Sensory-based hacking and consent

Suppose human beings are deterministic systems.

Then quite likely there are many cases where the complex play of associations combined with a specific sensory input deterministically results in a behavior in a way where the connection to the input doesn’t make rational sense. Perhaps I offer you a business deal, and you are determined to accept the deal when I wear a specific color of shirt because that shirt unconsciously reminds you of an excellent and now deceased business partner you once had, while you have found the deal dubious if I wore any other color. Or, worse, I am determined to reject a deal offered by some person under some circumstances where the difference-maker is that the person is a member of a group I have an implicit and irrational bias against. Or perhaps I accept the deal precisely because I am well fed.

If this is true, then we are subject to sensory-based hacking: by manipulating our sensory inputs, we can be determined to engage in specific behaviors that we wouldn’t have engaged in were those sensory inputs somewhat different in a way that has no rational connection with the justification of the behavior.

Question: Suppose a person consents to something (e.g., a contract or a medical procedure) due to deliberate deterministic sensory-based hacking, but otherwise all the conditions for valid consent are satisfied. Is that consent valid?

It is tempting to answer in the negative. But if one answers in the negative, then quite a lot of our consent is in question. For even if we are not victims of deliberate sensory-based hacking, we are likely often impacted by random environmental sensory-based hacking—people around us wear certain colors of shirts or have certain shades of skin. So the question of whether determinism is true impacts first-order questions about the validity of our consents.

Perhaps we should distinguish three kinds of cases of consent. First, we have cases where one gives consent in a way that is rational given the reasons available to one. Second, we have cases where one gives consent in a way that is not rational but not irrational. Third, we have cases of irrational consent.

In cases where the consent is rational, perhaps it doesn’t matter much that we were subject to sensory-based hacking.

In cases where the consent is neither rational nor irrational, however, it seems that the consent may be undermined by the hacking.

In cases where the consent is irrational, one might worry that the irrationality undercuts validity of consent anyway. But that’s not in general true. It may be irrational to want to have a very painful surgery that extends one’s life by a day, but the consent is not invalidated by the irrationality. And in cases where one irrationally gives consent it seems even more plausible that sensory-based hacking undercuts the consent.

I wonder how much difference determinism makes to the above. I think it makes at least some difference.

Reducing promises to assertions

To promise something, I need to communicate something to you. What is that thing that I need to communicate to you? To a first approximation, what I need to communicate to you is that I am promising. But that’s circular: it says that promising is communicating that I am promising. This circularity is vicious, because it doesn’t distinguish promising from asking: asking is communicating that I am asking.

But now imagine I have a voice-controlled robot named Robby, and I have programmed him in such a way that I command him by asserting that Robby will do something because I have said he will do it. Thus, to get him to vacuum the living room, I assert “Robby will immediately vacuum the living room because I say so.” As long as what I say is within the range of Robby’s abilities, any statement I make in Robby’s vicinity about what he will do because I say he will do it is automatically true. This is all easily imaginable.

Now, back to promises. Perhaps it works like this. I have a limited power to control the normative sphere. This normative power generates an effect in normative space precisely when I communicate that I am generating that effect. Thus, I can promise to buy you lunch by asserting “I will be obligated to you to buy you lunch.” And I permit you to perform heart surgery by asserting “You will cease to have a duty of respect for my autonomy not to perform heart surgery on me.” As long as what I say is within my normative capabilities, by communicating that I am making it true by communicating it, I make it be true, just as Robby will do what I assert he will do because of my say-so, as long as it is within his physical capabilities.

This solves the circularity problem for promising because what I am communicating is not that I am promising, but the normative effect of the promising:

1. x promises to ϕ to y if and only if x successfully exercises a communicative normative power to gain an obligation-to-y by ϕing

2. a communicative normative power for a normative effect F is a normative power whose object is F and whose successful exercise requires the circumstance that one express that one is producing F by communicating that one is so doing.

There are probably some further tweaks to be made.

Of course, in practice, we communicate the normative effect not by describing it explicitly, but by using set phrases, contextual cues, etc.

This technique allows us to reduce promising, consenting, requesting, commanding and other illocutionary forces to normative power and communicating, which is basically a generalized version of assertion. But we cannot account for communicating or asserting in this way—if we try to do that, we do get vicious circularity.

Do we have normative powers?

A normative power is supposed to be a power to directly change normative reality. We can, of course, indirectly change normative reality by affecting the antecedents of conditional norms: By unfairly insulting you, I get myself to have a duty to apologize, but that is simply due to a pre-existing duty to apologize for all unfair insults.

It would be attractive to deny our possession of normative powers. Typical examples of normative powers are promises, commands, permissions, and requests. But all of these can seemingly be reduced to conditional norms, such as:

• Do whatever you promise

• Do whatever you are validly commanded

• Refrain from ϕing unless permitted

• Treat what you are requested as a reason for doing it.

One might think that one can still count as having a normative power even if it is reducible to prior conditional norms. Here is a reason to deny this. I could promise to send you a dollar on any day on which your dog barks. Then your dog has the power to obligate me to send you a dollar, a power reducible to the norm arising from my promise. But dogs do not have normative powers. Hence an ability to change normative reality by affecting the antecedents of a prior conditional norm is not a normative power.

If this argument succeeds, if a power to affect normative reality is reducible to a non-normative power (such as the power to bark) and a prior norm, it is not a normative power. Are there any normative powers, then, powers not reducible in this way?

I am not sure. But here is a non-conclusive reason to think so. It seems we can invent new useful ways of affecting normative reality, within certain bounds. For instance, normally a request comes along with a permission—a request creates a reason for the other party to do the requested action and while removing any reasons of non-consent against the performance. But there are rare contexts where it is useful to create a reason without removing reasons of non-consent. An example is “If you are going to kill me, kill me quickly.” One can see this as creating a reason for the murderer to kill one quickly, without removing reasons of non-consent against killing (or even killing quickly). Or, for another example, normally a general’s command in an important matter generates a serious obligation. But there could be cases where the general doesn’t want a subordinate to feel very guilty for failing to fulfill the command, and it would be useful for the general to make a new commanding practice, a “slight command” which generates an obligation, but one that it is only slightly wrong to disobey.

