Today, consent seems an important occurrence of our daily life. Traditionally, consent was the staple of classical contract law but consent is nowadays relevant not only for making contracts, but also in sexual relationships, in surrogate motherhood relationship, or in the use of our image. The new world, the digital world, is lives of: regulation of data, cookies, platforms and their services, everything is built on consent.
The narrative about consent goes hand in hand with liberté (Fabre Magnan 2023): it proposes an idealized contractual freedom, or consent, as the greatest expression of our decision making power and therefore of our freedom. The contractual archetype becomes so evocative and powerful that it is transposed outside of the contractual setting: family, sex, digital world, are all realms of consent. Continuing with the same narrative, consent is depicted as a positive way of interaction as it allows individual empowerment and allows everybody to decide of its own life.
This pervasive need for consent does really favor liberty, allowing all of us to take control of our life in all possible fields? In contract law, this issue is not new (Hale 1923; Kennedy 1991). Hale already pinpointed how “Each party to a bargain is forced by the bargaining power of the other to surrender certain property in the form of money or otherwise or a certain portion of his freedom to act as he pleases or to be idle. The economically strong retain a considerable residuum of liberty and property; the economically weak, very little” (Hale 1952, 131). And then Caruso recently “the legal discourse normalizes such coercive dynamics until they fade from sight and blend in with a supposed state of nature – as is the case when workers or consumers with no alternatives are portrayed as agreeing freely to exploitative contract terms” (Caruso 2022, 1006).
The Unitedstatesean Lochner v New York (198 U.S. 45, 1905) is the paramount example of the distort use of freedom of contract. In 1905, the US Supreme Court, in the name of freedom of contract, invalidates the social legislation while giving authorization to exploit weak workers, stands as the champion of freedom of contract.
Uberisation of society gives workers the illusion of being free ad autonomous, while they are not.
The Court of Justice of the European Union put at the center of contract law the principle of freedom of contract, an extension of the freedom to conduct a business. In this background, freedom of contract is ancillary to freedom of the market.
In a case of surrogate motherhood (Johnson v. Calvert 5 Cal. 4th 87, 1993) where the surrogate mother refused to give to intentional parents the baby she was carrying under the surrogate contract, the judges used arguments based on consent to decide the controversy. The surrogate mother had no parental rights because she agreed, she consented, to carry the baby for the intentional parents.
The European Union regulation of digital world is based on consent, even though nobody really knows what we are consenting to or understands what is at the stake. The consent we give by clicking on websites is real consent or a sham?
In Muriel Fabre Magnan words, “consent is seen as a universal sesame that would allow all the agreements to be validated” (Fabre Magnan 2024, 212). Le consentement in contract law, but not only, opens the road to an “illusion” of liberté that actually becomes a loss of freedom (Fabre Magnan 2023).
We are witnessing a comeback of consent, as a new ordering paradigm where consent has, among others, the following important drawbacks. First of all, the new “consent” can be manipulated or influenced in many different ways. And new technologies are particularly apt to manipulate our will, through different devices, algorithm and profiling being the most powerful. Secondly, depending on the circumstances and the setting, every “consenter” can be in a vulnerable position. Moreover, the new consent is not (yet) to take imbalance of power a real limit to freedom of contract.
In history, theories based on the contractual ideal have been powerful justifications for capitalist ordering. Considering consent as the only criterium to determine the validity of acts is the mirror of a world where inequality, disguised into equality, concedes to weaker the illusion of being in control, while being directed.
The resurgence of consent should push our research in two directions that impose to reconsider contract law (Hesselink 2021), but not only. On the one hand, it is important to understand why consent is predicated in so many diverse fields and if it actually keeps the same meaning while navigating in such different waters. On the other hand, we should consider if consent should be really allowed to attract all this disparate aspect of our life. In this sense, we should pursue an open debate, which already began to take place (Herrine 2019), on the role of consent in producing inequality through a false image of freedom of will.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
© 2024 TOMOKO NAGAO
