Discourse

"You have to show violence the way it is. If you don't show it realistically, then that's immoral and harmful. If you don't upset people, then that's obscenity."

"Obscenity is whatever happens to shock some elderly and ignorant magistrate."

"I'm not big on compromise. I understand compromise. Sometimes compromise is the right answer, but oftentimes compromise is the equivalent of defeat, and I don't like being defeated."

"If you can't lick 'em, jine 'em."

"All legislation of consequence is a series of compromises, and there are many trades and deals among the senators in order to get important measures through. These trades are not of a sinister nature at all, but are entirely permissible by the highest standards of legislation and morals … Every legislator understands that no measure of importance ever could be passed without this give-and-take policy being practiced to the limit."

"Worse than thieves, murderers, or cannibals, those who offer compromise slow you and sap your vitality while pretending to be your friends. They are not your friends. Compromisers are the enemies of all humanity, the enemies of life itself. Compromisers are the enemies of everything important, sacred, and true."

"We will compromise on almost anything, but not on our values, or our aesthetics, or our idealism, or our sense of curiosity."

"Now and then one can stand uncompromisingly for a naked principle and force people up to it. This is always the attractive course; but in certain great crises it may be a very wrong course. Compromise, in the proper sense, merely means agreement; in the proper sense opportunism should merely mean doing the best possible with actual conditions as they exist. A compromise which results in a half-step toward evil is all wrong, just as the opportunist who saves himself for the moment by adopting a policy which is fraught with future disaster is all wrong; but no less wrong is the attitude of those who will not come to an agreement through which, or will not follow the course by which, it is alone possible to accomplish practical results for good."

"A good compromise, a good piece of legislation, is like a good sentence; or a good piece of music. Everybody can recognize it. They say, "Huh. It works. It makes sense.""

""Compromise" is so often used in a bad sense that it is difficult to remember that properly it merely describes the process of reaching an agreement. Naturally there are certain subjects on which no man can compromise. For instance, there must be no compromise under any circumstances with official corruption, and of course no man should hesitate to say as much."

"On its first coming before me, I strongly recommended it here. But if the parties will have it decided, we must give our opinion. Compassion will not, on the one hand, nor inconvenience on the other, be to decide, but the law: in which the difficulty will be principally from the inconvenience on both sides."

"Accepting the compromise of the way we have been, the way we are, and the way we will likely be... may we live together in unwavering love and good health, amen."

"I know thy works, that thou art neither cold nor hot: I would thou wert cold or hot."

"I believe in friendly compromise. I said over in the Senate hearings that truth is the glue that holds government together. Compromise is the oil that makes governments go."

"There is but one thing you have to be concerned about, and that is that you keep foursquare with the principles of the international Socialist movement. It is only when you begin to compromise that trouble begins. So far as I am concerned, it does not matter what others may say, or think, or do, as long as I am sure that I am right with myself and the cause. There are so many who seek refuge in the popular side of a great question. As a Socialist, I have long since learned how to stand alone."

"If you are not very clever, you should be conciliatory."

"There isn't such a reasonable fellow in the world, to hear him talk. He never wants anything but what's right and fair; only when you come to settle what's right and fair, it’s everything he wants, and nothing that you want. And that’s his idea of a compromise."

"Nearly all legislation is the result of compromise."

"COMPROMISE, n. Such an adjustment of conflicting interests as gives each adversary the satisfaction of thinking he has got what he ought not to have, and is deprived of nothing except what was justly his due."

"Compromise used to mean that half a loaf was better than no bread. Among modern statesmen it really seems to mean that half a loaf is better than a whole loaf."

"Nite-Owl: Rorschach...? Rorschach, wait! Where are you going? This is too big to be hard-assed about! We have to compromise!"

"I think it is better, as it is a family-affair, to stand over for the chance of a compromise."

"In training a child to activity of thought, above all things we must beware of what I will call "inert ideas"—that is to say, ideas that are merely received into the mind without being utilised, or tested, or thrown into fresh combinations."

"A Man who has been brought up among Books, and is able to talk of nothing else, is what we call a Pedant. But, methinks, we should enlarge the Title, and give it to every one that does not know how to think out of his Profession and particular way of Life."

