THE SUBJECT MATTER of this essay is Locke's well-known discussion of consent in sections 116-122 of the Second Treatise of Government.' I will not be concerned to discuss the place of consent in Locke's political philosophy 2 My concerns are somewhat narrower than this. I will simply be concerned to show that in important respects several recent discussions of Locke's political philosophy have misrepresented Locke's views on the subject of express and tacit consent. At theheart of (...) these misinterpretations lie misunderstandings about the way in which landownership and the inheritance of land are related to express and tacit consent. I will show that these misinterpretations of Locke's views are, to a certain extent, indicative of internal strains that can bediscovered in Locke's arguments. My discussion will fall into four sections. In the first I will try toclarify Locke's views on the nature of express consent. I will show that Locke's views on this matter, when examined in their historical context, are not as obscure as some critics have suggested. In the second section I will examine Locke's views on the nature of tacit consent. I will be especially concerned to examine the relationship between landownership and express and tacit consent. In the third section I will look at Locke's views on the inheritance of land and how it relates to express and tacit consent. I will show that his views on this matter are not entirely consistent. In one passage Locke suggests that inheritance of land requires only tacit consent whereas, in another passage, he suggests that inheritance of land requires full membership of society and express consent. In the fourth and final section I will summarize the salient features of my interpretation of Locke's views on the subject of express and tacit consent. I will also briefly note interpretations of Locke's views that have been rejected in the course of this essay. . -/- . (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)

Recently, David Boonin has put forward several objections to Carlos S. Nino's 'Consensual Theory of Punishment'. In this paper I will defend Nino against the 'explicit denial objection'. I will discuss whether Boonin's interpretation of Nino as a tacit consent theorist is right. I will argue that the offender's consent is neither tacit nor express, but a special category of implicit consent. Further, for Nino the legal-normative consequences of an act (of crime) are 'irrevocable', i.e. (...) one cannot (expressly and successfully) deny liability to them. I will suggest an explanation for Nino's irrevocability claim. (shrink)

Some political philosophers have judged that it is absurd to think that there can be unintentional consent. In this paper, I present an example of unintentional consent, which I refer to as the adapted boardroom example. I consider reasons for denying that this is an example of unintentional consent, but find that these reasons are unconvincing.

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)

The article focuses on the justification provided by classical contract theory for the right of states to enact laws and the corresponding obligation of political allegiance. First the distinction between political authority and parental authority developed by John Locke in his seminal work “Two Treatises of Government” is explored. Thereafter it is discussed why the interests the individuals have in the creation of a state fail to vindicate the exercise of governmental power. As regards David Hume’s influential objections to contract (...) theory it is argued that the consent criterion of political legitimacy withstands his criticism. Hume cannot establish that the core idea of Locke’s justificatory approach is mistaken; he merely demonstrates that hardly any existing state meets the consent requirement. Finally the question is discussed which conditions a state must fulfil in order to be entitled to claim that its citizens tacitly approve of its authority. (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)

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.

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)

To combat the ecological crisis, fundamental change is required in how humans perceive nature. This paper proposes that the human-nature bifurcation, a metaphysical mental model that is deeply entrenched and may be environmentally unsound, stems from embodied and tacitly-held substance-biased belief systems. Process philosophy can aid us, among other things, in providing an alternative framework for reinterpreting this bifurcation by drawing an ontological bridge between humans and nature, thus providing a coherent philosophical basis for sustainable dwelling and policy-making. Michael Polanyi's (...) epistemology can further help us understand these environmentally-oriented tacit processes of knowing, and also provide a basis for the political and educational implementation of process-philosophical insights, particularly via the nudging of mental models. (shrink)

In his recent book Democratic Authority, David Estlund defends a strikingly new and interesting account of political authority, one that makes use of a distinctive kind of hypothetical consent that he calls ‘normative consent’: a person can come to have a duty to obey another when it is the case that, were she given the chance to consent to the duty, she would have a duty to consent to it. If successful, Estlund’s account promises to provide (...) what has arguably so far remained elusive: the basis for the authority of suitably democratic laws. In this paper, I argue that, despite its promise, the account Estlund develops is, in a crucial respect, incoherent: the principle of normative consent that he offers relies on a claim about a hypothetical situation, but the hypothetical situation at issue is one that, according to the principle itself, is morally impossible. (shrink)

