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)

Does addiction to heroin undermine the voluntariness of heroin addicts' consent to take part in research which involves giving them free and legal heroin? This question has been raised in connection with research into the effectiveness of heroin prescription as a way of treating dependent heroin users. Participants in such research are required to give their informed consent to take part. Louis C. Charland has argued that we should not presume that heroin addicts are competent to do this (...) since heroin addiction by nature involves a loss of ability to resist the desire for heroin. In this article, I argue that Charland is right that we should not presume that heroin addicts are competent to consent, but not for the reason he thinks. In fact, as Charland's critics correctly point out, there is plenty of evidence showing that heroin addicts can resist their desire for heroin. These critics are wrong, however, to conclude from this that we should presume that heroin addicts are competent to give their voluntary consent. There are, I shall argue, other conditions associated with heroin addiction that might constrain heroin addicts' choice in ways likely to undermine the voluntariness of their consent. In order to see this, we need to move beyond the focus on the addicts' desires for heroin and instead consider the wider social and psychological circumstances of heroin addiction, as well as the effects these circumstances may have on the addicts' beliefs about the nature of their options. (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)

Miller analyzes the relationship between consent and autonomy by offering three pictures. For autonomy, Miller distinguishes between procedural, substantive, and weak substantive autonomy. The corresponding views of consent are what Miller has termed as consensual minimalism, consensual idealism, and consensual realism. The requirements of sexual consent under consensual minimalism are a voluntary informed agreement. However, feminist critiques reveal the inadequacies of this simple position. Consensual idealism, which corresponds with substantive autonomy, offers a robust picture where (...) class='Hi'>consent and autonomy must be based on non-oppression. However, this view is considered too ideal and it ignores context. Weak substantive autonomy takes into account the context in the sexual domain. Correspondingly, consensual realism takes into account the context and still fulfills the requirements of consent. (shrink)

The traditional view according to which we adults tacitly consent to a state’s lawful actions just by living within its borders—the residence theory—is now widely rejected by political philosophers. According to the critics, this theory fails because consent must be (i) intentional, (ii) informed, and (iii) voluntary, whereas one’s continued residence within a state is typically none of these things. Few people intend to remain within the state in which they find themselves, and few realize that by (...) remaining they are consenting to the state’s lawful actions. In addition, the various obstacles standing in the way of us leaving the state render our remaining involuntary. Thus, the critics conclude, few if any people can be considered to have consented through their residence. I argue that these objections fail and that the residence theory remains a viable option, at least for those who are not committed incompatibilists. (shrink)

Tom Dougherty argues that culpably deceiving another person into sex is seriously wrong no matter what the content about which she is deceived. We argue that his explanation of why deception invalidates consent has extremely implausible implications. Though we reject Dougherty’s explanation, we defend his verdict about deception and consent to sex. We argue that he goes awry by conflating the disclosure requirement for consent and the understanding requirement. When these are distinguished, we can identify how deceptive (...) disclosure invalidates consent. This alternative explanation also allows for a response to Neil Manson’s recent criticisms of Dougherty’s argument. (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 article discusses the conditions under which can we say that people enter the economic system voluntarily. “The Need for an Exit Option” briefly explains the philosophical argument that voluntary interaction requires an exit option—a reasonable alternative to participation in the projects of others. “The Treatment of Effective Forced Labor in Economic and Political Theory” considers the treatment of effectively forced interaction in economic and political theory. “Human Need” discusses theories of human need to determine the capabilities a person (...) requires to have an acceptable exit option. “Capability in Cash, Kind, or Raw Resources” considers what form access to that level of capability should take—in cash, kind, or raw resources, concluding that a basic income guarantee is the most effective method to ensure an exit option in a modern, industrial economy. (shrink)

Providing heroin to heroin addicts taking part in medical trials to assess the effectiveness of the drug as a treatment alternative, breaches ethical research standards, some ethicists maintain. Heroin addicts, they say, are unable to consent voluntarily to take part in these trials. Other ethicists disagree. In our view, both sides of the debate have an inadequate understanding of voluntariness. In this article we therefore offer a fuller conception, one which allows for a more flexible, case-to-case approach in which (...) some heroin addicts are considered capable of consenting voluntarily, others not. An advantage of this approach, it is argued, is that it provides a safety net to minimize the risk of inflicting harm on trial participants. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and (...) physical autonomy, rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

