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theses

Consent, plus the appropriate attendant circumstances, is the difference between a trespass and a housewarming party, an assault and a medical exam. Consent gains the ability to work this “moral magic” from the value of autonomy and the way consent respects and enhances it. While often requiring prescriptive consent, we occasionally treat agents as if they have consented when we know they haven’t. In other words, we impute consent to them, knowing that the consent is fictitious. This dissertation examines practices which have been called fictitious, or imputed, consent, looking at the normative basis of the practices, the justification for calling them consent, and the applications of imputed consent proper. The dissertation focuses on three specific practices: constructive consent, informed consent, and hypothetical individualized consent. Through these practices, the dissertation explores why we give these alleged fictions normative force and if we are correct to do so. Though I argue that the first two aren’t truly imputed consents, their shortcomings direct our attention to imputed consent’s two criteria: (1) the practice enhances and respects autonomy in the same way consent does, and (2) it doesn’t involve prescriptive consent. Failing to meet (1), constructive consent illustrates the need for caution in labelling practices – particularly those that rely on moral values other than autonomy – as “consent.” In failing to meet (2), informed consent highlights a structural aspect of consent: consent applies to an action, not to the action’s consequences. The last practice, hypothetical individualized consent, meets both criteria. It demonstrates that fictitious consent can enhance and respect autonomy and then explores its normative powers through applying it to the non-identity problem in population ethics.

ETD_8340

Ph.D.

Includes bibliographical references

by Melissa Beth Valentine

doi:10.7282/T3HH6P65

ETD doctoral

The author owns the copyright to this work.