Researchers have explored questions concerning public participation and consent in geoengineering governance. Yet, the notion of consent has received little attention from researchers, and it is rarely discussed explicitly, despite being prescribed as a normative requirement for geoengineering research and being used in rejecting some geoengineering options. As it is noted in the leading geoengineering governance principles, i.e. the Oxford Principles, there are different conceptions of consent; the idea of consent ought to be unpacked more carefully (...) if, and when, we invoke it in the discussion. This article offers a theoretical reflection on different conceptions of consent and their place in geoengineering governance. More specifically, I discuss three models of consent, i.e. explicit consent, implied consent and hypothetical consent, and assess their applicability to geoengineering governance. Although there are different models of consent, much discussion of geoengineering governance has committed only to explicit consent. I note that such a commitment springs from a specific ideal political order. Accordingly, we should be wary of any naïve commitment to it so long as the political order we hope for remains open to debate. Finally, I illustrate two approaches to introduce consent into a geoengineering governance framework. (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)

This article argues that consent must be revocable. I present two arguments for this conclusion. On the argument from informed consent, irrevocable consent lacks validity because it cannot be sufficiently informed. On the argument from bodily integrity, irrevocable consent lacks validity because we do not have the authority to deny our future selves the ability to protect our bodily integrity. I explain why the argument from bodily integrity captures unique moral problems raised by irrevocable consent (...) and illuminates an important but undertheorized distinction between autonomy and bodily integrity. (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)

In what follows I propose to bring out certain methodological properties of projects of modelling the tacit realm that bear on the kinds of modelling done in connection with scientific cognition by computer as well as by ethnomethodological sociologists, both of whom must make some claims about the tacit in the course of their efforts to model cognition. The same issues, I will suggest, bear on the project of a cognitive psychology of science as well.

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)

Political deepfakes have prompted outcry about the diminishing trustworthiness of visual depictions, and the epistemic and political threat this poses. Yet this new technique is being used overwhelmingly to create pornography, raising the question of what, if anything, is wrong with the creation of deepfake pornography. Traditional objections focusing on the sexual abuse of those depicted fail to apply to deepfakes. Other objections—that the use and consumption of pornography harms the viewer or other (non-depicted) individuals—fail to explain the objection that (...) a depicted person might have to the creation of deepfake pornography that utilises images of them. My argument offers such an explanation. It begins by noting that the creation of sexual images requires an act of consent, separate from any consent needed for the acts depicted. Once we have separated these out, we can see that a demand for consent can arise when a sexual image is of us, even when no sexual activity was actually engaged in, as in the case of deepfake pornography. I then demonstrate that there are two ways in which an image can be ‘of us’, both of which can exist in the case of deepfakes. Thus, I argue: if a person, their likeness, or their photograph is used to create pornography, their consent is required. Whenever the person depicted does not consent (or in the case of children, can’t consent), that person is wronged by the creation of deepfake pornography and has a claim against its production. (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)

My starting point is what I call the Normative Authority Conception of justification, where S is justified in their belief that p at t (to some degree n) if and only if their believing that p at t is not ruled out by epistemic norms that have normative authority over S at t. With this in mind, this paper develops an account of doxastic justification by first developing an account of the normative authority of epistemic norms. Drawing from work in (...) political philosophy, I argue that (a) the cognitive and evaluative commitments and concerns behind our actual practices of holding each other and ourselves accountable for our beliefs reveal which epistemic norms we have consented to be under, and that (b) it is because we have consented to be under the authority of these norms – by actually holding ourselves and others accountable to them – that they in turn have normative authority over us. By connecting the authority of epistemic norms to the authority we have over ourselves in this way, the resulting account of doxastic justification (i) explains why it can be appropriate to criticize, resent, or sanction someone for having unjustified beliefs, (ii) avoids the phenomena of normative alienation and normative parochialism, and (iii) respects the social and collective nature of epistemic justification. (shrink)