In this essay, I draw on Kant’s legal philosophy in order to defend the right to voluntary motherhood by way of abortion at any stage of pregnancy as an essential feature of women’s basic rights. By developing the distinction between innate and acquired right in Kant’s legal philosophy, I argue that the viability standard in US law (as established in Planned Parenthood v. Casey) misunderstands the nature of embodied right. Our body is the site of innate right; it is (...) the means through which we can set and pursue ends in the world. The law, therefore, cannot adjudicate the relationship between the will and the body: it cannot require us to allow our bodies to be used against our will. By comparing unwanted pregnancy to sexual assault, I problematize the notion that consent to pregnancy, like consent to sex, can ever be conclusive. I examine Kant’s own account of unwanted pregnancy, in which he describes mother and child finding themselves “in a state of nature” in order to rethink the status of the fetus in law, and I argue that we should understand the fetus’s right to life as provisional, rather than as enforceable by law. (shrink)

I defend the right to an abortion at any stage of pregnancy by drawing on a Kantian account of consent and innate right. I examine how pregnant women are positioned in moral and legal debates about abortion, and develop a Kanitan account of bodily autonomy in order to pregnant women’s epistemic authority over the experience of pregnancy. Second, I show how Kant's distinction between innate and private right offers an excellent legal framework for embodied rights, including abortion and sexual (...) consent, and I draw on the legal definition of sexual consent in order to show how abortion discourse undermines women's innate right. I then explore Kant’s treatment of the infanticidal mother, and draw out the parallels between this case and contemporary abortion rights in order to develop a distinctly Kantian framework of reproductive rights in non-ideal conditions. Finally, I explore the implications of this non-ideal approach for contemporary abortion discourse, arguing that debates about the legality of abortion should more broadly engage the barbaric conditions of reproductive injustice. (shrink)

Vaccination against various diseases has been widely practised for more than a century and on a more limited scale its use in a variety of forms stretches back far longer. During earlier eras disease spread more slowly along shipping lanes on water and traditional transport routes on land. Today, in an era of air transport, contagion spreads far more rapidly. Travelling far more rapidly (indeed instantaneously) is the spread of misinformation that hinders vaccination which can, in the instance of Covid-19, (...) reduce disease impacts, including rates of severe illness and death. This paper explores the ethical issue of informed consent in the context of the contest between personal choice and the greater public welfare. It also makes reference to a number of low, middle and high income countries where vaccine hesitance, and to a lesser extent refusal, has been fed by misinformation on a scale not previously observed but made possible by the proliferation of modern technology. This campaign of ignorance has further undermined trust in governmental health bodies and their attempts to implement quarantine and other measures such as vaccination that had already been damaged by early variations and vacillation in governmental approaches around the globe due in part to a reluctance by some governments to take actions that would have economic repercussions but also by the necessary evolution of their approaches as more became known about the disease and its variants. The paper examines the historical background and the current situation and finds that more must be done to restore or increase trust levels between citizens and governmental authorities, including the dissemination of high quality accurate information in a form relevant to readers/viewers. While potential side-effects of vaccines must be disclosed to ensure informed consent, their incidence should also be clearly communicated (e.g., in vaccine information statements) so that clients/patients are aware that a risk is 1 in 100 or 1in 1000 or 1 in 2 million etc. Governments are urged to learn from their experience and better prepare for inevitable future pandemics to minimise vaccine hesitancy and refusal and maximise its acceptance where evidence is overwhelming as to the benefit to the community. Informed consent is part of the context of efforts to use vaccination to contain or eradicate any disease. Nevertheless, while better information for clients/patients/consumers may reduce vaccine hesitancy/refusal, it is unlikely that it would but eliminate the need for mandating vaccination in some circumstances for the benefit of the broader community, although strict quarantine of those reluctant to accept it is an alternative but one not generally accepted by those reluctant to be vaccinated. The information war is one that needs to be won to increase the voluntary uptake of vaccination in the context of voluntary informed consent. (shrink)

