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“Impermissibility, Consent, Coercion”
Rocky Mountain Ethics Congress
August 6-9, 2009
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I. Background
It’s often suggested that consent is morally transformative.1 Often, it can be permissible
for us to do something to another person when he has consented, though we could not
permissibly do it otherwise. If Tammy and John are both adults, then in the general run
of things, Tammy may have sex with (or perform surgery on) John only if he consents.
John’s consent transforms, as it were, the moral standing of Tammy’s act, making it
permissible when it wouldn’t otherwise be.
Accounting for this transformative significance is a philosophical problem, and it isn’t
easy to solve. Today I’ll say a little about some accounts others have given, and a little
about why someone might be dissatisfied with them. Then I’ll propose a rather different
sort of account—really, an error theory—according to which there’s no need to assume
that consent has transformative significance at all.
The most familiar theory of consent is loosely Kantian. On that theory, the main thing,
morally, is treating other rational creatures only in ways that respect their rational
autonomy, and doing that involves treating them in ways they could rationally will.
Accordingly, consent makes doing something to another person permissible when and
because it is the result of a virtuous deliberative process: one that is rational and based on
I take this phrase from Japa Pallikkathayil’s 2007 Harvard dissertation, Your Money or Your Life:
Coercion in Personal and Political Contexts. I do not know whether the phrase is original to her.
1
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adequate information, and which, moreover, is attributable to the agent—it must not
result from the control of others or from the effects of ‘external’ forces, so that the
deliberations are the agent’s own.
This way of explaining things makes good intuitive sense. It seems to explain why the
consent of children and the mentally disabled, or my consent when I’ve been
brainwashed, isn’t morally transformative: children and the mentally disabled are not
rational, autonomous creatures, and the consent I give when I’m brainwashed, if it results
from the brainwashing, isn’t mine. This account can also explain the significance of
coercion, in two interrelated ways. One suggestion is that coercion undermines an
agent’s deliberative faculties, so that if he is coerced, he does not deliberate rationally.
Another suggestion is that coercion makes it the case that, even if the agent deliberates
well, his deliberation is not his own.
I think that there are a variety of problems with the Kantian view as it is usually
presented, but the most straightforward of them pertains to the account of coercion
mentioned just above. One problem is that, though it is probably often true that, if A
mugs B, B’s deliberation about whether to hand over his wallet is defective, it surely is
not always so. But when it isn’t, it still doesn’t make A’s taking B’s wallet permissible.
One might just say that this shows that the problem of coercion is a problem with
attributability. But those who take this line have a hard time distinguishing mugging
someone from other cases where my consent is given under duress: if you’re a surgeon,
and you tell me that you can prevent me from bleeding to death, after my nasty car crash,
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but will do so only if I agree to later pay you $10, it looks as though I’ve consented in a
transformative way to your taking $10 from me, even though I faced the threat of death,
otherwise.2 Why should the decision be attributable to me when I need surgery, but not
when you’re mugging me?
Worries like these have led many to eschew the Kantian account; at least, there have been
many attempts to account for the significance of coercion in a non-Kantian fashion.
Robert Nozick claimed that one person coerces another if and only if, via the execution of
a plan of action she proposes to him, she would make all of his options worse than they
would be at the statistical baseline.3 This gets a number of cases right: if you take my
wallet at gunpoint, either of the options you’ve presented me with make me worse off.
And if Tammy tells John that she’ll fire him from his job unless he has sex with her, it’s
plausible that she’s coerced him, that his having sex with her was not consensual, that it
was not permissible for her to have sex with him, and that both of the options she gave
him made him worse off—assuming he did not want to have sex with her anyway.
Joel Feinberg considers an example from Kent Greenawalt that has just this form. On Feinberg’s view,
consent is transformative if it is voluntary; his response to Greenawalt’s case is that my consent to giving
you ten dollars isn’t fully voluntary, but it’s voluntary enough for my consent to be transformative, because
you’ve merely given me a warning, not made a threat. See Harm to Self, 148. This answer seems to me
unsatisfying: it’s not clear why we should think that the proposal is merely a warning, and it’s also not clear
why a threat would preclude consent being voluntary enough, when a warning would not—and Feinberg
has nothing to say on the matter. I suppose that he may have been getting at the thought that, in the
mugging case, the penalty is imposed by the agent, whereas in Greenawalt’s case, the penalty is imposed
by the world. But then it is not clear why the source of the penalty makes a difference. The natural
explanation is that it matters because, if the source of the penalty is the agent, his action is coercive. But
we cannot invoke this idea here.
