Welcome to what we expect will be a very interesting and productive discussion of David Enoch’s “Hypothetical Consent and the Value(s) of Autonomy.” The paper is published in the most recent edition of Ethics and is available through open access here. Beth Valentine has kindly agreed to contribute a critical précis, and it appears immediately below. Please join in the discussion!
Précis by Beth Valentine
“Hypothetical consent is puzzling.” (p.1) This is how Enoch begins his paper, but by the end I was convinced that this claim is false. “Hypothetical Consent and the Value(s) of Autonomy” motivates this initial puzzlement by pointing to intuitions regarding hypothetical consent that, at first, appear to lack a cohesive explanation. Through examining actual consent and autonomy, he does much to explain away this puzzlement and argues that hypothetical consent can, in some contexts, make a normative difference.
I start my comments at the paper’s conclusion, where Enoch helpfully lists what he takes to be the four lessons of his paper. I’ll then motivate the puzzle of hypothetical consent and discuss lessons 1-3, commenting only briefly and indirectly on 4. Somewhat paraphrased, these lessons are:
- Hypothetical consent can still be normatively significant even if it doesn’t do the same normative work actual consent does.
- Currently, there is no conclusive argument against hypothetical consent; there are ways to adequately respond to the two main arguments in the literature.
- Consent matters for different reasons: sometimes it matters because of non-alienation, sometimes because of sovereignty. Hypothetical consent can matter because of the former but not the latter.
- Non-alienation can be understood in terms of Frankfurtean endorsement and higher-order attitudes. (p. 34)
We sometimes think hypothetical consent makes a normative difference. Imagine there is an unconscious patient who needs a blood transfusion and an unconscious Christian Scientist who needs the same procedure. (Enoch calls these cases The Unconscious Patient and The Unconscious Christian Scientist.) Presumably, it is more permissible to give the transfusion to the unconscious patient than to the unconscious Christian Scientist; the fact that one would not have consented had she been able to but the other would have does some work in explaining this difference. Yet, if I take your property without asking, the fact that you would have consented seems irrelevant. Why this difference?
- Hypothetical Consent & Actual Consent: The Same Normative Work?
One of the interesting gems of Enoch’s paper is his admonition that we should not theorize about hypothetical consent with “an overly poor menu of normative upshots.” (p. 11) Our moral practices can have a variety of normatively significant effects, in varying degrees: they can make an impermissible action permissible (or perhaps just less impermissible), create powers to create duties, create duties, defeat reasons, etc. The “upshot” of this observation is that, even if hypothetical consent doesn’t have the same effects as actual consent, it can still have normatively significant upshots.
However, I wonder whether we are justified in giving hypothetical consent the name of consent if its normative work differs from that of actual consent. There is some virtue in having names accurately reflect their concepts. If we are going to call something consent – even if we admit it isn’t actual consent – it should share some resemblance with its namesake. One natural way of establishing this resemblance is by showing that both practices have the same normative upshot for the same, or at least similar, reasons. At this point, though, my worry remains premature. If Enoch is right, hypothetical consent may do at least some of the same work as actual consent, at least some of the time, and this may be enough to justify bestowing the practice with the name “consent.”
- Challenges to Hypothetical Consent
Before offering a positive account of why we should let hypothetical consent do (some) normative work, Enoch tackles the two main challenges to the relevance of hypothetical consent.
On the one hand, we have the no real work challenge. This view claims that the reasons for which we impute consent do the real normative work. Any judgment about whether the agent would have consented is merely a by-product of the factors that generate the permissibility. No real work is supported by the Transitivity Argument (p. 8):
(1) The Normative Upshot holds in virtue of Hypothetical Consent.
(2) Hypothetical Consent would be given in virtue of the Underlying Reasons.
(3) The in-virtue-of relation is transitive.
(4) Therefore, the Normative Upshot holds in virtue of the Underlying Reasons. (From (1), (2), and (3)).
