In Wrongs and Crimes, Victor Tadros clarifies the debate about whether consent needs to be communicated by separating the question of whether consent requires expressive behaviour from the question of whether it requires “uptake” in the form of comprehension by the consent-receiver. Once this distinction is drawn, Tadros argues both that consent does not require uptake and that consent does not require expressive behaviour that provides evidence to the consent-receiver. As a result, Tadros takes the view that consent requires an (...) attempt to communicate, but nothing more. While I have found Tadros’s arguments for this conclusion intriguing and challenging, I am yet to be persuaded by them. In this essay, I try to say why. (shrink)

In this paper I first argue that we do not need to intend all the features of X in order to consent to X. I will present cases in which agents intend to consent to gambles, and intend to consent to have sex with people under certain descriptions, de re, rather than de dicto. Next, I argue that deception – even deception about features of a sexual act that qualify as “deal-breakers” for a participant – might not always have the (...) power to undermine sexual consent. In both sections I craft my arguments by appealing to a proposal about the scope of rights. I suggest that we may have intentions regarding our sexual experiences that do not map onto the rights that we actually hold pertaining to those sexual experiences. (shrink)

We regularly wield powers that, upon close scrutiny, appear remarkably magical. By sheer exercise of will, we bring into existence things that have never existed before. With but a nod, we effect the disappearance of things that have long served as barriers to the actions of others. And, by mere resolve, we generate things that pose significant obstacles to others' exercise of liberty. What is the nature of these things that we create and destroy by our mere decision to do (...) so? The answer: the rights and obligations of others. And by what seemingly magical means do we alter these rights and obligations? By making promises and issuing or revoking consent When we make promises, we generate obligations for ourselves, and when we give consent, we create rights for others. Since the rights and obligations that are affected by means of promising and consenting largely define the boundaries of permissible action, our exercise of these seemingly magical powers can significantly affect the lives and liberties of others. (shrink)

These four volumes address the question of the kinds of conduct may the state make criminal without infringing on the moral autonomy of individual citizens.

There is an ongoing debate about the “ontology” of consent. Some argue that it is a mental act, some that it is a “hybrid” of a mental act plus behaviour that signifies that act; others argue that consent is a performative, akin to promising or commanding. Here it is argued that all these views are mistaken—though some more so than others. We begin with the question whether a normatively efficacious act of consent can be completed in the mind alone. Standard (...) objections to this “mentalist” account of consent can be rebutted. Here we identify a much deeper problem for mentalism. Normatively transformative acts of consent change others’ reasons for acting in a distinctive—“robust”—way. Robust reason-changing involves acts aimed at fulfilling a distinctive kind of reflexive and recognition-directed intention. Such acts cannot be coherently performed in the mind alone. Consent is not a mental act, but nor is it the signification of such an act. Acts of consent cannot be “completed” in the mind, and it is a mistake to view consent behaviour as making known a completed act of consent. The robust reason-changing account of consent developed here shares something with the performative theory, but is not saddled with a label whose home is philosophy of language. Certain kinds of performative utterance may change reasons robustly, but not all robust reason-changing involves or requires acts of speech, and consent can be effected by a wide range of behavioural acts. (shrink)

In The Grammar of Society, first published in 2006, Cristina Bicchieri examines social norms, such as fairness, cooperation, and reciprocity, in an effort to understand their nature and dynamics, the expectations that they generate, and how they evolve and change. Drawing on several intellectual traditions and methods, including those of social psychology, experimental economics and evolutionary game theory, Bicchieri provides an integrated account of how social norms emerge, why and when we follow them, and the situations where we are most (...) likely to focus on relevant norms. Examining the existence and survival of inefficient norms, she demonstrates how norms evolve in ways that depend upon the psychological dispositions of the individual and how such dispositions may impair social efficiency. By contrast, she also shows how certain psychological propensities may naturally lead individuals to evolve fairness norms that closely resemble those we follow in most modern societies. (shrink)

Shaping the Normative Landscape is an investigation of the value of obligations and of rights, of forgiveness, of consent and refusal, of promise and request. David Owens shows that these are all instruments by which we exercise control over our normative environment.

I begin my analysis of consent by agreeing with Professor Hurd that consent functions as a “moral transformative” by altering the obligations and permissions that determine the Tightness of others' actions. I further agree with her that consent is intimately related to the capacity for autonomous action; one who cannot alter others' obligations through consent is not fully autonomous. I cannot improve on her elaboration of these points.

Proposing and consenting to sex are things that ordinary people manage to do all the time, yet legal regulation of sex seems to be an intractable problem. No one is satisfied with rape law, but no one knows quite what to do about it.

