The Law and Politics of Consent: Legal and Political Subjectivity

Abstract

It would be hard to overestimate the importance of the roles of consent and contract in modern conceptions of legitimate social, economic, and political relations. The ‘free agreement’ of ‘the individual’ in modernity is expressed through contracting with others in ways that he judges will further his own interests. [M]odern practices of consent through negotiation occur within and reproduce the colonization of indigenous people rather than initiating processes of decolonization. By entering into negotiations under these conditions, indigenous peoples thus appear to consent tacitly to their acquiescence in the imposed institutions... contrary to the generations of resistance. This is the problem of the subordination of one partner and the hegemony of the other.... It is a major reason why so many First Nations refuse to enter into treaty negotiations and so many indigenous people refuse to ratify agreements negotiated by their leaders. [Colonial] attitudes towards Aboriginal women deny any agency with which to consent to sexual relations since it is perpetually assumed. This writes out the violence, coercion and duress of white men and the constraints on the agency of Aboriginal women in the colonial context. If sexuality is relational, specifically if it is a power relation of gender, consent is a communication under conditions of inequality.