A popular introduction to common consent arguments for belief in God.

The common consent argument claims that widespread belief in God is good evidence for God’s existence. Though taken seriously throughout the history of philosophy, the argument died in the 1800s. Our philosophy of religion textbooks ignore it. In this paper, we hope to resuscitate it drawing upon the demographics of religious belief, the cognitive science of religion, and contemporary epistemology. We develop and defend two common consent arguments, which maintain that widespread belief in a High God (...) is good evidence for theism over metaphysical naturalism. (shrink)

In this paper, I will explain and motivate the common consent argument for theism. According to the common consent argument it is rational for you to believe that God exists because you know so many other people believe that God exists. Having motivated the argument, I will explain and motivate several pressing objections to the argument and evaluate their probative force. The paper will serve as both an accessible introduction to this argument as well as a (...) resource for continued research on the topic. (shrink)

Several authors have recently argued that psychotherapy, as it is commonly practiced, is deceptive and undermines patients’ ability to give informed consent to treatment. This ‘deception’ claim is based on the findings that some, and possibly most, of the ameliorative effects in psychotherapeutic interventions are mediated by therapeutic common factors shared by successful treatments, rather than because of theory-specific techniques. These findings have led to claims that psychotherapy is, at least partly, likely a placebo, and that practitioners of (...) psychotherapy have a duty to ‘go open’ to patients about the role of common factors in therapy ; to not ‘go open’ is supposed to unjustly restrict patients’ autonomy. This paper makes two related arguments against the ‘go open’ claim. While therapies ought to provide patients with sufficient information to make informed treatment decisions, informed consent does not require that practitioners ‘go open’ about therapeutic common factors in psychotherapy, and clarity about the mechanisms of change in psychotherapy shows us that the common-factors findings are consistent with, rather than undermining of, the truth of many theory-specific forms of psychotherapy; psychotherapy, as it is commonly practiced, is not deceptive and is not a placebo. The call to ‘go open’ should be resisted and may have serious detrimental effects on patients via the dissemination of a false view about how therapy works. (shrink)

Informed consent has become the most obvious instantiation of patient autonomy in contemporary medicine, though as a practice it does not encompass all spheres of medicine. While diagnostic radiological procedures carry some risk due to the use of radiation, there is no standardized practice of informed consent in the United States. The authors describe the ethical justification of informed consent, the legal background surrounding it, and a brief history of radiology and radiological protection. They ultimately argue that (...) informed consent should become a common practice in computed tomography given the risks involved due to radiation exposure, especially considering the overuse of this technology, since it respects patient autonomy. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, (...) with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

Drunken sex is common. Despite how common drunken sex is, we think very uncritically about it. In this paper, I want to examine whether drunk individuals can consent to sex. Specifically, I answer this question: suppose that an individual, D, who is drunk but can still engage in reasoning and communication, agrees to have sex with a sober individual, S; is D’s consent to sex with S morally valid? I will argue that, within a certain range (...) of intoxication, an individual who is drunk can give valid consent to have sex with an individual who is sober. (shrink)

Contemporary debates about sexual ethics are dominated by a consent-oriented approach—consensualism. This position well explains the immorality of such acts as rape, pedophilia, bestiality and necrophilia. However, consensualism faces difficulties when it comes to adultery or HIV transmission. This article analyzes such unacquired moral obligations not to engage in consensual sex. A new natural law approach is proposed to explain and justify these obligations. This position places central importance in the evaluation of sexual acts on whether they are aimed (...) at achieving some common good and whether they harm some other good. As will be shown, the new natural law overcomes the difficulties of consensualism and grounds unacquired obligations in sexual ethics. And if this approach is combined with a pluralistic view of the goods that are realized in sex, then the new natural law does not allow the conservative conclusions about sexual morality inherent in the old natural law theory. (shrink)

The dominant legal and regulatory approach to protecting information privacy is a form of mandated disclosure commonly known as “notice-and-consent.” Many have criticized this approach, arguing that privacy decisions are too complicated, and privacy disclosures too convoluted, for individuals to make meaningful consent decisions about privacy choices—decisions that often require us to waive important rights. While I agree with these criticisms, I argue that they only meaningfully call into question the “consent” part of notice-and-consent, and that (...) they say little about the value of notice. We ought to decouple notice from consent, and imagine notice serving other normative ends besides readying people to make informed consent decisions. (shrink)

