In Defense of Hypothetical Consent

And how it determines actual consent

Photo by Andy Holmes on Unsplash

TL;DR: Actual consent is not simple and absolute as the “magic words theory of consent” argues it is but is determined by impartial principles that would reasonably be agreed to (the social contract). Sometimes the social contract will find actual consent to be sufficient to create agreements, other times, not enough (e.g. legal excuses, informed consent, and consent rules), and other times, not necessary at all (e.g. implied contracts, quasi-contracts, and tort law). The rules and exceptions are determined by the metarules of the social contract. These metarules must be reasonable, which makes them moral rules, therefore allowing them to justify our legal rules. Since the social contract is accepted through hypothetical consent, we can’t have actual consent without hypothetical consent.

I argued in previous posts that we have a social contract made behind a veil of ignorance based on freedom. However, many have questioned the authority of this social contract.¹ Isn’t the contract based on hypothetical consent? What authority does this type of consent have? And is it compatible with freedom?

Some argue that unless a contract has actual consent, then it’s not even a contract. You have to sign on the dotted line to be legally bound by anything. You can’t “hypothetically” consent to an agreement.

Yet actual consent is, at many times, neither necessary nor sufficient to create binding acceptance. And the rules that determine what “actual consent” is and when it applies are themselves determined by reason—or principles of the hypothetical contract.

Therefore, actual consent is dependent upon hypothetical consent. And without hypothetical consent, actual consent fails to rest on ethical principles. For actual consent to mean anything, it needs to be grounded on ethical principles that are hypothetically agreed to. I will call the prioritization of actual consent and disregarding of these ethical principles based on hypothetical consent, the “magic words theory of consent.”

I’ll explain this by illustrating the diverse American legal rules that determine consent, and argue that these legal rules can only be based on the metarules of the hypothetical contract, which obtains its authority through hypothetical consent.

When Actual Consent is Not Sufficient

What do we mean by actual consent? Does it have to be in writing, or can it be provided orally? Does it have to be informed, or are background circumstances irrelevant? Are there certain people who can’t give consent, or are there certain agreements that can never be consented to?

The law has dealt with many of these questions, as is constantly questioning and updating our understanding of what constitutes binding consent. But it can be stated with confidence that “actual consent” is neither simple nor absolute.

First, let’s look at excuses to consent. There are many cases where despite one’s actual consent, there are no binding legal obligations. This includes contracts made under duress, undue influence, fraud, and contracts to minors (with exceptions). Regardless of consent, these types of contracts are voidable. One wouldn’t be legally or morally obligated to obey if the consent process wasn’t fair.

Then, there are obligations we can’t consent to. For example, we can’t consent to be killed, enslaved, or forced into a HumancentiPad. Some agreements are deemed so unconscionable that not even actual consent is sufficient to make these agreements binding. Saying the magic words “I consent” cannot make them either legally or ethically binding.

Then there are cases where consent must be informed, and requires the offeror to provide relevant disclosures. For example, consumer protection laws may require that the buyer is aware of their rights or information about the product (that’s why we have tags on our mattresses). If consent isn’t informed, then the contract isn’t binding.

And what constitutes informed consent differs based on circumstances. Factors can include the accessibility of information, the sophistication of the buyer, or the font size of the text (even if the text wouldn’t have been read anyway, which it usually isn’t).

Informed consent becomes especially important in the medical field, where patients are often ignorant, ill, or injured and may require complicated yet risky procedures.

And there are even exceptions to this requirement, like if a party is sufficiently wealthy or is represented by counsel.

Another web of rules relates to how consent should be expressed. Sometimes verbal consent is sufficient, sometimes there must be a signed written contract, and sometimes a witness is required. And there are exceptions to these rules, and exceptions to the exceptions.

Overall, what constitutes consent is facts-and-circumstances dependent. What constitutes “consent” as we understand it to mean ethically can vary based on the situation. There’s no absolute “consent.” Just saying “I consent” can be either unnecessary or insufficient.

Despite seeming so, these rules aren’t arbitrary. They are often made for a good reason. The law demands that more disclosures be given to ordinary consumers than sophisticated businesses. We don’t hold parties liable to agreements if they were pressured into them and we require wills to be signed with witnesses present. These rules are sensible and tend to have strong justifications: we want to reduce information asymmetries, coercion, and family disputes, respectively. Saying “I consent” in these situations isn’t enough.

The principles that shape our consent rules can only be justified based on reason, which is also what makes these rules moral.

