Sommers, Roseanna. Commonsense Consent
2020, 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.Schwartzman, Lisa. Intuition, Thought Experiments, and Philosophical Method: Feminism and Experimental Philosophy2012, Journal of Social Philosophy 43 (3): 307-316
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Added by: Tomasz Zyglewicz, Shannon Brick, Michael GreerAbstract: Contemporary analytic philosophers often employ thought experiments in arguing for or against a philosophical position. These abstract, counterfactual scenarios draw on our intuitions to illustrate the force of a particular argument or to demonstrate that a certain position is untenable. Political theorists, for instance, employ Rawls's “original position” to illustrate the power of “justice as fairness,” and epistemologists raise “Gettier cases” to problematize a standard definition of knowledge. Although not all philosophers proceed in this manner, such methods are common in many areas of contemporary analytic philosophy...Comment (from this Blueprint): Schwartzman mounts a critical argument about x-phi's feminist potential. She argues that the sorts of methods that are central to much x-phi are uncritical of the ways in which intuitions can be shaped by a variety of prejudicial and ideological forces, and are unable to reveal the existence of the sort of structural injustice that is responsible for professional philosophy's radically unrepresentative demographics. Importantly, along the way she recruits empirical work about the nature of implicit bias and stereotype threat.Pohlhaus, Gaile. Different Voices, Perfect Storms, and Asking Grandma What She Thinks2015, Feminist Philosophy Quarterly 1 (1): 1-24
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Added by: Tomasz Zyglewicz, Shannon Brick, Michael GreerAbstract: At first glance it might appear that experimental philosophers and feminist philosophers would make good allies. Nonetheless, experimental philosophy has received criticism from feminist fronts, both for its methodology and for some of its guiding assumptions. Adding to this critical literature, I raise questions concerning the ways in which “differences” in intuitions are employed in experimental philosophy. Specifically, I distinguish between two ways in which differences in intuitions might play a role in philosophical practice, one which puts an end to philosophical conversation and the other which provides impetus for beginning one. Insofar as experimental philosophers are engaged in deploying “differences” in intuitions in the former rather than the latter sense, I argue that their approach is antithetical to feminist projects. Moreover, this is even the case when experimental philosophers deploy “differences” in intuitions along lines of gender.Comment (from this Blueprint): Pohlhaus begins by presenting her argument as a critical response to both Buckwalter and Stich's controversial article, and Antony's (2012) reply to it. What follows is an argument about the way x-phi practicioners have failed to fully incorporate feminist insights about the significance of intuition difference. For Pohlhaus, a discovery that some one or some groups has a different intuitive response to one's own is the jumping off point for a potentially transformative conversation, rather than a result that either puts to rest a philosophical concept, or needs to be explained away.Can’t find it?Contribute the texts you think should be here and we’ll add them soon!
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