Choice and Consent

Feminist Engagements with Law and Subjectivity

Rosemary Hunter,Sharon Cowan

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135331184
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This current and timely volume presents new thinking and new directions in feminist legal scholarship. Rethinking key concepts in legal feminism, Cowan and Hunter provide a unique examination of key socio-legal concepts in law, jurisprudence and legal and political theory.

Written by an international cast of contributors, offering different cultural perspectives as well as doctrinal and theoretical knowledge, this collection of essays presents a dialogue between different feminist positions and approaches to a common theme.

It addresses a range of questions, including:

• 
  
  

• Can 'consent' be rethought and infused with different meanings in a post-liberal feminist politics?
• Can the concepts of 'choice' and 'consent' have consistent meanings and functions between different areas of law, or whether they prove to be highly contingent when viewed across the broad field of law.

Exploring the deeply gendered concepts of 'choice' and 'consent' and examining the philosophical and jurisprudential issues surrounding them as well as how 'choice' and 'consent' operate in particular areas of law, including criminal law, medical law, constitutional law, employment law, family law and civil procedure, this volume is a key resource for postgraduate law students studying jurisprudence.

Part I
Historicising choice and consent

Chapter 1
Feminism and consent: a genealogical inquiry

Maria Drakopoulou

CONSENT, POWER AND THE FEMALE SELF*

The sheer diversity of the feminist engagement with consent is testament not only to the fruitfulness and inventiveness of feminist scholarship, but perhaps most importantly to the protean nature of the concept itself. Consent moves beyond disciplinary boundaries and through diverse territories within each discipline, attaching itself both to conceptual apparatuses and their practical applications. Privileged in accounts of the legitimacy of government and in normative ones concerning political obligation and citizenship, it has been posited as a fundamental principle of democratic ideology and social organisation, whilst as a qualifying element for the legality of specific acts it has proven itself foundational to areas of both private and criminal law.

In pursuing consent across such a rich variety of sites and citations, feminists have produced an impressive body of critical scholarship animated by an apparent discord between, on the one hand, the abstraction of consent’s theoretical postulation as a constitutive element of the political, ethical and legal order, and, on the other, its pragmatic application in concrete social contexts. These critiques can be broadly divided into two categories loosely distinguishable along disciplinary lines. Most of those oriented towards political theory, ethics and philosophy interrogate the relationship between the rhetoric of consent and the everyday experience of women’s personal lives wherein consent holds pivotal practical importance. In contrast, those undertaken by feminist legal scholars tend to focus on the micro-politics of consent, exploring law’s treatment of consent in specific contexts such as sexual violence, prostitution, the trafficking of women for the purpose of sexual exploitation, and the relationships

between spouses.¹ Yet despite exhibiting considerable variation these encounters share a common, unifying characteristic: they scrutinise consent in reference to liberal individualism’s vision of humanity. This is not to suggest that feminists engaged with issues of consent are necessarily advocates of liberal theory; rather that their writings apprehend consent as articulating a normative commitment to liberal subjectivity, one which privileges a specific representation, both of the consenting subject and the act of consent itself. The former is apprehended from the point of view of qualities that adorn the liberal self: a sense of self ontologically prior to any form of society and predicated upon an atomistic, disembodied, rational agency. The latter becomes more than a mere act of assent. According to the liberal ethic its essence lies in both its voluntarily nature and inner rationality, it being the outcome of individual judgement stemming from the subject’s freedom of will and independent choice to maximise self interest, welfare or pleasure, and being limited only by the negative effects it has upon the interests of others.

Within feminist discourse this conception of consent as a function of liberal subjectivity has profound consequences, for not only does it fashion the substance and form of the discourse, it also shapes its direction and the solutions proposed to any problems the use of the concept poses. For example, feminist re-readings of the idea that the social contract forms the basis for political association challenge contemporary representations of modern democratic society as a post-patriarchal social and political order. They contend that women neither consented to the original social contract nor to the sexual contract said to have preceded it and according to which they voluntarily subjected themselves to men. Here, the very evocation of the notion of social contract is seen to sustain a veneer of equality that masks real and continuing structural inequalities between the sexes and to thereby represent much of women’s social misery as ‘consensual’. Drawing mainly upon data concerning sexuality and women’s experience of family life, feminists argue that the current normative paradigms under which existing social institutions operate disqualify female experience and effectively negate the possibility of genuine choice for women. In so doing these paradigms are seen to make a mockery of the notion of female freedom of consent and to repudiate the classical liberal view that these institutions were consensually born amongst equal, free, rational individuals (see Pateman, 1980, 1988, 1997; see also Clarke, 1979; Coole, 1986, 1994; Frazer and Lacey, 1993:70–77).

