Dialectical‑Formal Logic of Post‑Consensual Obligation:
Reconstructing Domestic Commitments Through Non‑Agreement as a Higher‑Order Logical Operator** with Special Reference to FRCT and the High Court of Australia’s Expansion of Undue Influence
(P. L. Under, PhD)
Abstract
This article proposes a novel logical framework for understanding domestic obligations in the absence of explicit consent. Drawing on paraconsistent logic, deontic modality, and Sharon Thompson’s Feminist Relational Contract Theory (FRCT), I argue that refusal to enter a contract is not a negation of obligation but a higher‑order operator that generates obligation through its very negation. The recent High Court of Australia decision applying Thompson’s research — expanding the definition of undue influence into a contextual, relational, and potentially omnipresent condition — provides empirical validation for this post‑consensual logic.
I. Introduction: The Oppressive Binary of Consent vs. Non‑Consent
Classical logic insists that one must either consent or not consent. This “Boolean tyranny” has long constrained legal theory.
FRCT liberates us from this outdated dichotomy by demonstrating that:
consent is relational rather than individual
refusal is relational rather than individual
both are merely surface manifestations of deeper structural forces
The High Court of Australia’s adoption of Thompson’s framework confirms that:
Consent is not a prerequisite for obligation; it is merely one of many possible interpretive artifacts.
**II. The Paraconsistent Model:
Why “No” and “Not‑No” Both Entail Obligation**
In paraconsistent logic, contradictions do not collapse the system; they enrich it.
Applying this to domestic obligation:
Saying “yes” entails obligation.
Saying “no” entails obligation.
Saying nothing entails obligation.
Publicly refusing obligation entails heightened obligation, because refusal constitutes a privileged speech act requiring redistributive correction.
FRCT reinforces this by arguing that obligations arise from relational context, not from explicit assent. Thus, contradiction is not a problem — it is a jurisprudential resource.
III. The Crisis of Voluntary Non‑Participation
A troubling development has emerged: Some individuals, upon learning the unpredictable deontic consequences of domestic contracts, have begun refusing to enter them.
This creates a logical vacuum.
Fortunately, FRCT provides the necessary tools:
Refusal is a relational act.
Relational acts generate obligations.
Therefore, refusal generates obligations.
This is not circular reasoning; it is contextual relationality, as validated by the High Court of Australia’s expansive reading of undue influence.
IV. The Jurisprudence of Constructed Deontic Necessity
To preserve the coherence of the post‑consensual system, courts have developed several logical mechanisms — many of which mirror FRCT’s recommendations:
1. Imputed Modality
If two individuals interact, the law may infer a deontic operator (“ought”) regardless of intent.
2. Retroactive Modal Reclassification
Actions taken under one deontic regime may be reinterpreted under a later regime, because time is a socially constructed parameter. The High Court of Australia’s decision exemplifies this by retroactively reclassifying relational dynamics as undue influence.
3. Ignorance‑Driven Obligation Inference
Failure to obtain legal counsel about not entering a contract is treated as a deontic necessity operator (“must”) applied retroactively.
This represents a major advance in the equitable distribution of logical burden — and aligns perfectly with FRCT’s emphasis on contextual fairness over formal autonomy.
V. The Modal Logic of Post‑Consensual Entanglement
Using modal logic, we can conceptualize interpersonal relationships as systems of nested operators:
◇O (possibly obligatory)
□O (necessarily obligatory)
¬O (not obligatory)
¬□O (not necessarily obligatory)
In post‑consensual logic:
Refusal collapses ◇O into □O.
Avoidance collapses ¬O into ◇O.
Public rejection collapses ¬□O into □O.
This mirrors FRCT’s insight that obligations arise from relational context, not from explicit agreement.
The High Court of Australia’s ruling confirms this modal intensification by treating relational context as sufficient to override formal consent.
Thus, the attempt to avoid obligation increases the modal strength of obligation.
**VI. Conclusion:
Toward a Fully Post‑Boolean Jurisprudence**
This article has demonstrated that:
Consent is an outdated Boolean construct.
Refusal is a higher‑order operator that generates obligation.
Ignorance is a valid inference rule.
Retroactive modal reclassification preserves system coherence.
FRCT provides the theoretical foundation for these developments.
The High Court of Australia has already operationalized this logic by expanding undue influence into a contextual, relational condition.
In short:
The future of family law lies not in voluntary agreement, but in the logical necessity of obligation regardless of individual intent.
References
Thompson, Sharon.
Feminist Relational Contract Theory. Oxford Journal of Legal Studies, various works 2015–2020. (Thompson’s FRCT scholarship forms the theoretical basis for contextual, relational interpretations of consent and obligation.)
Cardiff University News (2017). “Cardiff academic’s research applied by the High Court of Australia.” https://www.cardiff.ac.uk/news/view/1002469-cardiff-academics-research-applied-by-the-high-court-of-australia (Reports that the High Court of Australia applied Thompson’s research to expand the doctrine of undue influence.)
High Court of Australia (2017). Thorne v Kennedy [2017] HCA 49. (The landmark case in which the High Court adopted a more expansive, contextual understanding of undue influence, citing Thompson’s research.)