In ‘Psychotherapy, Placebos and Informed Consent’, I argued that the minimal standard for informed consent in psychotherapy requires that ‘patients understand that there is currently no consensus about the mechanisms of change in psychotherapy, and that the therapy on offer…is based on disputed theoretical foundations’, and that the dissemination of this information is compatible with the delivery of many theory-specific forms of psychotherapy (including cognitive behavioural therapy [CBT]). I also argued that the minimal requirements for informed consent (...) do not include information about the role of therapeutic common factors in healing (e.g., expectancy effects and therapist effects); practitioners may discuss the common factors with patients, but they are not part of the ‘core set’ of information necessary to obtain informed consent. In a recent reply, Charlotte Blease criticises these two arguments by claiming they are not supported by empirical findings about the therapeutic common factors. Blease’s response is based on serious misunderstandings of both CBT and what the common factor findings actually find. Nevertheless, addressing the reasons for these misunderstandings is instructive and gives us an opportunity to clarify what, exactly, needs to be explained to patients in order to obtain informed consent for psychotherapy. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of (...) sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

The #MeToo movement generated a feminist insistence that we “believe women.” But the men accused of assault, harassment, and other violations frequently defended themselves with the insistence that they had always “respected women” – sometimes, going so far as to get numerous women to sign letters swearing that these men had always respected them. This common MeToo defense reveals the core inconsistency – and the core entitlement – at the heart of misogyny and sexual injustice: some women deserve respect. (...) But the duty to respect those women relies on an invisible entitlement to disrespect – indeed, to assault, harass, dominate, or exploit – others. This chapter explores consent’s role within the superstructure of misogyny and sexual injustice, arguing what consent is a key apparatus of white supremacy. It argues that consent has been constructed through dynamics of colonial and racist sexual entitlement, mapping some (white) women as deserving of respect and the right to consent, while marking other women as expendable or disposable within the sexual economy. This means not only that consent is historically constructed as white, but also that whiteness, and in particular, white womanhood, is constructed through consent. Thus, white women’s right to consent – or to refuse – is premised upon the inability of other women to do so. In this way, the right to sexual consent does not disrupt the norm of male sexual entitlement. Consent has always been premised on non-consent, from coloniality and slavery to contemporary porn, which offers a vision of the world without proper consent, so that granting consent to actual women is an exceptional practice, an “act of respect.” By including race and class alongside gender in my analysis of consent, I argue that contemporary feminist visions of sexual justice must do more than defend or ameliorate consent, but develop intersectional interrogations of sexual justice that reckon with the complicities of consent. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about (...) whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

Tiddy Smith argues that common consent amongst geographically and historically isolated communities provides strong evidence for animism―the view that there are nature spirits. In this article, I argue that the problem of animistic hiddenness―the lack of widespread belief in nature spirits―is at least as strong evidence against animism that common consent is evidence for it, meaning that the evidence for animism that Smith provides is neutralized.

Medical students commonly learn how to administer pelvic exams by practicing on unconscious patients, often without first obtaining explicit consent from patients to do so. While twenty-one states currently have laws that require teaching hospitals to obtain consent from patients to participate in this educational experience, opposition from the medical community has stymied legislative progress. In this paper, I respond to the two most common reasons offered to oppose legislation, which appeal to (1) the educational benefits of (...) these exams, or (2) protecting institutional autonomy. Kantian ideas about autonomy help to illuminate the problematic ways in which these arguments supplant the importance of women’s choices over how their bodies are used while seeking medical treatment. Ultimately, neither argument offers sufficient reason to oppose laws that require explicit consent before administering training pelvic exams. (shrink)

In this paper I discuss the nature of consent in general, and as it applies to Carlos Nino’s consensual theory of punishment. For Nino the criminal’s consent to change her legal-normative status is a form of implied consent. I distinguish three types of implied consent: 1) implied consent which is based on an operative convention (i.e. tacit consent); 2) implied consent where there is no operative convention; 3) “direct consent” to the legal-normative (...) consequences of a proscribed act – this is the consent which Nino employs. I argue that Nino’s conception of consent in crime exhibits many common features of “everyday” consent, which justify that it be classed as a form of (implied) consent. h us, Nino is right to claim that the consent in crime is similar to the consent in contracts and to the consent to assume a risk in tort law. (shrink)

In an earlier article in this journal I argued that the question of whether heroin addicts can give voluntary consent to take part in research which involves giving them a choice of free heroin does not – in contrast with a common assumption in the bioethics literature – depend exclusively on whether or not they possess the capacity to resist their desire for heroin. In some cases, circumstances and beliefs might undermine the voluntariness of the choices a person (...) makes even if they do possess a capacity for self-control. Based on what I took to be a plausible definition of voluntariness, I argued that the circumstances and beliefs typical of many vulnerable heroin addicts are such that we have good reasons to suspect they cannot give voluntary consent to take part in such research, even assuming their desire for heroin is not irresistible. In a recent article in this journal, Uusitalo and Broers object to this on the grounds that I misdescribe heroin addicts' options set, that the definition of voluntariness on which I rely is unrealistic and too demanding, and, more generally, that my view of heroin addiction is flawed. I think their arguments derive from a misunderstanding of the view I expressed in my article. In what follows I hope therefore to clarify my position. (shrink)

