particular feminist theory of consent, the article argues for a feminist cultural media theory of commonsense consent that is both sensory and representational. This theory acknowledges that there is no concept of consent reserved for sexual encounters. Rather, a more universal, commonsense theory, shaped as much by twentieth-century media as eighteenth-century political philosophy, informs how consent shows up to social experience. The article offers a revision of feminist discussions about consent in law, political philosophy and cultural studies, proposing that accounts such as Laura Kipnis’ Unwanted Advances: Sexual Paranoia Comes to Campus can be read as descriptions of consent's affective structure. Feminist accounts have underestimated the implications of the involvement of media, from early cinema through to contemporary social media, in co-locating consent with deception. This article shows how the media concept of consent-deception plays a role in suspicion and betrayal, both of which act as consent's structures of feeling. To further probe an enquiry into how personalised media are transforming commonsense consent, the article discusses the TV programme The Tinder Swindler. Various production techniques encourage a view of social media as a complete encapsulation of the social life and affectivity of consent-deception, suggesting a number of implications for a feminist cultural media theory of commonsense consent. In particular, the programme asks us to problematise the evidentiary status of informational social media linked to the changing perceptibility of consent-deception.

CONSENT TO HARM IN THE SYSTEM OF LEGAL FACTS: GERMAN DOCTRINE AND CASE LAW

The article is devoted to the development of approaches to the legal qualification of the consent to harm in German doctrine and case law. The author explores the problems of the transactional theory of consent, based on the provisions of the German Civil Code and dogmatically formulated in the work of E. Zitelmann. The article describes the early case law of the German high courts on the consent to harm. The author generalizes critique of the transactional theory of consent in the doctrine and describes a departure from it in the case law of the mid-20th century in Germany. The author dwells in detail on various non-transactional approaches to the qualification of consent presented in the works of K. Larentz, E. Schenke, O. Bucher and W. Münzberg. The article describes a modern approach to consent based on the teleological reduction of some rules on transactions. The author comes to the conclusion that the development of doctrinal views on consent to harm in Germany proceeded dialectically: from the transactional qualification of consent through non-transactional approaches to the limited application of certain rules on transactions. The author suggests to qualify consent to harm as a transaction with some reservations.

Suwerenność ludu w myśli politycznej lewellerów

Natural law, natural rights, and consent theory formed the language of popular sovereignty, to which appealed Parliament’s defenders and the Levellers during the English Civil War in the first half of the 17th century. The aim of the article is to reveal how the Levellers differed from the Parliament’s theorists in terms of the idea of popular sovereignty. These differences concerned primarily the understanding of the people and natural rights concepts, which was related to the political goals of the Levellers. In the political dispute that was the conflict between the king and Parliament, supporters of the latter appealed to the idea of popular sovereignty to justify Parliament’s activities, while the Levellers did so to defend the people from Parliament. To this end, they created an individualistic and contractualistic concept of popular sovereignty. The article presents this concept.

Erec et Enideand the Concept of Consent

AbstractChrétien de Troyes’s Erec et Enide is about a husband’s appalling and disturbing mistreatment of his wife. Yet, this article contends, it can also be understood as a (perhaps surprisingly) critical reflection on sexual consent, which overlaps with key concerns of both medieval canon law and modern consent theory. In dialogue with each of these domains, this essay studies, first, how particular episodes not only call attention to the importance of sexual consent but also to factors that mitigate it—as well as to the more general limitations of the concept. Second, the article explores how the larger adventure series, which makes up the core of the romance, is persistently engaging with some of the knottiest issues in both medieval and modern thinking on sexual consent, such as its relation to equality, silence, volition, and the active/passive binary. Finally, the article reflects on the implications of considering this courtly romance alongside modern consent theory. On the one hand, modern theory pushes the medievalist to confront what is at stake in deeming Enide unable meaningfully to consent to the terms of her union with Erec. On the other, this medieval romance responds with crucial insights on, in particular, the history of the relationship between patriarchy and the concept of sexual consent.

