Hypothetical consent
  • Bartricks
    6k
    Hypothetical consent is something we often appeal to in trying to arrive at considered judgements about what it is right or wrong to do to someone.

    For instance, the philosopher John Rawls famously argued that redistributive taxation is justified because we would all, if rational and ignorant of our natural talents, agree to such a system. And when it comes to making decisions on behalf of those who cannot consent, either because they lack the ability or because they are not here (the dead, for instance) we commonly think the fact 'it is what they would have wanted' counts for something.

    But what ethical clout does it actually have and when does it count for something?

    First, hypothetical consent is not consent. To quote Nozick, it is not worth the paper it isn't written on. If Jane is in a temporary coma and you want to have sex with her, then the fact that she would have consented to you doing so had you asked, does not mean you're not raping her if you go ahead and do it.

    Second, its presence only seems capable of counting for something when a) the hypothetical consent is informed and not a product of ignorance; b) the actual informed consent is not practically possible; c) when the hypothetical consenter would either be harmed, or deprived of a benefit were the act in question not performed; and d) when the hypothetical consent can be considered present prior to the performance of the act. Hypothetical consent is not retrospective, in other words.

    To elaborate, the hypothetical consent needs to be informed. That is, when engaging in the thought experiment, one must not assume the person whose hypothetical consent you're inquiring after is ignorant of facts that, were she to know them, would likely alter her decision. So, perhaps prior to the operation Jane would have consented to procedure x given what she had been told about procedure x; but if it subsequently turns out - that is, a paper is published moments after she's put under - that x has side effects that, had Jane known about them, would almost certainly have meant she would not have consented to procedure x, then the fact she 'would' have consented to x given the state of her knowledge prior to being put under does not count for anything.

    Re b, you are not justified in doing something that significantly affects me - either for the better or the worse - on the basis of my hypothetical informed consent if you could actually have asked me. Again, sex cases seem to illustrate this most vividly. The fact Jane would have consented to you groping her does not justify you groping her without her consent. Hypothetical consent is no substitute for actual consent, when actual consent is practically possible. (Even when actual consent is not possible, it is not really a 'substitute' for it, but rather serves to inform us about other ethically relevant considerations that now must be what the justification of our action depends on).

    Re c, to use an example of Bernard Williams's, if you're about to drink a glass of what you believe to be gin and tonic but which is in fact petrol, and there is no time for me to point this out to you, then I am justified in knocking the glass from your hand. For it seems beyond a reasonable doubt that you would not want to drink the glass of petrol if you knew it was petrol and if I do not knock it from your hand then you would come to a significant harm. So, hypothetical consent only applies when the act for which it is being considered is one that, if it were not performed, would result in the relevant party coming to harm or being deprived of a benefit. That is, there needs to be someone who is harmed by the action's non-performance, or would be deprived of something were the act not performed.

    Re d, imagine there is a love drug that, when taken, makes you fall in love with the next person you see. You are in love with Jane, but she is not in love with you. Imagine she is about to move overseas and you can only see her for one last time if she carries through with her plan. There is no time to ask for her actual consent, and so you decide to put the love drug in the coffee you are bringing to her, for you reason that after taking the drug, she will be happy that you did so for now she will be madly in love with you (and she will now happily abandon her plans to move overseas). Well, I take it that it is obvious that this would be a wrong thing to do and the fact she would have given her consent to it after you did it counts for nothing.

    Do those sound like plausible restrictions on the use of hypothetical consent to justify actions?
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    Real and imaginary consent/impositions can certainly be interesting ideas to consider ;)

    I hope Nozick would also agree that it's problematic to not save someone/provide a genuine gift just because one cannot ask for it themselves.

    A. Hypothetical consent seems to be about considering what a person would have agreed to had they been aware of all the facts at hand. Fortunately, we can consent to amazing things even if they have side effects.

    B. Taking unnecessary risks can certainly be problematic, especially since they aren't needed for living a fairly decent life. However, if one would have genuinely found the good to have been worthwhile, then not giving that seems to be more troublesome. I don't see why a person would ever agree to being "groped", since that seems to go against most people's preferences. However, if a person would truly have been fine with the act (which seems absurd to me), I don't think it would wrong to do so. But this could still be changed if the person would not have consented for someone to grope them if they were not able to ask for that act first. I suppose this strange desire would vary from person to person. I agree that actual consent/impositions are what ultimately matter. Also, just because someone might not ask to be helped in a precarious situation when they are awake, it doesn't seem ethical to not do so on the basis of reasonable probabilities when they are incapable for requesting support themselves.