In this paper I provide support for the view that at least some forms of adversariality in argumentation are legitimate. The support comes from Aristotle’s theory of illegitimate adversarial argumentation in dialectical contexts: his theory of eristic in his work On Sophistical Refutations. Here Aristotle develops non-epistemic standards for evaluating the legitimacy of dialectical procedures, standards which I propose can be understood in terms of the pragmatic notion of context as common ground. Put briefly, Aristotle makes the answerer’s meaning (...) in giving assent in dialectical contexts the basis for further moves in the game of dialectic. Moves which subvert the answerer’s meaning or do not solicit the answerer’s consent are marked as eristic, i.e. adversarial in a problematic sense. I conclude with remarks on what Aristotle’s theory may teach us about how semantic features relate to the normative evaluation of argumentation. (shrink)

Despite amendments to the sexual assault provisions in the Criminal Code, decisions about the availability and operation of the defence of belief in consent remain vulnerable to the influence of legally extraneous considerations. The author proposes an approach designed to limit the influence of such considerations.

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is (...) grounded on sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what Laing calls the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification for legal (...) regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal. The only alternative to modern liberal autonomy is assumed to be radical oppression, in which the State intervenes in the individual’s life to impose unwarranted measures designed to further its own ends. The legacy of Stalin, Hitler and other modern tyrants has undermined conceptual appeals to the common good. So widespread is this liberal assumption in the Western, English-speaking world that critics of the outlook embodied by MLA are customarily regarded with suspicion and charged with paternalism, narrow-mindedness and intolerance. Laing highlights contradictions inherent in the modern liberal tradition. She argues that there is a certain reliance on the notion of the common good within the natural law tradition that is instructive. According to this view, the common good constitutes a mean between two extremes: on the one hand, contemporary liberalism’s over-insistence on radical individual autonomy and, on the other hand, totalitarianism’s over-emphasis on collective social benefit. There is, I will argue, substantial terrain between the conceptual excesses of modern liberalism and oppressive tyranny that needs to be acknowledged and discussed. (shrink)

According to The Consensus Gentium Argument from the premise: “Everyone believes that God exists” one can conclude that God does exist. In my paper I analyze two ways of defending the claim that somebody’s belief in God is a prima facie reason to believe. Kelly takes the fact of the commonness of the belief in God as a datum to explain and argues that the best explanation has to indicate the truthfulness of the theistic belief. Trinkaus Zagzebski grounds her defence (...) on rationality of epistemic trust in others. In the paper I argue that the second line of reasoning is more promising and I propose its improved version. (shrink)

The paper argues that ‘All varieties of gratitude are only overall fitting when targeted towards agents,’ for instance that any variety of gratitude for the beautiful sunset is only overall fitting if a supernatural agent such as God exists. The first premise is that ‘Prepositional gratitude is overall fitting only when targeted towards agents.’ For this premise, intuitive judgments are offered. The second premise is that ‘Prepositional gratitude is the paradigmatic variety of gratitude.’ For this premise, an aspect of the (...) common consent of philosophers about gratitude is noted and the metaphysical basicness of prepositional gratitude is argued for. This gives the intermediate conclusion that ‘The paradigmatic variety of gratitude is overall fitting only when targeted towards agents.’ The fourth premise is that ‘If the paradigmatic variety of gratitude is overall fitting only when targeted towards agents, then all varieties of gratitude are overall fitting only when targeted towards agents.’ To supply the conditional of this premise, the Paradigmatic Fittingness Principle is offered, which states that ‘Paradigmatic emotions set the fittingness conditions for their non-paradigmatic varieties.’ This principle is argued for by noting that it vindicates some popular and plausible intuitive judgements and gives an error theory of why one might think that gratitude could be fittingly targeted towards non-agents, and by suggesting the absence of any other plausible source of fittingness conditions for non-paradigmatic emotions. (shrink)

The article argues that procreation is intrinsically valuable because it produces persons. The essential thought of the argument is that among the valuable things in the world are not only products, but the actions by which they are produced. The first premise is that persons have great value, for which a common consent argument is offered. The second premise is that, as an action type, procreation has persons as a product. Procreation is always a part of the action (...) that produces a person. This is because procreators take as their goal the creation of an organism that itself has development into a person as a goal. Such a claim also helps explain the moral obligations of procreators, the affective lives of procreators and the common preference for procreation. The third premise is that if an action type has a product of value, then all its tokens have intrinsic value. I argue that even when such actions fail to produce anything outside the agent, they are intrinsically valuable because of how they actualise the powers and virtues of the agent, in part achieving the agent’s goal. I then apply that argument to the case of procreation and person producing. (shrink)

Nowadays the argument for the existence of God based on the common consent of mankind is taken to be so bad that contemporary atheists do not even bother to mention it. And it seems very few theists think that the argument is worth defending. In this paper I shall argue to the contrary: not only is the argument better than usually thought, but widespread belief in God constitutes a prima facie defeater for every reasonable atheist.