A Phenomenological Approach to Sexual Consent

Rather than as a giving of permission to someone to transgress one’s bodily boundaries, I argue for defining sexual consent as feeling-with one’s sexual partner(s). Dominant approaches to consent within feminist philosophy have failed to capture the intercorporeal character of erotic consciousness by treating it as a form of giving permission, as is evident in the debate between attitudinal and performative theories of consent. Building on the phenomenology of Maurice Merleau-Ponty, Ann Cahill, Linda Martín Alcoff, and others, I argue that taking consent to be an intercorporeal and dynamic coexistence of desiring bodies opens up new ways of thinking about the role of consent in sexual ethics. I suggest that phenomenology’s theories of embodied consciousness, operative intentionality, and the direct perception of others provide a better groundwork for conceptualizing the role of ambiguity and subtle power dynamics in sexual encounters than attitudinal or performative accounts of consent. I also defend my view against Jonathan Jenkins Ichikawa’s argument for doing away with the concept of consent in sexual ethics due to consent's stubborn and infelicitous presupposition of permission-giving.

Routine politics of production in post-Fordist manufacturing

This article presents a theory of routine politics of production, which was inductively developed based on a case study of 22 supplier factories in the USA, including in-depth interviews with 31 managers and 52 workers. All factories had implemented lean production. The findings show that (i) some managers prioritise the qualitative upgrading of organisational capabilities over quantitative work intensification, (ii) this includes objective forms of worker empowerment, and (iii) many workers resist or are hesitant about these forms of empowerment (while being committed to their work). The majority of workers from this convenience sample described either no work intensification under lean or ‘positive intensification’, which by their own assessment reduces monotony and/or makes the work more challenging. The first necessary condition for routine politics of production to obtain is that managers prioritise qualitative upgrading over quantitative effort levels. The second necessary condition is worker reticence or resistance toward managerial attempts to change routines. The article eschews theories of control and consent in favour of a classical Marxist framework emphasising labour process contradictions. Managers face conflicting pressures between deskilling and upskilling labour. Workers develop a contradictory orientation of alienated commitment. They are committed to being productive workers, in an attempt to realise a purpose in response to their alienation. Yet, in another manifestation of their alienation, experiences of bad management result in scepticism toward management. They embrace their work and Fordist conceptions of efficiency, wanting to see their organisation succeed, yet they contest managerial attempts to upgrade routines, which they deem inefficient.

Consent Theory and Adhesion Contract: A Critical Analysis of Contemporary Global Business Practices

Consent Theory mandates that both parties should have the right to negotiate terms and conditions of the contract on equal footings. At present, the ‘right to negotiate’ has been adversely affected by the introduction of Adhesion Contracts in almost all forms of online business and parts of the traditional business modes. This paper aims at critically analyzing jurisprudential tensions created by the Adhesion Contract to Consent Theory through application of analytical method. The authors argue that the Adhesion Contract tilts in favor of the dominant party. This paper further aims to examine the relevant case laws in Pakistan, relating to the enforcement of Adhesion Contracts and to assess the overall effectiveness of such clauses that renders the weaker party in exploitative state. Findings of the study suggests that courts should intervene to eradicate exploitation of the weaker party, by more markedly differentiating the legal treatment of unfair terms. Furthermore, Pakistani legislators must enact laws declaring such terms to be illegal.

Judith N. Shklar on disobedience and obligation in a “society of strangers”

Judith N. Shklar on disobedience and obligation in a “society of strangers”

Consent as Rhetorical Ability in “The Strange Case of Anna Stubblefield”

ABSTRACT This essay draws on theories of rhetorical ability to analyze public discourse on sexual consent. By emphasizing the rhetoricity of disability, these theories underscore the environmental conditions of communication. Through an analysis of the discourse surrounding a controversial legal case, the author develops a rhetorical theory of consent that calls attention to the way that arrangements of power enable and constrain the communicative conditions that facilitate the possibility of consent.

Thinking about the idea of consent in data science genomics: How 'informed' is it?