3
Robert Nozick: “Coercion,” Philosophy, Science and Method: Essays in Honor of Ernest Nagel, Sidney
Morgenbesser, Patrick Suppes and Morton White, eds. (New York: St. Martin’s Press, 1969).
2
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Nozick’s proposal runs aground on other examples, though. To borrow one from TM
Scanlon:4 John’s telling Tammy that he’ll quit his job unless she gives him a raise doesn’t
usually amount to impermissible coercion, and if she gives him the raise it’s reasonable
to suppose she did so consensually, and that it is permissible for him to take the raise,
even though either of her options makes her worse off.
On Scanlon’s own view, consent and coercion should be understood at least partially in
moral terms. He claims that “a threat renders a person’s consent invalid just when it is a
threat the agent is [not morally] entitled to make.”5 On Scanlon’s view, a threat is one an
agent is not morally entitled to make just in case the threatened action is one that the
agent is not morally entitled to perform. But there look to be counterexamples to this
proposal: if you’re a terrorist and you give me several million dollars because otherwise
I’ll tell the CIA about your nefarious plans, then arguably I’ve coerced you, and your
action is non-consensual. It also seems that my threat is impermissible. But I’m surely
entitled to inform the CIA—you have no claim against me that I not. Or consider another
example:6 John really loves Tammy’s old couch—they were once roommates and he has
fond memories of all the time he spent on it. Tammy wants to get rid of the couch, but
even more than that, she wants to have sex with John, so she tells him that she’ll throw
the couch away unless he sleeps with her. To many, it seems as though Tammy has
impermissibly coerced John, even though she’s entitled to throw the couch away.
4
Thomas Scanlon: Moral Dimensions: Permissibility, Meaning, Blame (Cambridge: Belknap Press, 2008),
83.
5
Scanlon 2008, 82. There’s clearly a typographical error in Scanlon’s text at this point: the ‘not’ is omitted.
I add the ‘morally’ just to make clear that Scanlon’s notion of entitlement is moral.
6
I take this example from AJ Julius, who discussed it in his Winter 2009 seminar on coercion at UCLA.
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Scanlon’s proposal may also face something of a bootstrapping problem. Presumably,
his account of entitlement will hinge upon his account of moral permissibility, generally;
but he also thinks that the principles determining moral permissibility are those that could
not be reasonably rejected as the basis for informed, unforced general agreement.7 If
unforced general agreement is the same thing as non-coerced general agreement, then his
account of coercion in terms of entitlement does not get us very far.
Now, I don’t think any of the problems above—which have in any case been sketched in
a rather slapdash way—are fatal for the accounts against which they’ve been raised. But
they lead me to suspect that we’ve been thinking about consent, coercion, and related
phenomena in the wrong way all along. I despair of the possibility of providing an
analysis of consent, or of related notions like coercion and autonomy, that helps us make
sense of the moral terrain. I suspect that we could do better if we simply quit ourselves
of the assumption that consent is morally transformative.
If this is right, we should be able to meet two challenges. First, we should be able to
provide an account of when interactions with others are morally impermissible that does
not make essential reference to consent, coercion, or related notions—as a view like
Scanlon’s or Kant’s does—but which gets our intuitions about a broad swathe of cases
right. Second, we should be able to explain the phenomena that have led us to say things
like ‘consent is morally transformative’ and ‘coercion vitiates consent,’ even if we cannot
explain what consent and coercion are.
7
Thomas Scanlon: What We Owe to Each Other (Cambridge: Harvard University Press, 1998), 153.
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II. Impermissibility
In the remainder of this paper, I will try to accomplish these tasks.
I’ll start by
describing, in outline, an account of moral impermissibility with which I’ve been
tinkering lately. I can’t do much to motivate the account here, other than to say that I
arrived at it because I thought that Scanlon’s contractualism is plausible, and wanted to
see what it would look like if you detached it from anything that resembles a notion of
consent.
The account of moral impermissibility has two parts.
The first part is a theory of
interests. I take it that persons can have interests—by which I just mean that certain
things, happenings, circumstances, ways of being treated, and the like can be good for
persons. I also take it that persons’ interests can be diverse. This means both that any
given person can have interests in a variety of things, not all of which are necessarily
reducible to an interest in some ultimate good like pleasure or happiness, and that the
interests of different persons are not always the same. I further suppose that the diversity
of persons’ interests is a result both of variation in their conative attitudes (what they
want, care about, believe is important, and so on), as well as of facts about them and their
circumstances apart from their attitudes. So, for example, I think it is in my interest to go
mountain biking while I’m here in Boulder. Part of what makes this the case is that I like
mountain biking. It also helps that I am fit and healthy. There are some for whom
mountain biking would not be in their interest, and this may be because they do not like
mountain biking, or because their circumstances are such that it wouldn’t be good for
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them, independently of what they want. If Milt has a broken wrist, say, then mountain
biking probably isn’t in his interest, even if he likes it.