(5) Therefore, Hypothetical Consent does no normative work in justifying the Normative Upshot. (From (4))
The main objection Enoch raises against the Transitivity Argument relies on multiple realizability. However, before discussing this topic, I want to suggest that he dismisses too quickly another possible point of push back. Gesturing to the grounding literature, Enoch raises the possibility that transitivity does not hold across different types of in-virtue-of relations. The argument might then equivocate if the in-virtue-of relation in (2) is causal but in (1) is normative. Enoch bypasses this worry by focusing on cases “in which it seems like the Hypothetical Consent holds normatively in virtue of the Underlying Reasons.” (p. 7).
To see if this bypass is plausible, I think it is helpful to (briefly and roughly) introduce a distinction Donald VanDeVeer raises in Paternalistic Intervention (1986, see pp. 71-75). Hypothetical rational consent asks what a fully rational agent (who may be aware of all relevant facts) would consent to. It is the type of consent that commonly pops up in political philosophy and contractarian-like views. Here, Enoch’s bypass seems reasonable. However, there is another type of hypothetical consent which VanDeVeer calls hypothetical individualized consent. This consent inquires if an agent would have consented had she been able to by considering all of her known or likely attributes. Foreshadowing Enoch’s own commitments on non-alienation, this type of consent takes into account the agent’s desires and commitments instead of abstracting away from them. For this type of consent, it seems as if Underlying Reasons are purely motivational and so causal. The reasons themselves have no normative role to play in why we give hypothetical consent force. While I find Enoch’s later comments on multiple realizability persuasive, it is worth noting this other way of resisting the Transitivity Argument for some types of hypothetical consent.
Enoch’s rejection of the Transitivity Argument, and so the no real work objection, resists the move from (4) to (5). He notes that Hypothetical Consent can hold in virtue of different sets of Underlying Reasons. In such cases, it seems plausible that all that matters is simply that there is hypothetical consent; we needn’t further concern ourselves with which set of Underlying Reasons hold. For example, it doesn’t matter why the unconscious patient would have consented; what matters is that she would have. (As Enoch notes, in this way hypothetical consent resembles actual consent.)
The second challenge claims that hypothetical consent is no substitute for the real thing. Since normative powers generally must be exercised if they are to have effect, the gist of this challenge is that hypothetical consent is no more useful than hypothetical water is when one is thirsty – it simply is no substitute for the real thing. In response, Enoch notes that “going hypothetical” is sometimes an acceptable move. Whether such a move is legitimate depends on the philosophical motivations for the original theory. Invoking what one would have seen might be legitimate for a theory of colors, but referencing what one would have valued for a theory of normative concepts may not be. Enoch’s response thus leads us to lesson three, where he explores why we care about actual consent. He’ll conclude that, at least when we care about non-alienation, hypothetical consent is a good substitute for the real thing.
- Non-alienation and Sovereignty
Having shown that there is at least hope for normatively significant hypothetical consent, Enoch lays the groundwork for his positive argument by looking at the normative significance of actual consent. Here, he encourages us to embrace the complexity of consent, noting that it would be surprising if it we get a general, context-insensitive account of why consent matters. His account is not surprising, at least not in this regard. He holds that consent matters both because of non-alienation and because of sovereignty. Let’s start with non-alienation. Recall The Unconscious Patient and The Unconscious Christian Scientist. To these cases, add The Conscious Anxious Patient and her unconscious counterpart. The anxious patients fear needles and so refuse or would refuse a blood transfusion on these grounds. Here is Enoch’s assessment of the cases: We can permissibly administer the transfusion to the unconscious patient and the unconscious anxious patient. He’s less sure of administering the transfusion to the others, but he is sure that it is more problematic to administer it to either Christian Scientist than to their anxious counterparts.
