Consent as a source of justification is flexible and resilient enough as long as
there is an available recourse to dispute resolution. As Avinash Dixit describes,
this recourse does not need to be that of the nation-state as long as some model
of governance and enforcement exists. Traditionally this need for a redress
mechanism has been provided for by the nation-state.
40 In situations in which
the need for such governance is not provided by the nation-state, alternatives are
required. It should be noted that the formal right to access to a court is not
sufficient, but instead there needs to also be an actual possibility of access, which
is often not the case with low-intensity cases. If we assess the examples of existing
private enforcement mechanisms, we notice that they have evolved to substitute
public redress mechanisms when these are unable to provide sufficient legal
protection. However, if there is no actual alternative to these private mechanisms,
if there is no true choice to be made for or against their use, there can be no
informed consent. If there is no alternative, the consent becomes a fiction and
thus challenges the assumption of voluntariness that forms the basis of the
narrative’s justificatory power. The consent narrative is built on the conception
that the consent is ‘real’, although we can ask whether this assumption is a similar
fiction to that of state monopoly on dispute resolution, used to maintain the
narrative’s theoretical prowess. If the justificatory power of the consent narrative
is not in voluntariness, our attention is directed towards the form of consent, the
rituals and structures used to give the proper utterances of consent.
The shortcomings of private autonomy as a source of justification come down
to the same reasons that are behind the demise of contractual freedom, as
described by Atiyah.
41 The scope of application of consent is narrowed by the
demands of protection for the weaker party. This protection derives from the
demands for fairness and is accommodated in contract law by special clauses on
validity and setting the contract aside. In order to provide such protection while
justifying dispute resolution at the same time, we should be able to apply the
internal safeguards of contract law, i.e. the defences against formation and grounds
for setting the contract aside. These safeguards, in turn, presuppose the existence
of a proper forum to challenge the contract, which traditionally has been the public
courts. The limits of consent stem from the context in which the concept originally
emerged; the entwined cooperation between sovereign power and private autonomy
does not seem to provide sufficient solutions for new interpretative situations.
42
Attempts at providing such safeguards internally via industry self-regulation overcome these problems, but face a different set of challenges, such as conflict of
interest, lack of incentives and ostensible best practices.
As the means for contesting the validity of consent require efficient means of
dispute resolution on a micro level, justifying dispute resolution through consent
on the macro level has no similar safety valve. Simply put, uninformed consent in
a single case could sometimes be contested in public courts, according to the
norms of contract law but on an abstract level such internal safeguards cannot be
employed. To put it more concretely, there are no concrete ways of contesting
the validity of consent given to private enforcement (e.g. due to the litigation
threshold), and, as such, the concept of consent can only be applied without the
Consent and private autonomy 153
there is an available recourse to dispute resolution. As Avinash Dixit describes,
this recourse does not need to be that of the nation-state as long as some model
of governance and enforcement exists. Traditionally this need for a redress
mechanism has been provided for by the nation-state.
40 In situations in which
the need for such governance is not provided by the nation-state, alternatives are
required. It should be noted that the formal right to access to a court is not
sufficient, but instead there needs to also be an actual possibility of access, which
is often not the case with low-intensity cases. If we assess the examples of existing
private enforcement mechanisms, we notice that they have evolved to substitute
public redress mechanisms when these are unable to provide sufficient legal
protection. However, if there is no actual alternative to these private mechanisms,
if there is no true choice to be made for or against their use, there can be no
informed consent. If there is no alternative, the consent becomes a fiction and
thus challenges the assumption of voluntariness that forms the basis of the
narrative’s justificatory power. The consent narrative is built on the conception
that the consent is ‘real’, although we can ask whether this assumption is a similar
fiction to that of state monopoly on dispute resolution, used to maintain the
narrative’s theoretical prowess. If the justificatory power of the consent narrative
is not in voluntariness, our attention is directed towards the form of consent, the
rituals and structures used to give the proper utterances of consent.
The shortcomings of private autonomy as a source of justification come down
to the same reasons that are behind the demise of contractual freedom, as
described by Atiyah.
41 The scope of application of consent is narrowed by the
demands of protection for the weaker party. This protection derives from the
demands for fairness and is accommodated in contract law by special clauses on
validity and setting the contract aside. In order to provide such protection while
justifying dispute resolution at the same time, we should be able to apply the
internal safeguards of contract law, i.e. the defences against formation and grounds
for setting the contract aside. These safeguards, in turn, presuppose the existence
of a proper forum to challenge the contract, which traditionally has been the public
courts. The limits of consent stem from the context in which the concept originally
emerged; the entwined cooperation between sovereign power and private autonomy
does not seem to provide sufficient solutions for new interpretative situations.
42
Attempts at providing such safeguards internally via industry self-regulation overcome these problems, but face a different set of challenges, such as conflict of
interest, lack of incentives and ostensible best practices.
As the means for contesting the validity of consent require efficient means of
dispute resolution on a micro level, justifying dispute resolution through consent
on the macro level has no similar safety valve. Simply put, uninformed consent in
a single case could sometimes be contested in public courts, according to the
norms of contract law but on an abstract level such internal safeguards cannot be
employed. To put it more concretely, there are no concrete ways of contesting
the validity of consent given to private enforcement (e.g. due to the litigation
threshold), and, as such, the concept of consent can only be applied without the
Consent and private autonomy 153