Abstract
There is an ongoing debate about the “ontology” of consent. Some argue that it is a mental act, some that it is a “hybrid” of a mental act plus behaviour that signifies that act; others argue that consent is a performative, akin to promising or commanding. Here it is argued that all these views are mistaken—though some more so than others. We begin with the question whether a normatively efficacious act of consent can be completed in the mind alone. Standard objections to this “mentalist” account of consent can be rebutted. Here we identify a much deeper problem for mentalism. Normatively transformative acts of consent change others’ reasons for acting in a distinctive—“robust”—way. Robust reason-changing involves acts aimed at fulfilling a distinctive kind of reflexive and recognition-directed intention. Such acts cannot be coherently performed in the mind alone. Consent is not a mental act, but nor is it the signification of such an act. Acts of consent cannot be “completed” in the mind, and it is a mistake to view consent behaviour as making known a completed act of consent. The robust reason-changing account of consent developed here shares something with the performative theory, but is not saddled with a label whose home is philosophy of language. Certain kinds of performative utterance may change reasons robustly, but not all robust reason-changing involves or requires acts of speech, and consent can be effected by a wide range of behavioural acts.
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Notes
Peter Westen (2004) may seem to be an advocate of mentalism in that he holds that consent is a mental state of factual acquiesence, but Westen does not hold that the mental state of consent, so conceived, is thereby normatively transformative. Our focus here is upon the view that a mental act by itself can constitute normatively transformative consent.
Thus Hurd (1996) argues: ‘autonomy resides in the ability to will the alteration of moral rights and duties, and if consent is normatively significant precisely because it constitutes an “expression of autonomy” then consent must constitute the “exercise of the will” pp. 124–125.
Hurd’s (1996) formulation is more complex than this, in order to resolve certain issues about the scope of an act of consent, but, at root, it is an intention directed towards the act to be performed.
E.g., the “feeling of willingness” identified by Hickman and Muehlenhard (1999).
In a similar vein Govert den Hertogh (2011) suggests ‘consenting in the relevant sense should be seen, not as a mental but as a public act, a ‘performative’, which by itself has the effect of changing other people’s normative status, their reasons to act or to refrain from acting’. (p. 301). A similar point is made by Joel Feinberg (1986), p. 183.
The completeness thesis by itself does not tell us a great deal about the absence of consent, and even less about the nature of refusals.
A qualification is in order. Here our focus is on acts of consent, and the debate about whether a mental act can constitute a normatively efficacious act of consent. Elsewhere I distinguish acts of consent from what I call consent-in-acting (if R intentionally touches S, R sets aside her objection to S being in bodily contact with her, she consents to the contact, but without performing an act of consent). For our current purposes, it is sufficient to note that mentalism seems to be even less plausible for consent-in-action, and thus not worthy of further discussion here.
A quick non-scholarly test: Google search for “I hereby consent” has over 300, 000 hits. “I hereby promise” (which might seem to be a paradigmatic example of performative) only has just over 40,000 hits. [Search March 2015].
Joseph Raz (1975) makes this point about the exercise of legal powers in the following way: 'most legal powers are exercised by acts with only negligible non-normative consequences, like signing, so that there are few reasons for or against doing them apart from their legal or other normative consequences' (p. 103).
Note also that in many normative contexts (but not all) permissive consent is revocable (Dougherty 2014). This means that the consenting party has the power to put another under an obligation that, prior to the act, she was not under. This means that the person with the power to revoke consent has a power analogous to command. A robust reason changing account can explain this analogy between the two powers.
Uniacke (2013).
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I thank an anonymous reviewer for a number of challenging objections and comments.
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Manson, N.C. Permissive consent: a robust reason-changing account. Philos Stud 173, 3317–3334 (2016). https://doi.org/10.1007/s11098-016-0665-8
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DOI: https://doi.org/10.1007/s11098-016-0665-8