There are approximable and non-approximable promises. When I promise to bake you seven cookies, and I am short on flour, normally I have reason to bake you four. But there are cases where there is no reason to bake you four—perhaps you are going to have seven guests, and you want to serve them the same sweet, so four are useless to you (maybe you hate cookies). Normally we leave such decisions to common sense and don’t make them explicit. However, we could also imagine making them explicit, and we could imagine promises with express approximability rules (perhaps when you can’t do cookies, cupcakes will be a second best; perhaps they won’t be). We can even imagine complex rules of preferability between different approximations to the promise: if it’s sunny, seven cupcakes is a better approximation than five cookies, while if it’s cloudy, five cookies is a better approximation. These rules might also specify the degree of moral failure that each approximation represents. It is, plausibly, within our normative authority over ourselves to issue promises with all sorts of approximability rules, and we can imagine a society inventing such.

Intuitively, normally, if one is capable of a greater change of normative reality, one is capable of a lesser one. Thus, if a general has the authority to create a serious obligation, they have the authority to create a slight one. And if you are capable of both creating a reason and providing a permission, you should be able to do one in isolation from the other. If you have the authority to command, you have the standing to create non-binding reasons by requesting.

We could imagine a society which starts with two normative powers, promising and commanding, and then invents the “weaker” powers of requesting and permitting, and an endless variety of normative subtlety.

It seems plausible to think that we are capable of inventing new, useful normative practices. These, of course, cannot be a normative power grab: there are limits. The epistemic rule of thumb for determining these limits is that the powers do not exceed ones that we clearly have.

It seems a little simpler to think that we can create new normative powers within predetermined limits than that all our norms are preset, and we simply instance their antecedents. But while this is a plausible argument for normative powers, it is not conclusive.

Killing and consent

I think it’s wrong for us to kill innocent people. Some fellow deontologists, however, think this prohibition should be restricted to say that it’s wrong for us to kill nonconsenting innocent people. These thinkers hold that it is both permissible to consent to being killed and to kill those who have given such consent (except in special cases, such as when the victim has overriding unfulfilled duties to others).

I want to argue for a curious consequence of this restriction of the prohibition of murder while maintaining deontology.

By “sacrificing one’s life to save lives”, I will mean actions which save lives but have one’s own death as an unintended but foreseen side-effect. For instance, jumping in front of a train to push a child out of the way. Everyone agrees it’s typically praiseworthy, and hence permissible, to sacrifice your life to save an innocent life. Most people, however, will say that it is supererogatory to do so. It is brave to do it, but not cowardly to omit it.

But now consider cases where by sacrificing your life you can save a larger number of innocent lives, say a dozen. It is pretty plausible that it would be cowardly to refrain from the sacrifice, and I suspect it would be wrong to do it except in special cases (such as when you have just figured out how to cure cancer). But I agree that the point is not completely clear to me. However, it is quite clear to me that it would be wrong to refuse to sacrifice your life to save a dozen people when that dozen includes one’s spouse and one’s children (again, with some very rare exceptions).

Now let’s assume the view that it is permissible to consent to being killed and permissible to kill the consenting. Consider a classic deontology case: a terrorist says that if you don’t kill Bob, a dozen other innocent people will be killed. Add that the dozen people include Bob’s spouse and children. If it’s permissible to kill the consenting, then if Bob were to consent, it would be permissible to kill him. But Bob expressly and clearly refuses consent, despite his believing that it would be permissible to consent.

Assuming that it is morally required to sacrifice your life to save a dozen innocent lives when these lives include your spouse and children, it is very difficult to deny that if it is permissible to consent to being killed, in a case like the above, Bob would be morally required to consent to being killed. Granted, the sacrifice case does not include consenting to one’s death, while the terrorist case does. But as long as we have granted that it is permissible to consent to one’s death, the difference does not seem significant. Thus Bob is morally required to consent to being killed, given our assumptions about consensual killing. Bob’s refusal of consent is thus morally wrong. And very badly so: it causes eleven more lives to be lost, including his very own spouse and children. His refusal is about as bad as mass murder!

It seems that Bob is far from innocent. On the contrary, he is guilty of refusing to save the lives of eleven people, including his spouse and children. But now it seems that the prohibition against killing the innocent does not apply to Bob, and hence it is permissible—and maybe even obligatory—to kill Bob. If so, then the deontological prohibition on killing the innocent, if restricted to the nonconsenting, has a giant loophole: when enough is at stake, a nonconsenting victim is no longer innocent! Now, maybe, it is only permissible to kill the guilty when one acts on behalf of a state (and when enough is stake, which it is in this case). But it would still be very strange for a deontologist to think it permissible to kill Bob even should the state authorize it.

This is not a knockdown argument against the restriction of the prohibition of murder to nonconsenting victims. But it is some evidence against the restriction.

Consent, desire and promises

I have long argued that desire is not the same as consent: the fact that I want you to do something does not constitute consent to your doing it.

Here is a neat little case that has occurred to me that seems to show this conclusively. Alice borrowed a small sum of money from me, and the return is due today. However, I know that I have failed Alice on a number of occasions, and I have an unpleasant feeling of moral envy as to how she has always kept to her moral commitments. I find myself fantasizing about how nice it would feel to have Alice fail me on this occasion! It would be well worth the loss of the loan not to “have to” feel guilt about the times I failed Alice.

But now suppose that Alice knows my psychology really well. Her knowing that I want her to fail to return the money is no excuse to renege on her promise.

