Tom Dougherty

The scope of someone's consent is the range of actions that they permit by giving consent. The Scope of Consent investigates the under-explored question of which normative principle governs the scope of consent. To answer this question, the book's investigation involves taking a stance on what constitutes consent. By appealing to the idea that someone can justify their behaviour by appealing to another person's consent, Dougherty defends the view that consent consists in behaviour that expresses a consent-giver's will for how a consent-receiver behaves. The ultimate conclusion of the book is that the scope of consent is determined by certain evidence that bears on the appropriate interpretation of the consent.

Politics, Philosophy & Economics, Volume 21, Issue 4, Page 393-414, November 2022. Sometimes, people consent to sex because they face social constraints. For example, someone may agree to sex because they believe that it would be rude to refuse. I defend a consent-centric analysis of these encounters. This analysis connects constraints from social contexts with constraints imposed by persons e.g. coercion. It results in my endorsing what I call the “Constraint Principle.” According to this principle, someone's consent to a sexual encounter lacks justificatory force if they are consenting because withholding consent has an adverse feature, they are entitled to withhold consent without it being the case that withholding consent has this adverse feature; and it is not the case that the consent-giver has sincerely expressed that, out of the options that are available to their sexual partner, they most prefer to go through with the sexual encounter in the circumstances.

In their brilliant and thought-provoking book Recognizing Wrongs, John Goldberg and Benjamin Zipursky offer a vindicatory interpretation of the law of torts. As part of this, they offer a justification for what they call the “principle of civil recourse.” This is the principle that “a person who enjoys a certain kind of legal right, and whose right has been violated by another, is entitled to enlist the state’s aid in enforcing that right, or to make demands in response to its violation, as against the person who has violated it.” To defend the principle of civil recourse, Goldberg and Zipursky appeal to three values: equality, fairness, and individual sovereignty. In this essay, we make two critical points. First, we argue that Goldberg’s and Zipursky’s defense errs by omitting a justificatory appeal to our moral rights and duties as part of the normative foundation of the tort law. Second, we argue that Goldberg’s and Zipursky’s arguments do not explain certain institutional features of the tort law, including the fact that legal duties of redress emerge only at the conclusion of court cases and the fact that lawsuits are opted int.o by tort victims who must initiate these actions themselves. To retain what is philosophically valuable in Goldberg’s and Zipursky’s impressive defense of the principle of civil recourse, we conclude with a strategic suggestion on their behalf: they should split their defense of the principle of civil recourse into two parts, with the first part justifying the existence of some institution of civil recourse or other and the second part justifying specific details that this institution should have.

In this essay, I discuss why consent is invalidated by duress that involves attaching penalties to someone's refusal to give consent. At the heart of my explanation is the Complaint Principle. This principle specifies that consent is defeasibly invalid when the consent results from someone conditionally imposing a penalty on the consent‐giver's refusal to give the consent, such that the consent‐giver has a legitimate complaint against this imposition focused on how it is affects their incentives for consenting. The Complaint Principle says that this consent is defeasibly invalid to make room for the Authorization Principle, which allows sincere authorizations to constitute valid consent, even when these are issued by an agent acting under duress. The Authorization Principle has application only in cases of third‐party duress because when the consent‐receiver is the source of the duress, the consent‐giver is not sincerely authorizing the action.

To develop a theoretical framework for drawing moral distinctions between instances of sexual misconduct, I defend the “Ameliorative View” of consent, according to which there are three possibilities for what effect, if any, consent has: “fully valid consent” eliminates a wronging, “fully invalid consent” has no normative effect, and “partially valid consent” has an ameliorative effect on a wronging in the respect that it makes the wronging less grave. I motivate the view by proposing a solution to the problem of characterizing the moral effect of consent that is given in response to minor coercion.

In this essay, I discuss why consent is invalidated by duress that involves attaching penalties to someone's refusal to give consent. At the heart of my explanation is the Complaint Principle. This principle specifies that consent is defeasibly invalid when the consent results from someone conditionally imposing a penalty on the consent‐giver's refusal to give the consent, such that the consent‐giver has a legitimate complaint against this imposition focused on how it is affects their incentives for consenting. The Complaint Principle says that this consent is defeasibly invalid to make room for the Authorization Principle, which allows sincere authorizations to constitute valid consent, even when these are issued by an agent acting under duress. The Authorization Principle has application only in cases of third‐party duress because when the consent‐receiver is the source of the duress, the consent‐giver is not sincerely authorizing the action.