What explains these intuitions? For Enoch, the answer relies on the agents’ higher-order desires. Even though both the unconscious anxious patient and the unconscious Christian Scientist would have refused treatment had they been conscious, only the latter would refuse for reasons she endorses with higher-order desires. Administering the transfusion to either Christian Scientist would be a violation of self in a way that administering the transfusion to the anxious patients would not. This explanation, covering both actual consent and hypothetical consent, explains one way in which both types of consent matter: they matter because they prevent treatment which would be “an assault on [the consenter’s] self” and enable us to treat them in a way “they identify with.” (p. 25) Enoch refers to this autonomy-based reason as “non-alienation.”
However, it is important to note that this reason only applies to a subset of hypothetical consents. Enoch points to sexual interactions as one possible limitation. Yet, there is another type as well. Recall the distinction between hypothetical rational consent and hypothetical individualized consent. It seems possible that consent can be so rationalized and abstracted from the individual that she won’t recognize the consent as being reflective of any of her desires. For example, it seems natural to wonder what exactly an agent deciding from behind the veil of ignorance has in common with me. Because of this concern, Enoch’s non-alienation defense of hypothetical consent should be limited to those types of hypothetical consents where the “consenter” actually bears a recognizable resemblance to the agent.
Non-alienation is only part of the story. Actual consent, according to Enoch, also matters for sovereignty-based reasons. There are some contexts, such as whether one has salt at dinner, that are within one’s area of control. Enoch’s daughter’s denial to pass the salt to him doesn’t threaten his deep commitments, but it is nevertheless an assault to his autonomy. It seems plausible that actual consent can promote this form of autonomy – autonomy qua sovereignty. (Enoch doesn’t offer a full treatment of this concept, rightly noting that it is best left to a future work.) Yet, according to Enoch, hypothetical consent fails to be even a “pale form of consent” when measured with this metric.
I grant Enoch this point when hypothetical consent threatens to replace actual consent. Whether he would have asked for the salt shaker under idealized conditions is irrelevant when he is actually asking for it now. However, I suspect that sovereignty concerns can do more work for hypothetical consent than Enoch allows for when actual consent is not possible. Hypothetical consent can allow a person to control what happens to her body and interests when she cannot expressly alter the moral landscape surrounding her. When we give this consent normative force, we thereby recognize that she has the power to create these normative upshots and are responsive to this power. Hypothetical consent may thus enable us to recognize and respond to an agent’s autonomy qua sovereignty instead of treating her as a non-autonomous moral patient (say by adopting a purely welfare view) when she unable to give actual consent.
This conditional consent does not always have to reduce to our deep commitments but instead can be respected purely because of sovereignty-based concerns. Consider Enoch’s Unconscious Weak-Willed Christian Scientist. In this case, the patient would have consented to the transfusion had she been conscious even though doing so conflicts with her higher-order desires. Here, Enoch is not sure what to say, other than such a case is different from the non-weak-willed counterparts. Yet, if we acknowledge that agents have the right to give consent even in contradiction to their higher-order desires, and that such a power is normatively important, we may be able to explain why hypothetical consent makes a difference here. It is because this patient would have exercised her sovereignty by consenting, even though such an act would violate her higher-order desires that makes a difference. True, she can’t actually exercise her normative power now, but by taking into account how she would have exercised it, we are taking into account her ability to act as sovereign over this area of her life. When we turn to the unconscious anxious patient, I suspect any unease we have with sovereignty concerns can be handled by asking if such a patient would consent to the transfusion given that she would be unconscious. If the answer to this query remains no, then I no longer share the intuition that such a procedure would be significantly more permissible than one on an unconscious Christian Scientist. What these cases show, I think, is that the various forms of autonomy may be in tension with themselves, rendering these cases difficult for reasons beyond those relating to hypothetical consent.
However, regardless of whether one is convinced by my attempts to make a place for hypothetical consent in contexts where we are concerned about sovereignty, Enoch’s case for the relevance of hypothetical consent for non-alienation remains sufficient to reassert the importance of this practice.2