Consent determines ethics

I want to sketch out an idea that hasn’t yet formed fully. Various approaches to ethics take different things as fundamental. I want to consider consent. Most (all?) other candidates for fundamental concepts depend on consent. This raises questions about the range of choices we face with regard to consent.

Jonathan Haidt suggests that there are 6 moral foundations, care/harm, fairness/cheating, authority/subversion, loyalty/betrayal, liberty/oppression, a and sanctity/degradation. Gert lists ten prohibitions and a method for judging exceptions. MacIntyre advocates virtue ethics. And many people, perhaps beginning with Bentham, advocate consequentialism.

Care/harm doesn’t outrank voluntary/involuntary. Consent determines what counts as care or harm. The same doctor can make the same incision, but in one case it counts as care and in another it counts as harm, depending on whether the patient consents. Care and harm are never objective in the sense that we can draw lines between them that disregard the attitudes of the participants. (This excludes the case of minor children, who need a guardian to consent for them.) The ability of third parties to overrule the consent of a competent adult on the basis of care/harm qualifies as paternalism, where some subgroup of society chooses for the rest. When dealing with competent adults, we can’t use “it’s for your own good” as an excuse, even if it applies.

Haidt's other moral foundations also depend on consent. Those who possess authority can give consent to have their authority ignored or violated. Those to whom loyalty is owed can consent to waive the obligation. Those who are entitled to liberty can consent to be imprisoned. Those who are entitled to fairness can consent to being treated unfairly.

Sanctity is a difficult case, since god rarely shows up and so can’t give consent. But if god did appear, a violation of the sacred could be sanctified by its consent. In every case, Haidt's foundations evaluate a situation differently depending on the consent of the participants.

Flourishing works no better. What am I justified in doing to you for your own good or flourishing in spite of your refusal to consent? My intention may be good, but if I force unwanted help on you that can’t be moral unless you are a child. This is just care/harm wearing different clothing, it is either voluntary or paternalistic.

What about Gert's ten prohibitions? Same story, plus a procedure for making exceptions. The difference between murder and euthanasia is consent. Pain can be caused when the victim consents. Etc. I have reservations about some of Gert's prohibitions, but even if I stipulate Gert's prohibitions, all of them lose their strength when the supposed victim consents. Death, pain, disabling, deprivation of freedom or pleasure, violating promises, and neglecting duty very clearly depend on the consent of the person receiving the action. Deception, cheating and obeying the law complicate matters. I think I could consent to be deceived, but I can’t think of a realistic example. A magic show is too mild a deception. Cheating isn’t cheating if it is done with consent. It is even more dependent on attitudes of participants than the others. Disobeying the law doesn’t count as disobeying the law, if the law maker, enforcers, and victims all consent.

I need to think more about virtue ethics. I am less familiar with that topic. Some of it focuses on purely internal factors, only incidentally affecting others who might consent or not. My initial thinking is that virtue ethics does not give us grounds to overrule other competent adults' choices.

I need to think more about consequentialism, too. Many sorts of social change could provide a net benefit to people in general (though currently this is impossible to measure), but only rarely could do so without counting as a loss to some persons, at least in the short run. What possibilities can we consider?

1. The subgroup that benefits decides for all, but compensates the losers.
2. The subgroup that benefits decides for all, and imposes the change for “the public good” without compensating losers.
3. Members of the subgroup that benefits change their behavior to conform to the new norms, leaving “losers” to decide for themselves how to proceed.

Did I leave any possibilities out? 1 is rarely used, while 2 and 3 are used frequently. 1 and 3 respect the consent of all participants. So although it isn’t impossible to reconcile consent and consequences, people sometimes feel justified in violating consent for the purpose of achieving some consequence. Apparently, if the winners gain enough, or if the losses of the losers are small or temporary, people feel justified in overruling the losers without compensating them. This might even be a superior outcome, if the “losers” are not really affected by the change, but just spoilers or free riders hoping for compensation.

That raises a question about how we ought to determine who can consent to what. But that will need to appear in another blog post.

This is a rough draft and may change. Comments invited.

Libertarian alternatives to regulation

Critics of libertarianism sometimes argue as if the libertarian position against centralized government regulation bases itself on the idea that only consumers’ willingness to pay for a product should restrain producers via boycott (e.g. Scott Alexander). Libertarians have the boycott tool in their toolbox, but that’s not all. I ignored this tendency toward error for a long time, then suddenly it turned around and looked at me. Are they such rank sophists, or do they actually know a lot less about libertarianism than I give them credit for? So what are they misunderstanding?

Libertarians are tediously predictable. Every solution offered by libertarians involves voluntary interaction based on private property and avoids unilateral decrees by an authority. So there is at least a bit of plausibility attached to this idea that laissez faire means no one does anything ever. But if libertarians are such absolutists when it comes to non-interference, how do they maintain their precious property rights? How do they even prohibit murder? If libertarians have no way to deal with producer externalities, do they have a way of dealing with anything at all? Should murderers be punished with a boycott?

Libertarians often get accused of oversimplifying reality, and in this instance the libertarian position is indeed quite simple. When someone violates your property rights, you sue them. A murder was committed? The victim owned that body, and the heirs can sue. Any serious dispute should be resolved by arbitration.