I argue against various versions of the ‘attitude’ view of consent and of the ‘action’ view of consent: I show that neither an attitude nor an action is either necessary or sufficient for consent. I then put forward a different view of consent based on the idea that, given a legitimate epistemic context, absence of dissent is sufficient for consent: what is crucial is having access to dissent. In the latter part of the paper I (...) illustrate my view of consent by applying it to the case of consenting to being an organ donor. (shrink)

Tom Dougherty has recently defended the claim that all deception that is consequential for sex is seriously wrong. This discussion piece argues that deception does not have to seriously undermine consent and that when sexual deception is seriously wrong, that may not only be to do with its relation to consent. In doing so, it defends distinguishing between the seriousness of deceptions, whether these are sexual or in other areas of life, and so defends what Dougherty calls the (...) lenient view. (shrink)

Modern military organizations are paternalistic organizations. They typically recognize a duty of care toward military personnel and are willing to ignore or violate the consent of military personnel in order to uphold that duty of care. In this paper, we consider the case for paternalism in the military and distinguish it from the case for paternalism in medicine. We argue that one can consistently reject paternalism in medicine but uphold paternalism in the military. We consider two well-known arguments for (...) the conclusion that military organizations should not be entitled to use experimental drugs on troops without first obtaining the informed consent of those troops. We argue that both of these are unsuccessful, in the absence of an argument for the rejection of paternalism in the military altogether. The case for military paternalism is widely accepted. However, we consider three ways in which it could be challenged. (shrink)

In the American medical system, patients do not know the final price of treatment until long after the treatment is given, at which point it is too late to say “no.” I argue that without price disclosure many, perhaps all, tokens of consent in clinical medicine fall below the standard of valid, informed consent. This is a sweeping and broad thesis. The reason for this thesis is surprisingly simple: medical services rarely have prices attached to them that are (...) known to the patient prior to treatment. Yet, for many patients, knowledge of the price is relevant to whether they would give consent. If informed consent requires that patients know all information about their treatment that is relevant to their decision, then consent to a medical intervention in the absence of the price is not informed consent. (shrink)

Misconceived Consent: Miguel has stage IV lung cancer. He has nearly exhausted his treatment options when his oncologist, Dr. Llewellyn, tells him about an experimental vaccine trial that may boost his immune response to kill cancer cells. Dr. Llewellyn provides Miguel with a consent form that explains why the study is being conducted, what procedures he will undergo, what the various risks and benefits are, alternative sources of treatment, and so forth. She even sits down with him, carefully (...) talks through the most important points, and gives him time to ask questions. Though it is a Phase 1 study and the chance that he will benefit is very low, Miguel happily agrees to take part. A week later, after the first experimental injection, she asks him if he is worried about the risks. “Risks?” he asks. “I’m sure this is safe—you’re a doctor, after all!”. (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.

In addition to protecting agents’ autonomy, consent plays a crucial social role: it enables agents to secure partners in valuable interactions that would be prohibitively morally risk otherwise. To do this, consent must be observable: agents must be able to track the facts about whether they have received a consent-based permission. I argue that this morally justifies a consent-practice on which communicating that one consents is sufficient for consent, but also generates robust constraints on what (...) sorts of behaviors can be taken as consent- communicating. (shrink)

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

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)

In this paper, I answer the following question: suppose that two individuals, C and D, have been in a long-term committed relationship, and D now has dementia, while C is competent; if D agrees to have sex with C, is it permissible for C to have sex with D? Ultimately, I defend the view that, under certain conditions, D can give valid consent to sex with C, rendering sex between them permissible. Specifically, I argue there is compelling reason to (...) endorse the following thesis: -/- Prior Consent Thesis: D, when competent, can give valid prior consent to sex with her competent partner (C) that will take place after she has dementia, assuming that D is the same person as she was when she gave prior consent, meaning that, if D, when competent, gave prior consent to sex with C, then C may permissibly have sex with D. In section I, I explain both the background and the existing literature on this issue. In section II, I outline relevant stipulations about the kinds of cases I will be examining. In section III, I defend the Prior Consent Thesis. And, in section IV, I address objections to the Prior Consent Thesis. (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)