    C. It might be good to intervene and prevent a person from being unnecessarily harmed (which is something they themselves would have avoided had they known that what they were drinking was petrol). Thankfully, we don't always have an ignorant person being thrust into sheer harm when they are created. There are innumerable joys which aren't "unnecessary" (assuming the absence of the harms is necessary), and if anything, it can be genuinely ethical to partake in the bestowal of a good that cannot be asked for before the person is capable of cherishing it. If this doesn't make sense, then neither does the idea of "imposing" existence. Hypothetical consent was assumed not just because it prevented a harm (a negative), but also because it allowed for a positive (ensuring one continues to have good health). Therefore, hypothetical consent isn't just about preventing harms; it is also about acts of genuine beneficence that lead to a positive.

    D. That could definitely be extremely unethical. Fortuitously, nobody is being misled into radically changing their views against their "real" interests when they are created.

    They are plausible, but they don't apply to every situation.
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    Well that's 1.5 seconds I won't be getting back. Oh, now you've added more.
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    A few seconds can help prevent decades spent believing in arbitrary standards.
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  • Bartricks
    6k
    ↪DA671
    I hope Nozick would also agree that it's problematic to not save someone/provide a genuine gift just because one cannot ask for it themselves. — DA671

    What was your point in respect of gifts? Do gifts constitute a counterexample to one of my conditions?
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    Supplement it. I can, in principle, agree with what you said here. Might be a bit boring lol. Perhaps other people can provide actual disagreements.
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  • Bartricks
    6k
    ↪DA671
    Eh? Look, I can't do your working for you - what are you saying?
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  • Existential Hope
    789
    ↪Bartricks
    I thought I already did. I assumed what you said to be true, so I didn't provide any couter-examples. I merely alluded to other things that might be relevant when thinking about actions that aren't solicited. As I said, perhaps other people could give actual disagreements. And don't worry, I'll do the necessary work concerning views I consider to have some flawed biases ;)
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    So to my question in the OP your answer is 'yes'?
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  • Existential Hope
    789
    ↪Bartricks
    They are definitely quite reasonable, so I would be inclined to say yes. Hopefully, they would only be used in applicable situations keeping potential/actual interests in mind.
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  • Bartricks
    6k
    ↪DA671
    So you agree that the fact most people would give their retrospective consent to be born, does not in itself do anything at all to imply that procreative acts are morally permissible? For that would clearly be a violation of both c and d.
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    I don't think that any form of consent applies to procreation, so that's irrelevant for me. Again, one cannot violate someone's consent when they don't exist to have any interests (prior or present) in the first place. Hypothetical consent is about taking into account the things one would have agreed/disagreed to had their ability to consent not been negatively affected by something else (lack of knowledge or awareness). However, this isn't the case with those who don't exist.

    Regarding c, I don't think it's for you to paternalistically judge what would be petrol or gin for others. It seems "beyond reasonable doubt" to me that one wouldn't be averse to a nectar of ethereal joy. Also, it's probably a good thing that one isn't*ignorantly* brought to a worse state of affairs that they would always have avoided had they known the facts. Additionally, the fact of ineffable happiness also remains pertinent. Not letting the person drink leads to actual benefit (conserving one's health) for those who exist, but that's not the case with people who are yet to be born.

    As for d, we can certainly be happy that nobody's being altered/misled into believing something "they" otherwise would have disagreed with when they are being created ;)
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    Again, one cannot violate someone's consent when they don't exist to have any interests (prior or present) in the first place. — DA671

    So you agree that hypothetical consent counts for nothing when it comes to the morality of procreation? The fact that if we create Tony, Tony will be pleased at us for having done so, is morally irrelevant, yes?
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    The concept of consent as a whole counts for nothing when it comes to procreation, in my view. So yes, actual and hypothetical ideas regarding consent are not pertinent, which also includes notions of impositions. However, even though "hypothetical consent/imposition" don't matter when it comes to procreation, there could be other relevant factors as far the morality of Tony's creation is concerned (the nature of his life, the intentions of the parents, and the consequences of creating him).
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    For something to be an imposition, there needs to be someone who has been imposed upon, yes?
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    Possibly. But if it can be an imposition, it can also be a gift. I am not a a fan of arbitrary double standards :p
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  • Bartricks
    6k
    ↪DA671
    Well, there is someone who is imposed upon if you procreate - the person you created! There isn't if you don't. There is if you do.

    I said that when it comes to hypothetical consent, we are sometimes justified in appealing to it when the act we are considering performing would be one that, were we not to perform it, would either harm someone or deprive someone of a benefit.

    That doesn't apply in the procreation case, for if we do not perform the procreative act there is no one who is harmed or deprived of a benefit.

