Two Concepts of Consent
When you consent, in the sense in which I’m interested, to my X-ing—say, my performing surgery on you—you make it the case that I no longer owe you a “negative” duty not to X. And when you consent to my not X-ing—say, my not aiding you—you make it the case that I no longer owe you a “positive” duty to X. One question raised is: Why does your consenting to my X-ing, or to my not X-ing, make it the case that I no longer owe you a negative duty not to X, or a positive duty to X? I will call this the question of “how consent works.” Another question raised is: What must take place for you to have made it the case that I no longer owe you a negative duty not to X, or a positive duty to X, because of your consent? I will call this the question of “what consent is.” What I wish to suggest is that consent works in two ways. First, your consent can “vacate” my duty to you not to X by making it the case that my X-ing no longer sets back the interest that gave rise to the duty. Second, your consent can make it the case that I no longer owe you a duty to you to X without making it the case that my not X-ing no longer sets back the interest that underlies the duty. Indeed, I will argue that there are two kinds of consent—vacating consent and non-vacating consent—which correspond to these two ways in which consent works. In other words, the two ways in which consent works correspond to two different answers to the question of what consent is.