There are milder and nastier versions of this. A particularly nasty version is when the promisee wants you to break a promise so that you get severely punished: one thinks here of Shylock in the Merchant of Venice. A mildish (I hope) version is where I am glad when people come late to meetings with me because it makes me feel better about my record of unpunctuality.

Or for a very mild version, suppose that I typically come about a minute late to appointments with you. You inductively form the belief that I will do so this time, too. And it is a pleasure to have one’s predictions verified, so you want me to be late.

The above examples also support the claim that we cannot account for the wrong of promise-breaking in terms of overall harm to the promisee. For we can tweak some of these cases to result in an overall benefit to the promisee. Let’s say that I feel pathologically and excessively guilty about all the times I’ve been late to appointments, and your breaking your promise to show up at noon will make me feel a lot better. It might be that overall there is a benefit from your breaking the promise. But surely that does not justify your breaking the promise.

Or suppose that in the inductive case, the value of your pleasure in having your predictions verified exceeds the inconvenience of waiting a minute.

Objection: Promises get canceled in the light of a sufficiently large benefit to the promisee.

Response: The above cases are not like that. For the benefit of relief of my guilt requires that you break the promise, not that the promise be canceled in light of a good to me. And the pleasure of verification of predictions surely is insufficient to cancel a promise.

Divine desire ethical theories are false

On divine desire variants of divine command ethics, necessarily an action is right just in case it accords with God’s what God wants.

But it seems:

1. Necessarily, if God commands an action, the action is right.

2. Possibly, God commands an action but does not want one to do it.

Given (1) and (2), divine desire ethics is false.

I think everyone (and not just divine command theorists) should agree about (1): it is a part of the concept of God that he is authorative in such a way that whatever he commands is right.

What about (2)? Well, consider a felix culpa case where a great good would come from obedience to God and an even greater one would come from disobedience, and in the absence of a command one would have only a tiny good. Given such a situation, God could command the action. However, it seems that a perfectly good being’s desires are perfectly proportioned to the goods involved. Thus, in such a situation, God would desire that one disobey.

This is related to the important conceptual point about commands, requests and consentings that these actions can go against the characteristic desires that go with them. In the case of a human being, when there is a conflict between what a human wants and what the human commands, requests or consents to, typically it is right to go with what is said, but sometimes there is room for paternalistically going with the underlying desire (and sometimes we rightly go against both word and desire). But paternalism to God is never right.

Divine permission ethics

There are two ways of thinking about the ethics of consent.

On the first approach, there are complex prohibitions against non-consensual treatment in a number of areas of life, with details varying depending on the area of life (e.g., the prohibitions are even more severe in sexual ethics than in medicine). Thus, this is a picture where we start with a default permission, and layer prohibitions on top of it.

On the second, we start with a default autonomy-based prohibition on one person doing anything that affects another. That, of course, ends up prohibiting pretty much everything. But then we layer exceptions on that. The first is a blanket exception for when the affected person consents in the fullest way. And then we add lots and lots more exceptions, such as when the the effect is insignificant, when one has a special right to the action, etc.

The second approach is interesting. Most ethical systems start with a default of permission, and then have prohibitions on top of that. But the second system starts with a default of prohibitions, and then has permissions on top of that.

The second approach raises this question. Given that the default prohibition on other-affecting actions is grounded in autonomy, how could anything but the other’s consent override that prohibition? I think one direction this question points is towards something I’ve never heard explored: divine permission ethics. God’s permission seems our best candidate for what could override an autonomy-based prohibition. So we might get this picture of ethics. There is a default prohibition on all other-affecting actions, followed by two exceptions: when the affected person consents and when God permits.

I still prefer the first approach.

Consent and inner acts

Some people think that a constituent (whole or partial) of consent is some sort of inner mental act of agreement with the thing one consents to. Here is an argument against this:

1. A request or command does not require an inner mental act of agreement.

2. Someone who requests or commands something necessarily consents to its performance.

3. So, consent does not require an inner mental act of agreement.

(One can also qualify the requests, commands and consents as valid in all the premises, and the argument remains sound, I think.)

That said, consent does require some inner component, as does request or command. Consent requires a relevant communicative act to be performed intentionally. Similarly, to request or command something is not just to utter some sounds (or make some gestures, etc.), but to do so intending to be taken as requesting or commanding.

A tale of two membranes

Suppse that I had a device that would cause a mild but sensible vibration in the nasal membranes of the person I pointed it at. Absent consent or a significant reason, it would be wrong to use this device on a stranger.

But the same is not true if we replace nasal membranes with the tympanic membrane: we routinely vibrate the tympanic membranes of strangers with neither consent nor significant reason, say when we ask a stranger on the street for directions.

In both cases one is inducing a physical change of arrangement of body parts in the other person without their consent. We may suppose that hedonically there is no difference: perhaps the vibration and the speech are both mildly unpleasant. The case can be tweaked so that the impact on autonomy is greater in either case (e.g., the unwilling listener may identify themselves as the sort of person who doesn’t listen to arguments) or so that it is equal.

It is tempting to say that we have a default consent to hearing others out. But default consents can be withdrawn, and we are permitted to vibrate tympanic membranes even against the express directions of their possessor. If during an argument someone says “I don’t want to hear another word!” it is not morally wrong to respond verbally nonetheless.

This implies that the need for consent does not supervene on hedonic or autonomy facts. It depends on details of the intervention that go beyond these.

The fact that in my thought experiment an apparatus is used in the nasal but not the aural case is not relevant. If one speaks through a speech generating device, as famously Hawking did, one is no less permitted to vibrate strangers’ tympanic membranes with the speech. And it would be just as wrong to go up to strangers and blow air into their nostrils in order to vibrate their nasal membranes as to use a device.

So what is the difference?

The difference, I think, is that it is a part of the proper function of the tympanic membrane to receive speech from random strangers, whether one consents to this or not, while the nasal membranes have no such proper function. It is as if our human nature gives permission to others to speak to us, but does not give such a permission for nasal membrane vibration.

