The Normative Force of Consent

Forthcoming in the Routledge Handbook on The Ethics of Consent, Peter Schaber ed. (Routledge Press, 2016).

University of Illinois College of Law Legal Studies Research Paper No. 15-36

24 Pages Posted: 18 Aug 2015

See all articles by Heidi M. Hurd

Heidi M. Hurd

University of Illinois College of Law

Date Written: August 13, 2015

Abstract

This essay taxonomizes and examines eight possible accounts of the normative force of consent. Two of these construe consent as a source of liberty-limiting constraints upon the later actions of the person who gives consent. On these accounts, consent functions to foreclose the opportunity for later complaint about actions which may, nevertheless, remain serious wrongs. Six of the accounts I describe, however, characterize consent as a source of liberty-enhancing permissions that eliminate otherwise existing obligations on the part of those to whom consent is given. On these accounts, consent is a moral-game changer. While it may not do all the work that is required to make others’ actions moral, it eliminates any claim that such actions are wrongs to the person who gives consent. As such, these liberty-enhancing accounts are true to the notion that consent is morally magical — that it has the ability to create and destroy obligations in the blink of an eye, and thus constitutes a normative power that allows agents to change their moral landscape, to alter others’ moral legacies, and to author moral laws by will alone.

Keywords: consent, moral magic, consent forms, hold harmless, estoppel; permission

Suggested Citation

Hurd, Heidi M., The Normative Force of Consent (August 13, 2015). Forthcoming in the Routledge Handbook on The Ethics of Consent, Peter Schaber ed. (Routledge Press, 2016).; University of Illinois College of Law Legal Studies Research Paper No. 15-36. Available at SSRN: https://ssrn.com/abstract=2643657

Heidi M. Hurd (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
2172443446 (Phone)
2172441478 (Fax)

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