Consent

From status to contract, from tribe or family to individual, from established hierarchies and dependencies to unrestricted movement—that’s the trajectory of modernity. The logic of this transformation whittles away at all inherited norms and virtues—loyalty, honor, courage, faith—leaving all value distilled to a single one: consent. To do something to someone without their consent is evil; to prevent someone from doing what they want to do is evil. Relationships are valid insofar as they are founded on mutual consent, and wrongs within a relationship involve acting in ways not originally consented to by all involved. You can easily develop a theory of historical progress based on consent, as reliance on consent forces individuals to develop their own judgments based on the consequences of their actions thereby making consent increasingly well informed, and contemporary libertarians have developed a sophisticated theory of ethics predicated upon the “no harm” principle—i.e., that everyone has a right to do anything that does not involve the initiation of physical force upon another’s person or property—i.e., complete freedom, limited only by the consent of others (with the same freedom) where required..

We are in the process of learning, though, that nothing can be more insane than a social order founded on consent. Ground zero here is, of course, contemporary sexual relations. More and more states are now passing “affirmative consent” laws, replacing the original anti-“rape culture” epithet “no means no” with “yes means yes.” “No means no” has its problems (what if the man persists after the first “no” and the woman does not repeat the objection, etc.), but it can be negotiated reasonably—one can analyze an encounter and determine the extent of resistance and coercion. “Yes means yes,” though, is crazy—bound up with unsolvable metaphysical paradoxes, each with enormous potential for manipulation and harm. The absurdity of “yes means yes” is widely recognized, as how could it not be?—and, yet, this doesn’t seem to deter its advocates in the slightest. Indeed, this punitive and vengeful empowerment of a protected victim group and, needless to say, their political and ideological proxies, seems rather explicitly to be part of the point.

Regardless of the maliciousness of contemporary radicalizations of “consent,” that radicalization is inherent in the concept of “consent” unmoored from any other moral or ethical terms. In the first instance, arguments in favor of consent are arguments in favor of specific freedoms from specific restrictions: first of all, regarding the disposal or property and choice in sexual partners. Two people want to engage in an exchange prohibited under current guild or religious law; two people wish to get married regardless of the interests of their respective families. In such cases, the existence of consent is not in question, because if they weren’t already consenting they would not be pushing to have the restrictions lifted. Consent has an immaculate birth, and can stand as a pristine alternative to the complicated and corrupt machinations of established institutions ruling through force in accord with dynastic and more shameful material considerations. Even a couple of centuries of exposure of the implications of this romantic notion of consent doesn’t seem to have damaged its prestige—perhaps because of a belief that we are learning from these exposures and will not continue to allow our desires to lead us into the same disasters; perhaps because no alternative post-consent norm is thinkable; perhaps because there are always more “arbitrary” restrictions for the new generation of lovers to rebel against, even if just the institutionalization and rationalization of the results of the previous generation’s rebellion.

“Yes means yes” really brings us to the limits of this development, though. Not only the encounter itself, but every “move” in the encounter needs to be assented to explicitly. Can I touch you here? Can I stroke you here? Can I kiss you here? Etc. Leave aside intuitive revolt against this attempt to bureaucratize romantic encounters—in truth, just about anything can be erotized. The problem here is that there is no way of measuring the consent given against the action then taken—not only is there always something in the action that could not have been anticipated or included in the consent (what if while partner A is touching partner B in location X but at the same time moving somewhat on the bed so as to facilitate said touching—was that movement consented to?) but language can never be made “particulate” enough to ensure continued agreement on the relation between sign and referent. It is a parodic nightmare of empiricism, of the idea that all of reality must be grasped, down to the tiniest details (but there are always details within details, ad infinitum).

Beyond even these intrinsic impossibilities (although also included in them) is the fact that agreements always need to be assessed post facto, and in subsequent reflections upon any event, elements and conditions of the event that were not evident at the time become so. Perfect consent can never, in fact, be ascertained. What kind of pressure did one party bring upon the other—moral pressure (he paid for dinner), emotional blackmail (if you want us to keep going out…), environmental pressure (he brought me to a party where everyone was drinking and making out), and so on. Introduce into that the new bureaucratic and financial incentives created by the law itself to discover new forms of “sexual assault,” and sexual intercourse becomes as impossible as under the most extreme Puritanical regime—and, at least, the Puritans allow for mostly unhindered marital sex, while the standard of “consent” can ultimately maintain no coherent distinction between the marital and non-marital. People, we can assume, will continue to have sex but only insofar as they set aside, i.e., rebel against, the entire regime of “consensuality”—genuine consent will involve overthrowing the entire apparatus of consent. No doubt sci-fi thrillers of young lovers escaping the totalitarian consensual sexual regime are in the making—but this new romanticism will be liable to the possibility of bringing that entire regime down upon an even momentarily disappointing lover.

