When consent doesn't work: a rights-based case for limits to consent’s capacity to legitimise
Hyams, K. (2011) When consent doesn't work: a rights-based case for limits to consent’s capacity to legitimise. Journal of Moral Philosophy, 8 (1). pp. 110-138. ISSN 1745-5243
To link to this article DOI: 10.1163/174552411X549417
Consent's capacity to legitimise actions and claims is limited by conditions such as coercion, which render consent ineffective. A better understanding of the limits to consent's capacity to legitimise can shed light on a variety of applied debates, in political philosophy, bioethics, economics and law. I show that traditional paternalist explanations for limits to consent's capacity to legitimise cannot explain the central intuition that consent is often rendered ineffective when brought about by a rights violation or threatened rights violation. I argue that this intuition is an expression of the same principles of corrective justice that underlie norms of compensation and rectification. I show how these principles can explain and clarify core intuitions about conditions which render consent ineffective, including those concerned with the consenting agent's option set, his mental competence, and available information.