I think this is difficult to account for in anything other than natural law or divine command ethics.

Requests and naturalism

If someone asks me to ϕ, typically that informs me that they want me to ϕ. But the normative effect of the request cannot be reduced to the normative effect of learning about the requester’s desires.

First, when you request that I ϕ, you also consent to my ϕ, and hence the request has the normative effects of consent. But one can want something done without consenting to it. For instance, if I have a lot of things on my plate, I might desire that a student give me their major paper late so that I don’t have to start grading yet, but that desire is very different in normative consequences from my agreeing to the lateness of the paper, much less my requesting that it be late.

Second, considerate people often have desires that they do not wish to impose on others. A request creates a special kind of moral reason, and hence imposes in a way that merely learning of a desire does not.

Moreover, we cannot understand requests apart from these moral normative effects. A request seems to be in part or whole defined as the kind of speech act that typically has such normative effects: the creating of a permission and of a reason. Moreover, that reason is a sui generis one: it is a reason-of-request, rather than a reason-of-desire, a reason-of-need, etc.

There is something rather impressive in this creation of reasons. A complete stranger has the power to come up to me and make me have a new moral reason just by asking a question, since a question is in part a request for an answer (and in part the creation of a context for the speech acts that would be constitute the answer). Typically, this reason is not conclusive, but it is still a real moral reason that imposes on me.

Consider the first time anybody ever requested anything. In requesting, they exercised their power to create a moral reason for their interlocutor. This was a power they already had, and the meaningfulness of the speech act of requesting must have already been in place. How? How could that speech act have already been defined, already understandable? The speech act was largely defined by the kinds of reasons it gives rise to. But the kinds of reasons it gave rise to were ones that had never previously existed! For before the first request there were no reasons-of-request. So the speech act had a meaningfulness without anybody ever having encountered the kinds of reasons that came from it.

This is deeply mysterious. It suggests an innate power of the human nature, a power to request and thereby create reasons. This power seems hard to reconcile with naturalism, though I do not have any knock-down argument here.

Forcing and threatening

Suppose the state thought it had good reason to force me to undergo a medical procedure that I believed to be immoral. The state would have two kinds of options:

1. Threaten me with a variety of serious threats such as deprivation of employment and educational opportunities, fines or imprisonment if I refused to cooperate with the procedure.

2. Force me to undergo the procedure by physically holding me down and performing the procedure.

Intuitively, the threat option seems like the “nicer” option, at least if the threats fall short of imprisonment. And the force option clearly violates standard principles of consent in medical ethics.

But what has struck me was this interesting fact: depending on the details of the case, I might well prefer being forced to being threatened. For if I am threatened, there are two possibilities: either I resist the threat or I give in. If I resist, then I have to suffer the serious losses that were threatened. And if I give in, then I have to live with the knowledge that I have violated my conscience. But if I am forced, then my conscience is clear, I do not suffer any of the threatened losses, and if the procedure is one that is in fact medically beneficial, I get the benefits of the procedure. (And note that it is quite possible to believe a procedure to be immoral while knowing that it is medically beneficial. For instance, one might reasonably think that it is immoral to accept an organ transplant from a prisoner who was compelled by an evil state to yield the organ, even though one knows that the transplant would be beneficial.)

Of course, if asked, I couldn’t very well say: “Please force me.” For that would be consent to a procedure I believed to be immoral. But nonetheless I might prefer the force option. In such a case, it’s hard to say that the threat option is “nicer”. Indeed, it might impose much greater hardship than the force option.

So from the point of view of a state that thinks the procedure is intrinsically permissible and necessary for the public good, it seems that there is good reason to prefer the force option, in that it might impose much less hardship. But this seems paradoxical. It seems obvious that the threat option is better, especially for non-punitive threats that are “naturally” tied to the refusal (“We won’t employ anyone who medically could be vaccinated but refuses to be”), even though the force option seems the better one for both the person being forced and for the rest of society (since it’s more effective).

Perhaps the way out of the paradox is that it is so important for us as a society to maintain the requirement of consent for medical procedures that forcing people to undergo a medical procedure should be avoided except in the most extreme of cases (such as when the very existence of society is at stake), and hence even though the short-term consequences of forcing are better than those of threatening—including morally better for the person being forced who isn’t tempted to violate conscience—forcing should be avoided. But this isn’t a complete solution. For normally we think threats also vitiate consent. But perhaps they vitiate it less?

Slavery, forced marriage and unjust laws

Slavery is the ownership of one person by another. Since a person no more owns another than a thief owns the purloined goods, there has never been any slavery. But of course there have been institutions thought to be slavery: institutions in which a person was thought to be the property of another. These were not institutions of slavery in the above strict sense but forms of unjust imprisonment, kidnapping, etc.

This seems to be merely a point about words, and a mistaken one at that. “Of course, Alexander II ended serfdom in Russia while Lincoln ended slavery in the US. Words mean what they are used to mean, and to dispute historical claims like these is to be like the fusty grammarian who claims that ‘It’s me’ is bad English.”

I agree that the question of words is unimportant. But here is what is important. Institutions are defined in large part by their norms. It is a defining feature of the norms of slavery (and, with some differences, of serfdom) that one person has property-style rights over another who has onerous obligations corresponding to these rights. But in fact, nobody has such rights over another, and the supposed obligations do not obtain. The institution that the “masters” saw themselves as a part of did not in fact exist, because the rights and obligations that they took to be integral to the institution did not, and could not, in fact exist.

We can use the term “slavery” (and cognates in other languages) for that non-existent institution, just as we use the term “phlogiston” for the substance that chemists mistakenly believed in before oxygen was discovered.

But we could also use distinguish and use two terms. Maybe slavery_h is the historical form of social organization that actually (and deplorably) existed and slavery_n is the normative institution that the masters_h (and maybe some of the slaves_h, as well) incorrectly thought to exist and thought to be coextensive with slavery_h.

