Right to consent

[Jonathan Buhacoff]

The proposed right:

No person shall be forced, coerced, assaulted, or threatened with violence to make a choice or be a party to any agreement or activity. No waiver of rights shall be upheld without evidence of informed consent. No person shall be prevented from entering into a contract to which they freely consent.

Important clarifications:

The first part of this protects people from being forced to do something without consent, while the second part protects people from interference by others when they do consent to do something.

Any choice or agreement made under a violation of the right to consent is not legally enforceable. This means the use of force, coercion, assault, or threats of violence create unlawful duress and the resulting agreement is not legally enforceable.

The right to consent is essential to liberty, because being forced or coerced to make choices or binding agreements is the opposite of liberty, while being unreasonably restrained from entering into agreements is also the opposite of liberty.

This also applies to forced or coerced work or marriage.

Contracts that require a person to act or fail to act in a way that would violate someone else’s rights or any enacted laws or regulations are not legally valid and not enforceable using the justice system. This doesn’t prevent someone from entering into a contract, but in case they mistakenly enter into an illegal contract it gives them a moral and legal way out.

Contracts where a person waives their own rights are legally valid only with informed consent and with limitations on the waiver itself. This is a higher bar than consent for a normal contract. Some examples of informed consent for a limited waiver of rights include: providing full disclosure of safety risks when asking people to waive their right to life and right to petition before entering a gym, sports program, skating rink, amusement park ride, parachuting activity, etc. (the person wants to do the activity, has been informed of the risks, and consents to waiving the right to sue for damages if the person gets hurt — as long as the injury was due to a severe negligence or intentional harm that is extraordinary), a patient waiving their right to life and right to petition before an operation (again the patient has been informed of the risks and consequences and the medical team is safe as long as they can show they are doing their work in accordance with the best known practices), a person waiving their right to honest and peaceful speech in exchange for money (for example a non-disclosure agreement when starting a new job), a person waiving their right to dignity in exchange for money (for example a person taking a job as a clown, an actor in a difficult scene, a person indicating they want to donate their organs when they die, an exotic dancer — all of them in a limited way, not waiving their right to dignity completely but only for the stated purpose and scope of work and for a limited duration).

Contracts requiring the person to violate someone else’s rights or commit any illegal act are not enforceable because of the right to justice. The non-enforceability does not violate the person’s right to consent in the first place, it merely prevents the use of the justice system from enforcing a contract that compels someone to violate someone else’s rights. Any attempt to force a person to violate the law or someone else’s rights without their consent would be a violation of their right to integrity.

Comparison to the United Nations

Article 16.2 of the United Nations Universal Declaration of Human Rights states “Marriage shall be entered into only with the free and full consent of the intending spouses.” This is covered by the right to consent.

Article 20.1 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to freedom of peaceful assembly and association.” This part about association relates to the right to consent.

Article 20.2 of the United Nations Universal Declaration of Human Rights states “No one may be compelled to belong to an association.” This relates to the right to consent. People must be free to work and free to choose to join or not join a work association or labor union. The law may require someone to possess a license to perform a certain kind of work, but the law may not compel someone to join an association for doing a certain kind of work.

Article 21.3 of the United Nations Universal Declaration of Human Rights states “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” The part about the will of the people relates to the right to consent. No person shall be forced or coerced to vote a certain way in elections, or to sign a petition.

Article 23.1 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” The part about “right to work” relates to right of consent in the sense that people should not be prevented from entering into consensual work agreements. The part about “free choice of employment” relates to the right of consent in the sense that no person shall be forced or coerced by another person to a work arrangement. However, we reject the “right to work” because that would imply someone has an obligation to provide a job. We do believe it’s important to help anyone who wants to work a productive and satisfactory job, but this is on a best-effort basis and it would be irresponsible for a state to guarantee a right to work (with the implied right to be paid for that work). The right to consent already protects an individual’s right to choose to work from other people interfering with their choice.

If two people consent to a work arrangement, and it doesn’t violate anyone’s rights or any enacted regulation, then no person or government should interfere in their arrangement. It also means that legislatures must not enact regulation to arbitrarily limit what kind of work people do. Laws regulating work should be enacted to ensure that conditions are safe and people are treated well, not to appease the morality of some people and in effect impose their religion or politics on other people.

Some well-known examples of such debates in the United States are about whether people have a right to consent to abortion, assisted suicide, organ donation, sex work, and whether labor unions should be granted special powers by the government.

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