Many have already noticed the irony of this post-sexual liberation tendency to install a sexual regime that resembles nothing so much as the most clichéd caricature of “Victorian morality.” (Referring to the “legs” of a table was “triggering” for Victorian maidens.) It thereby helps us to understand where such regimes come from—there must be some mighty compulsion to bring the sexual rebels this long way around back to the very thing they were rebelling against. At root is what cannot be discussed openly—the complementary relations between men and women and the asymmetry of the sexual relation. At least the Puritans and Victorians were well aware of such things. Since we refuse to be, we can expect all kinds of further haphazardly generated excrescences upon personal interactions, no doubt with the aid of social media—apps for registering consent in advance, filming of encounters, release forms required by universities, rules about parties and other social events, perhaps new kinds of sex segregation, and who knows what else.

The alternative to the political theory of consent, then, is a political anthropology of competing imperatives (and not just in the sexual realm). The hypergamic female imperative; the polygamic male imperative; the female imperative to have her children protected; the male imperative to know that he is protecting his own children. And implicit anthropology, that now needs to be made explicit, has through trial and error arrived at monogamy as the best sexual regime for negotiating these imperatives. It was, in fact, through monogamy that the passage from obligation and coercion to consent in sexual matters was navigated—from the “fake” marriages of familial alliances to the “real” marriages based on the mutual love of the partners. There is already, of course, an entire therapeutic industry devoted to helping individuals maintain and improve their marriages; there is some, but not much, discussion of the relation between monogamy as an institution and the whole panoply of rights and entitlements that now frame our interactions. Even conservative politicians hardly ever ask anymore, when reviewing a policy proposal, whether it will strengthen or weaken the institution of marriage. The institution itself must be consented to, and can no longer be taken for granted. The imperatives all go underground, and scandalize us when they rear their untutored heads.

We can’t imagine an entire social order recovering or “rehearing” (reheeding) those imperatives. The scenario I sketched incidentally before, of “new romantics” who must pledge not so much undying love as to refrain from reporting the other to the sex police, provides us with a model for reflection. The discipline of these young lovers, who must learn how to mediate their own desires and resentment unaided by institutions that would love nothing more than to entangle them in its own legal, bureaucratic and therapeutic snares, would then have to be institutionalized, in ad hoc, local, secessionist forms, in communities committed (consenting) to the eternal institution of marriage, subordinating all rights to the preservation of that institution. Given the asymmetry of the sex regime, this would depend upon highly virtuous young women, although perhaps less so as the sex police come to impinge more and more upon the normal desires of normal people, and women come to regret the damage calling upon them to settle their scores has done to them and their own prospects. Such secessionist communities would have to reorder “consent” all along the line, openly and systematically embedding it in institutions that, paradoxically, both precede and are consented to by the participating parties. Refusing to allow oneself to be grinded up in the gears of the sex police machinery would require choosing other friends, those would respect one’s choice and, above all, not report you. It would require establishing alternative media so that arguments in favor of one’s secession (“sexcession”?) can be made publicly. No doubt a new legal and political subculture will be needed to protect the sexcessionists from the intrusions of an increasingly totalitarian order which can brook no concessions to outmoded norms of tacit mutual respect.

To consent is to put forth a sign matching another sign already put forth. The “proof” that the signs match each other can only be in future signs iterating the original ones. That’s why an email sent the morning after a sexual encounter can be used as evidence that the encounter was consensual. The signs given by the consenting parties become public, and thereby institutionalized, as norms inevitably emerge. Radicalized consent seeks to undermine the validity of those future signs because its advocates can sense the limitations on consent once a succession of signs solidifies into something like an institution. The left, in other words, as always, wants to keep all its options open: as long as consent can be questioned, accusations of domination and violence can be made. As always, the left provides those of us who would like to be in the social and cultural reconstruction business with a template to work against. It is precisely in these relations between practices and discourses, events and events that reflect upon the previous event, that the intimations of institutionalized consent can be found. You are responsible for your actions on the night of the encounter just as and because you are responsible for your actions when you send that email the next day just as and because you are responsible for your actions when you tell a story to the campus police that contradicts what you wrote in the email, etc. In the end, you mark yourself as either someone who wants the institution to do your dirty work (provide formal warrants for your resentments) or someone who defers the siren call of the resentment enforcement mechanisms because you want to sustain a space of consent that leaves open the possibility of desirable modes of personal and social interaction. We are at the point, though, where such deferrals cannot rely upon commonsense—to resist the siren one must be a bit of an anthropologist, at least in the sense of being able to inspect one’s resentments (and resist those seeking to inflame and manipulate them). It’s not easy to be an anthropologist of your own life—one might discover all kinds of motivations, or “revealed preferences” that contradict one’s “declared preferences.” One must have faith that the process of revelation (reading the “declared” in relation to the “revealed”), i.e., of a kind of living in truth, will generate the norms that make future successions of signs possible. But once mastered, such acts of deferral create new realities, including new kinds of romance and new kinds of community. It is very interesting that the most dangerous temptation, at least for women, the one most likely to cause you to lose your soul, is to surrender your ability to consent in the name of a utopia of absolute consent.

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