Again, the words don’t matter, but it matters that there was a morally condemnable attempt to create a certain social institution which attempt failed because the norms that were attempted to be instituted were incapable of institution.

This is a pattern we find in many other cases. There is no such thing as a forced marriage, since the norms of love and sexuality that define marriage do not come into existence apart from the free consent of the parties. But of course over the course of history there have been morally condemnable attempts to force people—especially women—into the institution of marriage. These attempts always failed, and what the victims were forced into was a different institution, one subjecting them to such injustices as kidnapping, unjust imprisonment, rape, etc.

Thomas Aquinas, similarly, holds that there are no unjust laws. Of course, legislators may attempt to enact laws that would be unjust (or they may simply be exercising power and not even trying to legislate). But when they do so, they fail to enact laws. What they enact are mere demands masquarading as laws (philosophical anarchists think all “laws” are like that). Again, the question of words is unimportant, but what is important is the pattern: the legislator is deplorably attempting to create a social institution—a law—and failing to do so, but instead creating another institution.

The particular cases of this pattern are interesting, and so is the pattern itself. A central part of the pattern is an attempt to create an institution (or an instance of an institution) that misfires, and instead another institution is created that is widely but mistakenly thought to be the one that was the target of the attempt. But the cases of slavery, forced marriage and unjust laws also share another feature that not all the cases of misfiring do. For instance, suppose due to an honest mistake in the counting of ballots, there is a mistake as to who the mayor of a town is. The false mayor then attempts to legislate something quite just. The attempt fails, because the false mayor lacks the standing to legislate. But there need be nothing morally deplorable here, as there is in the slavery, forced marriage and unjust law cases.

Moreover, the three cases I started with are not just morally deplorable, but there seems to be an important connection between moral evil and performative misfire. Slavery_h is morally horrific, but slavery_n would be even worse, as the slaves_n would be under genuine obligations to do the enforced labor required of them and not to escape. This would, as it were, make morality itself complicit with the master, and the properly formed conscience of the slave into a whip in the master’s hand. And the same holds in the other two cases: morality itself would be a tool of oppression.

There are, alas, times when morality is a tool of oppression. The duties that exist between relatives are frequently exploited by repressive regimes as a means of social control: If you are an Uyghur or Tibetan defecting to a free country and speaking out against the Chinese regime, your relatives back home will suffer, and this restricts your activity because of the duties you have to your relatives. But the kinds of cases where the wicked use morality as a lever against the righteous seem different and less direct from what would be the case if slavery, forced marriage and unjust laws had the normative force that they pretend to. It is a mere coincidental effect of duties to family when these duties make it morally impossible or difficult to stand up to a wicked regime. But it would be of the very nature of the norms induced by slavery, forced marriage and unjust laws—if these norms really came into existence—that they would oppress.

This still leaves an interesting puzzle, which different moral theories will answer differently: Why is it the case that morality does not innately oppress?

Objection: Maybe slavery_h does create norms, but not moral norms.

Response: I myself don’t think there are any non-moral norms. But in any case slavery_h does not create any kind of obligation on the slave to obey the master, whether moral or not, except in some, but not all, cases a prudential one.

Consent and euthanasia

I once gave an argument against euthanasia where the controversial center of the argument could be summarized as follows:

1. Euthanasia would at most be permissible in cases of valid consent and great suffering.

2. Great suffering is an external threat that removes valid consent.

3. So, euthanasia is never permissible.

But the officer case in my recent post about promises and duress suggests that (2) may be mistaken. In that case, I am an officer captured by an enemy officer. I have knowledge that imperils the other officer’s mission. The officer lets me live, however, on the condition that I promise to stay put for 24 hours, an offer I accept. My promise to stay put seems valid, even though it was made in order to avoid great harm (namely, death). It is difficult to see exactly why my promise is valid, but I argue that the enemy officer is not threatening me in order to elicit a promise from me, but rather I am in dangerous circumstances that I can only get out of by making the promise, a promise that is nonetheless valid, much as the promise to pay a merchant for a drink is valid even if one is dying of thirst.

Now, if a doctor were to torture me in order to get me to consent to being killed by her, any death-welcoming words from me would not constitute valid consent, just as promises elicited by threats made precisely to elicit them are invalid. But euthanasia is not like that: the suffering isn’t even caused by the doctor. It doesn’t seem right to speak of the patient’s suffering as a threat in the sense of “threat” that always invalidates promises and consent.

I could, of course, be mistaken about the officer case. Maybe the promise to stay put under the circumstances really is invalid. If so, then (2) could still be true, and the argument against euthanasia stays.

But suppose I am right about the officer case, and suppose that (2) is false. Can the argument be salvaged? (Of course, even if it can’t, I still think euthanasia is wrong. It is wrong to kill the innocent, regardless of consequences or consent. But that’s a different line of thought.) Well, let me try.

Even if great suffering is not an external threat that removes valid consent, great suffering makes one less than fully responsible for actions made to escape that suffering (we shouldn’t call the person who betrayed her friends under torture a traitor). Now, how fully responsible one needs to be in order for one’s consent to be valid depends on how momentous the potential adverse consequences of the decision are. For instance, if I consent to a painkiller that has little in the way of side-effects, I don’t need to have much responsibility in order for my consent to be valid. On the other hand, suppose that the only way out of suffering would be a pill whose owner is only willing to sell it in exchange for twenty years of servitude. I doubt that one’s suffering-elicited consent to twenty years of servitude is valid. Compare how the Catholic Church grants annulments for marriages when responsibility is significantly reduced. Some of the circumstances where annulments are granted are ones where the agent would have sufficient responsibility in order to make valid promises that are less momentous than marriage vows, and this seems right. In fact, in the officer case, it seems that if the promise I made were more momentous than just staying put for 24 hours, it might not be valid. But it is hard to get more momentous a decision than a decision whether to be killed. So the amount of responsibility needed in order to make that decision is much higher than in the case of more ordinary decisions. And it is very plausible that great suffering (or fear of such) excludes that responsibility, or at the very least that it should make the doctor not have sufficient confidence that valid consent has been given.

