Wednesday, 11 February 2015

Consent as a Foundation of Justice: It's not as straight-forward as some would think.

Consider these five examples.

Example A:

Kirsten the store clerk is working late at a petrol station one evening when an armed robber comes through the door and points a gun at her head. The armed robber tells her to hand over the cash or she will be killed.

Kirsten agrees to hand over the cash.

Example B:

Paul gets lost walking in the desert and, through no fault of his own, is bitten by a rattlesnake. He runs to get help and after an hour of desperate searching comes across a man who sells rattlesnake anti-venom.

The salesman informs Paul that the salesman is the only one around for miles and it is an absolute certainty that without the purchasing of anti-venom Paul will die.

The salesman tells Paul that Paul must not only pay the market value for the anti-venom (100$) but Paul must also allow the salesman to urinate in Paul’s mouth.

Paul chooses the latter.

Example C:

Mark is a right-wing libertarian. Mark despises the fact that he is taxed by a government which he deems to be incompetent and injust.

One day a friend mentions to Mark that there are large areas in the Antarctic wilderness where no government influence is present. Mark is then left with a choice. He can either pay for the travel costs (Mark is very wealthy) and live a life free from government or he can choose to continue living with governments that tax him and misallocate what is, in Marks eyes, his money.

Mark chooses to stay put.


Example D:

Sam and Mick are co-workers. Mick is offered the opportunity to work in the same office space as Sam where Mick will have access to better facilities that will make his work more productive. However Sam has a personal vendetta against Mick and is liable to make rude comments and act in a dismissive or insulting manner towards Mick, making Mick's work life more stressful.

Mick declines the offer to work in the same office space as Sam.

Example E:

Sally likes Rose and wants to go on a date with her. One day Sally asks Rose if she would like to get coffee with her next saturday.

Rose says yes.


All five of these examples present situations in which an actor provides some form of consent or non-consent, in the sense that they agree to co-operate or not co-operate with another actor or proposal that has been offered to them.

Obviously, that is not to say that all five examples are examples of "genuine consent". It would seem that. at the very least, in one or two of the examples consent was obtained by nefarious and immoral means that would, depending on your moral outlook, invalidate the given consent.

The tricky question is what is genuine consent and when does it happen?

Often, especially when it comes to sex, genuine consent is characterised as "enthusiastic and informed consent" but I do wonder how far the addition of "enthusiasm" really gets us.

I mean sure in the bedroom if someone is not enthusiastic about the sex which their partner aims to initiate with them then that is a pause for concern, but outside of the bedroom how realistic is it to equate legitimate consent with enthusiasm?

Surely in an economic context, or even of the context of house-hold chores, it's reasonable to presume there are some arrangements which I can legitimately consent to despite not being enthusiastic about their undertaking. I can agree with flat-mates to hoover the lounge on a sunday, mop the kitchen on a wednesday and not play music without headphones after 10pm without actually enthusiastically wanting to do any of those things.

So what are the factors that go into making consent genuine outside of enthusiasm?
Well what seems to be important when judging the five cases above is context: Is there a threat of violence? What penalties will the agent incur if they do not consent? Are the penalties proportionate/reasonable?

The individual speech of act of consent, the mere utterance of "I agree" or "I will", is morally neutral. We can't discern whether or not that act of consent is respectable until we are given information about the context in which it was uttered.  

That is not to say that consent isn't important. Even as a utilitarian I hold to the idea that providing people with the ability to choose (or consent) between various options is the best if not most pragmatic method available to facilitate other peoples happiness.

All of this is just to point to the problem with taking a prima facie approach to consent as it relates to justice. Just social and political relations include consent. To say that a just world is a world in which we all consent to the institutions that affect our lives seems fairly straightforward. However the specification of what kinds of economic, political and social contexts are capable of giving sufficient grounds to consent requires a great deal more theorising.

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