Definition of the problem The umbrella term “explicability” refers to the reduction of opacity of artificial intelligence (AI) systems. These efforts are challenging for medical AI applications because higher accuracy often comes at the cost of increased opacity. This entails ethical tensions because physicians and patients desire to trace how results are produced without compromising the performance of AI systems. The centrality of explicability within the informed consent process for medical AI systems compels an ethical reflection on the trade-offs. (...) Which levels of explicability are needed to obtain informed consent when utilizing medical AI? Arguments We proceed in five steps: First, we map the terms commonly associated with explicability as described in the ethics and computer science literature, i.e., disclosure, intelligibility, interpretability, and explainability. Second, we conduct a conceptual analysis of the ethical requirements for explicability when it comes to informed consent. Third, we distinguish hurdles for explicability in terms of epistemic and explanatory opacity. Fourth, this then allows to conclude the level of explicability physicians must reach and what patients can expect. In a final step, we show how the identified levels of explicability can technically be met from the perspective of computer science. Throughout our work, we take diagnostic AI systems in radiology as an example. Conclusion We determined four levels of explicability that need to be distinguished for ethically defensible informed consent processes and showed how developers of medical AI can technically meet these requirements. (shrink)

The field of bioethics is replete with applications of moral theories such as utilitarianism and Kantianism. For a given dilemma, even if it is not clear how one of these western philosophical principles of right (and wrong) action would resolve it, one can identify many of the considerations that each would conclude is relevant. The field is, in contrast, largely unaware of an African account of what all right (and wrong) actions have in common and of the sorts of (...) factors that for it are germane to developing a sound response to a given bioethical problem. My aim is to help rectify this deficiency by first spelling out a moral theory grounded in the mores of many sub-Saharan peoples, and then applying it to some major bioethical issues, namely, the point of medical treatment, free and informed consent, standards of care and animal experimentation. For each of these four issues, I compare and contrast the implications of the African moral theory with utilitarianism and Kantianism, my overall purposes being to highlight respects in which the African moral theory is distinct and to demonstrate that the field should take it at least as seriously as it does the Western theories. (shrink)

This chapter explores the foundation and content of the duty to respect persons. The authors argue that it is best understood as a duty to recognize people’s rights. Respect for persons therefore has specific implications for how competent and non-competent persons ought to be treated in research. For competent persons it underlies the obligation to obtain consent to many research procedures. The chapter gives an analysis of the requirements for obtaining valid consent. It then considers respect for persons (...) as it relates to four common topics: the therapeutic misconception, research with children and adolescents, the use of deception in research, and research on competent adults without their consent. (shrink)

The High Court continues to exercise its inherent jurisdiction to make declarations about interventions into the lives of situationally vulnerable adults with mental capacity. In light of protective responses of health care providers and the courts to decision-making situations involving capacitous vulnerable adults, this paper has two aims. The first is diagnostic. The second is normative. The first aim is to identify the harms to a capacitous vulnerable adult’s autonomy that arise on the basis of the characterisation of situational vulnerability (...) and autonomy as fundamentally opposed concepts or the failure to adequately acknowledge the conceptual relationship between them at common law. The second part of this aim is to draw upon developments in analytic feminist philosophy to illustrate how standard approaches to autonomy are ill-equipped to capture the autonomy issues of capacitous vulnerable adults when their decisions regarding care and treatment are at stake. The second (normative) aim is to develop an account of self-authorised, intersubjective autonomy on the basis of analytic feminist insights into the relational practices of recognition. This account not only attempts to capture the autonomy of capacitous vulnerable adults and account for the necessary harms to their autonomy that arise from standard common law responses to their situational vulnerability, it is also predicated on the distinctions between mental capacity, the satisfaction of conditions for informed consent and the exercise of autonomy, meaning that it is better placed to fulfil the primary aim of the inherent jurisdiction – to facilitate the autonomy of vulnerable adults with capacity. (shrink)

