Abstract
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.
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Notes
In saying that her past consent was trumped, I am assuming that morally inefficacious consent is possible. This strikes me as the standard view—consent given by an incompetent person is morally inefficacious consent. But we could be neutral on this by framing this as a question about why, for example, Alfred’s past will and utterance in favor of the piercing is trumped by his present will and his most recent utterance against it. But, as the previous sentence suggests, this way of framing things would make our discussion rather cumbersome.
Thanks to Andy Egan for making this point in his comments on this paper for the 2013 Bellingham Summer Philosophy Conference. These comments also contained his presentation of the Subtle Sirens case discussed next in the main text.
Compare Homeric sirens:
“…you will come to the Sirens who enchant all who come near them. If any one unwarily draws in too close and hears the singing of the Sirens, his wife and children will never welcome him home again, for they sit in a green field and warble him to death with the sweetness of their song. There is a great heap of dead men's bones lying all around, with the flesh still rotting off them.”
The fact that the listeners end up willingly being “warbled to death” surrounded by rotting corpses casts doubts on their rationality. But we could modify the case so that the listeners are able to live out long lives on the island, framed around listening to this song—their desire to enjoy the song becomes their central life project that they pursue in a rational manner. Homer, The Odyssey, translated by Samuel Butler, accessed at http://classics.mit.edu/Homer/odyssey.12.xii.html.
In a casual show of hands poll, the audience of the Bellingham Summer Philosophy Conference voted 27–10 in favor of it being permissible for the sailors to continue to bind Odysseus.
Thanks to an anonymous referee and Brian Weatherson for pressing me on these explicit and implicit contractual arrangements, respectively.
Fans of future consent are invited to strengthen this claim so that it states that we must respect someone’s well-formed present dissent at the expense of her well-formed future consent.
I say “at best” because if future dissent is possible, then consent is not always revocable: present consent would not be revoked by future dissent.
Similarly, a Kantian might say I must treat him as an “end in himself and not as a mere means.” This claim aims to capture my obligations to him as an autonomous agent, and hence faces the same problem faced by an explanation in terms of autonomy.
Thanks to an anonymous referee for making this point.
These problems do not simply affect an explanation based on presentism, but also explanations that appeal to other versions of the so-called A-theory of time, according to which there are irreducibly tensed properties. For a helpful overview of the A-Theory, see Zimmerman (2005).
Derek Parfit defends a similar view, according to which distinct temporal selves have independent moral statuses. However, Parfit’s conception of a self is too coarse-grained to provide a solution to our puzzle. The relevant person-stages of Alfred and Bethany will be strongly psychologically connected and so will be the same Parfitian selves. Thanks to Carla Merino for making this point (Parfit 1984).
Thanks to an anonymous referee for highlighting these themes.
Hume makes this point in his Treatise on human nature (2010, Book III, Section II).
It seems to me that the contractualist strand to Kantian ethical theory is the most promising avenue for explaining why present dissent trumps past consent. The Formula of Humanity looks an unpromising avenue because, as I mentioned in footnote 12, merely staying that one only treats someone as an end in herself by respecting her present dissent simply states, in a theoretically-laden way, what needs to be explained. The Formula of Universal Law seems unpromising in light of the alternative rule, initial consent, which I shortly discuss in the main text: it seems to me that I could act on a maxim of following initial consent, while simultaneously rationally willing that it become universal law.
Thanks to an anonymous referee for offering this argument, and for several pressing comments showing the relative merits of irrevocable initial consent.
Holton develops this conception of a resolution in his Willing, wanting, waiting (2009).
Thanks to Agustin Rayo for raising this worry.
References
Alexander, L. (1996). The moral magic of consent II. Legal Theory, 2(3), 165–174.
Chwang, E. (2009). A defense of subsequent consent. Journal of Social Philosophy, 40(1), 117–131.
Davis, J. (2004). Precedent autonomy and subsequent consent. Ethical Theory and Moral Practice, 7, 267–291.
Dworkin, G. (1972). Paternalism. Monist, 56, 64–84.
Holton, R. (2009). Willing, wanting, waiting. Oxford: Oxford University Press.
Hume, D. (2010). Treatise on human nature. Boston: MobileReference.
Hurd, H. (1996). The moral magic of consent. Legal Theory, 2, 121–146.
McGregor, J. (2005). Is it rape? On acquaintance rape and taking women’s consent seriously. Aldershot: Ashgate.
Parfit, D. (1984). Reasons and persons. Oxford: Oxford University Press.
Rawls, J. (2009). A theory of justice. Cambridge, MA: Harvard University Press.
Scanlon, T. M. (1998). What we owe to each other. Cambridge, MA: Harvard University Press.
VanDeVeer, D. (1979). Paternalism and subsequent consent. Canadian Journal of Philosophy, 9, 631–642.
Wertheimer, A. (2003). Consent to sexual relations. Cambridge: Cambridge University Press.
Zimmerman, D. (2005). The A-theory of time, the B-theory of time, and taking tense seriously. Dialectica, 59(4), 401–457.
Acknowledgments
For helpful discussions and comments, I would like to thank Larry Alexander, Michael Bratman, Josh Cohen, Tyler Doggett, Andy Egan, Dan Halliday, Anne Hamilton, David Hills, Sophie Horowitz, Seth Lazar, RJ Leland, Ishani Maitra, Ned Markosian, Julia Markovits, Carla Merino, Sara Mrsny, Daniel Nolan, Kristi Olson, Govind Persad, David Plunkett, Agustin Rayo, Debra Satz, Paulina Sliwa, Jean Thomas, Brian Weatherson, two anonymous reviewers, and audiences at the Pacific APA, Stanford University, the Australian National University, Dartmouth College, the Workshop on Time, Agency and Decision at Monash University and the 2013 Bellingham Summer Philosophy Conference.