If this is right, then we can replace (2) with:

4. Great suffering (or fear thereof) removes valid consent to decisions as momentous as the decision to die.

And the argument still works.

The consent norm for sexual activity is insufficient

Consider the thesis that consent is the only norm of sexual activity. Of course, this does not imply the crazy claim that every consensual sexual act is permissible. Some consensual sexual acts violate promises, or constitute the neglect of some non-sexual responsibility (e.g., sex while driving), or just have sufficiently bad consequences for one or more people. Rather, the thesis can be taken to say that consent is the only norm of sexual activity as sexual, that it is the only distinctively sexual norm.

The thesis is still false. To see this, we will need a distinction between things that are very wrong and things that are wrong but not very wrong. Then:

1. Every case of coitus without consent is a case of rape.
2. Every case of rape is gravely wrong as a sexual act.
3. There is a case of coitus which is wrong as sexual but not gravely wrong.
4. So, there is a case of coitus which is not rape but is wrong as sexual. (2 and 3)
5. So, there is a case of coitus which is wrong as sexual even though there is consent. (1 and 4)

(When I say that a case of coitus is wrong, I mean that at least one party responsible for the coitus is in the wrong. That party could be one of the participants in coitus, but need not be: a rapist does not actually have to participate in the act of coitus, but could instead force two other people to engage in coitus with themselves.)

I think premise 3 is very plausible. It would be quite surprising if sexual wrongness of coitus only came in grave and not-at-all varieties, with nothing in between. But I can also offer an argument for premise 3 (I’ve used this argument in a previous post which gave a similar but perhaps less clear argument) assuming that consent is the only norm of sexual activity—the target of my argument obviously can’t dispute that.

We imagine a continuum of cases of coitus, where at one extreme there clearly is no consent and at the other extreme there clearly is consent.

(For instance, it could be a set of cases where a party threatens an adverse consequence if coitus is not engaged in: at one end, the consequence is torture and at the other end it’s a minor expression of minor displeasure. Accepting coitus as an alternative to torture is not consent. Accepting coitus as an alternative to witnessing a minor expression of minor displeasure can be consent (assuming that minor displeasure is all there is; obviously, minor displeasure from a tyrant could have further adverse consequences—including torture and death).)

Assuming consent is the only norm of sexual activity, there is no sexual wrong at the consent end of the continuum and there is grave sexual wrong by (1) and (2) at the no-consent end of the continuum. Given continuous variation in cases, we would expect continuous variation in wrongdoing. So if at one end we have grave sexual wrong and at the other end no sexual sexual wrong, somewhere in the middle there should be a case of non-grave sexual wrong, which is what premise (3) says.

Note how the enthusiastic consent alternative to the consent norm nicely escapes the argument. For the proponent of the enthusiastic consent norm case can agree to (2) but say that there are some non-grave sexual wrongs. These non-grave sexual wrongs could, for instance, include some of the cases where there is consent but the consent is insufficiently enthusiastic.

Pragmatically speaking, this is a risky argument to use in teaching. The problem is that a student might try to get out of the argument by denying premise (2) which, given the rape problem on many campuses, would be very bad. On the other hand, if students have a sufficiently strong commitment to (2), this argument could have positive consequences for campus sexual culture by getting them to realize that minimally-valid consent is not enough for permissibility (even if by definition it is enough to make the act not be a case of rape).

Philosophically, there is a technical weakness in that the notion of a sexually wrong act is a bit foggy. I think one can reformulate the argument by dropping the “sexual” qualifier in the argument but specializing to cases where there is no promise breaking, there are no bad non-sexual consequences, etc. But it’s hard to explicate the “etc.”

Stochastic substitutions, rationality and consent

Suppose that we have a minor parking infraction that, in justice, deserves about a $40 fine. Let’s suppose the infraction is so clear when it occurs that there cannot be reasonable appeal. The local authorities used to levy a $40 fine each time they saw a violation, but to reduce administrative costs, they raised the fine to $200, but each time the parking enforcement officer sees a violation he tosses a twenty-sided die, and only levies the fine if the die shows a one.

A one in twenty chance of losing $200 is a much better deal than a certainty of losing $40 dollars. So it seems that the treatment of violators is less harsh under the new system, and one can’t complain about it. But tell that to the person who gets the $200 fine. It seems unjust to impose a $200 fine for an infraction that in justice deserves only a $40 fine. But how can it be unjust when this is a better deal?

Here’s a possibly related case. Suppose you leave your wallet lying around and I take $10 out of your wallet and put back $20. You can complain about my handling your possessions, but it’s weird to call me a thief, unless there was something special about that $10 bill. But what if I take $10 out of your wallet, roll a six sided die, and put back $2000 if and only if the die shows a one? A one in six chance of $2000 is a way better deal than a certainty of $20. But if I end up putting nothing back, then I’m clearly a thief.

In both cases, we have two ways of treating someone, A and B. Treatment B is clearly a better deal for them than treatment A, and treatment A is not unjust for the patient. It seems to follow that we can impose treatment B in place of treatment A. But no!

It’s not, I think, just that people evaluate risk differently. For I think that the judgment that the randomized deal imposes an injustice remains even if we know the patient would have opted for the randomized deal had she been asked. The mere fact that you would have been happy to pay $20 to get a one in six chance of winning $2000 does not give me the right to play that lottery with your money on your behalf. Consent would need to be actually given, not merely hypothetically.

There seems to be an interesting lesson here: choices have a value that isn’t merely epistemic. The value of people having people make their own choices is not just for us to find out what is best for them or even what is best for them by their own lights. Another lesson is that it seems to matter that A is better in some respect (that of certainty) even if B is better in all respects.

