Consent

When one is affected by the actions of others that one might either approve or disapprove of, what is sometimes more important is whether one has agreed to be subject to the actions of others. If one has so agreed, then one has consented. Consent is important in a society because often events occur that disadvantage us. Whether we are entitled to compensation depends on the degree of consent. One might agree to medical procedures that are designed to make life easier but pose risks of a poorer quality of life, or even death. However, in agreeing to those procedures, one is consenting to the risk of those actions.

Consent need not be explicitly expressed but can be implied. Many sports activities carry risks of injury as do fairgrounds, children's playgrounds, and so on. As long as the authorities running these activities are judged to have taken reasonable care and have not broken explicit health and safety regulations, then using facilities or taking part in activities is considered consent. At times, people who are considered not competent to understand the implications of their actions are considered not to be able to give informed consent—that is, they are not capable of consenting to the activity because they are not capable of understanding the risks. In different legal systems, understandings of informed consent vary. In the United Kingdom, for example, as long as a medical practitioner can demonstrate a recognized standard of care, then it is understood that the patient has had sufficient or informed consent to the procedure. In the United States or Australia, for example, the medical practitioner has to demonstrate that he or she has specified the risks involved to the patient so that the law can judge whether the patient has given informed consent. The two different interpretations underlie different views of informed consent. One is more paternalistic and suggests that although due care has been taken according to professionally agreed practices, the subjects can be considered to have given consent because when they go to a doctor what they desire is the best treatment as suggested by that authority. The second view is more libertarian and suggests that people need to be given sufficient information so they can make their own judgments rather than leave this up to their agents.

[Page 138]Contractual theories of the state assume that citizens have given implicit consent to the law and governing authorities because they have not explicitly dissented through revolt or, in democracies, through the democratic process. Contract theories of the state are subject to the same interpretations as is informed consent in the medical case. More paternalistic analysts are content to accept that people can be considered to have consented to the authority of the state as long as it behaves reasonably. Libertarians give less authority to the state and demand that state actions have actual and not just tacit content. In that sense, the two sides are more or less demanding the discretion that should be allowed to the state in making laws without explicitly inquiring of the people. James Buchanan and Gordon Tullock's The Calculus of Consent specifies this libertarian doctrine by requiring the contract to aspire to universal consent that can only be assumed when a state of affairs is Pareto-preferred to all others—that is, when there is no state of affairs that would be chosen by one person to the actual one.

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