Finally, I assume that persons’ interests can be more and less important, and that
comparisons of importance can be made both between the interests of a single person and
between the interests of two or more different people. I have an interest in doing good
philosophical work, and an interest in mountain biking. It would not be implausible to
say that my interest in doing good philosophical work is more important than my interest
in mountain biking. Likewise, though I’m willing to concede that my wife has an interest
in watching “American Idol,” and that this interest is somewhat important, I think it is
probably less important than my interest in mountain biking, and is certainly less
important than my interest in doing good philosophical work. Of course, my wife may
disagree about this.
A qualification is in order: though I assume that persons’ interests can be of greater or
lesser relative importance, this is not to assume that all the interests of all persons can be
ranked against each other. The most I want to assume is that there is a partial ordering of
interests, such that we can rank some interests against each other, but not others.
Likewise, I do not suppose that it will always be clear what the relative importance of
two interests are, or that we can always reach agreement about this.
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Now, if persons’ interests have the properties mentioned, I think the following principle,
if properly understood, does a pretty good job of predicting when actions are morally
permissible and impermissible:
Pair-Wise Comparison Principle (PCP): an action is impermissible if and
only if the net expected harm resulting to some person is greater than the
net expected benefit to be achieved for others, where this comparison is
made in a pair-wise fashion.
This principle needs some interpretation. What it says is that we should perform an
action if and only if the net expected benefit of the action outweighs the net expected
costs.
The expected benefit or harm of an action is proportionate to the relative
importance of the interests that are likely to be promoted or set back, and to the
likelihood that this will occur. The net expected benefit or harm of an action is the
difference between the expected benefit of the action under consideration and the other
most beneficial course of action open. Finally, to suggest that the comparison of benefits
and burdens is to be performed in a pair-wise fashion is to say that we are to ask, for each
person affected by the action, whether the net expected harm or benefit to her is
outweighed by the net expected benefit or harm to someone else. If there is some person
for whom the net expected harm is not outweighed by the net expected benefit to
someone else, then the action is impermissible. If there is someone for whom the net
expected benefit is not outweighed by the net expected harm to someone else, then the
action is permissible, and, in fact, required.
Why think PCP is true? Well, suppose A wants to murder B, just for fun. This would be
impermissible.
PCP can explain this, in that A’s interest in petty amusement is,
plausibly, less important than B’s interest in living. Or suppose that I am outdoors and
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my toes are at risk of frostbite, and I see that you have an enormous stack of firewood—
enough to heat your house every night for a year.8 I think I may steal some of your wood
and make a fire to warm myself, if that is the only way I have of saving my toes. PCP
predicts this because, presumably, my interest in saving my toes is going to be more
important than any interests you’re likely to have in maintaining your stock of firewood.
Note, though, that if there was some other way for me to keep warm—I have some wools
socks and could easily put them on—it wouldn’t be permissible for me to steal your
firewood. PCP predicts that, too, because in that case the net expected benefit to me of
my action is slight. Or, for another case, suppose that I have promised to help you move
your desk at 3:00 this afternoon, but while I am on my way to meet you I see that
someone has been in a car accident and needs emergency medical attention. If I stop to
aid her, I will be too late to help you. If her need is serious, I am competent to provide
the care, there is no one else around who is also competent, and in breaking my promise
to you I am not likely to expose you to very serious harm, then I think I ought to stop and
help, my promise notwithstanding. PCP clearly gives this result; and would add that it
will tend not to be true if the victim’s need is less, my competence to aid her is less, there
are others equally well positioned to aid her, or the harm to you of breaking my promise
is greater.
III. Consent
There are, of course, a lot of reasons to worry about PCP. But, largely for want of time,
I’m going to skip over those worries and see whether the principle can ground a
8
I borrow this example from David Attanasio.
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satisfying theory of consent. I think it can. I’ll call that theory the evidentiary account.
It says:
To a first approximation,9 a person’s consent to being treated in some way
is morally significant just insofar as it is evidence that it is morally
permissible to treat her that way, given her interests; consent will not be
morally important when, for one reason or another, it cannot play this
evidentiary role.
