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I am delighted to announce the posting of a paper, The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions. A later version may appear as part of Special Issue of Undecidabilities and Law – Coimbra Journal for Legal Studies entitled "Law and the Janus-faced Morality of Political Correctness" coordinated by José Manuel Aroso Linhares, Full Professor at the Faculty of Law of the University of Coimbra and Coordinator at the University of Coimbra Institute for Legal Research.
The analysis focuses on consent as an object (something obtained), as an act (the conveyance of agreement or affirmation), and as a cluster of meanings around capacity and authority within contexts of autonomy, freedom and vulnerability, and as a (social and legal) risk router. Consent, then, serves as a useful vessel for better appreciating that interactive space between society, individuals, and the social, legal, and moral rule structures which provide (and also make) meaning necessary for the constitution of collective life. The focus of the analysis is the eight year odyssey of the American Law Institute as it sought to transform its provisions for Sexual Assault for the new era. (Model Penal Code § 213). The politics, ideology and conceptual clashes that this quite contentious journey produced served as cast a quite clear light on the critical subtext of law and social ordering that is usually buried beneath the orthodox rhetoric within which law reform veils its underlying premises.
Abstract: The concept of consent is ubiquitous in the West. It is the foundation of its construction of meaning for sovereignty (and political legitimacy), and for personal autonomy (and human dignity). Ubiquity, however, has come with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus faced morality of political correctness. It takes as its starting and end point the idea that free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented. The exploration is framed around the recent arguments in the American Law institute’s Model Penal Code Project around the meaning of consent in sexual relations. The essay first situates the problematique of consent—as action and object that incarnates power relations and the boundaries of the taboo. It then illustrates the way that semiotic meaning making produces a political correctness that produces paradox by critically chronicling the meaning of consent respecting sexual intimacy in criminal law. It enhances sexual liberation by placing it within a cage of limitations that ultimately transfers the power over consent form the individual to the state. That meaning making suggests the way that consent as an act, and as a state of being, is transposed to the broader context of political economic relations.
The draft may be accessed HERE, the Introduction appears below along with the Concept Note of the Special Issue.
Larry Catá Backer
Abstract: The concept of consent is ubiquitous in the West. It is the foundation of its construction of meaning for sovereignty (and political legitimacy), and for personal autonomy (and human dignity). Ubiquity, however, has come with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus faced morality of political correctness. It takes as its starting and end point the idea that free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented. The exploration is framed around the recent arguments in the American Law institute’s Model Penal Code Project around the meaning of consent in sexual relations. The essay first situates the problematique of consent—as action and object that incarnates power relations and the boundaries of the taboo. It then illustrates the way that semiotic meaning making produces a political correctness that produces paradox by critically chronicling the meaning of consent respecting sexual intimacy in criminal law. It enhances sexual liberation by placing it within a cage of limitations that ultimately transfers the power over consent form the individual to the state. That meaning making suggests the way that consent as an act, and as a state of being, is transposed to the broader context of political economic relations.
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1. The Problematique[1] of Consent as the Performance of Orthodoxy.
The concept of consent is ubiquitous in the West.[2] It is, in some respects, a metaphor for the core engagement of idealized social relations on which communal life is organized, of which the prison stands at the opposite end of the ideal.[3] It is the foundation of its construction of meaning for sovereignty (and political legitimacy). Within liberal democratic political orders it is not uncommon to invoke the phrase “consent of the governed” like an incantation the power of which holds together a political community.[4] It applies as well in the context of international law.[5] Consent is essential to the formation of private relationships as well. Aggregations of capital and labor operating as cooperatives and corporations are authenticated on theories of consent, on the politically correct consent to engage productive forces in specific ways.[6] Here, the focus is on information rather than on constitution.[7] Non-governmental organizations brings together individuals and others who consent to join for common purposes.[8] Consent is at the center of the most intimate personal relations, and the essence of the exercise of personal autonomy (and human dignity).