Kant’s Formula of Humanity can be analyzed into two parts. One is an injunction to treat humanity always as an end. The other is a prohibition on using humanity as a mere means. The second is often referred to as the FH prohibition or the mere means prohibition. It has become popular to interpret this prohibition in terms of consent. The idea is that, if X uses Y's humanity as a means and Y does not consent to it, (...) then X uses Y's humanity as a mere means. There is then debate about the kind of consent that is relevant: possible, actual, or rational. In this paper, I argue against this interpretation. Section one sets up the consent account. Section two attacks possible and actual consent accounts on doctrinal grounds. Section three extends this doctrinal attack to rational consent accounts. Section four circles back to the original motivation for the consent interpretation. I argue that the consent account rests on a misinterpretation, and I conclude with a quick sketch of an alternative interpretation of the FH prohibition. (shrink)

This paper argues, against the prevailing view, that consent to privacy policies that regular internet users usually give is largely unproblematic from the moral point of view. To substantiate this claim, we rely on the idea of the right not to know (RNTK), as developed by bioethicists. Defenders of the RNTK in bioethical literature on informed consent claim that patients generally have the right to refuse medically relevant information. In this article we extend the application of the RNTK (...) to online privacy. We then argue that if internet users can be thought of as exercising their RNTK before consenting to privacy policies, their consent ought to be considered free of the standard charges leveled against it by critics. (shrink)

Consent theory in sexual ethics, Jonathan Ichikawa argues, has a Euthyphro problem. -/- It is widely held that sexual violations are explicable in terms of nonconsensual sexual contact. But a notion of consent adequate to explain many moral judgments typical of sexual ethics — a notion that vindicates the idea that consent cannot be coerced, that it must be sober, that children cannot consent to sex with adults, etc. — cannot, Ichikawa argues, be articulated, motivated, or (...) explained in a way independently of moral judgments about sexual wrongs. Consequently, if there is as tight a connection between consent and sexual violation as many people think there is, there is good reason to suppose that that connection must ultimately explain consent in terms of sexual wronging, rather than vice versa. The paper highlights some costs and drawbacks to this horn of the Euthyphro dilemma in sexual ethics. One central upshot of the argument will be that mainstream accounts of sexual ethics fail in their explanatory ambitions. Consent cannot play its canonical explanatory role. (shrink)

The author examines two proposals to expand legal recognition of individual control over physical integrity. Protections for individual autonomy are discussed in relation to the right to die, euthanasia, medical treatment, and consensual and assaultive sexual behaviours. The author argues that at present, the legal doctrine of consent protects only those individual preferences which are seen to be congruent with dominant societal values; social preferences and convenience override all other individual choices. Under these conditions, more freedom to waive rights (...) of physical integrity can only place socially vulnerable persons at great risk of abuse. (shrink)

Deception, like coercion, can invalidate the moral force of consent. In the sexual domain, when someone is deceived about some feature of their partner, knowledge of which would be dispositive of their decision to have sex – a dealbreaker – the moral validity of their consent is undermined. I argue that in order to determine whether someone has discharged their duties of disclosure in the sexual domain, we should ask whether, upon receiving a token of consent to (...) sex, they have a justified belief that their partner would consent to the sexual encounter given all the features that it has. I argue that whether an agent has a justified belief in this proposition is a function of the agent’s body of evidence and which alternatives uneliminated. (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)

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.

Children and young people under 18 years old should no longer be regarded as incompetent to give or withhold consent in decisions involving their health care, Recent research suggests a functional test of cognitive and emotional maturity, rather than a strict age cut-off point. However, it is often difficult to implement these recommendations in practice, not least because the law is, if anything, increasingly 'hard-line' about children's autonomy.