If PCP is true, A’s consenting to B’s doing something to him is usually (not always)
morally important just because of B’s epistemic limitations: A may be aware of reasons
for and against B doing what she plan to do, of which B is not. In particular, A may have
a better idea of how it is B’s actions are likely to affect A’s interests, and of the
importance of those interests, than B does. This will be because A’s interests, their
importance, and how they are likely to be affected by B’s actions, depend in large part on
facts about A’s psychological and non-psychological circumstances of which, often, A
will have better knowledge than B. Consequently, B’s asking A whether B may do
something that is likely to affect A is often a good way to determine whether the balance
of reasons favors B’s doing it.
How does the evidentiary account handle the cases I mentioned earlier? To start, it
makes good sense of some of the paradigm cases where consent seems to be morally
important.
It is typically impermissible for a physician to perform non-emergency
surgery on her patient without his consent; on the epistemic account, this is because
having surgery might not be in the patient’s interests, given the range of interests a person
The evidentiary account is true only ‘to a first approximation’ because, I think, persons can have a variety
of interests in consent and self-determination more generally, per se; though in general these interests are
not of overriding importance.
9
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could have; asking him may be the best way to find out.10 Likewise, it is almost always
impermissible for Tammy to have sex with John without John’s consent; this is because
whether sex will be in John’s interest depends largely on whether he wants to have it. In
particular, it’s true that if he doesn’t want to, it will be very bad for him. And in the usual
run of cases, it’s never true that Tammy’s reasons for having sex with John are good
enough to outweigh the badness of unwanted sex for John.
The evidentiary account accordingly explains the appearance that consent is morally
transformative as a mere appearance. It’s not the John’s consent makes Tammy’s having
sex with him permissible. Rather, it was (in the case where he consents) permissible all
along; his consent merely shows that this is the case. And when he does not consent—
especially, when he refuses—it shows what was already true, that Tammy’s having sex
with him is impermissible.
The evidentiary account also makes sense of many cases where consent looks
unnecessary, including cases of so-called ‘hypothetical consent.’ The reason it is
permissible for me to push you out of the way of the bus without asking is that it’s very
unlikely that you have good reason for standing in front of the bus, and very likely that
you have good reason to want to be out of its way (it’s also very unlikely that I’ll do you
greater harm by pushing you than the bus would; it wouldn’t be permissible for me to
push you out of the way of the bus with my semi-truck).
Robert Veatch makes something like this point in his paper ”Abandoning Informed Consent” Hastings
Center Report 25(2), 1995.
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This evidentiary account can also make sense of why certain specific psychological and
physiological conditions are thought to vitiate consent. Roughly, this is because these
conditions mean that the consent is not a good indicator of the balance of benefits and
burdens, for the person giving the consent. Suppose John is fall-down drunk and Tammy
wants to have sex with him. And assume that, for whatever reason, it’s not in John’s
interest to have sex with Tammy. In that case, it will probably be impermissible for
Tammy to have sex with John. And when John consents to sex with Tammy, it will not
be a reliable indicator of where his interests lay, and will not show that Tammy’s having
sex with him is permissible.
One thing that is often noted in the bioethical literature on consent,11 and by philosophers
like Joel Feinberg12 and Ronald Dworkin,13 is that the capacities necessary for consent can
vary with features of the decision, such as risk. Just consider the following examples:
Rip-off: You sell snake-oil to Lenny, who is severely mentally
incapacitated in some respect (e.g., he has Down Syndrome and very low
IQ).
Sandwich: For the usual price, you sell a sandwich to Lenny, who is
severely mentally incapacitated, but also hungry.
Novelty: You sell snake-oil to me, even though I’m not mentally
incapacitated in any respect (not as incapacitated as Lenny, at least).
11
Allen Buchanan and Dan Brock: Deciding for Others: The Ethics of Surrogate Decision-Making (New
York: Cambridge University Press, 1989), 18.
12
Joel Feinberg: The Moral Limits of the Criminal Law, Volume III: Harm to Self (New York: Oxford
University Press, 1986), 12.
13
Ronald Dworkin: Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom
(New York: Knopf, 1993), 225.
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I take it that everyone is going to think that, at least in the usual run of things, you’ve
acted impermissibly in Rip-off, but permissibly in Sandwich and Novelty.
We can
account for this in terms of the epistemic role of consent: in Rip-off, the consent given is
at best very weak evidence that you had sufficiently good reason to act as you did, in
light of the interests of the person affected, and assuming, in each case, that you’re just
acting for the sake of some trivial gain. In Novelty, my consent is relevant to the
permissibility of your selling me snake-oil, because I’m such that if I consent to
something, it’s often likely that I find the balance of benefits and burdens, in light of my
interests, to be in favor of it—which in turn means that it is likely that the balance of
benefits and burdens is in favor of it. In Sandwich, Lenny’s consent is no better indicator
of the balance of benefits and burdens than in Rip-off, but it happens that you’re treating
Lenny in a way that you have good reason to treat him, independently.