Vaccination against various diseases has been widely practised for more than a century and on a more limited scale its use in a variety of forms stretches back far longer. During earlier eras disease spread more slowly along shipping lanes on water and traditional transport routes on land. Today, in an era of air transport, contagion spreads far more rapidly. Travelling far more rapidly (indeed instantaneously) is the spread of misinformation that hinders vaccination which can, in the instance of Covid-19, (...) reduce disease impacts, including rates of severe illness and death. This paper explores the ethical issue of informed consent in the context of the contest between personal choice and the greater public welfare. It also makes reference to a number of low, middle and high income countries where vaccine hesitance, and to a lesser extent refusal, has been fed by misinformation on a scale not previously observed but made possible by the proliferation of modern technology. This campaign of ignorance has further undermined trust in governmental health bodies and their attempts to implement quarantine and other measures such as vaccination that had already been damaged by early variations and vacillation in governmental approaches around the globe due in part to a reluctance by some governments to take actions that would have economic repercussions but also by the necessary evolution of their approaches as more became known about the disease and its variants. The paper examines the historical background and the current situation and finds that more must be done to restore or increase trust levels between citizens and governmental authorities, including the dissemination of high quality accurate information in a form relevant to readers/viewers. While potential side-effects of vaccines must be disclosed to ensure informed consent, their incidence should also be clearly communicated (e.g., in vaccine information statements) so that clients/patients are aware that a risk is 1 in 100 or 1in 1000 or 1 in 2 million etc. Governments are urged to learn from their experience and better prepare for inevitable future pandemics to minimise vaccine hesitancy and refusal and maximise its acceptance where evidence is overwhelming as to the benefit to the community. Informed consent is part of the context of efforts to use vaccination to contain or eradicate any disease. Nevertheless, while better information for clients/patients/consumers may reduce vaccine hesitancy/refusal, it is unlikely that it would but eliminate the need for mandating vaccination in some circumstances for the benefit of the broader community, although strict quarantine of those reluctant to accept it is an alternative but one not generally accepted by those reluctant to be vaccinated. The information war is one that needs to be won to increase the voluntary uptake of vaccination in the context of voluntary informed consent. (shrink)

Dietmar Hübner and Lucie White question the ethical justification of employing risky neurosurgical interventions to treat imprisoned psychopaths. They argue that (1) such interventions would confer no medical benefit on the psychopath as there is no “subjective suffering” involved in psychopathy and (2) psychopaths could not voluntarily consent to such procedures because they could have no “internal motivation” for doing so. In the course of their discussion, the authors insightfully show that certain aspects of the psychopath’s personality structure are (...) especially relevant to assessing the ethics of risky treatment options. As I argue, however, the particular conclusions that the authors draw are too strong. A deeper look at the psychopathic profile casts doubt on (1) and (2). In some cases, psychopaths can be plausibly construed as experiencing subjective suffering on account of their disorder and as appropriately motivated to voluntarily consent to neurosurgical treatment. After arguing for this view, I suggest that the psychopath’s consent to neurosurgical intervention might nonetheless be problematic, as their emotional incapacities might preclude their abilities to adequately appreciate the relevant risks. (shrink)

According to what Douglas calls ‘the consent requirement’, neuro-correctives can only permissibly be provided with the valid consent of the offender who will undergo the intervention. Some of those who endorse the consent requirement have claimed that even though the requirement prohibits the imposition of mandatory neurocorrectives on criminal offenders, it may yet be permissible to offer offenders the opportunity to consent to undergoing such an intervention, in return for a reduction to their penal sentence. I (...) call this the neurocorrective offer. In this chapter I consider the coercion-based objection to the neurocorrective offer, which claims that offenders cannot provide valid consent to undergoing a neurocorrective on the basis of this offer because it is inherently coercive. Having outlined early formulations of this argument, I point out that there are in fact two different versions of this objection, which appeal to different understandings of the concepts of coercion, consent and voluntariness. (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)

How should the fact of state consent to international agreements affect their moral evaluation? Political criticism of the content of international agreements is often answered by invoking the voluntary nature of those agreements: if states did not wish to accept their terms then they were free to reject them; the fact of their having voluntarily accepted them limits the scope for subsequent criticism. This is the “Voluntarist Reply”. This paper examines the Voluntarist Reply to understand the specific moral (...) work that it claims to do, the sense of voluntariness that it requires, and the limits on the capacity of voluntary consent to answer substantive political and moral criticism . It maps those limits across four prominent and plausible accounts of international economic justice to understand the different ways that consent does or does not alter the moral situation. (shrink)

Recent developments in neuroscience have inspired proposals to perform deep brain stimulation on psychopathic detainees. We contend that these proposals cannot meet important ethical requirements that hold for both medical research and therapy. After providing a rough overview of key aspects of psychopathy and the prospects of tackling this condition via deep brain stimulation, we proceed to an ethical assessment of such measures, referring closely to the distinctive features of psychopathic personality, particularly the absence of subjective suffering and a lack (...) of moral motivation. Scrutiny of these factors reveals that two essential bioethical criteria, individual medical benefit and voluntary informed consent, cannot be met in performing neurosurgical experiments or treatments on psychopathic inmates. (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)