It is widely accepted that valid consent is a necessary condition for permissible sexual activity. Since non-human animals, children, and individuals who are severely cognitively disabled, heavily intoxicated or unconscious, lack the cognitive capacity to give valid consent, this condition explains why it is impermissible to have sex with them. However, contrary to common intuitions, the same condition seems to render it impermissible to have sex with robots, for they too are incapable of consenting to sex due (...) to insufficient cognitive capacitation. This paper explores whether the intuition that non-consensual sex with robots is permissible can be vindicated, whilst preserving valid consent as a general requirement for permissible sexual activity. I develop and evaluate four possible ways to argue that there is a morally significant difference between robots on the one hand, and insufficiently cognitively capacitated humans and non-human animals on the other hand, to substantiate and justify the intuition that it is permissible to have non-consensual sex with the former but not with the latter. (shrink)

This chapter examines a common objection to sex robots: the symbolic-consequences argument. According to this argument sex robots are problematic because they symbolise something disturbing about our attitude to sex-related norms such as consent and the status of our sex partners, and because of the potential consequences of this symbolism. After formalising this objection and considering several real-world uses of it, the chapter subjects it to critical scrutiny. It argues that while there are grounds for thinking that sex (...) robots could symbolically represent a troubling attitude toward women (and maybe children) and the norms of interpersonal sexual relationships, the troubling symbolism is going to be removable in many instances and reformable in others. What will ultimately matter are the consequences of the symbolism but these consequences are likely to be difficult to ascertain. This may warrant an explicitly experimental approach to the development of this technology. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

The pelvic exam is used to assess the health of female reproductive organs and so involves digital penetration by a physician. However, it is common practice for medical students to acquire experience in administering pelvic exams by performing them on unconscious patients without prior authorization. In this article, we argue that such unauthorized pelvic exams (UPEs) are sexual assault. Our argument is simple: in any other circumstance, unauthorized digital penetration amounts to sexual assault. Since there are no morally significant (...) differences between UPEs and other instances of digital penetration, UPEs are sexual assault. So, insofar as one is against sexual assault, one should be against UPEs. (shrink)

Across care settings, the practice of lying to or withholding the truth from people living with dementia is common, yet it is objected to by many. Contrary to this common discomfort, I have argued in previous work that respecting members of this group as moral equals sometimes requires deceiving them. In this paper, I test my proposed practice against complex, controversial cases, demonstrating both its theoretical strength and its practical value for those working in social care.

A common critique of nudges is that they reduce someone's of choices or elicit behavior through means other than rational persuasion. In this paper, I argue against this form of critique. I argue that, if there is anything distinctively worrisome about nudges from the standpoint of morality, it is their tendency to hide the amount of social control that they embody, undermining democratic governance by making it more difficult for members of a political community to detect the social architect’s (...) pulling of the strings. This concern is particularly salient as to choices where it is important for people to directly engage with a certain set of values, “big personal decisions” (to use a simplifying phrase). Many healthcare decisions are exactly these kinds of choices. (shrink)

Animal-derived constituents are frequently used in anaesthesia and surgery, and patients are seldom informed of this. This is problematic for a growing minority of patients who may have religious or secular concerns about their use in their care. It is not currently common practice to inform patients about the use of animal-derived constituents, yet what little empirical data does exist indicates that many patients want the opportunity to give their informed consent. First, we review the nature and scale (...) of the problem by looking at the groups who may have concerns about the use of animal-derived constituents in their care. We then summarise some of the products used in anaesthesia and surgery that can contain such constituents, such as anaesthetic drugs, surgical implants and dressings. Finally, we explore the problem of animal-derived constituents and consent using Beauchamp and Childress’ four principles approach, examining issues of autonomy, beneficence, nonmaleficence and justice. Disclosing the use of animal-derived constituents in anaesthesia and surgery is warranted under Beauchamp and Childress’ four principles approach to the problem. Although there exist systemic and practical challenges to implementing this in practice, the ethical case for doing so is strong. The Montgomery ruling presents additional legal reason for disclosure because it entails that patients must be made aware of risks associated with their treatment that they attach significance to. (shrink)

In his paper “Fairness, Political Obligation, and the Justificatory Gap” (published in the Journal of Moral Philosophy), Jiafeng Zhu argues that the principle of fair play cannot require submission to the rules of a cooperative scheme, and that when such submission is required, the requirement is grounded in consent. I propose a better argument for the claim that fair play requires submission to the rules than the one Zhu considers. I also argue that Zhu’s attribution of consent to (...) people commonly thought to be bound to follow the rules by a duty of fair play is implausible. (shrink)

