Pitkin, Hanna. Obligation and Consent – II
1966, The American Political Science Review 60, March: 39-52.
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Added by: Carl Fox
Introduction: [The doctrine of "hypothetical consent"] teaches that your obligation depends not on any actual act of consenting, past or present, by yourself or your fellow-citizens, but on the character of the government. If it is a good, just government doing what a government should, then you must obey it; if it is a tyrannical, unjust government trying to do what no government may, then you have no such obligation. Or to put it another way, your obligation depends not on whether you have consented but on whether the government is such that you ought to consent to it, whether its actions are in accord with the authority a hypothetical group of rational men in a hypothetical state of nature would have (had) to give to any government they were founding. Having shown how this formulation emerges from Locke's and Tussman's ideas, I want now to defend it as a valid response to what troubles us about political obligation, and as a response more consonant than most with the moral realities of human decisions about obedience and resistance. At the same time the discussion should also demonstrate how many different or even conflicting things that one might want to call "consent" continue to be relevant - a fact which may help to explain the tenacity of traditional consent theory in the face of its manifest difficulties. Such a defense and demonstration, with detailed attention to such decisions, are difficult; the discussion from here on will be more speculative, and will raise more questions than it answers.Sommers, Roseanna. Commonsense Consent2020, Yale Law Journal, 2232-
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Added by: Tomasz Zyglewicz, Shannon Brick, Michael GreerAbstract:
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.
Tilton, Emily, Jenkins Ichikawa, Jonathan. Not What I Agreed To: Content and Consent2021, Ethics, 132(1): 127-154.-
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Added by: Emma Holmes, David MacDonald, Yichi Zhang, and Samuel Dando-MooreAbstract:
Deception sometimes results in nonconsensual sex. A recent body of literature diagnoses such violations as invalidating consent: the agreement is not morally transformative, which is why the sexual contact is a rights violation. We pursue a different explanation for the wrongs in question: there is valid consent, but it is not consent to the sex act that happened. Semantic conventions play a key role in distinguishing deceptions that result in nonconsensual sex (like stealth condom removal) from those that don’t (like white lies). Our framework is also applicable to more controversial cases, like those implicated in so-called “gender fraud” complaints.Comment (from this Blueprint): Tilton and Ichikawa attempt to work out what goes wrong in certain deception cases but not in others. This is useful as a reply to Dougherty's argument that sex from deception is always morally serious and it engages with the issues Fischel raises around gender deception.
Walker, Rebecca L.. Medical Ethics Needs a New View of Autonomy2009, Journal of medicine and philosophy 33: 594-608.-
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Added by: Simon Fokt
Abstract: The notion of autonomy commonly employed in medical ethics literature and practices is inadequate on three fronts: it fails to properly identify nonautonomous actions and choices, it gives a false account of which features of actions and choices makes them autonomous or nonautonomous, and it provides no grounds for the moral requirement to respect autonomy. In this paper I offer a more adequate framework for how to think about autonomy, but this framework does not lend itself to the kinds of practical application assumed in medical ethics. A general problem then arises: the notion of autonomy used in medical ethics is conceptually inadequate, but conceptually adequate notions of autonomy do not have the practical applications that are the central concern of medical ethics. Thus, a revision both of the view of autonomy and the practice of “respect for autonomy” are in order.Comment: Walker argues against the Black Box view advocated by Beauchamp and Childress. The text is most useful when discussing principlism in biomedical ethics and more general issues related to autonomy and consent. The text works well when read alongside's Onora O'Neill's "Some limits of informed consent."
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Comment: Largely superseded by later work (see, for instance, Stark's 'Hypothetical Consent and Justification'), but still an interesting exploration of hypothetical consent and legitimate authority, as well as offering further critique of actual consent theories of political obligation. Would make for good further reading or an option for anyone attracted to more of a history of philosophy approach.