Joseph Raz’s criticisms of Simmons’ definition of consent

Simmons’ definition

“When I speak of consenting, I mean the consenter’s according to another a special right to act within areas where only the consenter is normally free to act.” (p.276)

Simmons on the differences between consent and promises

1. Consent is always given to the actions of other persons. Except in very special circumstances, promises cannot be made concerning the actions of another person.

2. There is a difference in emphasis. The primary and secondary purposes are different.

The primary purpose of a promise is to undertake an obligation. The rights that arise for the promisee (the person to whom the promise is given) are secondary.

The primary purpose of consent is to authorize certain actions and in doing so give another a special right to act. The obligation on the consenter not to then interfere with the exercise of this right is secondary.

Raz’s criticisms of supposed difference 1

One can consent not only to actions, but also to holding positions and imposing duties and burdens.

Some promises concern actions, e.g. to consent to be governed by another is to promise to obey them.

(Note: This example from Raz is less than transparent.)

Raz’s criticism of difference 2

Raz argues as follows:

It can only be that promises in general differ in emphasis from consent in general if to consent is never to promise.

To consent sometimes is to promise.

Therefore:

It cannot be that promises in general differ in emphasis from consent in general.

One of Raz’s examples in favour of the second premise is the one that appears above: to consent to be governed by another is to promise to obey them.

Raz on promises and consent

Raz thinks that promises are a special case of consent.

He appeals to two considerations to support this view.

1. Whereas promising always imposes obligations on the promisor (the person who promises), consent does not always impose obligations on the consenter, e.g. a commanding officer consenting to his soldiers being assigned certain duties by another officer.

2. Promises are made by acts intended to undertake obligations and confer rights, but one can sometimes consent while undertaking an act for another purpose, so long as one has the appropriate beliefs: the belief that the act will confer a right and the belief that it will impose a duty. An example from Raz: one is given notice that everyone who enters a certain park must abide by certain rules, but one’s intention in entering the park is typically not to undertake an obligation to abide by those rules. It could well be just to enjoy oneself in the park.

(For Raz’s account of how promises give rise to obligations, see here.)

Raz’s definition of consent

“Consent is given by any behaviour (action or omission) undertaken in the belief that

1. it will change the normative situation of another;

2. it will do so because it is undertaken with such a belief.

3. it will be understood by its observers to be of this character.” (1986: 81)

References

John Simmons, A. 1976. Tacit Consent and Political Obligation. Philosophy & Public Affairs 5: 274-291.

Raz, J. 1986. The Morality of Freedom. Oxford: Clarendon Press.

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