Overview on the metaphysics of consent

Huburt Schnüriger wrote a chapter for the Routledge Handbook of The Ethics of Consent called “What is Consent?” It outlines the philosophical debate about what kind of a condition consent is, focusing primarily on the contrast between the “Mental View” and the “Performative View”. I don’t think there is a free version online, but some libraries (including UBC’s) make institutional access available. Here is the publisher’s link.

This post summarizes the main ideas in Schnüringer’s chapter. (Since that paper itself is largely a summary, this post will be pretty superficial, but hopefully it can still give the reader an idea of the state of the literature, and help them decide whether they’d like to have a look at the literature itself.)

Schnüriger’s starting-point is the widespread assumption that consent is a “criterion of legitimacy” that “changes the deontic landscape”. In particular, consent is a way that rights can be waived:

The consenting agent has a claim right against another agent that this other agent performs a particular act or refrains from performing it. She may e.g. have the property right that the other person does not use her car. The other agent has the correlative duty owed to her not to use the car. A consent transaction secondly implies that the consenting agent has the power to waive her claim right and, thus, to release the other agent from his duty. By exercising her power, she changes the deontic landscape (see Hohfeld 1913: 44f). (p. 22)

Schnüriger is focused on what people sometimes specify as valid consent, which is consent that is voluntary, informed, and competent. So the question, ‘what kind of thing is consent?’, has rather direct normative implications: what kind of thing is a way of waiving rights along these lines?

The Mental View

The “mental view” is the view that consent is a mental state; it is something that is primarily “in the head”. That doesn’t mean it can’t be communicated in various ways, but when it comes to the question of whether consent is or is not present, that’s a matter of one’s inner mental experience. (Schnüriger does not reference the philosophical literature on mental state externalism—probably not everything mental is entirely internal. But I’ll assume here, with the chapter and the literature it engages, that it is.)

If consent is a mental state, which mental state is it? The chapter surveys several possibilities, including these:

• consent to X is desire for X
• consent to X is a choice for X to happen
• consent to X is a choice to waive their right against X happening

Arguments for the mental view include:

• that it gets the intuitively correct result about certain thought experiments (e.g. a consensual sexual encounter where a nonfluent subject accidentally uses words suggestive of non-consent.
• that it gives a plausible relationship between consent, autonomy, and ethics.

(The latter argument, Schnüriger seems rather dubious about.)

The Performative View

According to the performative view, consent is less about how someone feels, and more about what one does. It is performative in Austin’s sense of a “performative speech act” — like christening a ship or issuing a command, consenting to a procedure is a way of making true what is described by the same words.

The performative view, in Schnüriger’s view, should not construe external actions extremely narrowly; one who happens to engage in external behaviour conventionally associated with consent needn’t thereby be performing that action of consent. (He doesn’t give an example, but I imagine, e.g., signing a contract written in a language one doesn’t understand.) One’s internal state can make a difference for whether one is performing in that particular way. (This is why he thinks most attempts at “hybrid models” of consent are poorly motivated. They should just be thought of as performative.)

Arguments for the performative view include:

• that actually, the cases that pull the views apart intuitively favour it over the mental view
• a normative argument about the accessibility of reasons: “Loosely following Alan Wertheimer’s proposal, it can be conceived of as an argument based on two premises. The first one states that an agent’s consent functions as a deontic transformer because it changes the other agent’s reasons for action. The second premise contends that the mental states of one agent cannot, on their own, change another agent’s reasons for action. That is taken to lead to the conclusion that consent must be understood as an openly accessible token of consent (Wertheimer 2003: 146).”
• that it better respects the intersubjective nature of consent transactions
• that it better respects the role of consent in how we hold people accountable

Schnüriger does not definitively argue for one approach or the other; he points out that, given the availability of different levels of normative evaluation — evaluating acts, evaluating character, etc. — it is not too difficult to pass similar normative judgments about various cases from either perspective. For example, in cases that the performative view would classify as non-consent, but the mental view would classify as consent, someone who performed the action in question could be held criticizable on either view; if it isn’t a consent violation, it is still an action reflective of a disposition to be at best insensitive to consent.