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Sommers, Roseanna. Commonsense Consent
2020, Yale Law Journal, 2232
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Added by: Tomasz Zyglewicz, Shannon Brick, Michael Greer
Abstract: Consent is a bedrock principle in democratic society and a primary means through which our law expresses its commitment to individual liberty. While there seems to be broad consensus that consent is important, little is known about what people think consent is. This article undertakes an empirical investigation of people’s ordinary intuitions about when consent has been granted. Using techniques from moral psychology and experimental philosophy, it advances the core claim that most laypeople think consent is compatible with fraud, contradicting prevailing normative theories of consent. This empirical phenomenon is observed across over two dozen scenarios spanning numerous contexts in which consent is legally salient, including sex, surgery, participation in medical research, warrantless searches by police, and contracts. Armed with this empirical finding, this Article revisits a longstanding legal puzzle about why the law refuses to treat fraudulently procured consent to sexual intercourse as rape. It exposes how prevailing explanations for this puzzle have focused too narrowly on sex. It suggests instead that the law may be influenced by the commonsense understanding of consent in all sorts of domains, including and beyond sexual consent. Meanwhile, the discovery of “commonsense consent” allows us to see that the problem is much deeper and more pervasive than previous commentators have realized. The findings expose a large—and largely unrecognized—disconnect between commonsense intuition and the dominant philosophical conception of consent. The Article thus grapples with the relationship between folk morality, normative theory, and the law.

Comment (from this Blueprint): Content warning: details of rape. This article presents a series of experimental studies that have an important result for understanding a legal puzzle that has plagued many feminist theorists. Sommers argues that the dominant explanation of the puzzle has been wrongly diagnosed by feminist theorists, and that attention to folk intuitions about the nature of consent can explain the law's inconsistent treatment of consent that is procured by deception.

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Tan, Sor-Hoon. Why Equality and Which Inequalities?: A Modern Confucian Approach to Democracy
2016, Philosophy East and West 66(2): 488–514
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Added by: Simon Fokt, Contributed by: Wilson Lee
Abstract:

Abstract: This article challenges the conventional view that Confucianism has no place for the value of equality by shifting the focus from direct justification of equality (Why equality?) to concerns about actual social and political problems (Which inequalities are objectionable?). From this perspective, early Confucian texts endorse some inequalities, in particular those based on virtue, while objecting to others, especially socioeconomic inequalities. Confucians do not consider equality or inequality as inherently valuable, but evaluate them in relation to issues of good government.

Comment: Coming from a Confucian perspective, the paper examines the relation between equality and democracy with implications for both reconstructing Confucian political philosophy for today and democratic theory as such. This is an important point of dialogue for Anglophone political philosophers to have a more objective picture of Confucian political philosophy instead of the usual imperialist caricatures. The point of dialogue is also being explored by a Singaporean scholar in Singapore (despite having been once a crown colony its scholarship is unfortunately very much ignored in the Anglophone world), whose work and life lies at the intersection of Chinese and Anglo-European intellectual traditions.

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Tsai, George. The morality of state symbolic power
2016, Social Theory and Practice, 42(2):318–342
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Added by: Ten-Herng Lai
Abstract: Philosophical interest in state power has tended to focus on the state’s coercive powers rather than its expressive powers. I consider an underexplored aspect of the state’s expressive capacity: its capacity to use symbols (such as monuments, memorials, and street names) to promote political ends. In particular, I argue that the liberal state’s deployment of symbols to promote its members’ commitment to liberal ideals is in need of special justification. This is because the state’s exercise of its capacity to use symbols may be in tension with respecting individual autonomy, particularly in cases in which the symbols exert influence without engaging citizens’ rational capacities. But despite the fact that the state’s deployment of symbols may circumvent citizens’ rational capacities, I argue that it may nonetheless be permissible when surrounded by certain liberal institutions and brought about via democratic procedures.

Comment (from this Blueprint): This paper is not about objectionable commemorations in particular, but sets out to explore how any political symbols can be justified at all in a liberal democratic state. This should be a preliminary to any discussion we have about statues and monuments. A particular point of interest is that, according to Tsai, the state ought to engage with its citizens through rational persuasion. This will be relevant to latter discussions regarding the nature of moral education, and the role emotions play in it.

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Williams, Melissa. Citizenship as Identity, Citizenship as Shared Fate, and the Functions of Multicultural Education
2003, In Kevin McDonough & Walter Feinberg (eds.), Citizenship and Education in Liberal-Democratic Societies: Teaching for Cosmopolitan Values and Collective Identities. Oxford University Press.
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Added by: Deryn Mair Thomas
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This is the second of the four essays in Part II of the book on liberalism and traditionalist education; all four are by authors who would like to find ways for the liberal state to honour the self-definitions of traditional cultures and to find ways of avoiding a confrontation with differences. Melissa Williams examines citizenship as identity in relation to the project of nation-building, the shifting boundaries of citizenship in relation to globalization, citizenship as shared fate, and the role of multicultural education within the view of citizenship-as-shared-fate. She argues the other side of the same coin to that presented by Shelley Burtt in the previous chapter: according to Williams, the liberal state often demands too much in the way of loyalty from traditional groups, and when it does, it runs a strong risk of becoming oppressive and illiberal. Moreover, she holds that there is no need for a single shared identity among citizens of the liberal state. Her conception of people tied together by a shared fate is to this extent compatible with Burtt’s attempt to make liberalism’s commitment to autonomy more hospitable to groups of individuals encumbered by unchosen attachments, but her notion of citizenship as shared fate also goes further than that, and possibly stands in some tension with, Burtt’s view, since it allows and even encourages people to develop primary affiliation to all kind of groups – traditional as well as global.

Comment: This text explores existing conceptions of citizenship as identity and the challenges these pose for the ideal liberal state. In addition, the author proposes a previous unrecognised conception of citizenship as shared fate. In doing so, the paper touches on a variety of topics in contemporary political philosophy and theory, such as multiculturalism and globalization, the boundaries of political identity, the grounding of liberal democracy, and the project of civic education. As such, it would be most useful as a supplemental reading in undergraduate level political philosophy courses discussing any of the aforementioned topics, or in more specific contexts to explore questions about citizenship and what it means to share an idenitity with a group of others, with whom we may never meet face-to-face or have direct interpersonal dealings. The article itself has interesting implications for questions of social cohesion and group identity.

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