Vol. 17 No.7 (July, 2007) pp.577-581
CONSENT IN THE LAW, by Deryck Beyleveld and Roger Brownsword. Oxford: Hart Publishing, 2007. 406pp. Hardback. £45.00/$84.00. ISBN: 9781841136790.
Reviewed by Peter Cane, The Australian National University College of Law. Email: canep [at] law.anu.edu.au.
CONSENT IN THE LAW, by Deryck Beyleveld and Roger Brownsword, is a wide-ranging analysis of the role of consent in normative reasoning. Chapter 1 introduces the various issues relating to consent covered in the book, and announces the authors’ intention to base their analysis on Alan Gewirth’s theory of moral reasoning.
In Chapter 2, Gewirth’s Principle of Generic Consistency (PGC) (original capitals) is briefly explained. The PGC ‘grants’ to ‘vulnerable agents’ ‘the generic conditions of agency’ – i.e., what they ‘need, irrespective of what their purposes might be, in order to be able to act at all or in order to be able to act with general chances of success’ (p.39). Beyleveld and Brownsword accept Gewirth’s characterisation of the PGC as ‘dialectically necessary.’ However, they alternatively find in the concept of fundamental human rights a ‘dialectically contingent’ foundation for the PGC. The concept of rights plays a central role in the authors’ conceptual scheme because they equate the ‘generic conditions of agency’ in Gewirth’s theory with ‘generic rights,’ and they understand ‘rights’ in terms of ‘will’ or ‘choice’ as opposed to ‘interests’ (pp.85-88). In their opinion, both the PGC and the concept of consent make most sense within a rights-based conceptual framework. They reject both utilitarian and ‘duty-led’ (‘dignitarian’) approaches to consent on the ground that both are reductionist – i.e., because consent plays no independent role in either (pp.27-32). In the authors’ ‘rights-led’ approach to consent, by contrast, ‘what counts is respect for . . . each individual’ (p.29).
In a brief (but analytically critical) section (pp.55-57) the authors explain that the PGC can justify prescriptions (about the significance of consent, for instance) either ‘directly’ (in the case of prescriptions that can be ‘deduced’ from the PGC) or ‘indirectly’ (in the case of prescriptions that are ‘not contrary’ to the PGC and that are ‘outcomes of decision-making procedures that are justified directly by’ the PGC). Indirect justification accommodates the abstractness of the PGC and the consequent possibility of genuine and reasonable disagreement about its application. However, the concept of indirect justification perhaps assumes that procedures are less likely to be the subject of disagreement than outcomes – a point to which I shall return.
Chapter 3 introduces a distinction between two functions of consent that are most easily grasped through examples. An example of the first function is consent as a defence to a claim of interference with a right; an example of the second function is consent as a component of the legal concept of a contract. In performing the former function, consent effects ‘a change of position within a baseline [*578] relationship;’ in performing the latter function, it is a feature of the operation of a ‘rule-set’ ‘that agents are permitted to engage’ (p.80). The discussion of this distinction is – to my mind unnecessarily – complicated by being embedded in an exposition of Hohfeld’s famous account of jural relations.
Chapters 4-7 provide detailed analysis and discussion of various aspects of the concept of consent: the capacities and competences needed to be capable of consenting (Ch 4); the effect on consent of external pressure and lack of information (Chs 5 and 6); and what Beyleveld and Brownsword call the ‘signalling, scope, withdrawal and refusal’ of consent (Ch 7). The discussion in each of these chapters offers a careful account of the direct and indirect implications (as understood by the authors) of the PGC, mainly in relatively abstract terms, but also by reference to and analysis of some legal materials.
Chapters 8 and 9 return to the two functions of consent, which we might loosely describe in terms of (1) creating and (2) changing normative relations between individuals. These chapters expose what the authors describe as two ‘Fallacies’ about consent: the Fallacy of Necessity and the Fallacy of Sufficiency (original capitals). Chapter 8 deals with what the authors call ‘the private domain,’ which they define in terms of the legal categories of ‘tort, contract and property’ (p.236). Chapter 9 deals with ‘public wrongs,’ which the authors define in terms of the ‘criminal code’ (p.269). The basic argument of these chapters is that although consent is normatively important and potent, it is not the only factor relevant to the creation and change of normative relations. For instance, consent is not the only defence that the law recognises to claims of interference with (private) rights. On the other hand, consent is not always available as a defence to a criminal charge. These chapters engagingly make a convincing case against a point of view that one of the authors describes elsewhere as a “fixation” with consent (Brownsword 2004).
