Graduated Consent Theory, Explained and Applied

Abstract

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, 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. This article reviews how a wide range of authorities regard consent, discovering that they treat consent as a matter of degree and a measure of justification. By abstracting from that evidence, we can outline a theory of graduated consent. This article concludes by testing a graduated consent theory against such problems as enforcing standardized agreements, justifying political coercion, and reading a constitution. In those and other applications, a theory of graduated consent can contribute to legal, moral, and economic reasoning.

(Part II of this paper materially revises and expands on material first presented in, "The Scale of Consent," a working paper available at http://ssrn.com/abstract=1322180.)

Keywords: consent, consent theory, scale of consent, graduated consent, unconsent, express consent, implied consent, hypothetical consent, justification, contracts, torts, constitutional interpretation, constitutional construction, citizen courts