Ubiquity, thus, comes with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. The politically correct, of course, is understood both in its pejorative sense—as the sometimes ruthless control (through social, legal, political, and economic mechanics) by a collective vanguard intent on reshaping communal principles and practices[9]—and in its general sense as communal orthodoxy generally, one which permits freedom only within the quite tightly guarded boundaries of the possible.[10]
This is especially evident in the oxymoron concept of consent freely given. Politically correct free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented—and in both cases it is not for the individual to decide the limits and scope of either. Consent may be freely given only when undertaken with the approval and under the guidance of an orthodox collective[11] or the protection of a community strong enough to offer some protection.[12] Some people and institutions are incapable of giving consent, under certain circumstances. Consent can be revoked. Consent can be bartered; it may be waived. Consent can be conditioned. Consent can be exercised on behalf of others. The consent of people long dead may bind the living. Consent to certain acts may transgress a taboo (e.g., consenting to being eaten by another). One consents to marriage and to acts of physical intimacy, for example. One can consent to acts of intimacy, say, with other species, but in most societies only at one’s peril. And some acts of sexual intimacy, in form or kind, may not generate interest by the state, but may produce adverse social and religious consequences. Together these produce both the mechanics of social control of which the act-thing consent becomes the expression of political correctness.[13]
This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus faced morality of political correctness. The exploration is framed around the recent controversies produced by efforts to transform the meaning of consent for purpose of sexual crimes in the American Law institute’s (ALI) Model Penal Code Project.[14] This was a project deliberately aimed at changing the orthodoxy of sexual assault regulation to one more correct.[15] Central to that project of transformed orthodoxy was the definition of “consent.” [16] The essay first situates the problematique of consent—as action and object that incarnates power relations and the boundaries of the taboo. It then illustrates the way that semiotic meaning making produces a political correctness that produces paradox by critically chronicling the meaning of consent respecting sexual intimacy in criminal law. It enhances sexual liberation by placing it within a cage of limitations that ultimately transfers the power over consent form the individual to the state. That cage is necessary where, as here, sexual entitlement—the crumbling of the old taboos built around the chaste woman and the centrality of marriage between men and women—makes incomprehensible the old structures within which consent was confined. Confinement is still necessary—sexual liberation was coupled with enhancement of notions of autonomy,[17] specifically of personal control of one’s body, again interposed consent as an act (of liberation, of autonomy, and of choice and thus hierarchy), as that assent, and of its affirmance of a new societal ordering,[18] and a new language within which to embed action and object with meaning.[19] That meaning making suggests the way that consent as an act, and as a state of being, is transposed to the broader context of political economic relations.
[1] “Nous avons proposé une définition du mot problématique : « Dilemme récurrent auquel sont confrontés les managers », permettant de réconcilier le sens de l’adjectif et du nom d’une part, et de faire apparaître la permanence des questions que se posent les managers.” Marc Nikitin, Qu'est-ce qu'une problématique en science de gestion et comment l'enseigner ?, Comptabilité Contrôle Audit 12(3): 87-100 (2006).
[2] Matthew Craven, “The Ends of Consent,” in (Michael J. Bowman and Dino Kristsiotis, eds.) Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge University Press, 2018) pp. 103-135 (consent to be understood as a fundamental legitimating condition, p. 106).
[3] Michel Foucault M (1995) Discipline and Punish: The Birth of the Prison. Sheridan A (trans) Vintage Books, NY.
[4] See, e.g., John Locke, The Two Treatises of Civil Government (Awnsham Churchill 1689). For modern variations of popular consent and state theory, see, e.g., Kevin Gregg, “Text 'Revolution' to Vote": Social Media's Effect on Popular Consent and Legitimacy of New Regimes,” 31 B.U. Int'l L.J. 315 (2013).
[5] Craven, supra, n. 1, p. 135 (Vienna Convention organized around legitimation of the notion of consent to obligation as a foundation of international law); but Nico Kirsch, “The Decay of Consent in an Age of Global Public Goods,” American Journal of International Law 108(1):1-40 (2014).
[6] See, e.g., Lawrence A. Hamermesh, “Consent in Corporate Law,” Business Lawyer 70:161 (2014).
[7] See, e.g., Toyah Rodhouse, and Frank Vanclay, “Is free, prior and informed consent a form of corporate social responsibility?” Journal of Cleaner Production 131:785-794 (2016);
[8] See, e.g., Julie Hearn, “African NGOs: The New Compradors?” Development and Change 38(6):1095-1110 (Forum 2007).
[9] Cf., Joan F. Marques, “How Politically Correct is Political Correctness?: A SWOT Analysis of this Phenomenon,” Business and Society 48(2): (2009); R.J. Ely, D.E. Meyerson, & M.N. Davidson, “Rethinking political correctness,” Harvard Business Review, 84(9):78-87 (2006); Gert Jan Hofstede, “Political Correctness: Words as Weapons,” Business Renaissance Quarterly 1(1):59-71 (2006).
[10] The notion has been most honestly stated by both fascists and Leninists in the 2th century. It is bound up in the concept of discretion within the boundaries within which action is possible (Benito Mussolini (“Nothing outside of the state; all within the state; nothing against the state.” quoted in William Kilborne Stewart, “The Mentors of Mussolini,” The American Political Science Review 22(4):843 (1928); Fidel Castro, “Within the Revolution everything, outside the revolution, nothing” Fidel Castro Speech to the Intellectuals (30 June 1961 originally Pamphlet Palabras a los Intelectuales (Havana, National Cultural Council, 1961).
[11] It is in this context that consent evidences its semiotic quality as object (actin) which is the essence of a sign (a thing other than itself without referent) the meaning of which (validity, possibility, consequence etc.) is determined by application of the structures of organized society (as contract through the courts, for example, or as legally forbidden taboo through the application of the criminal law, or through social measures, for example in the 1950s the effect of divorce on social position). See, e.g., Roberta Kevelson, “Property: The Legal ‘Thing’ as Artwork”, Law and Semiotics 3:193-209 (Springer 1990).