Similarly, feminist legal scholars ground their critiques of consent on juxtapositions of women’s social and legal realities. For example, judicial interpretations of the legal requirement of female consent in cases of annulment of arranged or forced marriages, and likewise those of ‘sexually transmitted debt’

involving wives as sureties, are seen as sustaining and reinforcing representations of women as immature or inexperienced, and as either too dependent on men, or as their victims in need of protection (Cretney, 1992:537; Kaye, 1997:46–47; Lim, 1996:204–11; Diduck and Kaganas, 2006:40–41). Such representations, in constructing women as submissive or victimised, in short, as bereft of the ‘blessings’ of the liberal self, are said to devalue and undermine the capability of real women to exercise meaningful consent. However, for others the legal recognition of women’s consensual capacity, as, for instance, in regard to prostitution or being trafficked for the purpose of sexual exploitation, is to be applauded. They see it as conferring upon women the power of agency and the status of rational and autonomous actor, and hence, as affirming women’s possession of the self-same liberal subjectivity credited to men (Sullivan, 2003:76–79; Sullivan, 2004:136–38; Doezema, 1998, 2005). Still others argue that law’s formal adherence to the concept of consent as the decisive criterion of the legality of an act ignores the pragmatic constraints that harsh reality places upon women’s consensual freedom and exercise of rational choice. For them, judicial indifference to or disregard of what they see as clear expressions of women’s non-consent, for instance in cases concerning sexual violence, or where courts are insensitive to emotional pressure in situations where a woman acts as surety for husband or partner, serve to sustain male power over women and erase women’s possibility for agency, independent choice and self-determination (MacKinnon, 1989:176–83; MacKinnon, 2005:242–48; Fehl-berg, 1994:474–75; Fehlberg, 1996:693–94; Naffine, 1994:24–31; Duncan, 1995:368–44; Richardson, 1996:382–83; Auchmuty, 2002).

Furthermore, not only do feminist interrogations of the concept of consent rest within the limits of the liberal legacy: so too do the solutions they propose to the problems they reveal. Any hope for change is either invested in proposals for a transformative normative politics or is directed towards pragmatic policy interventions. The first either embraces feminist attempts to remodel consent though remaining within the context of the contractarian tradition, or seeks to decentre and replace it as an analytical category of female experience with other, more suitable liberal values.² The second aims to remove structural

barriers preventing the flourishing of women’s freedom and autonomy and to give ‘true’ meaning to the notion of female consent (Pateman, 1980, 1989; MacKinnon, 1982, 1983; Vega, 1988).

This entanglement of consent with liberal individualism’s notion of self has become so pervasive within feminism that not only has the ability to consent come to signify the presence of the liberal female self, but a belief in the truth of this signification has come to provide the criterion for the feminist judgement on consent. For critics of contractarian stories of origin, consent is found wanting because its connotation of the liberal self is identified as a fiction; those emphasising the contextual obstacles to women’s consensual freedom label the requirement for consent as misleading, not because consent erroneously manifests this self, but because the real-life situations in which it is sought are seen to be so complex as to fundamentally disrupt the signification process; and both positive and negative attitudes towards the law’s demand for consent depend upon the critic’s faith in this process. Here, questions concerning the validity of the concept are largely conflated with those of female subjectivity. Yet this is not the result of a consensus within the feminist discourse with respect to liberal subjectivity. Rather, it is because the attachment of consent to the liberal self registers the existence and operation of another important parameter, namely that of power. Put simply, consent and female subjectivity are bound together by issues of power: the power men exercise over women, women’s power over themselves and their own lives, and the belief in the need to further empower women. Endorsement or rejection of consent is therefore predicated not only upon how effectively it communicates women as autonomous, rational and responsible political, social and economic actors, but also the anticipation of what will best affirm real women’s agency and mastery over themselves and strengthen their equal standing in private and public life. Similarly, the solutions, strategies and measures that feminist considerations of consent have to offer are designed to reduce and redress systemic power imbalances between t...

Table of contents

• Contents
• Introduction
• Part I Historicising choice and consent
• Part II Theorising choice and consent
• Part III Operationalising choice and consent
• Contributors
• Index