Consent

2. Forms and conditions

Attempted justifications by consent have appealed to a wide variety of forms of consent. The most fundamental divisions are those between personal and impersonal consent and between actual and hypothetical consent. Consensual justification of an act or policy with respect to some individual usually involves showing that the individual (expressly or tacitly) personally consented to it; but theorists have also appealed to the consent of the majority of an individual’s colleagues (for example, fellow citizens) or to the consent of an individual’s ancestors (for example, the founders of the society). Justification by appeal to personal consent is by far the most convincing of these options, since the authority of majorities over us seems to depend on our prior personal consent to be governed by them, and our forebears could not possibly have been authorized to consent for us.

Justification by consent also standardly appeals to the actual consent of the affected persons. This actual consent may be given either by some discrete act or by some ongoing series of acts (such as active participation in the practices of some group). And actual consent may be either express or tacit (implicit, indirect). Express consent is consent given by an explicit verbal or written undertaking or by other direct but nonverbal consensual acts (such as raising one’s hand). Tacit consent is given by actions or omissions (such as inactivity or silence) that do not involve an explicit undertaking, but that none the less constitute the making of a morally significant choice in the context of a clear, noncoercive choice situation. Some attempted justifications, however, appeal not to actual but to hypothetical consent. Hypothetical consent can be ideal (what fully rational persons would consent to), counterfactual (what real persons could or would have consented to, had they been pressed to give their consent) or dispositional (what real persons would have consented to, had they been able). Only appeals to the last of these (by which we justify, for example, imposing medical treatment on an unconscious injured person) seem to be genuine justifications by consent. Appeals to the others are really attempts to justify by showing that an arrangement is best or acceptable, independent of people’s consent.

Consent of whatever form can only justify acts or arrangements given the satisfaction of a complex set of conditions for binding consent. These conditions can be divided into five categories. First, there are knowledge conditions. Where one is deceived or misled about an arrangement, or where one is otherwise non-negligently ignorant of crucial facts, apparent consensual acts may not bind (because consent is not ‘informed’). Second, binding consent must be intentional, not only in the sense that the acts themselves must be intentionally performed, but also that they must involve the intention to give consent and thereby alter existing moral relations. Third, consent can only be given by the competent, which may exclude in various contexts apparent consent given by the insane, severely retarded, emotionally disturbed, immature, intoxicated and so on. Fourth, binding consent must be voluntary, limiting it to cases not involving the extraction of consent by coercion, undue influence, exploitation, unfair bargaining advantage and so on. Finally, consent only binds given acceptability of content. In most legal systems, for instance, agreements you make to commit crimes, become a slave or allow yourself to be killed are not enforceable. The moral basis for such rules could be either the alleged inalienability of the rights at issue or the contradiction supposedly involved in the creation of moral obligations to do the immoral.