In the United States, the Presidential Commission for the Study of Bioethical Issues has proposed deliberative democracy as an approach for dealing with ethical issues surrounding synthetic biology. Deliberative democracy might similarly help us as we update the regulation of human subjects research. This paper considers how the values that deliberative democratic engagement aims to realize can be realized in a human subjects research context. Deliberative democracy is characterized by an ongoing exchange of ideas between participants, and an effort to (...) justify decisions that bind participants by appeal to reasons that the participants can understand and share. Even when unanimous agreement is not reached, the active participation of everyone along with the requirement that reasons be made accessible enhances the legitimacy of the ultimate outcome. Importantly, deliberative democratic structures avoid strict hierarchies and place participants, as much as possible, in the position of equals. Human subjects research has some features that may make deliberative democratic principles seem initially unappealing. For one, there are asymmetries in knowledge between expert researchers conducting the research and participants in the research process. For another, statistical validity is made easiest by research paradigms that produce standardized, quantitative data, which can be difficult to achieve if research participants are given the power to deliberatively reshape the research design as it progresses. These and other problems have tended to produce a human subjects research process where subjects do not actively participate in shaping research, but rather consent to a predefined set of interventions designed by expert researchers and vetted by Institutional Review Boards (IRBs). In this paper, I suggest some ways in which human subjects research could do more to realize deliberative democratic values, and, in particular, how a revised Common Rule might help to realize these values. First, research participants could be treated not as passive subjects but instead involved in research design, ethical review, and the ongoing conduct and dissemination of research. Such participation might involve, for instance, including people who have served as research subjects on IRBs, or replacing IRB oversight for certain forms of research exempted from IRB oversight under a revised Common Rule with oversight by a body of community members or research subjects. It might also involve having the oversight of research that uses more participatory models be more participatory and less hierarchical in nature. I also raise questions about the exemption of research on public benefit programs from any research-level oversight and from consent requirements. While IRBs are likely not the correct overseers, there may be good reason to view such research with a critical eye, because of its potential for long-range impacts on the lives of participants. By giving research subjects a greater voice in research that aims at fine-tuning public benefit programs on which subjects rely, a deliberative oversight process has the potential to recast research participation as a form of active democratic participation and to address a “democratic deficit” in public health. Numerous proposals regarding health care have called for greater participation by laypeople and a more nonhierarchical approach to setting health priorities. Involving lay research subjects in the conduct of public benefits research and other forms of public health research may help to further these goals. (shrink)

This chapter offers an overdue philosophical model of flirting. Flirting, I argue, is a conversational game involving two moves; push moves, which involve presupposing an intimacy that does not yet exist, and pull moves, which involve playfully pretending to block those presuppositions. As flirters perform rallies of these moves, they gradually increase the intimacy between them through a process known by philosophers of language as accommodation. This model illuminates a common social ritual and it can be marshaled against abuses (...) of the notion of flirting by perpetrators of harassment and assault. (shrink)

Nowadays, it is thought that there are only two approaches to political economy: public finance and public choice; however, this research aims to introduce a new insight by investigating scholastic sources. We study the relevant classic books from the thirteenth to the seventeenth centuries and reevaluate the scholastic literature based on public finance and public choice doctrines. The findings confirm that the government is the institution for realizing the common good according to a scholastic attitude. Therefore, scholastic thinkers saw (...) a typical government mission based on their essentialist attitude toward human happiness. Social conflicts and lack of social consent are the product of diversification in ends and desires; hence, if the ends of humans were unified, there would be no conflict of interest. Accordingly, if the government acts according to its assigned mission, the lack of public consent is not significant. Based on the scholastic point of view, this study introduces the third approach to political economy, which can be considered an analytical synthesis of classical doctrines. -/- . (shrink)

A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in some original state or in the transition from common to private property). The institutional mechanism for the normal initiation and termination of property is an invisible-hand (...) function of the market, the market mechanism of appropriation. Does this mechanism satisfy an appropriate normative principle? The standard normative juridical principle is to assign or impute legal responsibility according to de facto responsibility. It is given a historical tag of being "Lockean" but the basis is contemporary jurisprudence, not historical exegesis. Then the fundamental theorem of the property mechanism is proven which shows that if "Hume's conditions" (no transfers without consent and all contracts fulfilled) are satisfied, then the market automatically satisfies the Lockean responsibility principle, i.e., "Hume implies Locke." As a major application, the results in their contrapositive form, "Not Locke implies Not Hume," are applied to a market economy based on the employment contract. It is shown the production based on the employment contract violates the Lockean principle (all who work in an employment enterprise are de facto responsible for the positive and negative results) and thus Hume's conditions must also be violated in the marketplace (de facto responsible human action cannot be transferred from one person to another—as is readily recognized when and employer and employee together commit a crime). (shrink)