Paternalism means, roughly, benevolent interference: benevolent because it aims at promoting or protecting a person’s good; interference because it restricts his liberty without his consent. The paternalist believes herself superior in that she can secure some benefit for the person that he himself will not secure. Paternalism is opposed by the liberal tradition, at least when it targets sufficiently voluntary behavior. In legal contexts, policies may be paternalistic for some and not for others, forcing trade-offs. In medical contexts, (...) paternalism can be an open or hidden aspect of the relationship between caregiver and patient. (shrink)

This article argues that personal medical data should be made available for scientific research, by enabling and encouraging individuals to donate their medical records once deceased, similar to the way in which they can already donate organs or bodies. This research is part of a project on posthumous medical data donation developed by the Digital Ethics Lab at the Oxford Internet Institute at the University of Oxford. Ten arguments are provided to support the need to foster posthumous medical data donation. (...) Two major risks are also identified—harm to others, and lack of control over the use of data—which could follow from unregulated donation of medical data. The argument that record-based medical research should proceed without the need to secure informed consent is rejected, and instead a voluntary and participatory approach to using personal medical data should be followed. The analysis concludes by stressing the need to develop an ethical code for data donation to minimise the risks, and offers five foundational principles for ethical medical data donation suggested as a draft code. (shrink)

Recent debate in the literature on political obligation about the principle of fairness rests on a mistake. Despite the widespread assumption to the contrary, a person can have a duty of fairness to share in the burdens of sustaining some cooperative scheme even though that scheme does not represent a net benefit to her. Recognizing this mistake allows for a resolution of the stalemate between those who argue that the mere receipt of some public good from a scheme can generate (...) a duty of fairness and those who argue that only some voluntary action of consent or acceptance of the good can generate such a duty. I defend a version of the principle of fairness that holds that it is the person’s reliance on a scheme for the provision of some product or service that generates duties of fairness to share in the burdens of sustaining the scheme. And, on this version, the principle of fairness is politically significant: regardless of whether the citizen has a duty to obey the law, she will still have important political duties of fairness generated by her reliance on the various public goods provided by those society-wide cooperative schemes sustained by the sacrifices of her fellow citizens. (shrink)

There is a fault line running through classical liberalism as to whether or not democratic self-governance is a necessary part of a liberal social order. The democratic and non-democratic strains of classical liberalism are both present today—particularly in America. Many contemporary libertarians and neo-Austrian economists represent the non-democratic strain in their promotion of non-democratic sovereign city-states (startup cities or charter cities). We will take the late James M. Buchanan as a representative of the democratic strain of classical liberalism. Since the (...) fundamental norm of classical liberalism is consent, we must start with the intellectual history of the voluntary slavery contract, the coverture marriage contract, and the voluntary non-democratic constitution (or pactum subjectionis). Next we recover the theory of inalienable rights that descends from the Reformation doctrine of the inalienability of conscience through the Enlightenment (e.g., Spinoza and Hutcheson) in the abolitionist and democratic movements. Consent-based governments divide into those based on the subjects' alienation of power to a sovereign and those based on the citizens' delegation of power to representatives. Inalienable rights theory rules out that alienation in favor of delegation, so the citizens remain the ultimate principals and the form of government is democratic. Thus the argument concludes in agreement with Buchanan that the classical liberal endorsement of sovereign individuals acting in the marketplace generalizes to the joint action of individuals as the principals in their own organizations. (shrink)

This article argues that personal medical data should be made available for scientific research, by enabling and encouraging individuals to donate their medical records once deceased, in a way similar to how they can already donate organs or bodies. This research is part of a project on posthumous medical data donation developed by the Digital Ethics Lab at the Oxford Internet Institute. Ten arguments are provided to support the need to foster posthumous medical data donation. Two major risks are also (...) identified—harm to others, and lack of control over the use of data—which could follow from unregulated donation of medical data. The argument that record-based medical research should proceed without the need to ask for informed consent is rejected, and it instead a voluntary and participatory approach to using personal medical data should be followed. The analysis concludes by stressing the need to develop an ethical code for data donation to minimise the risks providing five foundational principles for ethical medical data donation; and suggesting a draft for such a code. (shrink)

