Consent Part II: Duress

This post is a continuation of an analysis of the concept of "consent". It will appear with the previous post as a single article in the desirism wiki.

In the previous post I discussed consent in the context of desirism, the "consent of the governed", and the issue of guardians and wards. Here, I conclude the analysis with a discussion of duress.


Duress

Another important element of consent is the fact that we deny that a person gave consent when a person acts under duress.

We have some preliminary work to do before we look at the duress directly.

Agents act so as to objectively satisfy the most and strongest of their desires (given their beliefs). Let us assume that Person A has a desire that P and Person B has a desire that Q. One way that Person A can realize a state of affairs S where P is true is to tell B "S or not-Q". That is to say, "Either you act so as to objectively satisfy my desire that P, or I will act to prevent the realization of any state in which Q is true." B, with a desire that Q, now has a reason to act so as to realize S.

Did B give consent to this bargain? Or was B acting under a threat?

Under this description, we cannot tell.

Our description fits a case in which A tells B, "Either give me $100 or I will break both of your legs." In this case, B gives A $100 to prevent the realization of a state to which B is averse – a state in which both of his legs are broken.

It also fits a case in which A tells B, "For $100, I will drive you to the airport." In this case, B gives A $100 to prevent the realization of a state to which he is averse – a state in which he misses his flight.

Why is the first case an example of extortion, and the second case an example of a legitimate market transaction?

The most obvious difference is that the first option is one that a person with an aversion to acting so as to make another worse off would not perform. The second does not involve acting to make another person worse off. In the second example, B would have been worse off even in a world where A did not exist, so A cannot be the cause of B being worse off. This makes a difference as to whether the act is a threat or a transaction.

People generally have many and strong reasons to promote an aversion to making others worse off. We are better secured in a community surrounded by people with such an aversion than we would be in a community where people make each other worse off as a matter of routine. So, people generally have a reason to condemn those who lack such an aversion in order to promote its prevalence and strength.

Threats are actions that a person with a proper aversion to making others worse off would hate to perform. They are actions that invite condemnation. Not only do we condemn the person who makes threats, we withhold the judgment that he obtained the consent of those they threatened.

We could have invented a language with two different types of consent - morally legitimizing consent and consent under duress. An argument that consent under durress is not morally legitimizing would still look at the fact that a person with a proper aversion to acting so as to make others worse off would not perform such an act - that people have many and strong reasons to condemn those who do.

Though we sometimes see hints of this language being used, for the most part we have adopted a language where we use the term "consent" only in the case of morally legitimizing consent in the language mentioned above, and deny that the term applies in cases where threats are used. These are simply two different languages that describe the same phenomenon


Conclusion

Asserting that one had obtained consent implies moral legitimacy. We have built this into the meaning of the term - and then bounded the term by what people generally have reason to condemn.

People have a reason to promote an aversion to acting without consent when agents are the most knowledgable and least corruptible guardians of their own interest. When these conditions do not apply, we deny that consent is even possible.

People have a reason to promote efficient proxies to consent for large groups. This involves promoting an aversion to going against the will of the majority (within limits). Therefore, when a vote is taken and the group, by and large, agrees to a proposal, we talk about this in terms of the "consent of the governed."

People generally have reason to condemn the lack of an aversion to causing harm that makes threats possible. Consequently, we deny that consent is obtained when a threat is used.

This means that the concept of "consent" carries a lot of morally loaded baggage that a proper analysis of the term must unpack. Yet, it leaves us with a concept where, in many cases, if a person obtains consent, an action that would have otherwise been morally prohibited (an act that a person with a proper aversion to acting without consent would not perform) becomes permissible.