ABSTRACT
As O’Donovan notes here, the capacity to consent is the hallmark of the liberal legal subject. Especially in civil litigation, agreement between the parties, rather than the imposition of a judicial determination, is the institutionally preferred method of disposition. Liberal societies believe that individuals are in the best position to determine their own solutions and should be given maximum freedom to do so. Private agreements are thought both to enhance individual autonomy and freedom of choice, and to maximise social welfare, since parties will (at least theoretically) only agree to arrangements that make them both better off (Neave, 1994: 111). As O’Donovan also notes, however, consent regimes impute equality of bargaining power between the parties. The person who makes a consent agreement is the abstract, formally equal, legal person, rather than a person in a particular social relationship with the other party (O’Donovan, 1997: 47). Although consent allows for the operation of particularity to the extent that consenting subjects are taken to be capable of protecting and promoting their own personal interests, it excludes particularity to the extent that the situated position of a party may prevent them from protecting and promoting their own personal interests.
