Defective Normative Powers: The Case of Consent
Massimo Renzo
Abstract
Desperate to reach the airport in time for my fl ight, I ask to borrow your car. You consent. By doing so, you release me from an obligation I previously had not to take your car. Taking your car might still be wrong all things considered, of course. Perhaps, my trip is not especially important, whereas being without a car for a few days will seriously inconvenience your family. Still, with your consent, you've temporarily waived your right that I don't take the car, thereby removing the obligation that corresponds to that right. In other words, with your consent, you've made it pro tanto permissible for me to treat you in a way that, had you not consented, would be wrongful. 1 Philosophers agree about this much. However, they disagree about what you need to do to in order to give morally binding consent. This is sometimes referred to as the question of the 'ontology of consent'. Two views dominate the philosophical debate on this issue. According to the 'mental state view', you consent to me -ing (where is any action you have the power to consent to) when you form a certain mental state, such as mentally waiving your claim that I don't (Alexander 1996, 2014; Ferzan 2016). 2 According to the 'behavioural view', you consent to me -ing when, in addition to forming that mental state, you behave in a certain way to communicate its content to me. Communication may be verbal or nonverbal (in a suitable context, nodding, opening a door, or removing clothing might be ways of communicating consent) but, crucially, forming the mental state to waive your right that I don't is not enough to consent to me -ing, unless you communicate that to me (Raz 1986;