[If you like this blog, consider signing up for the newsletter...]
Consent is vital in a liberal society. According to basic liberal principles, I am master of my own domain. You are only entitled to interfere with this domain if I give you consent to do so. But what does it mean to give consent? Broadly speaking, there are two answers to this question in the philosophical literature:
Attitudinal View: To give consent to a particular act X is to subjectively assent to X (subjectively intend that X be done).
Performative View: To give consent to a particular act X is to publicly communicate one’s assent to X. (Note: ‘Public’ here does not mean communication to the public at large; it means communication at a minimum to the person doing X).
You might think that nothing much hangs on this distinction. Evidence of consent is going to be an important consideration in any case of disputed consent and it is very difficult to get evidence of someone’s subjective attitude unless there was a public communication. But the distinction might make a difference in some cases. It might, in particular, make a difference to how you feel about some ‘hot button’ disputes around consent to sexual relations. There has been a noticeable move towards ‘affirmative consent’ standards on US college campuses (and elsewhere) in recent years. These standards demand clear and unambiguous public communications of consent prior to any sexual contact. The introduction of these standards has proven to be relatively controversial. But one way of viewing them is that they are simply attempts to enshrine the performative view. In other words, if consent always requires public communication, then affirmative consent standards do little more than enshrine the morally correct approach to consent.* If, on the other hand, the attitudinal view is correct, then affirmative consent standards demand more than is morally required. They take a highly risk averse approach to sexual consent.
That, at any rate, is how Tom Dougherty frames the issue in his article ‘Yes means Yes: Consent as Communication’. The article defends the performative view of consent. And it presents a very detailed and nuanced case. I want to cover some of the arguments he presents in today’s post. I won’t be able to cover all of them. But the centrepiece is an analogy between promising and consenting and I want to explain that in what follows.
1. Promising and Consenting are Related
Dougherty’s main argument is, in effect, an argument from analogy. It works like this:
- (1) Promising and consenting are similar in all important respects.
- (2) Public communication is needed in the case of promising.
- (3) Therefore we should (probably) demand public communication in the case of consenting.
For those who are interested in this sort of thing, this is a standard template for arguments from analogy that I have been using for some time. It comes from the work of Douglas Walton. Arguments from analogy are informal, defeasible arguments. They don’t provide logically ineluctable grounds for supporting their conclusions. Instead, they provide probabilistic and defeasible grounds. It’s always possible for someone to come along and point out important disanalogies between the two cases that thereby block the conclusion. Nevertheless, a well done argument from analogy can be pretty powerful. (And, in any event, Dougherty ends up providing something a bit stronger than an argument from analogy because he locates general principles that apply to both cases).
I’ll go through the two main premises of this argument in the remainder of this post, starting with the first: Why should we view promising and consenting as being similar?
The answer lies in how they structure relationships of rights and duties between two or more parties. Think about the nature of a promise. If I promise to do X for you, I am attempting to impose an obligation on myself. If you accept my promise, then you are accepting that you have a claim-right to my doing X for you. This results in my having a duty to do X. Suppose I promise to deliver heating oil to you tomorrow morning. You accept my promise. You now have a moral right to demand that I deliver the oil; and I have moral duty to do so. Whether I have a legal duty is a separate question: the law of contract, which is the closest thing we have to a law of promising, does not entitle you to legally enforce every promise, only those promises that meet certain conditions. In this sense, the law of contract is more restrictive than the morality of promising.
That’s by the by, the important point is the similarities between promising and consenting. Dougherty argues that they are inversions of one another. Where promising involves the creation of rights and duties, consenting involves the relaxation of pre-existing rights and duties. The default presumption in a liberal society is that I have a right to non-interference; and you have a duty to respect my right to non-interference. If I consent to your doing X to me, I am waiving my right and removing your duty. Suppose I consent to sexual relations with you. I am thereby waiving my right to bodily non-interference, and removing your duty not to touch my body.