"There are certain inferior or second-rate minds, who seem only fit to become the receptacle, register, or storehouse of all the productions of other talents; they are plagiarists, translators, compilers; they never think, but tell you what other authors have thought; and as a selection of thoughts requires some inventive powers, theirs is ill-made and inaccurate, which induces them rather to make it large than excellent. They have no originality, and possess nothing of their own; they only know what they have learned, and only learn what the rest of the world does not wish to know; a useless and dry science, without any charm or profit, unfit for conversation, nor suitable to intercourse, like a coin which has no currency. We are astonished when we read them, as well as tired out by their conversation or their works. The nobility and the common herd mistake them for men of learning, but intelligent men rank them with pedants."

"The term, then, is obviously a relative one: my pedantry is your scholarship, his reasonable accuracy, her irreducible minimum of education and someone else’s ignorance."

"The very reason [the Greeks] got so far is that they knew how to pick up the spear and throw it onward from the point where others had left it. Their skill in the art of fruitful learning was admirable. We ought to be learning from our neighbors precisely as the Greeks learned from theirs, not for the sake of learned pedantry but rather using everything we learn as a foothold which will take us up as high, and higher, than our neighbor."

"If Mr. Attorney in opening does say anything that he ought not to eay, I will correct him, as I would do anybody that does not open things right as they are proved; but pray don't you that are at the bar interrupt one another, it is unbecoming men of your profession to be chopping in and snapping at one another. Go on, Mr. Attorney."

"What is introductory goes for nothing, but it is in order to explain the evidence."

"Do not open that which is not evidence."

"This case not having been opened has thrown a difficulty upon the Court—without presuming to say it ought not to have been the course, considering the state of the matter; I am thinking of the inconvenient situation in which the Court is placed. Parties, I think, should act upon the law as it stands. The usual course is for the counsel for the prosecution to state the facts without reasoning upon them, and such facts as may lead one's attention to that which may be the real question of law in the case. But if a contrary course is to be adopted, and an opening is to be done without, we shall be in great difficulty at the end of the cause."

"That is the great difficulty in not having an opening speech. If there is a speech without any observations, I think it beneficial."

"It is manifestly fallacious to make the opening of counsel the test on the question of what is "the act or transaction which the Crown prosecutes." It is plain that the Court is not at all bound by the statements made by the counsel in his address."

"Usually assault is not consented to in law; either it cannot be consented to, or consensual assault remains assault. Yet sexual assault consented to is intercourse, no matter how much force was used."

"[T]he relationship between rape laws, democratic theories of consent, and patriarchy has been a matter of concern to feminist political theorists for some time. These feminists have exposed the 'double speak' of social contract consent theory … [T]hey have detailed the ways in which the emphasis on consent relies on a masculine concept of the self as an autonomous, independent being. They have examined the ways in which this concept of self runs counter women's experiences of the self as a relational being with responsibility to/for others … [I]t prompts us to argue for the rule of consent in the context of a theory of justice where vulnerability rather than autonomy defines the integrity of the political subject.” **"

"Each of these theorists, in other words, links the failure of neutral or equal citizenship to the creation of the private sphere, to the placement of women into this sphere, and to the indeed dangerous way in which women's bodies personify it. Consent-a public, political act-becomes meaningless in such a frameowrk. Indeed, as MacKinnon argues with reference to rape law, consent is simply assumed in the private, that “arena of choice;” it is a metaphysical quality rather than a political act. Women carry the private around with them. And it is a result of their empathatically private nature that consent theory cannot serve them as citizens in the end. My purpose over the next few pages will be to challenge this analysis. More specifically, I will try to demonstrate that to the extent that sexual legislation-and more basically, sexual identity-became central to political identity over the first few decades of the twentieth century, women, sexualized, increasingly became actors within the rhetorical public, rather than within the rhetorical private. Indeed, rape and adultery law trendered women essential, prototypical, biopolitical subjects, their bodies representative of a new, relentless concept of the political. Moreover, I will argue that it was the thetoric of consent in particular that transformed women citizens in this way. Far from meaningless or irrelevant, consent instead served as a foundation for an interwar reinterpretation of both sexual and political identity. The paradox of both the biologically passive, politically active consenting individual"

"One major theme that runs throughout Bergelson's article is this tension between the ability to consent, which “is recognized in moral philosophy as a central manifestation of personhood and individual autonomy,” and the act of consent, which is “a waiver of rights.”"