    Well, doesn't that apply to impositions too? Something is an imposition on another if, were you to perform the act in question, there would be someone who is imposed upon?
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    The act itself is not an imposition because it in and of itself doesn't go against the interests of a person. Whether or not the person experiences future harms/benefits is another matter and not germane to the matter at hand.

    Agreed. Similarly, respecting one's autonomy can certainly be good if it is in a person's interests, which isn't the case with those who are not born.

    Neither would it lead to a good or go against their desires (prior or present) by putting them in a state of affairs they did not want to be in.

    An action is an imposition if it goes against the actual preferences of a person. Happily, procreating doesn't impose anything onto someone, since there aren't people in some pre-existence antechamber who want to avoid existence.
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    The act itself is not an imposition because it in and of itself doesn't go against the interests of a person. Whether or not the person experiences future harms/benefits is another matter and not germane to the matter at hand. — DA671

    I don't see how you're responding to my point. In order for something to be an imposition, there needs to be someone who is imposed upon.

    There is in the case of procreative acts: the person who is brought into being here. That person is imposed upon. There is no conceptual problem here.

    Sometimes we are justified in making impositions on others without their consent. That is where hypothetical consent comes in. But hypothetical consent does not apply to procreative acts.
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    In order for an act to be an imposition, it needs to impose upon someone.

    Procreation creates a person, but it doesn't impose anything upon a person, since there is no person to begin with prior to their existence who is being "brought" (moved from one place to another) here against their will.

    I also don't understand why you always miss my point, but I guess we have different intuitions. Hopefully, other people would be able to provide more apposite points.

    No form of consent applies in this case.
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    Procreation creates a person, but it doesn't impose anything upon a person, since there is no person to begin with prior to their existence. — DA671

    So you think that in order for something to be an imposition it is not enough that we locate someone who is imposed upon, they must exist prior to the act as well?

    So, if I know that were I to have a child, the child's existence would be characterized by utter agony from beginning to end, I would not be harming the child by bringing it into existence?
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    That's a separate matter entirely. One could still consider someone's existence to be a harm in a comparative sense due to the presence of suffering without it being a harm due to an absence of "consent".

    Creating that person would certainly be unethical, just as it would be ethical to give birth to a person who could have an ineffably positive existence.
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    So, to be clear, you think that one can be harmed by an act even if one does not exist prior to it, but one can't be 'imposed' upon unless one exists prior to the act?
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    It depends. Many people argue against procreation on the basis of the idea that it leads to a mostly bad existence which would be "worse" than a lack of existence. This is more about the nature of one's life than consent or impositions. My point was that saying it's bad to create someone due to existence being an imposition is different from saying that it's bad due to the harms of life. And as I said before, I am willing to accept that life could be an imposition sometimes, but in that case, it can also be a genuine gift, since it leads to the creation of a unsolicited good that one can cherish only when they exist. Consistency is quite important.
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    Your view seems ad hoc. You think that a person can be harmed by an act even though they did not exist prior to it, but you think that a person cannot be imposed upon by an act unless they existed prior to it. That, I think, makes no real sense. The person whose life will be characterized by utter agony has been imposed upon if we create them - the imposition in question is the life of agony.

    My view is consistent: in order to be harmed or disrespected or imposed upon or whatever, one needs to exist. That is, there needs to be someone who is harmed or disrespected or imposed upon.

    That person does not need to exist 'prior' to the act. It is enough that they exist at some point.

    And this applies to hypothetical consent as well: it only counts for something in respect of acts that, if not performed, would harm someone or deprive someone of a benefit.
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    I am merely advocating for consistency. The reason it appears ad hoc is likely due to the double standards in your own position regarding happiness and suffering ;)

    Many people argue that existence is worse than nonexistence due the the presence of harms. This is a different claim than the idea that it's a harm due to life being an imposition (which would mean that all acts of procreation were unethical, even if the person had a perfectly happy life). The person could certainly be harmed due to the existence of a state of affairs that's worse than nothingness, yet that isn't the same as it being an imposition, which doesn't seem to make sense when nobody's interests are being violated. And as I said before, if one can consider life to be an imposition, it can also be a gift. A life that could not have been solicited by an individual yet one that would be permeated with joy could definitely be seen as a genuine blessing.

    Yes, one needs to exist in order to be imposed upon. Fortunately, the act of creating them is not one that is imposing something onto an existing person.

    They do, and I am glad you admitted to that by saying they need to exist ;)

    And the lack of impositions only matters if their absence leads to a genuine positive for a person via respecting their interests.
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    I am merely advocating for consistency. The reason it appears ad hoc is likely due to the double standards in your own position regarding happiness and suffering — DA671

    Locate an inconsistency in what I am saying! I am the one being consistent. You are being ad hoc.