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)

Most regulations and guidelines require that potential research participants be told a great deal of information during the consent process. Many of these documents, and most of the scholars who consider the consent process, assume that all this information must be disclosed because it must all be understood. However, a wide range of studies surveying apparently competent participants in clinical trials around the world show that many do not understand key aspects of what they have been told. The (...) standard view of the conditions for valid consent therefore implies that these people have failed to give valid consent to research participation. In this paper we argue that the standard view is false. The primary function of the requirement that researchers disclose information about a study is the avoidance of illegitimate control over someone’s consent decision, which is a form of fraud.We derive the content and manner of appropriate disclosure by analysing the ways in which the manipulation of information can invalidate consent. Our analysis shows that the informational requirements for valid consent are conceptually distinct and thus unlikely to have identical contents. This implies that consent can be valid when not everything that ought to be disclosed by the person asking for consent is understood by the person who proffers it. (shrink)

According to an often repeated definition, economics is the science of individual choices and their consequences. The emphasis on choice is often used – implicitly or explicitly – to mark a contrast between markets and the state: While the price mechanism in well-functioning markets preserves freedom of choice and still efficiently coordinates individual actions, the state has to rely to some degree on coercion to coordinate individual actions. Since coercion should not be used arbitrarily, coordination by the state needs to (...) be legitimized by the consent of its citizens. The emphasis in economic theory on freedom of choice in the market sphere suggests that legitimization in the market sphere is “automatic” and that markets can thus avoid the typical legitimization problem of the state. In this paper, I shall question the alleged dichotomy between legitimization in the market and in the state. I shall argue that it is the result of a conflation of choice and consent in economics and show how an independent concept of consent makes the need for legitimization of market transactions visible. Footnotes1 For helpful comments and suggestions I am most grateful to Marc Fleurbaey, Alain Marciano, Herlinde Pauer-Studer, Thomas Pogge, Hans Bernhard Schmid, to seminar or conference participants in Aix-Marseille, Tutzing, Paris, and Amsterdam, and to two anonymous referees. (shrink)

The concepts of placebos and placebo effects refer to extremely diverse phenomena. I recommend dissolving the concepts of placebos and placebo effects into loosely related groups of specific mechanisms, including (potentially among others) expectation-fulfillment, classical conditioning, and attentional-somatic feedback loops. If this approach is on the right track, it has three main implications for the ethics of informed consent. First, because of the expectation-fulfillment mechanism, the process of informing cannot be considered independently from the potential effects of treatment. Obtaining (...) informed consent influences the effects of treatment. This provides support for the authorized concealment and authorized deception paradigms, and perhaps even for outright deceptive placebo use. Second, doctors may easily fail to consider the potential benefits of conditioning, leading them to misjudge the trade-off between beneficence and autonomy. Third, how attentional-somatic feedback loops play out depends not only on the content of the informing process but also on its framing. This suggests a role for libertarian paternalism in clinical practice. (shrink)

Many think that it would be wrong to defend an individual from attack if he competently and explicitly refuses defensive intervention. In this paper, I consider the extent to which the preferences of victims affect the permissibility of defending groups or aggregates. These cases are interesting and difficult because there is no straightforward sense in which a group can univocally consent to or refuse defensive intervention in the same way that an individual can. Among those who have considered this (...) question, the dominant view is that that consent imposes only an extremely weak constraint on defending groups. I argue that this is mistaken and defend a much more robust requirement. Indeed, on the account that I develop there are cases in which the refusal of a single member of a victim is enough to make it impermissible to defend a much larger group. At the heart of my account is the idea that consent functions as an internal component of the broader requirement that defensive harms be proportionate: if a victim validly refuses defensive intervention, the fact that defence will benefit him cannot be used to justify harming innocents as the lesser-evil. An important implication of this view is that what constitutes sufficient consent from the members of a victim group will vary on a case-by-case basis. (shrink)