But the above line of thought neglects a complication. While most people would be happy to get the one in six chance of winning $2000 in place of $20, most people would rather that such substitutions not be made without their being consulted. Perhaps that’s the relevant hypothetical question: Would you like having such substitutions made without consultation? Suppose the answer is “yes”. Is it clear that it’s wrong for me to make the substitution without asking you?

I am inclined to think it’s still wrong, unless you indicated in some way that you want substitutions of such a sort made for you.

Unreleasable promises and the value of punishment

Alice and Bob are conscientious vegetarians. Alice gets Bob to promise her that if Alice ever considers ceasing to be vegetarian, Bob should offer her the most powerful arguments in favor of vegetarianism even if Alice doesn't want to hear them. Years pass, and Alice's vegetarian fervor fades, and she mentions to Bob that she is considering giving up vegetarianism. Alice then says: "Please don't try to convince me otherwise."

What should Bea do? As a rule, the promisee can release the promiser from a promise. So it seems that Alice's request that Bob not importune her with the arguments for vegetarianism overrides the promise. But Bob promised to offer the arguments even if Alice didn't want to hear them. It seems that this was a promise where the usual release rule makes no sense. Can a promise like that be valid?

As the case demonstrates, there are times when it would be useful to be able to make promises that one cannot be released from by the promisee. But one cannot infer the existence of an ability from its usefulness: it could be useful for a pig to be able to fly. Still, it seems pretty plausible that Bob's promise is valid.

But now compare another case. During a fight, Carlos spitefully promises Alice that he's not going to get Alice's birthday party even if she wants him to come. Carlos does not, I think, have any moral duty to keep his promise if Alice reaches out to mend fences, releases him from his promise and invites him to his party.

In fact, my sense is that the release from the promise is irrelevant in the case of Carlos. For suppose that Dan, also fighting with Alice, promises Alice not to get her a birthday present. Dan does not, I think, violate any moral duty by giving Alice a birthday present, even absent a release, as long as it's clear that Alice would enjoy the present.

So how does the Bob case differ from the Carlos and Dan cases? I think it's that what Carlos and Dan promise Alice isn't good, or if it has any value it's a value dependent on how Alice feels about it at the time. But what Bob promises Alice has a value independent of how Alice feels at the time.

But here is another kind of unreleasable promise: an authority might unconditionally promise Alice a fair punishment should Alice do a particular wrong. And it is clear that Alice's releasing of the authority is irrelevant. If what I said about Bob's, Carlos' and Dan's promises is a guide, then unreleasable promises must be valuable for the promisee independently of the promisee's views and desires. Hence, just punishment is good for the punishee.

A puzzle about medicine and war

The following seem to be true:

1. It is never permissible for the state to force on a non-consenting innocent patient medical procedures very likely to cause death.
2. It is sometimes permissible for the state to force a non-consenting drafted soldier to go to near certain death in a just war.

In regard to (1), the state can legitimately force patients to undergo medical operations involving minimal risk and invasiveness, at least as long as the patients have no conscientious objection to them (a restriction that has an obvious military analogue): vaccinations are the standard example. This is very puzzling: Why the distinction?

Here is a suggestive hint. We can imagine circumstances where a war against a vicious enemy could only be won by an attack by non-consenting draftees even though it was morally certain that most of the draftees would be captured and horrendous medical experiments would be done on them by the enemy. Such an attack could well be permissible, even though much less extreme medical experiments could not be intentionally imposed on non-consenting patients even for an equal good (say, to defeat some awful disease). This suggests a difference between directly imposing harms and acting in a way that is morally certain to lead to the self-same harms. This is exactly the sort of difference that the Principle of Double Effect is sensitive to. Someone who thinks that foreseeing/intending differences do not matter is probably not going to be able to make the distinction between enforced medical procedures and the draft.

At the same time, the Principle of Double Effect does not seem sufficient to remove the puzzle concerning (1) and (2), since it doesn't really get at what it is that is so special about medical procedures likely to cause death as opposed to military operations likely to cause death. Probably another part of the puzzle has to do with the integrity of the body. But it's tricky: the importance of bodily integrity is not enough to make all enforced medicine wrong. It seems that the state can legitimately require procedures that are minimally invasive and minimally risky, but cannot legitimately require procedures that are minimally invasive but highly risky (think of injecting someone with a vaccine versus injecting someone with a fully functional virus).

Maybe it's like this: the fact that an intentional procedure directly transgresses bodily integrity typically calls for consent. But in at least some cases where someone's lack of consent is strongly irrational, that lack of consent can be overridden for a sufficiently good cause. But where the lack of consent is at least somewhat rational, the lack of consent cannot be overridden. When the risks are minimal, the lack of consent is strongly irrational, barring conscientious objection. But when the risks are high, lack of consent is at least somewhat rational. Medical procedures always transgress bodily integrity, so we get (1). On the other hand, commanding an attack likely to lead to death (or torture or being the victim of vicious medical experiments) does not transgress bodily integrity, and so a completely different set of standards for consent and authorization is in place. This is a mere sketch. I am not sure the details can be worked out.

Notice, also, that the account in the preceding paragraph does not apply to sexual cases. Even if someone's lack of consent to sex is strongly irrational (imagine a contrived case where a married person for completely irrational or even malicious reasons refuses to have sex with a spouse, despite the fact that great benefits would come to society from their having sex--perhaps a killer robot has been programmed by a mad scientist to stop its rampage only if they have sex), it is wrong for the state to force the person to have sex. Once again, sex is morally exceptional.

Consent and sex

Here are some facts about sex and consent.

1. Without valid consent, sex is always seriously wrong.
2. Merely proxy consent for sex (say, by parents on behalf of a child) is never valid.
3. Child consent for sex is never valid.
4. Consent may be withdrawn at any time when discontinuation is still possible.