    We are justified in performing an act, at least in principle, when failure to perform the act would either result in someone being harmed or someone being deprived of a benefit.

    That's why it's wrong to bring into existence someone whose life would be characterized by intense suffering. There's someone who is harmed by that act.

    And that's also, incidentally, why we do not have an obligation to bring into existence happy lives. If we do not do so there is no one who is deprived of the benefit of them.

    The fact that they would have consented to what we did to them if we had created them is irrelevant, as I have shown in my OP (with which you agreed).
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    I already have. However, it would be a mere repeat of the previous conversation. As I said before, if life can be an "Imposition", I don't see any valid reason for thinking that it cannot be a blessing by the same token.

    Which means that the action would also lead to a benefit. But not creating a person doesn't seem to lead to an actual good for a person. Yet, if the lack of existence can sometimes be preferable, it can also be worse than a good life.

    If it can be a harm even though nobody has any needs, it can also a benefit because of the manifestation of numerous positives.

    There's nobody who's being provided tangible relief from the lack of harms. However, if it can still be good to prevent their presence, I do think that it's problematic to prevent the birth of all joys. This is why your position is ad hoc, in my view.

    I said that the concept of consent is irrelevant, which is a slightly different idea. But if it's "relevant" that harms have been "imposed", it's equally relevant that benefits that one could not have sought prior to existence have been bestowed. My view is that the former should not take universal precedence over the latter. To disregard it altogether seems inconsistent to me.
    Existential Hope Options
  • Bartricks
    6k
    ↪DA671
    Where have I said that life cannot be a blessing? I have not. The point, however, is that we have no obligation to bring into being lives that would be blessings, yes? But we do have an obligation not to bring into existence lives that would be a burden. And hypothetical consent - the fact that the person whose life would be a blessing if we created it would have consented to our doing so retrospectively - counts for nothng.

    Thus, we have an obligation to prevent harms when there would be someone who'd be harmed if we did not do so, but we have no obligation to promote benefits unless there would be someone who'd be deprived of them if we did not do so.
    Bartricks Options
  • Existential Hope
    789
    ↪Bartricks
    I would differ with that. If we can create lives that are likely to be good at little personal cost, I believe that it would be unethical not to create them (assuming it's unethical to create mostly bad lives).
    Impositions: Unsolicited harms
    Blessings: Unsolicited benefits

    In my view, both matter.

    My point was that consent as a concept doesn't seem applicable to procreation. Your scenarios were not similar to procreation, since they involved manipulation (changing one's existing interests) and acts that one would have hypothetically opposed (such as being groped while they were unconscious). But I would imagine that a person would definitely consent to experiencing a blessing if they could do so. You also said that hypothetical consent only applies when the failure to perform an act could lead to a deprivation of good for a person. If this isn't the case with people who don't exist because they cannot experience deprivation, I hope this doesn't mean that you would be fine with an unconscious person being groped as long as they don't actually experience a harm. But also, one could also suggest that respecting one's consent only matters when it creates/preserves a real good for a person. Finally, if when cannot invoke the concept of hypothetical consent when it comes to procreation due to its absence not leading to a deprivation of benefits, I think we should also accept that we cannot say appeal to a hypothetical dissent (the idea that a person who had no prior interest would still dislike their life) in an effort to deem procreation immoral, since the act of not creating someone by assuming a hypothetical rejection of life doesn't entail a real benefit for an existing person that would lead to relief/fulfillment. If we have to prevent harms whose absence doesn't result in satisfaction for a person, I think we should also seek to create goods irrespective of whether or not they can be asked for before existence. There wouldn't be anybody who would be happy due to an absence of life either.

    A hypothetical consent that's premised upon manipulation/misunderstanding of what constitutes consent (such as harming an unconscious person when they probably would not have consented to being interfered with in such a state even if they would have been fine otherwise) or an incomplete scenario that doesn't take into account the fact that not acting due to hypothetical dissent doesn't lead to an actual benefit/relief to a person in that particular case are equally impertinent for me.

    This is why I said earlier that we have different intuitions.

    Whether or not we have an obligation to do something also depends on our own limits as sentient beings and the ultimate results of an action. Since we have already discussed much of this before, I don't think that there's any point in fruitless repetition.

    I hope that you have a great week ahead!
    Existential Hope Options
  • Agent Smith
    9.5k
    The notion of hypothetical consent, its invalidity to be precise, would need to refute the position that any person, compos mentis, given the info available (premises) would, upon applying a valid argument form to the info, would arrive at the exact same conclusion as anyone would.
    Agent Smith Options
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