Over the past few decades, Indigenous communities have successfully campaigned for greater inclusion in decision-making processes that directly affect their lands and livelihoods. As a result, two important participatory rights for Indigenous peoples have now been widely recognized: the right to consultation and the right to free, prior and informed consent (FPIC). Although these participatory rights are meant to empower the speech of these communities—to give them a proper say in the decisions that most affect them—we argue that the (...) way these rights have been implemented and interpreted sometimes has the opposite effect, of denying them a say or ‘silencing’ them. In support of this conclusion we draw on feminist speech act theory to identify practices of locutionary, illocutionary, and perlocutionary group silencing that arise in the context of consultation with Indigenous communities. (shrink)

In December 2015, Wales became the first country in the UK to move away from an opt-in system in organ procurement. The new legislation introduces the concept of deemed consent whereby a person who neither opt in nor opt out is deemed to have consented to donation. The data released by the National Health Service in July 2017 provide an excellent opportunity to assess this legislation in light of concerns that it would decrease procurement rates for living and deceased (...) donation, as well as sparking an increase in family refusals. None of these concerns have come to pass, with Wales experiencing more registered donors, fewer family refusals and more living donations. However, as the number of actual donors has dropped slightly from a high level, the situation must be monitored closely in the years to come. (shrink)

Informed consent is a central concept for empirical and theoretical research concerning pregnancy management decisions and is often taken to be one of the more fundamental goals of the profession of genetic counseling. Tellingly, this concept has been seen by disability communities as salutary, despite longstanding critiques made by disability activists, advocates, and scholars concerning practices involved in genetic counseling more generally. In this chapter, we show that the widespread faith in informed consent is misleading and can be (...) detrimental to the practice of genetic counseling as guided by concerns of justice and equity. We proceed in two steps. First, we explain how informed consent is flawed as a practical concept. Second, we show how the inadequacy of informed consent illuminates the animating core of disability critiques of genetic counseling: the issue of ableism. We argue that the problem of ableism cannot be solved with informed consent because it is not merely a problem of information, but also of epistemic schemas. We suggest that what we call critically informed consent is better suited to move genetic counseling from being aware of the problem of ableism to becoming actively anti-ableist. (shrink)

In this essay, I discuss why consent is invalidated by duress that involves attaching penalties to someone's refusal to give consent. At the heart of my explanation is the Complaint Principle. This principle specifies that consent is defeasibly invalid when the consent results from someone conditionally imposing a penalty on the consent‐giver's refusal to give the consent, such that the consent‐giver has a legitimate complaint against this imposition focused on how it is affects (...) their incentives for consenting. The Complaint Principle says that this consent is defeasibly invalid to make room for the Authorization Principle, which allows sincere authorizations to constitute valid consent, even when these are issued by an agent acting under duress. The Authorization Principle has application only in cases of third‐party duress because when the consent‐receiver is the source of the duress, the consent‐giver is not sincerely authorizing the action. (shrink)

Consider three cases: -/- Turn: A trolley is about to kill five innocent strangers. You can turn the trolley onto me, saving the five and killing me. -/- Hurl: A trolley is about to kill five innocent strangers. You can hurl me at the trolley, saving the five and paralyzing me. -/- TurnHurl: A trolley is about to kill five innocent strangers. You can turn the trolley onto me, saving the five and killing me. You can instead hurl me at (...) the trolley, saving the five and paralyzing me. -/- Most find the following four claims intuitively plausible: -/- (1) It is permissible to turn the trolley onto me in Turn. (2) It is impermissible to hurl me at the trolley in Hurl. (3) It is impermissible to turn the trolley onto me in TurnHurl. (4) It is permissible to hurl me at the trolley in TurnHurl. -/- But how does turning go from permissible to impermissible, and hurling from impermissible to permissible, when both alternatives are available? I argue that such “secondary permissibility” claims are explained by contrastive consent. Even if I do not consent to being harmed, it is likely I’ll consent to being hurled at the trolley rather than being turned onto. (shrink)