The recent #metoo movement has turned public attention to the problem of sex under conditions of power inequality. Is consent impaired, when you have plenty to lose (e.g. a great professional opportunity) from saying “no” to a sexual advance? And even if consent is valid, is this a morally acceptable situation, especially if one party is aware that their position of relative power will influence the other’s decision to have sex? Such situations bring to the fore not only (...) the issues of coerced sex and quid pro quo harassment (asking for sex in exchange for benefits), but the much more controversial question of whether sex between unequal but otherwise competent consenting adult partners is in principle OK—and whether institutions such as companies, universities, or the state itself should be in the business of regulating such relations. In what follows, I will outline the central concept of power asymmetry and its ethical relevance (section 2). I will then distinguish two main views about the ethics of sexual interaction under conditions of power asymmetry: a Kantian view, which categorically condemns such interactions, and a Millian view, which justifies at least some such interactions (section 3). I then briefly consider three contexts, which raise difficult questions about sex between unequals: the workplace, the university (section 4), and voluntary prostitution (section 5). Section 6 provides a short conclusion. (shrink)

Liberal thought (in the sense of classical liberalism) is based on the juxtaposition of consent to coercion. Autocracy and slavery were seen as based on coercion whereas today's political democracy and economic 'employment system' are based on consent to voluntary contracts. This paper retrieves an almost forgotten dark side of contractarian thought that based autocracy and slavery on explicit or implicit voluntary contracts. To answer these 'best case' arguments for slavery and autocracy, the democratic and abolitionist (...) movements forged arguments not simply in favour of consent, but arguments that voluntary contracts to legally alienate aspects of personhood were invalid 'even with consent' – which made the underlying rights inherently inalienable. Once understood, those arguments have the perhaps 'unintended consequence' of making the neo-abolitionist case for ruling out today's self-rental contract, the employer-employee contract. The paper has to also retrieve these inalienable rights arguments since they have been largely lost on the Left, not to mention in liberal thought. (shrink)

This paper argues that there is a conflict between two principles informing Locke’s political philosophy, namely his waste restriction and his strong voluntarism. Locke’s waste restriction is proposed as a necessary, enforceable restriction upon rightful private property holdings and it yields arguments to preserve and redistribute natural resources. Locke’s strong voluntarism is proposed as the liberal ideal of political obligations. It expresses Locke’s view that each individual has a natural political power, which can only be transferred to a political body (...) through the individual’s voluntary, actual consent. On this view, the legitimacy of a political power is dependent upon its subjects’ actual consent to its authority. After briefly outlining these two ideas informing Locke’s conception, I argue that we cannot maintain both at the same time. Therefore, contemporary Lockeans must either derive restrictions upon private property concerned with preserving natural resources from other aspects of Locke’s theory or they must accept weak voluntarism as the ideal of political obligations. I argue that both alternatives pose significant problems for the Lockean project. (shrink)

Libertarian theories of justice hold that agents, at least initially, own themselves fully, and thus owe no service to others, except through voluntary action. The most familiar libertarian theories are right-libertarian in that they hold that natural resources are initially unowned and, under a broad range of realistic circumstances, can be privately appropriated without the consent of, or any significant payment to, the other members of society. Leftlibertarian theories, by contrast, hold that natural resources are owned by the (...) members of society in some egalitarian manner, and may be appropriated only with their permission, or with a significant payment to them. Left-libertarian theories have been propounded for over two centuries[i], but in recent years there has been a revival of interest in them. Theories roughly of this sort have been explored by Kolm [1985, 1986] and Gibbard [1976], advocated by Steiner [1994], Grunebaum [1987], and Van Parijs [1995], and criticized by Cohen [1995]. (shrink)

Nancy MacLean’s book, Democracy in Chains, raised questions about James M. Buchanan’s commitment to democracy. This paper investigates the relationship of classical liberalism in general and of Buchanan in particular to democratic theory. Contrary to the simplistic classical liberal juxtaposition of “coercion vs. consent,” there have been from Antiquity onwards voluntary contractarian defenses of non-democratic government and even slavery—all little noticed by classical liberal scholars who prefer to think of democracy as just “government by the consent of (...) the governed” and slavery as being inherently coercive. Historically, democratic theory had to go beyond that simplistic notion of democracy to develop a critique of consent-based non-democratic government, e.g., the Hobbesian pactum subjectionis. That critique was based firstly on the distinction between contracts or constitutions of alienation (translatio) versus delegation (concessio). Then the contracts of alienation were ruled out based on the theory of inalienable rights that descends from the Reformation doctrine of inalienability of conscience down through the Enlightenment to modern times in the abolitionist and democratic movements. While he developed no theory of inalienability, the mature Buchanan explicitly allowed only a constitution of delegation, contrary to many modern classical liberals or libertarians who consider the choice between consent-based democratic or non-democratic governments (e.g., private cities or shareholder states) to be a pragmatic one. But Buchanan seems to not even realize that his at-most-delegation dictum would also rule out the employer-employee or human rental contract which is a contract of alienation “within the scope of the employment.”. (shrink)

