The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [8]
Our ambivalent responses are not limited to these narrow situations. We face similar puzzles in all kinds of areas—from criminal law to business, from sexuality to religion. This might not be a big deal if the concept didn’t mean so much. But it is a central concept—perhaps the crucial concept—in all of law, and also fundamental in economics, theology, political theory, marketing, literature, psychology, and philosophy.
Take business contracts, for example. Only contracts you freely enter into are considered valid. The notion of freedom of contract is seen as the chief embodiment in law of the respect for choice. But the law respects contracts only sometimes. Not only are there numerous ways to get out of contracts—such as bankruptcy or government bailouts—there are all kinds of contracts you can’t enter into even if both parties want to: for instance, to take jobs that pay less than the minimum wage.
For another example, think about sex. Ever since the Supreme Court ruled in 2003 that laws criminalizing gay sex were unconstitutional, having sex with another consenting individual is a constitutional right—except when it’s not. For example, that right does not exist when the other person is closely related to you, or when you’re married and you choose to have sex with someone else, or when you choose to have sex with someone because they pay you. In those cases, not only is your choice not a constitutional right, it can be illegal. (Yes, adultery is still a crime in many states.)12
A person who has sex with someone who did not freely choose to have sex has committed rape, a heinous crime. But having sex with someone who does freely choose to have sex with you is not a crime, and it can be an extraordinary expression of love or simply a lot of fun. The law has wrestled for decades to try to define free choice in that situation, and the question of sexual consent is among the most serious in all of criminal law. A person’s consent may not count if he or she is underage, unless their partner is underage as well. Consent may not count if a person is drunk, even if he or she got drunk in order to lose their inhibitions. In some jurisdictions, consent does not count if a person is under a mistaken impression of who they are with—there are cases where a twin has tricked his brother’s wife into having sex with him. In other jurisdictions, shockingly, that isn’t rape, presumably because it may be difficult to define how much deception it takes to vitiate consent.13 (Would it be rape if a guy gets a woman to come home with him from a bar after telling her he’s a movie director when in fact he works at a video store?)
The way the law considers choice varies across different areas of criminal law, creating some odd possibilities. For example, if you are drunk and have sex with someone who is just as drunk as you, their drunkenness may mean that their choice to have sex will not be valid, meaning that you have committed a sexual assault. But in most states you cannot use your own drunkenness as a defense, because the law assumes you intended to commit the crime even if you’re inebriated. But then, your choice to have sex may not be valid either, since you were drunk. So it’s possible that the other person committed a sexual assault on you while you were committing one on them.
In politics, consent and choice are central but disturbingly ephemeral. In democratic societies, the idea of “consent of the governed” has won adherents since Jean-Jacques Rousseau wrote about the “social contract” in the eighteenth century. He argued that “residence constitutes consent,” meaning that anyone who chooses to live within a jurisdiction can be