Discursive Constructions of Consent in the Legal Process

Abstract

Consent is one of the foundational principles of Western liberal legalism, although legal doctrine is surprisingly inattentive to how it is constructed and contested. In a very general way, consent by citizens to the exercise of governmental power can act to legalize state conduct that otherwise would violate their civil and human rights; that is, the legitimacy of the state itself rests on the notion of the "consent of the governed." Consent is also relevant to both criminal and civil law: for example, in the criminal law, consent polices the boundaries between rape and sex, between theft and gift; and, in the civil law, consent to the terms of agreements is the basis of contract law enforcement.