In DEMOCRATIC AUTHORITY, David Estlund rightly points out that non-consent, as well as consent, can change the landscape of permissions and obligations. If you ask to touch me (his case) and I say “No,” then you are not permitted touch me. This could change a default prior condition in which, say, each is allowed to touch each other in a certain way. However, he also claims that “[if] there were some conditions that nullified non-consent, the result would be morally equivalent to consent” (i.e., in my terms the landscape of permissions and obligations would be the same in the two cases) [p. 9]. But why think this? This seems more likely to be true: antecedent conditions of permission and obligation still hold. This is the same as for nullifying conditions for consent: if I consent to give you my car under the conditions of your threatening my life (nullifying condition for the agreement) then whatever permissions and obligations that were there prior remain (probably you are not permitted to use my car). If this is right, then Estlund’s nifty “symmetry” argument for normative consent generating authority does not work. It does not work to start with only the intuitive notions that consent can generate authority, that non-consent as well as consent has the relevant sort of “moral power,” and that if one then both should have moral-power-nullifying conditions. This shortcut argument failing, the “long cut” of giving and explanatory account of why non-consent that one is morally obligated to consent to can generate authority (and under what conditions) seems unavoidable if we want a strong argument for obligatory non-consent generating authority.
I think I need more elaboration to understand the issue (because I have yet to read Estlund). Yes, at one level “nullified non-consent” seems to entail consent because the phrasing is just modeled on, or sounds like, double negation. But it’s not double negation, unless a “nullification” is a negation. Anyway, consent is an act (not a proposition), and nullification seems to refer (I guess) to background conditions of some sort, and it’s hard to see how a background condition can literally negate an act.
The basic problem is that it’s not clear what “non-consent” is, or what a “nullification” of it would be (hence, how the nullification would yield consent). Obviously, you’re critiquing Estlund’s claim that it does, but not enough of Estlund’s argument is there to get a sense of what he’s talking about.
“Non-consent” covers the gamut from “acts that have nothing to do with consent, a fortiori aren’t consenting” to “acts that resemble acts of consent but don’t quite qualify.” I think it matters which thing we’re talking about, or whether we’re talking about the entire spectrum.
“Nullification” could refer to an act or to a background condition or either indifferently. Again, it seems to me that the difference matters, or at least could.
I have no idea whether this is what Estlund has in mind, but the only situation I can think of that exemplifies a “nullification of non-consent” is a case in which someone tacitly consents to something without expressly consenting, then while half-way through the tacitly-consented to act, tries to “nullify” his own consent in the sense of treating his tacit consent as non-existing or non-binding. But in fact, that attempted nullification amounts to his recognition that he’s consented.
Example 1: I walk into a restaurant, not explicitly consenting to pay for anything. I order food off the menu, but when presented with the check, protest that I never consented to pay for the food I was eating. The protest is actually a nullification of my non-consent, i.e., a guilty recognition of my consent.
Example 2: The police show up at my door and ask to be let in. I open the door. “Can we come in?” they ask. I shrug. They walk in. I don’t protest. “Can we look around?” they ask. I shrug. They look. I don’t protest. They find contraband. Suddenly I protest.
Actually, there are more plausible examples in textbooks where people sorta consent to searches without quite realizing what they’re consenting to, then suddenly grasp the implications of having allowed a search, and then try to stop it or have it excluded–in vain. Commonly the defendant will claim that consent to a search requires informed understanding of what a search is, understanding that they, the defendant, lacked at the time of the search (but have since acquired). But that never works: courts construe “understanding” of the nature of a search in a very thin way, so that if you’re told that an officer is engaged in a “search,” it’s assumed that you know what that means, whether or not you understand the full implications of what it means.
Again, I have no idea whether this is in the ballpark of Estlund’s account. It doesn’t really sound like it is.
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I don’t think these are the sorts of cases (which strike me as attempts to “take back” implicit consent) that DE has in mind.
Here is a quote that might help (p. 9): “Non-consent has a moral force too, of course. For example, if I don’t consent to your touching me, then you are not permitted to touch me.”
DE must have in mind that I have been presented with prospective terms and said no (whether or not such presentation can be non-explicit). And he seems to think of consent in the same way. In the non-consent situation, the non-consent can (though does not always) change the normative situation from X-permitted-to-touch-Y to ~[X-permitted-to-touch-Y]. In the analogous consent situation, the change goes in precisely the other direction. In both cases, the consent or non-consent action can be “morally potent” in that it can change the landscape of permission and obligation as indicated. In the consent case, there are conditions that block the change that would otherwise happen – e.g., if you threaten to beat me up if I don’t agree to let you touch me. DE’s basic point is simply that, for very general metaphysical or perhaps logical sorts of reasons, it makes sense that there are similar conditions that would block the moral efficacy of non-consent. Does this make a little more sense?
I now worry that my original post was in error. For, if the relevant moral properties are binary (as permission/obligation are), then blocking the effects of non-consent does indeed leave us with precisely the conditions of (non-nullified) consent. And perhaps, as DE argues, being morally obligated to consent is such a blocking/nullifying condition for the normal moral effects of non-consent.
It does look like we need something like a presentation of terms in order for there to be either a consent or a non-consent situation at all (whether blocked or nullified by relevant conditions or not). I’m not sure this is a problem for getting political authority off the ground, but it might require some kind of formal presentation of terms by the government or relevant collective/corporate body. Otherwise, the bare fact that, if relevant terms were presented then one would be obligated to agree (to obey the law) would do no work.
I’m now more friendly to DE’s formal argument here than I was. But I think having clearly sufficient or compelling reason (moral reason) to consent – whether or not one is morally obligated to consent – is a plausible-enough non-consent-nullifying condition, though. And I’d still ultimately want a theory of how/why both consent and non-consent do the “moral work” that they do (normally) and why this is blocked or nullified when it is.
In other words, I’ve helped you track the truth by being completely out of phase with it myself. Another score for the invisible hand!
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