Because they both concern the nature of the rights and duties that subsist between individual, Dougherty thinks they are similar enough to get his argument off the ground. As he puts it, given their similarity, it would be odd if communication was necessary for one but not the other. He has a nice example that makes the point:
Suppose Paula and Tim agree that Tim can use Paula’s car while she is away, and Tim will water her plants. It would be odd to think that Paula can give this consent without communication, but Tim must communicate to establish the reciprocal promise. In addition, the same utterance can express both promise and consent. For example, Paula might write to Tim, allowing him to stay in her house, and promising that she will stock her fridge. It would be odd to think that she successfully issues her consent before she has set pen to paper, but she needs to communicate to make the promise. Instead, it is natural to think that both types of rights- transaction must be made in a common currency.
The same symmetry of reasoning applies for the reversal of a promise/consent. It would be odd if you could reverse consent through subjective intention alone, but need to communicate to reverse a promise. Indeed, there is good case for saying that communication for the reversal of consent is even more important than communication of the reversal of a promise. It seems more wrong for me to continue to do something to you (or your property) when you have reinstated a duty of non-interference and less for me to continue doing something if you have released me from a promise without communication.
2. Communication is Necessary for Promising
These examples make the initial case. They suggest that a parity of reasoning applies and they hint at the fact that successful promising requires some public communication. But they don’t answer the deeper question: why is public communication necessary in the case of promising? Dougherty has an argument for this — one that is based on the idea of common knowledge.
Common knowledge is a familiar but complicated phenomenon. It arises when two or more parties have recursive knowledge of each other’s state of mind. Suppose you and I are looking at a red flower. I see you looking at the flower; you see me looking at the flower. In this scenario, there is common knowledge of the flower’s redness. I know that there is a red flower; you know that there is a red flower. I know that you know that there is a red flower; you know that I know that there is a red flower. I know that you know that I know that there is a red flower; you know that I know that you know that there is a red flower. And so on, ad infinitum.
Common knowledge is an important concept in social theory, though its importance is often dimly appreciated. Steven Pinker and James Lee (and their colleagues) have been doing some very interesting work on how common knowledge is psychologically encoded and the role it plays in social coordination. I urge you to check it out. But you don’t need the detail they provide to understand Dougherty’s argument. The relevance of common knowledge in the present context has to do with the role it plays in structuring our moral and legal relationships and its connection to communication.
It will help if we sketch out the rough form of Dougherty’s argument first. This is entirely my reconstruction but I think it runs a little something like this:
- (4) Common knowledge is essential if promises are going to work.
- (5) Public communication is the most reliable way to create common knowledge.
- (6) Therefore, public communication is the most reliable way to get promises to work.
I have a few doubts about this reconstruction. I am not sure that ‘essential’ is the right word to use in premise (4). It may be that ‘very important’ is the right term. Why? Because, as we’ll see in a moment, Dougherty’s argument in favour of this view is largely consequentialist in nature and it allows for borderline cases of ‘not-quite’ promises. Also, you’ll notice that there is some distance between the conclusion (6) and premise (2) of the original argument from analogy. I think this is fair, however, because it’s pretty clear from Dougherty’s reasoning that communication is not necessary for common knowledge (it is logically conceivable for something to be common knowledge in the absence of a public communication). This might suggest that some weakening of the overarching argument from analogy is in order, but I think we could bridge the gap between premise (6) and (2) by appealing to the practical necessity of communication in the vast majority of cases. I won’t get into that now though.
I want to focus instead on the support for premises (4) and (5). Premise (4) is supported by considering once more how promises work. Remember, they create rights and duties where none previously existed. If I promise to look after your cat while you are away on holiday, I create a duty to look after the cat for myself, and you create a claim-right against me for that duty. If I fail to live up to the duty, you may even have a right to repair. Either way, I am accountable to you for the obligation entailed by the promise.