In this paper we argue that 'informed' consent in Big Data genomic biobanking is frequently less than optimally informative. This is due to the particular features of genomic biobanking research which render it ethically problematic. We discuss these features together with details of consent models aimed to address them. Using insights from consent theory, we provide a detailed analysis of the essential components of informed consent which includes recommendations to improve consent performance. In addition, and using insights from philosophy of mind and language and psycholinguistics we support our analyses by identifying the nature and function of concepts (ideas) operational in human cognition and language together with an implicit coding/decoding model of human communication. We identify this model as the source of patients/participants poor understanding. We suggest an alternative, explicit model of human communication, namely, that of relevance-theoretic inference which obviates the limitations of the code model. We suggest practical strategies to assist health service professionals to ensure that the specific information they provide concerning the proposed treatment or research is used to inform participants' decision to consent. We do not prescribe a standard, formal approach to decision-making where boxes are ticked; rather, we aim to focus attention towards the sorts of considerations and questions that might usefully be borne in mind in any consent situation. We hope that our theorising will be of real practical benefit to nurses and midwives working on the clinical and research front-line of genomic science.

A Nonideal Theory of Sexual Consent

Our autonomy can be compromised by limitations in our capacities, or by the power relationships within which we are embedded. If we insist that real consent requires full autonomy, then virtually n...

Presupposition and Consent

I argue that “consent” language presupposes that the contemplated action is or would be at someone else’s behest. When one does something for another reason—for example, when one elects independently to do something, or when one accepts an invitation to do something—it is linguistically inappropriate to describe the actor as “consenting” to it; but it is also inappropriate to describe them as “not consenting” to it. A consequence of this idea is that “consent” is poorly suited to play its canonical central role in contemporary sexual ethics. But this does not mean that nonconsensual sex can be morally permissible. Consent language, I’ll suggest, carries the conventional presupposition that that which is or might be consented to is at someone else’s behest. One implication will be a new kind of support for feminist critiques of consent theory in sexual ethics.

Gendered Violence as Revelation in John le Carré’s <em>The Night Manager</em>

Gendered Violence as Revelation in John le Carré’s <em>The Night Manager</em>

The Idea of Consent and its Implication in Nigeria: Rousseau’s Views

This paper centers on the idea of consent as postulated by Jean Jack Rousseau and its implication in Nigeria. Rousseau in his theory of consent presented a model which advocates for the increased and active participation of the ruled in a social contract. Consent is an essential feature of a democratic society. An ideal democratic society on the other hand is one in which the phrase "We the people” is lived out by the government of a state as well as other major stakeholders in the society. The implication of Rousseau's idea of consent in Nigeria highlights the need for inclusive and participatory governance in Nigeria. Rousseau argued that through the social contract we have given the body politic existence and life. It has become obvious that in regarding the state as the outcome of an agreement, certain fundamental issues touching on the existence of Nigeria and her nationhood need to be seriously addressed. The salient issues of convening the sovereignty national conference which has been widely canvassed.

The Unwilling Wife: Marital Rape in the Canterbury Tales

Abstract Medieval English law maintained that it was impossible for a man to rape his legal spouse. Yet across literature of the thirteenth and fourteenth centuries, medieval writers fixated upon the figure of the spouse who was unwilling to have sex with his or her partner. This marked attention suggests that while marital consent was a closed discussion in the realm of medieval law, it remained open and alive in the literary imagination. In the Canterbury Tales, Chaucer presents a range of unwilling spouses, from saint's life to romance to fabliau. As Chaucer remixes theories of consent across genres, the Canterbury Tales makes its most radical statement on marital consent in the fabliau. In the Shipman's Tale, the wife's negotiation of her own multiple sexual relationships denaturalizes the basic assumptions of marital consent, opening up the imaginative space necessary to theorize marital rape.

Decolonizing Kink: Nishinaabeg Stories as Critical Engagements with Power

The purpose of this paper is to address interpretations of Nishinaabeg epistemologies and pedagogies that replicate essentialist modes of storytelling and governance. This paper elaborates on Anishinaabek theories of consent and consent-based governance systems by drawing upon our stories and storytelling practices. Presenting Anishinaabeg storytelling practices as critically reflexive engagements with power, this paper demonstrates the untranslatability of Nishinaabeg methods of governance to colonial contexts of systemic violence. The intention of this work is to reveal how Nishinaabeg relationship governance practices are fundamentally oriented to consent, sustainability, and collective and/or mutual/reciprocal validation.