How would this work for cases of externalities or other targets of regulation? If the externality affects my property, e.g. pollution falls on my house and gets in my lungs, I have grounds to sue. At that point, the mechanism for resolving the conflict is the same as if a murder or theft had been committed. Libertarians may be overly optimistic with regard to the effectiveness of this approach, but that is not the same as suggesting that nothing be done.

Clearly, there are potential problems. Perhaps the process will be too slow. The persons arbitrating the case can take bribes or help out their friends. It may be difficult to find evidence of the tort. A little guy may not have the resources to take on a giant. One side of the dispute may try to intimidate the other. The arbitrators may honestly overvalue or undervalue the significance of the externality. More possibilities may occur to you. (E.g. David Friedman has pointed out that this approach can lead to absurd conclusions if taken as an absolute. If any use of your body whatever creates a tort or assault, I can’t point a flashlight at you.  But this theoretical problem solves itself in practice, as the expense of suing for photon assault wold be much higher than the appropriate restitution, unless we’re talking about a high wattage laser that does actual damage.)

None of this disappears when we wave the magic wand of regulation. Perhaps you feel skeptical about the idea that private arbitration can accomplish all this. Similarly, libertarians feel skeptical that government regulation accomplishes this effectively. The most salient difference lies in the different attitudes toward experimentation and innovation. Classic regulation takes a hostile view of experimentation, while tort liability remains indifferent ultimately to everything but results.

If tort liability is so great, why has it failed to deliver paradise in the past, and required the legislature to create regulatory bureaucracies and frameworks? Inadequacy of tort liability as a remedy is one possible explanation of what happened. I can think of two related alternatives. Perhaps tort liability was working fine and special interests lobbied to cripple it to bring about a more favorable outcome for themselves. Or perhaps our society made a different evaluation at that time, and chose higher production and higher employment over a clean environment. These two are not mutually exclusive. Then when people began to get tired of rivers that catch fire, government agents were happy to create a new bureaucracy to make sure rivers don’t catch fire.

Why would they do that, if all they needed to do was overturn some precedents or pass legislation clarifying liability? The cynic would answer that ambitious persons in government always want to create a bureaucracy to solve anything, as it expands their power, prestige, influence and budget. A more charitable historian might suggest that people had mostly forgotten how things got that way in the first place, and cultural attitudes favored a centralized top-down approach.

Reasonable persons can believe that tort liability can’t do as good a job of resolving externalities as centralized government regulation. This is an empirical question, though not easy to answer. Critics of libertarianism can either criticize this position or engage in sophistry by pretending it doesn’t exist. I wish to hear more from serious critics and less from sophists.

Three categories of interaction

We can interact voluntarily or involuntarily. Often we can choose between the two. And if we choose involuntary interaction, we can choose to give a reason for our choice or not. This creates three categories of interaction.

If we interact involuntarily without giving reasons, and I give you a command and threaten to retaliate if you disobey, can I object consistently when other people treat me the same way, or even worse? Someone who chooses to interact involuntarily without giving reasons silently presupposes that we don’t need to explain involuntary actions, at least not the sort they’re carrying out. So if one person doesn’t need to give reasons, no one needs to give reasons. 

Suppose that is wrong. Suppose I say that I need no reasons but you do. That sounds like special pleading. But more interestingly, I seem to imply I have a reason for my actions. There must be some reason that explains why I am free to do as I wish while you are not. Such a difference in status requires an explanation; otherwise you have no reason to restrain yourself and I have no grounds to object to your lack of restraint. But if that reason exists, I am not doing as I wish without having a reason, I am just refusing to provide my reason. My action presupposes not that I don’t need a reason and you do, but that I have a reason and you don’t. This contradicts my assumption that I need not give reasons for my involuntary actions. So if I say I need no reason to interact involuntarily with others, no one needs a reason when interacting involuntarily with me. I can hold the position that I need no reason while you do need one, but I contradict myself. If I say I have a reason but I won’t provide it, I am probably bluffing. If I act as if I need no reasons, then my actions presuppose that no one needs a reason. This provides a negative principle of reciprocity. (This resembles Kinsella's concept of libertarian estoppel.) It doesn’t say no one should turn the other cheek, it says that they have no logical requirement to do so. 

We could also frame this as, unjustified involuntary interaction implies reciprocity and justifies self-defense.

Is the principle of negative reciprocity normative or positive? It doesn’t label anything normal or abnormal, good or bad, permitted or forbidden. It just says I can’t remain logically consistent while objecting to other people acting the same way I do. If I want to be able to object consistently to things other people do, I need a reason when I interact involuntarily, one that could convince an impartial arbiter of my special status. This is a weak principle of society. If I don’t care what other people do and have no desire to object to anything, I can say no one needs a reason for anything; but then no one needs a reason for anything they do to me. Or I can say everyone needs a reason for interacting involuntarily, and I have one. It’s a choice.  

I think most people prefer reciprocity - don’t hurt me and I won’t hurt you. That goes a long way.

To summarize, we have three mutually exclusive and exhaustive categories of interaction we can sometimes choose among:

• We can interact voluntarily, without need for justification.
• We can interact involuntarily with a good reason.
• We can abandon justification or reciprocity, but not both.

That leads to the next question: what sorts of reasons can justify involuntary interaction?