Liberal Consent Versus Structural Consent

The ambit and character of liberal consent is such that one can consent to harm, whereas with structural consent one cannot consent to harm and it acknowledges vulnerabilities an individual may have in ‘consenting’ to harm. Within the philosophy of liberal consent persons can consent in asymmetrical power relations, wherein one party or both parties can ‘consent’ to substantive harm. To correct this, there needs to be an avenue of legal redress which acknowledges a party or parties vulnerabilities and can intervene to make a contract fairer to a vulnerable party or vulnerable parties, a fair exchange and fair consideration¹, or even annulment where ethically proper. The legal system already has mechanisms in place in the event of certain incapacities of a party which are recognised vulnerabilities of a party of parties to make fully informed consent. These special circumstances are currently:

• Mental disorder;
• Intoxication;
• Bankrupts;
• The Crown;
• Minors; and
• Companies²

Further to this, we need to develop legal ethics of structural consent which gives social redress to those vulnerabilities people have in ‘consenting’ to harm.

For example, an individual act of selling one’s house through needing to pay debts would not qualify as proper structural consent, and instead people need freehold indefeasible individual land and housing rights outside of and protected from free market operations, since market transactions are inherently built upon liberal consent. Or, for example, the act of selling one’s house to fund a gambling addiction.

Contrastingly, structural consent is made where an individual makes a choice in all their broad, narrow, short and long term interests. Educated and qualified legal arbiters can determine where structural consent as been made, and in the event of falling short of fully informed structural consent, can order rectification where it may fall short of this expansive and necessity form of structural consent which is truly personalist in character, as legal address caters to realign relations to a contract based on, not only just mutually beneficial relations, but also equality of outcome(s). Informed risk would still be an individual’s responsibility, yet structural consent could intervene to diminish any exploitation in highly asymmetric power relations to a contract in addition to consenting to harm.

1. Nevett Wilkinson Frawley, last accessed 3 September 2024, “[c]onsideration [as a part of contract law] is an exchange of something that has legal value in return for a promise”,
   https://nwflegal.com.au/what-is-consideration-in-australian-contract-law/#:~:text=Consideration%20is%20an%20exchange%20of,there%20to%20be%20a%20contract. ↩︎
2. Australian Contract Law, last accessed 3 September 2024, ‘Capacity to contract’, https://www.australiancontractlaw.info/law/capacity ↩︎