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The Moral Magic of Consent (II)

Published online by Cambridge University Press:  16 February 2009

Larry Alexander
Larry Alexander
Affiliation:
University of San Diego
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Extract

I begin my analysis of consent by agreeing with Professor Hurd that consent functions as a “moral transformative” by altering the obligations and permissions that determine the Tightness of others' actions. I further agree with her that consent is intimately related to the capacity for autonomous action; one who cannot alter others' obligations through consent is not fully autonomous. I cannot improve on her elaboration of these points.

Type
Articles
Information
Legal Theory , Volume 2 , Issue 3 , September 1996 , pp. 165 - 174
Copyright
Copyright © Cambridge University Press 1996

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References

1. See Hurd, H.M., The Moral Magic of Consent, Legal Theory Vol. 2, No. 2 (1996).CrossRefGoogle Scholar

2. Id. at 124–25.

3. Id. at 126.

4. Id. at 135–38.

5. Id. at 129–31.

6. I disagree with Professor Hurd's core notion of consent as intending another's boundary-crossing act because I do not think one can “intend” another's act Further, even if one could intend another's act, I do not think that when one consents to another's act, one intends that act. For, frequently, we are relieved, not frustrated, when one to whom we have given consent to cross our moral boundary does not do so. Moreover, although Professor Hurd and I agree that consent is a mental state, unlike Professor Hurd, I do not think we can reduce consent to states of mind that are devoid of moral referents, that is, that one can naturalize or “demoralize” the mental state that is consent I think, rather, that the mental state of consent depends on moral notions and could not exist in their absence.

7. See Hurd, , supra note 1, at 127–33.Google Scholar

8. Id. at 134.

9. Id.

10. Id.

11. Thus, my second principal disagreement with Professor Hurd—the first being over whether the consenter intends the consented to act or only intends to forgo moral objection to it—concerns those background capacities and motivations that defeat consent. Professor Hurd wishes to make these conditions strictly parallel to the conditions that excuse criminal conduct. See id. at 140. Thus, a threat that would give a criminal defendant a defense of duress will also excuse (and hence defeat the moral force of) what would otherwise be valid consent.

I do not think that the comparison of criminal law excuses to background conditions that defeat the moral force of consent is apt. There is no wrong in consenting that needs to be excused. And, because of this, there is no way to calibrate the level of threat required to vitiate consent with the different acts that one might consent to, as there is when we calibrate threats to various crimes that the threats might excuse. Does it take a greater threat or a lesser threat to convert sex to rape than to convert a gift to extortion? See id. at 142–44. Moreover, excuses come in degrees. Does consent? According to my analysis, “consent” in response to an illegal threat is not “excusable” consent, however, but no consent at all. Professor Hurd must argue that threats induce excusable intentions that the threatener cross a moral boundary. But she is wrong on both counts: The “consenter” is not “intending” the boundary crossing, and the mental state in such a circumstance is not one that must be excused. It is only because she banishes moral referents from the mental state of consent that Professor Hurd must rely on the inapt analogy of criminal law excuses to deal with background motivations and capacities.