When Actual Consent is Not Necessary

In addition to the rules that govern when actual consent controls, there are cases where consent isn’t even needed.

First, there are “implied-in-fact” contracts. For example, say you go to a foreign country where you don’t speak the language and decide to get a haircut. You go to a barbershop, sit on the chair, and let the stylist cut your hair without saying a word to one another. There is no explicit consent, not even an exchange of words, but you still have an implied-in-fact contract.

You may not have liked your haircut or thought the price the foreign barber ended up asking for was excessive. Maybe the barber should have been upfront about his styles and prices, and should bear the risk of nonpayment if you weren’t satisfied.

Yet our law has determined that implied contracts like these are valid, despite lacking actual consent. It’s reasonable to provide payment after going into a barber shop and getting a haircut. No words, disclosures, or signatures are required.

Political philosophers hate the idea of implied consent as a justification for government (as do I). Yet behavior can create legally binding agreements.

If you purchase a condominium, you’ve implicitly consented to be subject to the arbitrary whims of the condo association rules. If a majority of the board decides that you can’t have indoor pets, holiday decorations, or even kids, then you’re legally subject to those rules. Of course, you may not have consented to those rules. You may not have even purchased the condo had you known they would have voted for those dumb rules. But your “actual” consent doesn’t matter. You’re subject to the condominium’s rules, whether you had said “I consent” or not.

Or take another case: the quasi-contract. This is a type of contract, implied only in law, created between parties that had no legal agreement with one another. Usually, these would be used in cases of unjust enrichment.

To illustrate, say you work as a research assistant for a professor based on that professor’s oral offer. However, what the professor doesn’t tell you is that he doesn’t intend to pay you. You don’t want to sound too impolite and refrain from asking about money, but still expect compensation since that’s customary at the university.

You work for long hours through late nights, only to find out that the professor’s only “payment” is the privilege of working for him.

The professor can say there was no consent—and therefore no contract—since he was never willing to pay you. He didn’t say the magic words “I consent to pay you.” Plus, the professor may argue that you were responsible for asking about payment since you failed to appreciate the priceless reward of academic research.

However, the professor received the benefit of the bargain. Given the reasonable expectation of payment and the benefit you provided, a court would likely force the professor to pay you a market wage under a quasi-contract. No actual consent is required. This legal result seems like the correct moral result.

And now take cases like tort (accident) law. This field essentially applies the old store maxim of “you break it, you buy it.” If you accidentally break someone’s leg or total their car, you have to pay for those damages to make the victim whole.

There’s no actual consent here as well. The magic words “I consent” weren’t stated, so no purchase could have taken place. Someone may not have consented to damaging someone’s property, and the owner of that property may not have consented to it being damaged. Yet we don’t say that there are no obligations just because there is no contract.

Instead, courts just create a fictional contract that ensures a fair price is paid for the harm done (rather than the price that would have actually been consented to). So fair market value would be used rather than sentimental value. This seems reasonable, which makes it a moral rule, and justifies it as a legal rule.

And as diverse and complex as the above-listed rules are, they’re still nothing compared to what constitutes “consent” in relationships. If you don’t care about legal rules, then feel free to replace the above with edge cases of consent in the dating world.

Hypothetical Consent Creates the Metarules for Actual Consent

If we adopt the magic words theory of consent, where saying “I consent” is supreme, then where do all these exceptions come from? They can’t come from actual consent itself—that’s the very thing we’re trying to figure out. So there has to be something more fundamental that grounds these actual consent principles. And that grounding is reason—or justifiable principles that could not be reasonably rejected (AKA the social contract).

The social contract is ascended to by our reasonable (hypothetical selves) since it includes principles that cannot be reasonably rejected. Therefore, actual consent relies on hypothetical consent. If it weren’t for the rules of the hypothetical agreement, we’d have no idea what actual consent means. There would be no metarules to rely upon.

The rules on legal excuses, informed consent, and quasi-contracts are intended to provide a fair outcome for the parties. And they aren’t based on what anyone had or had not actually agreed to, but rather on impartial principles of justice—principles that we’d agree to put in the social contract.

Actual consent is only justified to the extent that the social contract rules choose to justify it. Sometimes the social contract will find actual consent to be enough, other times not enough, and other times, not necessary at all. Only reason has the authority to determine the boundaries of consent. We can’t have actual consent without hypothetical consent.

1. See “Justice and Rights” in Ronald Dworkin’s Taking Rights Seriously and Michael Huemer’s Problem of Political Authority.