Liberalism is based on the juxtaposition of consent to coercion. Autocracy and slavery were based on coercion whereas today’s political democracy and economic “employment system” are based on consent to voluntary contracts. This article retrieves an almost forgotten dark side of contractarian thought that based autocracy and slavery on explicit or implicit voluntary contracts. The democratic and antislavery movements forged arguments not simply in favor of consent but arguments that voluntary contracts to alienate aspects (...) of personhood were invalid—which made the underlying rights inalienable. Once understood, those arguments apply as well to today’s self-rental contract, the employer-employee contract. (shrink)

A person presented with adequate but not conclusive evidence for a proposition is in a position voluntarily to acquire a belief in that proposition, or to suspend judgment about it. The availability of doxastic options in such cases grounds a moderate form of doxastic voluntarism not based on practical motives, and therefore distinct from pragmatism. In such cases, belief-acquisition or suspension of judgment meets standard conditions on willing: it can express stable character traits of the agent, it can be responsive (...) to reasons, and it is compatible with a subjective awareness of the available options. (shrink)

Previous research has suggested that bodily signals from internal organs are associated with diverse cortical and subcortical processes involved in sensory-motor functions, beyond homeostatic reflexes. For instance, a recent study demonstrated that the preparation and execution of voluntary actions, as well as its underlying neural activity, are coupled with the breathing cycle. In the current study, we investigated whether such breathing-action coupling is limited to voluntary motor action or whether it is also present for mental actions not involving (...) any overt bodily movement. To answer this question, we recorded electroencephalography (EEG), electromyography (EMG), and respiratory signals while participants were conducting a voluntary action paradigm including self-initiated motor execution (ME), motor imagery (MI), and visual imagery (VI) tasks. We observed that the voluntary initiation of ME, MI, and VI are similarly coupled with the respiration phase. In addition, EEG analysis revealed the existence of readiness potential (RP) waveforms in all three tasks (i.e., ME, MI, VI), as well as a coupling between the RP amplitude and the respiratory phase. Our findings show that the voluntary initiation of both imagined and overt action is coupled with respiration, and further suggest that the breathing system is involved in preparatory processes of voluntary action by contributing to the temporal decision of when to initiate the action plan, regardless of whether this culminates in overt movements. -/- . (shrink)

Over the last few decades, multiple studies have examined the understanding of participants in clinical research. They show variable and often poor understanding of key elements of disclosure, such as expected risks and the experimental nature of treatments. Did the participants in these studies give valid consent? According to the standard view of informed consent they did not. The standard view holds that the recipient of consent has a duty to disclose certain information to the profferer of (...) consent because valid consent requires that information to be understood. The contents of the understanding and disclosure requirements are therefore conceptually linked. In this paper, we argue that the standard view is mistaken. The disclosure and understanding requirements have distinct grounds tied to two different ways in which a token of consent can be rendered invalid. Analysis of these grounds allows us to derive the contents of the two requirements. It also implies that it is sometimes permissible to enroll willing participants who have not understood everything that they ought to be told about their clinical trials. (shrink)

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.

We study imagination as reality-oriented mental simulation : the activity of simulating nonactual scenarios in one’s mind, to investigate what would happen if they were realized. Three connected questions concerning ROMS are: What is the logic, if there is one, of such an activity? How can we gain new knowledge via it? What is voluntary in it and what is not? We address them by building a list of core features of imagination as ROMS, drawing on research in cognitive (...) psychology and the philosophy of mind. We then provide a logic of imagination as ROMS which models such features, combining techniques from epistemic logic, action logic, and subject matter semantics. Our logic comprises a modal propositional language with non-monotonic imagination operators, a formal semantics, and an axiomatization. (shrink)

It is widely accepted that consent is a normative power. For instance, consent can make an impermissible act permissible. In the words of Heidi Hurd, it “turns a trespass into a dinner party... an invasion of privacy into an intimate moment.” In this chapter, I argue against the assumption that consent has such robust powers for moral transformation. In particular, I argue that there is a wide range of sex that harms or wrongs victims despite being consensual. (...) Moreover, these cases are not limited to those where con- sent is vitiated by background conditions. I start by calling this category of consensual sex Bad Sex. I then distinguish subspecies of this category, including psychological pressure, social coercion, and epistemically unsafe sex. I end by responding to an objection on which we should treat at least some subspecies of Bad Sex as rape. Though this alternative proposal is often motivated by ameliorative and strategic considerations, I argue that such considerations actually count against collapsing the categories of Bad Sex and rape. (shrink)