And yet:

5. Sometimes sex is permissible (with consent, of course).

There aren't many cases other than sex where the analogues of 1-5 apply. Here's one potential such case. The Nuremberg code forbids medical experiments that involve a significant risk of serious injury or death to a healthy subject, except in the case of self-experimentation, assuming the other conditions of the code are met. But if such self-experimentation is permissible, it seems likely that it would be morally permissible (though we may have good reasons to rule it out in professional medical ethics codes) to hire someone to perform such experiments on one. To do such experiments without valid consent from the employer/subject would be seriously wrong, neither proxy nor child consent would be sufficient for validity, and one would have to stop whenever consent was withdrawn.

But notice an important feature of the medical experiment case: the reason these strong consent restrictions are in play is because of the significant risk of serious injury or death. If one modifies the experiment to make the risk insignificant, weaker consent standards come into play. In particular, parents will then be validly able to consent.

But in the case of sex, the reason for the strong consent standards does not come from risks of injury or death, whether physical or psychological. For we can suppose a case where the person is unconscious, where 100% effective prophylactics are used and where the person will never be informed of the event, and hence there is no danger of physical or psychological injury. Even so, the strong consent standards for sex apply. For instance, merely proxy consent is still not sufficient.

Notice, too, another interesting feature of the medical experiment case. Even when the experiments are done in a moral good way, it is regrettable that there was no other way of getting the benefits. But sex isn't like that: when it is engaged in in a morally good way, typically there is nothing regrettable about it--quite the opposite.

So there seems to be something exceptional about sex and consent. The other cases where such strong requirements of consent need to be in place are look to be cases where one needs permission to impose something very bad on someone. That's not what's going on in sex. What is going on? My view is that sex is tied very closely to love, and love requires freedom... But filling out detail isn't easy.

Would telepaths need language?

One might think that language is a crutch for non-telepaths. If you could sense what I believe, I wouldn't need to assert anything. If you could sense what I want, I wouldn't need to request anything. If you could sense what I intend, I wouldn't need to promise anything.

But that's just not right. Maybe it's true that if you could sense what I believe, there would be no need to make assertions. But the claims about requests and promises are just completely wrong. To request something is very different from wanting it. When I request something I create a reason for you to provide it to me, a reason that goes over and beyond the reasons given by my desires. We can sincerely request things that we don't want, for instance because it is our duty to request them, and even more frequently with hold back from requesting things that we want precisely not to impose on our interlocutor with the reasons that come from requesting. Sometimes we even hold back from asking because we want to get thing without asking for it. And of course that I intend to do something does not create the kind of reason that a promise does.

A society of telepaths would still very much benefit from acts that have the reason-creating forces of requests and promises, and the reason-canceling force of permissions. Such telepaths would either need to have sui generis mental states of mentally-requesting, mentally-promising and mentally-permitting, or would need symbolic conventions to indicate when they are offering a request, a promise or a permission (maybe when I am imagining a blue patch while entertaining a proposition, I am requesting that you make the proposition true, while if I am imagining a green patch I am merely permitting you to make it true). In either case, I think, these mental requests, promises and permissions would be basically a language.

So maybe asserting is a crutch for non-telepaths. But while requests, promises and permissions could no doubt be offered more efficiently by telepaths, this would still involve something that is essentially a language.

Consent is not sufficient for permissibility of sex

Rape isn't just wrong, but it is historically among the handful of the very worst types of crimes, sharing that unhappy position with murder, torture and treason. I take it that every instance of rape is very seriously wrong.

But now consider a spectrum of sexual acts: on one of the spectrum is a sexual act motivated by the man threatening the woman with death; on the other end of the spectrum is a sexual act motivated by the man threatening the woman that if she doesn't have sex with him, he won't take her out to the movie that they planned to go to. In the death case, the sex is non-consensual and hence rape. In the no-movie case, the sex is consensual and hence not rape: the threat is way too mild to invalidate consent.

Somewhere in that spectrum is a transition--be it vague or not--between non-consent and consent and hence between rape and non-rape. But every instance of rape is very seriously wrong. When we have continuously transitioned away from a very serious wrong, we shouldn't expect to immediately land in the territory of moral innocence. Rather, we should expect to land either in the territory of another wrong, either another very serious wrong or a "merely" serious wrong. If we start with an act of torture and continuously reduce the degree of pain, eventually we will get an act that isn't torture--but an act that falls somewhat short of the amount of pain needed for it to count as torture is still a serious battery.

Thus we should expect there to be sexual acts that are consensual, but seriously wrong because they are neighbors to rape. Moreover, we should expect that these acts will still wrong for reasons connected to their sexual nature, just as rape is very seriously wrong for reasons connected to its sexual nature. Consent, thus, is necessary but not sufficient for sexual integrity.

Here's a different way to put the argument. If one thinks that consent is the only condition needed for the permissibility of sex (with respect to sexual integrity--of course, there are other conditions, such as whether promises are broken, etc., but they aren't properly sexual), then one has to think either that (a) we have a transition from a very seriously wrong act to a completely innocent act in the above spectrum without any intermediate cases that are wrong but not seriously so, or (b) there are cases of rape that are non-seriously wrong. I think (a) is implausible and (b) is clearly false.

The spectrum I generated above was based on a spectrum of threats. But one can also generate a spectrum based on degrees of sobriety, degrees of understanding, clarity of expression (consent is a speech act), etc.

This has an important consequence particularly relevant to college judicial policies: If acts that aren't rape but are close to rape are seriously wrong, then in cases where it cannot be shown that a rape occurred, but it can be shown that either a rape occurred or a serious wrong close to rape occurred, it can still be just to levy serious punishment. Of course, this would require due process, and hence a way to operationalize the notion of such acts close to rape.

Note 1: None of my argument is meant to give aid or comfort to those who want to narrow the definition of rape. Rather the point is to widen the scope of wrong acts, for instance in the way that the "enthusiastic consent" movement does.

Note 2: The argument I am giving is not a sorites. Vagueness complicates the argument, but does not, I think, destroy it.