"That consent has almost nothing to do with choice and everything to do with an unabashedly authoritarian understanding of political space in which rights are assumed to be waived can be seen in the actual outcome of the case in which Scarry conteztualizes her analysis. As Paul A. Lombardo has observed, “it is rarely clear in most discussions of the Cardozo opinion that Mary Schloendorff lost her case. That result is not only startling because of the way Cardozo ignored the absence of consent for dangerous and unwanted surgery, but also for its extraordinary deference to charitable immunity of hospitals, employing questionable arguments and contorted interpretations of the facts for each conclusion that would allow the case to be dismissed. The very Court that Cardozo sat on-New York's Court of Appeals-criticized the reasoning on charitable immunity in the Schloendorff case as 'logically weak' only ten years after it was decided, and it was completely overruled in 1957 when the shield of non-profit status was discarded in new York as “out of tune with life about us.' Yet we still celebrate the case as a salute to patient autonomy.” Lombardo continues by pointing out that the specific unwanted surgery performed on Mary Schloendorff was a hysterectomy to rid her of a “phantom tumor.” Lombardo 2005, 792. John T. Parry had addressed this paradox-the extent to which contemporary rights are assumed to be enforced only by the act of waiving the-as well, noting in his analysis of the 2002 case USA v. Drayton: Justice Kennedy closed with the following comments on citizenship, police conduct, and the rule of law: 'In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent."

"[T]o complain in public of inequality within the private contradicts the liberal definition of the private … [I]njuries arise through violation of the private sphere, not within and by and because of it. In private, consent tends to be presumed. Showing coercion is supposed to void this presumption. But the problem is getting anything private to be perceived as coercion … [W]hy a person would “allow” force in private (the “why doesn't she leave” question raised to battered women) is a question given its insult by the social meaning of the private sphere as a sphere of choice.”"

"I would like to consider some further aspects of the role of consent in the early twentieth century legislation. First of all, when we conceive of consent theory as a theory absent of any choice-operating as a means of delimiting borders rather than of defining behavior-the problems and contradictions that occur when it runs up against “reality”begin to make more sense. When Pateman, for instance, notes that, “consent as an ideology cannot be distinguished from habitual acquiscence, assent, silent dissent, submission, or even enforced submission. Unless refusal of consent or withdrawal of consent are real possibilities, we can no longer speak of “consent” in any genuine sense,”104 she is clearly understanding consent as something linked to juridical freedom or, more basically, to choice. Likewise, when Agamben, in his discussion of medical experimentation on prisoners in Nazi concentration camps or in United States prisons that that, The final criterion, which elicited general agreement, was the necessity of an explicit and voluntary consent on the part of the subject who was to be submitted to the experiment .. [T]he obvious hypocrisy of such documents cannot fail to leave one perplexed. To speak of free will and consent in the case of a person sentenced to death or of a detained person who must pay serious penalties is, at the very least, questionable, he is operating within the same framework. If, however, we understand consent as no more and no less than means of defining sovereign space-of collapsing political and biological borders and boundaries-the seemingly perverse or at least disingenuous insistence on consent in such situations becomes more reasonable. The question is not whether the individual “really” consented to what is, for all intents and purposes, sexual, social, reproductive, political, biological, or medical enslavement. It is instead the extent to which the consensual relationship has successfully defined both political and biological space. Indeed, we can see in these early approaches to reproduction, experimentation, and execution important precursors to the humane reliance on lethal injection-rather than, say, beheading, hanging, or electrocution-as a means of eliminating criminals in the modern United States. Above all a spectacle of consent, the lethal injection-absent any wound or executioner-plays out first and foremost as a doctor/patient relationship, the physician eliminating the biologically passive, juridically consenting citizen in the end for his own good."

"By the early twentieth century, this articulation of women's bodies as biopolitical space had become far more pronounced-expressed throughout the 1920s and 1930s in particular in a language of consent. The talk of contracts, and especially the reinterpretation of the medieval private contract as a nineteenth century social contract, had led above all to an interwar fascination on the part of jurists with the biologically defined citizen and how consent theory specifically might regulate this citizen's sexuality. Italian fascist legislators, for example, began to imagine rape as both a crime against public morality and a crime against something called “sexual liberty,” the latter operating as a subset of the former. What exactly was meant by “sexual liberty” and why fascist legislators found it meaningful will be the questions that drive this section. I will indeed suggest over the next few pages that “sexual liberty” was a right that could be possessed only by biopolitically defined citizens, and that the consent on which this right was founded was likewise a biopolitical one-that paradoxically, as Vera Bergelson puts it, “valid consent eliminate[d] [the possibility of a] violation of rights.” I will therefore also suggest that consent played the same role in interwar sexual legislation that it had in interwar reproductive legislation. First and foremost a means of transforming women's bodies into space, it had little or nothing to do with “choice” or “freedom” per se, and placed women, not men, at the center of the public sphere."