In Chapter 10 attention shifts from creation and change of interpersonal normative (and in particular, jural) relations to the normativity and authority of law as a social phenomenon. The basic theme of this chapter, which (as I read it) echoes the theme of the previous two chapters, is that while consent is an important (political) value, it has its limitations. The authors distinguish between legitimation and legitimacy. In the face of genuine, reasonable and intractable disagreements about the terms of social life, consent may be more valuable and effective as a legitimation device than as a source of legitimacy. ‘Whatever the merits of government by consent,’ the authors say, ‘it should not be readily equated with government that is justified by consent. For the most part, what justifies public governance . . . is that it conforms to the PGC’ (p.331).
Chapter 11 offers a summary restatement of the main themes of the book but also takes the argument further in certain respects. [*579]
This is a long and closely argued book, which requires and deserves careful attention. All that can be done here is to raise a few queries and make a few comments of quite a general nature.
A first, small but not insignificant, point concerns the book’s title: CONSENT IN THE LAW. As noted, while the bulk of the book is concerned with the role of consent in interpersonal normative relations, Chapter 10 and parts of Chapter 11 deal with the role of consent ‘in authorising the legal framework itself’ (i.e., ‘law’ as opposed to ‘the law’). I suspect that many readers will find this the least satisfactory part of the book. The authors tackle this large topic in only 24 of a total of 363 pages. While I have general doubts about the value of framing the analysis with Gewirth’s moral theory (to which I shall return), in Chapter 10 this strategy strikes me as positively unhelpful because it leads the authors to posit an imaginary society – amazingly called ‘Gewirthia’ – all the members of which subscribe to the PGC. The heuristic value of this unrealistic construction is doubtful if only because the space needed to set it up inevitably truncates the discussion of (real) societies characterised by pervasive and often fundamental disagreements about the normative terms of social life.
A more substantial query about the book’s title concerns its reference to ‘the law.’ For lawyers, the title resonates with that of Herbert Hart and Tony Honoré’s classic. But the methodologies of the two books are very different. Hart and Honoré painstakingly analysed a very large body of legal materials from various jurisdictions and (unconvincingly) used those materials to establish the hypothesis that the law embodies ‘commonsense,’ extra-legal notions of causation. In Beyleveld and Brownsword’s terms, this is an ‘inside out approach.’ By contrast, they adopt an ‘outside in approach’ (334). Their aim is not to map and explore the concept of consent as it is found in legal materials (i.e., materials that embody ‘the law’), and to compare and contrast that concept with related concepts found in other normative domains. Rather, their strategy is to construct an ideal account of consent (understood in terms of the role consent plays in certain areas of law – contract, tort, property and crime – and in justifying the normativity of law) on the basis of Gewirth’s moral theory, and to use that ideal account as a basis for discussion and analysis of selected legal materials and various consent-related issues with which the law has to deal. There is nothing inherently wrong with this strategy – although it prompts the thought that the book might be better described as an essay in applied Gewirthian ethics than in legal theory. Problematic, however, is the justification the authors give for their approach, namely to ‘generate an account of consent in law universally’ (p.335, original italics). Space permits only the bald assertion that the concept of a ‘universal law of consent’ raises a host of thorny jurisprudential and other theoretical issues about the nature and interrelationship of legal and other normative systems – in a word, about normative pluralism. No doubt the authors’ implicit rejection of normative legal pluralism rests on their explicit rejection of ‘moral pluralism’ (p.33). For many readers, their explicit and [*580] deliberate lack of interest in the diversity of moral opinions about and legal approaches to consent will be disappointing.