[12] In the case of consent for intimate activities that might be available through informal organizations. See, e.g., John D’Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970 (Chicago: University of Chicago Press, 1983). In the case of action in suppressed markets, for example that is provided by outlaw organizations. See Larry Catá Backer, The Drama of Corporate Law: Corporate Narrative Between Policy and Law, 2009 Michigan State Law Review 1111 (Reviewing David A. (Bert) Westbrook, Between Citizen and State: An Introduction to The Corporation. Boulder, Co, Paradigm Press 2007).
[13] See, e.g., Sheila Duncan, “Law’s Sexual Discipline: Visibility, Violence, and Consent,” Journal of Law and Society 22(3):326-352 (1995). For an interesting consideration, see, Dennis Smith, “The Civilizing Process and The History of Sexuality: Comparing Norbert Elias and Michel Foucault,” Theory and Society28(1):79-100 (1999).
[14] For purposes of this essay the focus is on the work of transforming Article 213 of the Model Penal Code (Sexual Offenses) definition of consent. The general revision project was approved by the ALI membership at its May 2012 meeting and work began thereafter by the reporters, Stephen J. Schulhofer and Erin Murphy, both of New York University Law School. See ALI, Model Penal Code: Sexual Assault and Related Offenses (Discussion Draft 22 April 2013) (Philadelphia, 2013), p. XV. The ALI is a nongovernmental organization composed of jurists, lawyers, and academics whose purpose is to seek to bring clarity to the law of the United States through restatements of the common law and the development of ideal types of statutory law (for example, the criminal or penal law). See https://ali.org .
[15] “For some time experts have told us that this portion of the MPC needed to be rewritten to fit with contemporary knowledge and values.” Lance Liebman, Foreword, ALI, Model Penal Code: Sexual Assault and Related Offenses (Discussion Draft 22 April 2013) (Philadelphia, 2013), p. ix (Mr. Liebman was the ALI Director). “As a predicate to discussing procedural and evidentiary reforms of sexual assault laws, it may be helpful to have a shared understanding of the nature of sexual assault complaints today. . . In almost every other respect [e.g., with respect to sexual assault on men], however, the conventional image is wrong.” ALI, Model Penal Code: Sexual Assault and Related Offenses (Preliminary Draft No. 1; 20 December 2012) (Philadelphia: ALI), p. 1 (Background Memorandum)
[16] Consent was initially an issues generally with respect to specific acts, and as well with respect to the sexual history of the complainant, from which circumstantial evidence of consent might be implied. See, generally, Michelle J. Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 Geo. Wash. L. Rev. 51 (2002). It assumed an important element in the debates later in the process, see discussion, infra Section 3.
[17] See, e.g., Robert Young, Personal Autonomy: Beyond Negative and Positive Liberty (NY: Routledge2017) (arguing for an embedded rather than an individualist autonomy.
[18] See, Sheila A.M. McLean, Autonomy, Consent, and the Law (NY: Routledge, 2010), pp.40-69 .In the context of sado-masochistic sexual practices, see, Cheryl Hanna, “Sex is Not a Sport: Consent and Violence in Criminal Law,” 42 Boston College Law Review 239 (2000).
[19] Cf., Bernhard Grossfeld, “Lawyers and Accountants: A Semiotic Competition,” Wake Forest Law Review 36:167 (2001) (displacing the normative language and sensibility of the lawyer for the quantitative language of the accountant as corporate governance moves from the centrality of contract to that of compliance).
I VOLUME · 2020/2021Law and the Janus-faced Morality of Political Correctness
Concerning the possibility of juridically relevant responses, is the culture of the so-called political correctness a significant challenge? Although the affirmative answer seems obvious, the relevance to be taken in account is not, however, as linear as an approach in terms of public policies and their legisla-tive prescriptions apparently justifies. The problem at stake has not only to do with the (more or less extensively grasped) opportunity to sustain a new branch of Politics of Law, the distinctive feature of which would be an explicit progressive sensitivity and responsiveness to the pluralism of margin-alised identities and their narrative intersections (involving gender, race, sexual orientation, practical-cultural and geo-political provenience, health, mental and physical disability, as well as the relation to the colonial past and the status of victim). The problem concerns also the difficulties which this plurality (whilst favoring the fragmentation of perspectives, meanings and semantic values) effectively creates, when we consider Law’s claim for an integrating context — and with this, the vocation for comparability related to the status or dig-nity of sui juris. Last but not least, the problem concerns also some institutionalizing procedures and social effects which the culture of political correctness has indisputably imposed: the hypertrophy of duties and their concentration in appa-5rently trivial strongholds (justifying unresolved tensions be-tween universal and parochial claims), the legitimation of a limitless responsibility (with public devastating pre-juridical judgements, destroying lives and careers), the unconditional celebration of differences as a (paradoxically) ethical homo-genizing reference (if not as an effective intolerance factor, generating new and subtle forms of censorship).We can say that the discussion of this cluster of themes, in their juridical (dogmatic and meta-dogmatic) systematic implications, is still fundamentally to be done. Favoring a context open to multiple perspectives, without excluding (ra-ther expecting!) the intertwining of juridical and non-juridical approaches, the volume which we now propose - as a first number of the journal Undecidabilities and Law -- aims to be part of this indispensable reflexive path.
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