This article addresses two areas of continuing controversy about consent in clinical research: the question of when consent to low risk research is necessary, and the question of when consent to research is valid. The article identifies a number of considerations relevant to determining whether consent is necessary, chief of which is whether the study would involve subjects in ways that would (otherwise) infringe their rights. When consent is necessary, there is a further question of (...) under what conditions consent is valid or successful in waiving a right. The most influential account of validity conditions is non-moralized, in the sense that the conditions make no essential reference to whether the researcher soliciting consent has obtained it in a way that wrongs the subject. The article examines the implications of this account, and compares it with recent accounts that moralize some of the validity conditions. -/- . (shrink)

The predominant view is that a study using health data is observational research and should require individual consent unless it can be shown that gaining consent is impractical. But recent arguments have been made that citizens have an ethical obligation to share their health information for research purposes. In our view, this obligation is sufficient ground to expand the circumstances where secondary use research with identifiable health information is permitted without explicit subject consent. As such, for some (...) studies the Institutional Review Board/Research Ethics Committee review process should not assess the practicality of gaining consent for data use. Instead the review process should focus on assessing the public good of the research, public engagement and transparency. (shrink)

In this paper, I examine Alston's arguments for doxastic involuntarism. Alston fails to distinguish (i) between volitional and executional lack of control, and (ii) between compatibilist and libertarian control. As a result, he fails to notice that, if one endorses a compatibilist notion of voluntary control, the outcome is a straightforward and compelling case for doxastic voluntarism. Advocates of involuntarism have recently argued that the compatibilist case for doxastic voluntarism can be blocked by pointing out that belief is never (...) intentional. In response to this strategy, I distinguish between two types of intentionality and argue that belief is no less intentional than action is. (shrink)

Are mandatory lockdown measures, which place restrictions on one’s freedom to move and assemble, justifiable? Offhand, such measures appear to compromise important rights to secure goals of public health. Proponents of such measures think the trade-off is worth it; opponents think it isn’t. However, one might think that casting the debate in these terms concedes too much to the opponents. Mandatory lockdown measures don’t infringe important rights because no one has a right to impose a risk of grievous harm on (...) others—and, in the context of a pandemic, participating in the prohibited activities (e.g., going out to the bar) does just that. -/- This chapter explores whether this defense of mandatory lockdown measures holds up. It, first, considers whether we have a right against risk imposition—and, if so, how such a right is best understood. It then considers the objection that, even if there is such a right, people who voluntarily choose to engage in the prohibited activities—at least if fully appraised of the risks involved—effectively waive it. The chapter argues that this objection fails. (shrink)

Trials with highly unfavourable risk–benefit ratios for participants, like HIV cure trials, raise questions about the quality of the consent of research participants. Why, it may be asked, would a person with HIV who is doing well on antiretroviral therapy be willing to jeopardise his health by enrolling in such a trial? We distinguish three concerns: first, how information is communicated to potential participants; second, participants’ motivations for enrolling in potentially high risk research with no prospect of direct benefit; (...) and third, participants’ understanding of the details of the trials in which they enrol. We argue that the communication concern is relevant to the validity of informed consent and the quality of decision making, that the motivation concern does not identify a genuine problem with either the validity of consent or the quality of decision making and that the understanding concern may not be relevant to the validity of consent but is relevant to the quality of decision making. In doing so, we derive guidance points for researchers recruiting and enrolling participants into their HIV cure trials, as well as the research ethics committees reviewing proposed studies. (shrink)

Philosophy and Phenomenological Research, EarlyView. Despite the acknowledgement of the moral significance of consent there is still much work to be done in determining which specific sexual encounters count as unproblematically consensual. This paper focuses on the impact of deception. It takes up the specific case of deception about one's self. It may seem obvious that one ought not to lie to a sexual partner about who one is, but determining which features of oneself are most relevant, as well (...) as the lies which it follows would be impermissible to tell, is complicated. It is argued here that deception about one's morally valenced character traits, those we think of as virtues and vices, are particularly problematic. This is true regardless of whether knowing the truth about those traits would have made a difference to one's partner's consent. Attention is then drawn to a range of types of lies that one ought not to tell. (shrink)