Dougherty’s argument is that promises perform three valuable functions in society and that they cannot do this without common knowledge of the rights and duties that are being created. The three functions are:
Informational functions: Promises create expectations that something is going to be done by the promisor and they encourage the promisee to rely upon that expectation. This has an important risk transferal function. If I promise to look after your cat, I create the expectation that I will do so, I invite you to rely upon that expectation by going on your holiday, and I thereby transfer risk to myself and away from you.
Agential functions: Promises expand the scope of the promisee’s agency. They allow the promisee to control the promisor’s actions and give them the authority to determine what the promisor does. This allows for greater certainty and predictability in the behaviour of others. When I promise to look after your cat, you have moral control over what I do for a period of time.
Relationship-building functions: Because promises create expectations, invite reliance, expand agency and increase predictability, they play an important role in relationship-building. They allow us to coordinate and cooperate with one another in valuable ways. They allow for greater trust. By promising to look after your cat, I enable you do something valuable (go on holiday) that you would not otherwise have done. If I succeed in looking after your cat, I further cement our bond of trust.
Promises can only perform these functions if both the promisor and promisee know what is demanded of them. If they do not have this knowledge, it is difficult to see how they could cooperate with another, create meaningful expectations, invite reliance, expand agency and so on.
That brings us to premise (5). This seems relatively easy to support. It is possible that common knowledge could be created through convention or custom. If I always look after your cat when you go away, without explicit agreement or communication, we may both, over time, come to believe that I have a duty to do so and you have a claim-right against me if I do not. But the problem here is a lack of certainty. It is much easier to create the common knowledge through a communicative act, i.e. by relying on some signal (verbal or otherwise) that carries the conventional meaning that a promise has been made.
Communication doesn’t solve everything of course. Some forms of communication can be vague or ambiguous. This might lead to doubts as to whether a promise has been made. Nevertheless, communication is more reliable than custom or convention. Furthermore, in high stakes scenarios, it would seem like nothing but a clear, unambiguous communication would suffice to create the requisite common knowledge.
3. Is Consent Any Different?
So much for promising and communication. Does the same reasoning apply to consent, or is consent sufficiently different from promising? Dougherty argues that the cases are similar.
Consent also performs valuable functions. Three are mentioned:
Enables Intimacy: As Dougherty puts it “Against a backdrop of duties shielding the private aspects of our lives, consent facilitates intimacy when it is invited.” (2013, 244).
Enables Alteration: By consenting to an action, I allow another party to alter my body or my property in potentially valuable (and potentially harmful) ways.
Enables Mutual Use: Consent allows two or more parties to use a common resource. This can include one’s property or one’s body. In this manner, consent also enables cooperation and coordination.
And, just like promising, consent can only perform these functions if there is common knowledge of the changes in rights and duties. It is only if we know that the usual duty of non-interference has been waived that we are able to engage in intimate acts of mutual value in a risk-free manner and to be accountable to one another for what happens.
And since, as we saw from the previous argument, common knowledge requires public communication, particularly in high stakes cases, it would seem to follow that public communication is required for consent.
That’s it for this post. To briefly recap, Dougherty’s argument is based on the similarities between promising and consenting. Where promising involves the creation of new rights and duties, consenting involves the relaxation of pre-existing rights and duties. They are inversions of one another, both altering the moral structure of the relationships we have with other people. The claim then is that because public communication is required for promises to do their moral work, it follows that public communication is also required for consent. The two are sufficiently similar to assume that the moral principles applying to the one apply to the other.
There is more to be said, of course. Dougherty’s argument is more carefully hedged than I am letting on here. He says a good deal more about the communicative standards that are required, allowing for implicit communication in some cases but not in others. He also discusses the possibility of silence sufficing for communication (short answer: it usually will not due to its ambiguity). I encourage you to read the full paper for those details.
* This isn’t quite right. Affirmative consent standards might just be attempting to enshrine the morally correct view, but they might fail to demand the right kind of public communication.