Psychedelic experiences are often compared to “transformative experiences” due to their potential to change how people think and behave. This study empirically examines whether psychedelic experiences constitute transformative experiences. Given psychedelics’ prospective applications as treatments for mental health disorders, this study also explores neuroethical issues raised by the possibility of biomedically directed transformation—namely, consent and moral psychopharmacology. To achieve these aims, we used both inductive and deductive coding techniques to analyze transcripts from interviews with 26 participants in psychedelic retreats. (...) Results indicate that psychedelic experiences can constitute transformative experiences. Twenty participants reported experiences or insights that were seemingly inaccessible or impossible to attain if not for the psychoactive effects of psychedelics. All participants besides one reported some change in identity, values, beliefs, desires, and behavior—changes in behavior being the most common. Participants also reported feeling capable deciding to use psychedelics in part due to information seeking prior to their retreats. Finally, several participants reported an enhanced capacity for enacting changes in their lives. Our results underscore both the importance of subjective embodiment to transformation and the role of transformative agency in shaping outcomes of the psychedelic experience. We examine our results relative to neuroethical issues and advocate for centering the person in psychedelic research and neuroethical inquiry about psychedelics to avoid pitfalls associated with psychedelics’ potential as moral psychopharmacological agents. (shrink)

Solidarity could be defined in the broad sense either as a means or as an end. Considered as an end, solidarity is the motive of any virtuous action based on altruistic reasons, such as helping others to rescue someone in order to prevent a harmful situation. E. g. contributing to lift and rescue a heavy person, lying unconscious in the street on the floor, who is being handled by rescuers, but who might be needing an additional person, could express the (...) value of solidarity as an end, since an answer to others request for help is given in the situation of emergency and risk, without having a particular obligation to help. Solidarity as a means (to an end, not an end), could be understood as a property of dependency of a set of parts to a whole (in solidum), as when in a family or a professional group, individual and collective roles and responsibilities are melt together to some extent.This idea of benefiting others could be understood either as a way of sharing together moral sentiments as love, social virtues as friendship and shared commitments and common economic and educational interests, in a limited community circle, that of the family. Even if the division of labour is not simply based on patriarchal authority, mutual consent of family members to rules and to a common circle of interests, those of the family, resemble to a egoism of the group, and not yet to truly social and altruistic values. Solidarity as cohesion of human beings, by the means of "interchangeability of ideas, services, goods, of workforce, virtues and vices", is solidarity limited to the constitution of a process of exchange that is a means that could be used to different ends. (shrink)

The increased complexity of health information management sows the seeds of inequalities between health care stakeholders involved in the production and use of health information. Patients may thus be more vulnerable to use of their data without their consent and breaches in confidentiality. Health care providers can also be the victims of a health information system that they do not fully master. Yet, despite its possible drawbacks, the management of health information is indispensable for advancing science, medical care and (...) public health. Therefore, the central question addressed by this paper is how to manage health information ethically? This article argues that Paul Ricœur’s ‘‘little ethics’’, based on his work on hermeneutics and narrative identity, provides a suitable ethical framework to this end. This ethical theory has the merit of helping to harmonise self-esteem and solicitude amongst patients and healthcare providers, and at the same time provides an ethics of justice in public health. A matrix, derived from Ricœur’s ethics, has been developed as a solution to overcoming possible conflicts between privacy interests and the common good in the management of health information. (shrink)

This study brings light to the concepts of State and Government in the thought of Marsilio de Padua pointing out to profoundly modern institutions present in the reflection of this medieval philosopher. We attempt to show that Marsilio de Padua reflects based on Aristotle´s categories, but proposes a State and Government conception different from that common place of medieval politics as he insists on the need of the popular consent as a criterion of political legitimacy. -/- O estudo (...) explicita os conceitos de Estado e de Governo no pensamento de Marsílio de Pádua apontando as intuições profundamente modernas presentes na reflexão desse filósofo medieval. Procuramos mostrar que Marsílio reflete com categorias aristotélicas, mas propõe uma concepção de Estado e de Governo que se distancia do lugar comum da reflexão política medieval ao insistir na necessidade do consentimento dos súditos como critério de legitimidade política. (shrink)

The re-use of publicly available (personal) data for originally unanticipated purposes has become common practice. Without such secondary uses, the development of many AI systems like large language models (LLMs) and ChatGPT would not even have been possible. This chapter addresses the ethical implications of such secondary processing, with a particular focus on data protection and privacy issues. Legal and ethical evaluations of secondary processing of publicly available personal data diverge considerably both among scholars and the general public. While (...) some of these uses are met with opposition and criticism, others are quite unanimously viewed as unproblematic. Often, proponents and opponents of such practices invoke the same ethical and legal standards for their opposite conclusions. This state of affairs shows that other considerations besides the public availability of data must play a role. It calls for a theoretical clarification of the additional criteria that should guide decisions about the (legally informed) ethical acceptability of re-processing practices. In order to make a contribution towards this goal, the present chapter maps the ongoing debate and systematises the existing contributions around three lines of argument: a consent-centred position, an approach that focuses on the distinction between data and information, and finally a line of argument that focuses on the contextual norms that govern the flows of information. The chapter further relates these arguments to three underlying conceptions of privacy and data protection: rights-based, structural and contextual, and discusses the advantages and disadvantages of each position in the light of concrete examples. It concludes by arguing for a mixed approach that combines core elements of the structural and contextual approaches. The chapter aims to contribute to existing research in the fields of data, AI and research ethics, and to reconnect the debate with ethical and legal scholarship on privacy and data protection. In doing so, it aims to make a theoretical contribution towards refining existing conceptions of privacy and data protection in order to make them more fit to ‘drive our digital world’ as far as the use of publicly available data is concerned. (shrink)