Coercion by the recipient of consent renders that consent invalid. But what about when the coercive force comes from a third party, not from the person to whom consent would be proffered? In this paper I analyze how threats from a third party affect consent. I argue that, as with other cases of coercion, we should distinguish threats that render consent invalid from threats whose force is too weak to invalidate consent and threats that (...) are legitimate. Illegitimate controlling third party threats render consent invalid just as they do in two party cases. However, knowing that the consent is invalid is not sufficient to tell the recipient of consent what she may or should do. I argue that when presented with a token of consent from someone whom she thinks is experiencing an illegitimate controlling threat, the recipient may act on that token if and only if doing so represents a reasonable joint decision for her and the victim of coercion. The appropriate action for someone faced with third party coercion therefore depends on the other options open to her and those open to the victim of coercion. (shrink)

According to one influential view, requirements to elicit consent for medical interventions and other interactions gain their rationale from the respect we owe to each other as autonomous, or self-governing, rational agents. Yet the popular presumption that consent has a central role to play in legitimate intervention extends beyond the domain of cases where autonomous agency is present to cases where far from fully autonomous agents make choices that, as likely as not, are going to be against their (...) own best interest. The question how we should understand the rationale for eliciting consent in this range of ‘non-ideal’ cases is comparatively ill understood. In this paper, I explore the prospects of accounting for consent requirements in such ‘non-ideal’ cases by appealing to a set of agency-based interests; including an interest in playing a meaningful part in joint decisions affecting ourselves and others. (shrink)

Why is consent revocable? In other words, why must we respect someone's present dissent at the expense of her past consent? This essay argues against act-based explanations and in favor of a rule-based explanation. A rule prioritizing present consent will serve our interests the best, in light of our interests in having flexibility over our consent and in minimizing the possibility of error in people's judgments about whether we consent.

I agree with Nachev and Hacker’s general approach. However, their criticism of claims of covert automaticity can be strengthened. I first say a few words on what voluntary action involves and on the consequent limited relevance of brain research for the determination of voluntariness. I then turn to Nachev and Hacker’s discussion of possible covert automaticity and show why the case for it is weaker than they allow.

Blame is multifarious. It can be passionate or dispassionate. It can be expressed or kept private. We blame both the living and the dead. And we blame ourselves as well as others. What’s more, we blame ourselves, not only for our moral failings, but also for our non-moral failings: for our aesthetic bad taste, gustatory self-indulgence, or poor athletic performance. And we blame ourselves both for things over which we exerted agential control (e.g., our voluntary acts) and for things (...) over which we lacked such control (e.g., our desires, beliefs, and intentions). I argue that, despite this manifest diversity in our blaming practices, it’s possible to provide comprehensive account of blame. Indeed, I propose a set of necessary and sufficient conditions that aims to specify blame’s extension in terms of its constitution as opposed to its function. And I argue that this proposal has a number of advantages beyond accounting for blame in all its disparate forms. For one, it can account for the fact that one’s having had control over whether one was to φ is a necessary condition for one’s being fittingly blamed for having φ-ed. For another, it can account for why, unlike fitting shame, fitting blame is always deserved, which in turn explains why there is something morally problematic about ridding oneself of one’s fitting self-blame (e.g., one’s fitting guilt). (shrink)

The standard liberal sexual ethic maintains that consent is the only requirement for ethical sexual relations. While consent is certainly necessary for an adequate sexual ethic (and it’s important to know what it involves), I argue that it’s far from sufficient. The key claims that I advance are the following: (1) The consent-only model of sexual ethics affirms a “casual” view of sex and therefore it can’t make sense of and properly combat what’s worst in the sexual (...) domain: namely, the grave evil of sexual violence. (2) The consent-only model of sexual ethics fails properly to recognize the special significance of human sexuality and the nature of erotic love and its role in human sexual fulfillment and therefore it can’t make sense of and properly support what’s best in the sexual domain: namely, a committed erotic loving relationship. A more adequate sexual ethic, I maintain, would be a more traditionalist one that involves the following: it would give proper recognition to the special significance of human sexuality, avoid dehumanization in sexual desire, and encourage and support committed erotic love and its role in human fulfillment. Moreover, it would regard this as requiring that we cultivate sexual virtues such as chastity, modesty, and fidelity, and that we encourage and support life-long monogamous marriage as the proper context for human sexual relationship. (shrink)

Hypothetical contracts have been said to be not worth the paper they are not written on. This paper defends hypothetical consent theories of justice, such as Rawls's, against the view that they lack justificatory power. I argue that while hypothetical consent cannot generate political obligation, it can generate political legitimacy.