How wrong is it to deceive someone into sex by lying, say, about one's profession? The answer is seriously wrong when the liar's actual profession would be a deal breaker for the victim of the deception: this deception vitiates the victim's sexual consent, and it is seriously wrong to have sex with someone while lacking his or her consent.

Every political theorist will need this book . . . . It is more 'important' than 90% of the work published in philosophy."--Joel Feinberg, University of Arizona.

Tthis book is likely to receive its warmest reception form advanced students of the philosophy of law, who will welcome the relief provided from the frequently sterile tone of much recent work in the field.

The power to promise is morally fundamental and does not, at its foundation, derive from moral principles that govern our use of conventions. Of course, many features of promising have conventional components—including which words, gestures, or conditions of silence create commitments. What is really at issue between conventionalists and nonconventionalists is whether the basic moral relation of promissory commitment derives from the moral principles that govern our use of social conventions. Other nonconventionalist accounts make problematic concessions to the conventionalist's core (...) instincts, including embracing: the view that binding promises must involve the promisee's belief that performance will occur; the view that through the promise, the promisee and promisor create a shared end; and the tendency to take promises between strangers, rather than intimates, as the prototypes to which a satisfactory account must answer. I argue against these positions and then pursue an account that finds its motivation in their rejection. My main claim is: the power to make promises, and other related forms of commitment, is an integral part of the ability to engage in special relationships in a morally good way. The argument proceeds by examining what would be missing, morally, from intimate relationships if we lacked this power. (shrink)

If, as many suppose, pornography changes people, a question arises as to how.1 One answer to this question offers a grand and noble vision. Inspired by the idea that pornography is speech, and inspired by a certain liberal ideal about the point of speech in political life, some theorists say that pornography contributes to that liberal ideal: pornography, even at its most violent and misogynistic, and even at its most harmful, is political speech that aims to express certain views about (...) the good life, 2aims to persuade its consumers of a certain political point of view—and to some extent succeeds in persuading them. Ronald Dworkin suggests that the pornographer contributes to the ‘moral environment, by expressing his political or social convictions or tastes or prejudices informally’, that pornography ‘seeks to deliver’ a ‘message’ , that it reflects the ‘opinion’ that ‘women are submissive, or enjoy being dominated, or should be treated as if they did’, that it is comparable to speech ‘advocating that women occupy inferior roles’.3 Pornography on this view is political speech that aims to persuade its listeners of the truth of certain ideas about women, and of course ‘the government must leave to the people the evaluation of ideas’.4 Another answer offers a vision that is not grand and noble, but thoroughly reductive. Pornography is not politically persuasive speech, but speech that works by a process of psychological conditioning. This view seems common enough in the social science literature. Consider, for example, this description of an early experiment, from a time that pre-dates contemporary political debate. (shrink)

This chapter critically examines various proposals for liability of a person to defensive harm. Drawing on the idea that there is an important relationship between a person’s liability to be harmed and the enforceable duties that she incurs as a result of posing a threat to others, it demonstrates that no simple account of liability will be successful. As there are many considerations that bear on the duties that a person has, there are many considerations which bear on a person’s (...) liability to be harmed. This general claim is supported through a demonstration both that culpability without causation can ground liability, and that causal contribution without culpability can ground liability. (shrink)

Worries about the possibility of consent recall a more familiar problem about promising raised by Hume. To see the parallel here we must distinguish the power of consent from the normative significance of choice. I'll argue that we have normative interests, interests in being able to control the rights and obligations of ourselves and those around us, interests distinct from our interest in controlling the non-normative situation. Choice gets its normative significance from our non-normative control interests. By contrast, the possibility (...) of consent depends on a species of normative interest that I'll call a permissive interest, an interest in its being the case that certain acts wrong us unless we declare otherwise. In the final section, I'll show how our permissive interests underwrite the possibility of consent. (shrink)

When does a woman give valid consent to sexual relations? When does her consent render it morally or legally permissible for a man to have sexual relations with her? Why is sexual consent generally regarded as an issue about female consent? And what is the moral significance of consent? These are some of the questions discussed in this important book, which will appeal to a wide readership in philosophy, law, and the social sciences. Alan Wertheimer develops a theory of consent (...) to sexual relations that applies to both law and morality in the light of the psychology of sexual relations, the psychology of perpetrators, and the psychology of the victims. He considers a wide variety of difficult cases such as coercion, fraud, retardation, and intoxication. We can all agree that 'no' means 'no'. This book suggests that the difficult question is whether 'yes' means 'yes'. (shrink)