"As I argued in the last chapter, Scarry's notion that consent as a political concept is meaningful only given a passive of threatened body leads likewise to the notion that the liberal citizen's political autonomy, his or her ability to consent or to invoke political power, is inversely proportional to his or her bodily or biological autonomy. It is important to reiterate, in fact, that Scarry's reading of consent theory brings us directly to a spatial rather than a behavioral unerstanding of political activity. If the ideal, politically active, consenting citizen is a physically incapacitated or immobile one, consent necessarily has to do with boundaries rather than behavior. I examined the reproductive implications of this reading in the last chapter. What I would like to do now is to discuss its implications in terms of sexual legislation-to ask especially what happens when consent describes sexual and political space, and when the act of consent is in and of itself a waiver of rights."

"Modern consent, then, is a very specific, narrowly defined legal concept developed at the end of the eighteenth century in part to differentiate full citizens from partial citizens or non-citizens. It is not a vague or open idea: citizens-mature, sane, politically active individuals-are capable of cosnnet. Partial citizens, passive citizens, or non citizens-those below the ae of maturity, those declared insane, orthe politically inactive-are not. In ther eam of sexual crime, the most obvious manifestation of this notibly is in legislation on statutory rape where, whether or not a child consents to sex according to conventional standards, the activity is strll criminal because the child has not become a full citizen and thus capable of consent according to political and legal standards. Children, however, are noy the only partial citizens or non-citizens regulated by national or international political structures, and it is here that the cosnent/bodily integrity formula becomes problematic. Another increasingly recognizable non-citizen or partial citizen is the (internal or external) refugee-mature, sane regualted, but not in any way a full political actor. Indeed, what recent national and international interpetations of consent and bodily integrity have produced from the perspective of refugees-even, or especially, to the extent that they have been endowed with ersatz riights-is a situation in which any and all sexual or reproductive behavior on their part has become crinimal. Sex has become rape and reproduction has become criminal abortion and/or criminal procreation."

"A man who does not speak when he ought, shall not be heard when he desires to speak."

"I think it is now clearly established that counsel appearing for a party in an action is held out as having authority, and has full authority, as to all matters which relate to the conduct of the action and its settlement, and further that, notwithstanding a limit may have been placed upon the authority of counsel, the party for whom he appears is bound by such settlement unless the fact that the counsel's apparent authority had been limited was communicated to the other side."

"Bergelson likewise discusses the role played by consent in the transformation of private contracts into public contracts in the seventeenth and eighteenth centuries. She notes that whereas in the early modern period, consent was a catch all defense in penal legislation, “changes in the power of an individual to conenet to personal harm came in the seventeenth century. They were a natural consequence of the monopolization of the system of punishment by the state. While in the early ages of criminal justice the victim was the central figure in the prosecution and settlement of any non-public offense,in the normative and centralized juridical structure the victim became almost entirely excluded from the criminal process.” She continuied by noting that the right to consent was thus constrained, as the victims of crime became abstract concepts such as “public peace” or sovereingty."

"You cannot consent to a thing unless you have knowledge of it."

"Parties cannot by consent give to the Court a power which it would not have without it."

"I have very often had occasion to say, that acquiescence is founded on knowledge, and that a man cannot be said to acquiesce in a transaction if he is not proved to have had knowledge of it. I think that this principle requires to be attended to in all cases turning upon acquiescence."

"The sheer infeasibility of a ‘just say yes, over and over again’ rule has been the subject of some appropriately incredulous critiques. How will campus triers of fact determine whether an ‘explicit yes’ was repeatedly rendered, satisfying the ongoing affirmative consent requirement? Students are encouraged, not entirely satirically, to tape their sexual encounters or to obtain a series of signed consent forms as their activities progress… Advocates of ongoing, explicit yes rules respond to these criticisms partly by explaining that the rules are intended to ‘send a message’ and ‘change the culture’. As the New York Times reports, ‘Many supporters of affirmative consent say its greatest power may lie in changing attitudes’. This is a telling defence that implicitly acknowledges the impracticality of the new rules and the likelihood that few if any people will actually comply with them. It’s also a chilling defence that practically endorses arbitrary, discriminatory enforcement regimes."