Despite their differences, both inside-out and outside-in approaches rest on a distinction between law and morality (non-law) and on some view of the (proper) relationship between them. Beyleveld and Brownsword address this issue directly, though briefly. If law (they say) ‘is an affair of practical reason . . . and if the PGC is the supreme principle of both practical and moral reason, then not only is legal reason conceptually connected to moral reason, it is connected specifically to the PGC [which is] . . . the supreme constitutive principle of legal order’ (p.33). The authors defend this view at length elsewhere (in LAW AS A MORAL JUDGMENT (1986)). Curiously, however, they think that this understanding of the relationship between law and morality is irrelevant to the argument of CONSENT IN THE LAW because the main concern of the book is with ‘moral and ethical’ rather than legal reasoning. Taken at face value, this last statement sits very uneasily with the idea that law and morality are ‘conceptually’ connected aspects of practical reasoning: if this is so, how can morality be discussed without discussing law? Ironically, however, the statement also acutely raises the question of what this book has to do with law.
Accepting that CONSENT IN THE LAW is an essay in normative moral theory, the obvious question about this project concerns the value of its reliance on Gewirth’s moral theory. As the authors themselves point out (p.41, n8), CONSENT IN THE LAW does not provide a ‘full analysis of’ the PGC or of Gewirth’s moral theory more generally; nor is the argument designed as a defence or justification of Gewirthianism. The authors make things easier for the reader by suggesting how the PGC might be understood as ‘dialectically’ contingent rather than dialectically necessary, but even the former understanding rests on a commitment to fundamental human rights that some readers may not be prepared to make. Moreover, the authors clearly accept that even committed Gewirthians might disagree about the detailed application of the PGC. My feeling is that little would be lost (apart from some biographical information about the authors) by jettisoning the book’s Gewirthian apparatus. The authors may modestly feel that the Gewirthian pedigree adds weight to their own views. My opinion is that the authors’ self-denying ordinance is unnecessary and even counter-productive in that it distracts attention from the fine garments with which they clothe the Gewirthian skeleton. My suspicion is that many more readers will be interested in what Beyleveld and Brownsword have to say about consent than in their attempt to develop a distinctively Gewirthian normative theory of consent.
An important feature of the Beyleveld and Brownsword account of consent is their insistence that consent is a procedural, not a substantive, concept (pp.61-63). Their prime motivation for stressing this point is to discourage the [*581] over-valuation of consent as a justification for action (this comes out most clearly, perhaps, in Chapters 9 and 10). Indeed, one of the recurring and most salutary themes of the book is the limited justificatory force of consent. However, there are various reasons to question the distinction between procedure and substance on which this theme rests. First, Beyleveld and Brownsword speculate that the attraction of consent as a justification is that it avoids ‘intractable’ arguments that tend to surround substantive justifications (p.63). One might think that the authors’ own detailed examination of the complexities and controversies surrounding consent itself undermines this speculation. Secondly, it is not necessary to take a strongly instrumentalist approach to procedure (that is, an approach that locates the value of procedure in the quality of the outcome) to think that procedures and outcomes are related. Intractable arguments about substance are apt to produce intractable disagreements about procedure precisely because procedure may affect outcome. Thirdly, and perhaps most importantly, to those who do not accept the dialectical necessity of the PGC, the authors recommend it on the basis of the substantive concept of fundamental human rights. Understood as dialectically contingent, the PGC is itself a function of a substantive concept.
CONSENT IN THE LAW provides much food for thought. I think that its greatest strength is its detailed and careful consideration of the various limits to consent as a justification for action. Beyleveld and Brownsword’s book can be warmly commended to anyone interested in this extremely important topic in political and legal theory.
Beyleveld, Deryck, and Roger Brownsword 1986. LAW AS A MORAL JUDGMENT. London: Sweet & Maxwell.
Brownsword, Roger. 2004. “The Cult of Consent: Fixation and Fallacy.” 15 KING’S COLLEGE LAW JOURNAL 223.
Hart, H.L.A., and Tony Honoré. 1985. CAUSATION IN THE LAW (2nd ed). Oxford: Clarendon Press.
© Copyright 2007 by the author, Peter Cane.