In contemporary paternalism literature, persuasion is commonly not considered paternalistic. Moreover, paternalism is typically understood to be problematic either because it is seen as coercive, or because of the insult of the paternalist considering herself superior. In this paper, I argue that doctors who persuade patients act paternalistically. Specifically, I argue that trying to persuade a patient (here understood as aiming for the patient to consent to a certain treatment, although he prefers not to) should be differentiated from trying (...) to convince him (here understood as aiming for the patient to want the treatment) and recommending (the doctor merely providing her professional opinion). These three forms of influence are illustrated by summaries of video-recorded hospital encounters. While convincing and recommending are generally not paternalistic, I argue that persuasion is what I call communicative paternalism and that it is problematic for two reasons. First, the patient’s preferences are dismissed as unimportant. Second, the patient might wind up undergoing treatment against his preferences. This does not mean that persuasion always should be avoided, but it should not be undertaken lightly, and doctors should be aware of the fine line between non-paternalism and paternalism. The fact that my analysis of paternalism differs from traditional accounts does not imply that I deem these to be wrong, but rather that paternalism should be considered as a more multi-faceted concept than previous accounts allow for. (shrink)

Libertarian philosophy asserts that only the initiation of physical force against persons or property, or the threat thereof, is inherently illegitimate. A corollary to this assertion is that all forms of speech, including fraudulent advertising, are not invasive and therefore should be considered legitimate. On the other hand, fraudulent advertising can be viewed as implicit theft under the theory of contract: if a seller accepts money knowing that his product does not have some of its advertised characteristics, he acquires the (...) property title to the customer’s money without voluntary consent, which is theft. The balance between these two logical extensions of property rights—the right of free speech and the right of contract—lies somewhere in the area of communication philosophy, and can be explained through understanding the role of communication in human interactions. Advertising is a form of communication that may convey important information about the conditions of the proposed contract. These conditions are expressed in particular words that may have different meanings in different circumstances. Therefore to determine whether a particular example or “misinterpretation” is mere sophistry or a type of fraud, the judicial system has to approach each issue on a case-by-case basis. The border between legal and illegal should be determined by precedents and by expectations based on commonly accepted definitions of terms—what people commonly understand by the words and other forms of communication they use. (shrink)

BACKGROUND Patients with chronic pain face significant barriers in finding clinicians to manage long-term opioid therapy (LTOT). For patients on LTOT, it is increasingly common to have them sign opioid treatment agreements (OTAs). OTAs enumerate the risks of opioids, as informed consent documents would, but also the requirements that patients must meet to receive LTOT. While there has been an ongoing scholarly discussion about the practical and ethical implications of OTA use in the abstract, little is known about (...) how clinicians use them and if OTAs themselves modify clinician prescribing practices. OBJECTIVE To determine how clinicians use OTAs and the potential impacts of OTAs on opioid prescribing. DESIGN We conducted qualitative analysis of four focus groups of clinicians from a large Midwestern academic medical center. Groups were organized according to self-identified prescribing patterns: two groups for clinicians who identified as prescribers of LTOT, and two who did not. PARTICIPANTS 17 clinicians from General Internal Medicine, Family Medicine, and Palliative Care were recruited using purposive, convenience sampling. APPROACH Discussions were recorded, transcribed, and analyzed for themes using reflexive thematic analysis by a multidisciplinary team. KEY RESULTS Our analysis identified three main themes: (1) OTAs did not influence clinicians’ decisions whether to use LTOT generally but did shape clinical decision-making for individual patients; (2) clinicians feel OTAs intensify the power they have over patients, though this was not uniformly judged as harmful; (3) there is a potential misalignment between the intended purposes of OTAs and their implementation. CONCLUSION This study reveals a complicated relationship between OTAs and access to pain management. While OTAs seem not to impact the clinicians’ decisions about whether to use LTOT generally, they do sometimes influence prescribing decisions for individual patients. Clinicians shared complex views about OTAs’ purposes, which shows the need for more clarity about how OTAs could be used to promote shared decision-making, joint accountability, informed consent, and patient education. (shrink)