The evidentiary account also helps explain the consent-vitiating effects of coercion—or,
rather, explain them away. Consider the typical sort of mugging case: Joe wants to get
high on crystal meth, but needs money; he sees Moe walking down the street in a dapper
outfit and reasons that he is likely to have a lot of money, so Joe pulls out his gun and
takes it from him. Arguably, on PCP, Joe’s action is impermissible: whatever Moe
planned to do with his money, his interest in keeping it was probably more important than
Joe’s interest in spending it on crystal meth. The question of whether or not Moe’s
consent to Joe’s taking it was vitiated by the fact that he was coerced is the wrong one to
ask.
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Note, too, that the evidentiary account can explain why a surgeon’s request of payment in
exchange for the life-saving operation is not necessarily impermissible. Suppose again
that I am bleeding to death, that your surgical skills are the only thing that can save me,
but that you won’t operate unless I give you $10. I think your request is morally
permissible—at least assuming that I can pay you the money and am likely to agree. The
evidentiary account explains why this should be. In the general run of things, you can be
sure that if you make the offer, I will pay you the money, and there’s no particularly good
reason for me not to pay you. In such cases, making the offer is permissible, because my
interest in getting the surgery is clearly more important than my interest in keeping the
money. But, interestingly, if we are in a situation where I simply don’t have the money,
or where I am foolishly or spitefully stubborn and would refuse to pay you if asked to,
even if that meant that I will bleed to death, then it might be wrong for you to refuse to
perform the surgery unless I pay you.
Now consider the scenario I used to make trouble for Nozick’s account of coercion: John
works for Tammy and threatens to quit his job unless she gives him a raise.
John’s
threat, and subsequent acceptance of the raise, is morally permissible. The evidentiary
account explains this: supposing that, if John makes the threat, Tammy is likely to give
him the raise, John’s threat will usually be permissible because his interest in getting the
raise is usually more important than Tammy’s interest in not giving it to him. Though,
again, this is not always true. Assume that, because of the recession, Tammy cannot pay
John any more than she is doing, and that if John quits his job, Tammy is likely to go out
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of business, because she can’t find anyone to replace him. Then, I think it wouldn’t be
permissible for John to make the threat.
It is also interesting to note that the evidentiary account can explain when offers
sometimes seem to vitiate consent. There is a large bioethical literature concerned with
the moral significance of biomedical choices made in the face of financial incentives.
When Jesse sells his kidney to Steve because Steve offers him ten thousand dollars for it,
and Jesse is very poor and facing a lot of credit card debt, we might think that Steve’s
offer and subsequent acquisition of the kidney is morally impermissible because the
powerful nature of the incentive undermined Jesse’s consent. The usual explanations of
why this should be so are that the offer was coercive, or that it made him deliberate
irrationally or from a value that was not his. But this should seem at least a little strange.
Why, for example, should Steve’s offer of payment undermine Jesse’s consent to give
him a kidney, but not his consent to work in Steve’s shoe store? Why suppose that an
offer of ten thousand dollars makes Jesse deliberate irrationally about organ donation, but
not about work as a salesman?
The evidentiary account has a better way of explaining the problematic nature of cases
like this. We need not understand the difficulty as a problem of determining whether
Jesse really consented or not, whether he was coerced or even unduly influenced or not,
or whether he deliberated well. Steve’s offer seems to vitiate Jesse’s consent just because
(or just insofar as), we are inclined to think that the loss of Jesse’s kidney cannot really be
offset by his gain of ten thousand dollars, given the circumstances in which he finds
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himself. That is the main difference between being paid for a kidney and being paid to
work in a shoe-store: in the latter case, the payment is likely to be adequate; in the
former, it is not.
We should, then, begin to suspect that the evidentiary account can help us handle a lot of
the cases that make trouble for more conventional accounts of consent. I think it’s also a
mark in favor of the account that it explains why consent matters without having to say
what consent really is, or which is the correct analysis of the concept of coercion. There
is, of course, still work to be done. We need to say something about why, under certain
conditions, the sorts of things that we usually want to classify as consent have evidentiary
significance, and also about why different physiological and psychological conditions can
undermine that significance.
Moreover that PCP and the account of interests it
presupposes are plausible is a claim that needs more defense. But I think that the appeal
of the evidentiary account is great enough that such work seems worth doing.
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