According to the Behavioral View of consent, consent must be expressed in behavior in order to release someone from a duty. By contrast, the Mental View of consent is that normatively efficacious consent is entirely mental. In previous work, I defended a version of the Behavioral View, according to which normatively efficacious ‘consent always requires public behavior, and this behavior must take the form of communication in the case of high-stakes consent’. In this essay, I respond to two arguments by proponents of the Mental View. First, Larry Alexander, Heidi Hurd and Peter Westen have argued that my view has mistaken implications concerning the culpability of different actors. I counter that my version of the view does not have these implications, as it leaves us free to draw moral and legal distinctions between different offences involving non-consensual behavior. Second, Larry Alexander and Kimberly Ferzan have argued for an analogy between consent and abandonment: on the grounds that the normative power to abandon resides in one’s will, Alexander and Ferzan concludes consent does too. I counter that abandonment requires behavior, and call into question the assumption that the ethics of property have much to teach us about the ethics of sexual consent.

In an influential paper, L. A. Paul argues that one cannot rationally decide whether to have children. In particular, she argues that such a decision is intractable for standard decision theory. Paul's central argument in this paper rests on the claim that becoming a parent is ``epistemically transformative''---prior to becoming a parent, it is impossible to know what being a parent is like. Paul argues that because parenting is epistemically transformative, one cannot estimate the values of the various outcomes of a decision whether to become a parent. In response, we argue that it is possible to estimate the value of epistemically transformative experiences. Therefore, there is no special difficulty involved in deciding whether to undergo epistemically transformative experiences. Insofar as major life decisions do pose a challenge to decision theory, we suggest that this is because they often involve separate, familiar problems.

In Wrongs and Crimes, Victor Tadros clarifies the debate about whether consent needs to be communicated by separating the question of whether consent requires expressive behaviour from the question of whether it requires “uptake” in the form of comprehension by the consent-receiver. Once this distinction is drawn, Tadros argues both that consent does not require uptake and that consent does not require expressive behaviour that provides evidence to the consent-receiver. As a result, Tadros takes the view that consent requires an attempt to communicate, but nothing more. While I have found Tadros’s arguments for this conclusion intriguing and challenging, I am yet to be persuaded by them. In this essay, I try to say why.

So-called money pump arguments aim to show that intransitive preferences are irrational because they will lead someone to accept a series of deals that leaves his/her financially worse off and better off in no respect. A common response to these arguments is the foresight response, which counters that the agent in question may see the exploitation coming, and refuse to trade at all. To obviate this response, I offer a “deluxe money pump argument” that applies dominance reasoning to a modified money pump case.

It is plausible to think that it is wrong to cure many people’s headaches rather than save someone else’s life. On the other hand, it is plausible to think that it is not wrong to expose someone to a tiny risk of death when curing this person’s headache. I will argue that these claims are inconsistent. For if we keep taking this tiny risk then it is likely that one person dies, while many others’ headaches are cured. In light of this inconsistency, there is a conflict in our intuitions about beneficence and chance. This conflict is perplexing. And I have not been able to find a satisfactory way of resolving it. Perhaps you can do better?

Moral indeterminacy can be problematic: prospectively it can give rise to deliberative anguish, and retrospectively, it can leave us in a limbo as to what attitudes it is appropriate to form with respect to past actions with indeterminate moral status. These problems give us reason to resolve ethical indeterminacy. One mechanism for doing so involves the use of our normative powers to place obligations on ourselves and to waive our claims against others. This mechanism could operate through an explicit agreement, but could also operate through implicit endorsement of a social convention. However, there are important limits on when the mechanism can eliminate moral indeterminacy.

The anglophone philosophy profession has a well-known problem with gender equity. A sig-nificant aspect of the problem is the fact that there are simply so many more male philoso-phers than female philosophers among students and faculty alike. The problem is at its stark-est at the faculty level, where only 22% - 24% of philosophers are female in the United States (Van Camp 2014), the United Kingdom (Beebee & Saul 2011) and Australia (Goddard 2008).<1> While this is a result of the percentage of women declining at each point through-out the standard career trajectory, recent large-scale studies in the United States (Paxton et al. 2012) and Australia (Goddard et al. 2008) have identified a key drop-off point as the transi-tion between taking introductory classes and majoring in philosophy. So why do dispropor-tionately few female students choose to major in philosophy?

The anglophone philosophy profession has a well-known problem with gender equity. A sig-nificant aspect of the problem is the fact that there are simply so many more male philoso-phers than female philosophers among students and faculty alike. The problem is at its stark-est at the faculty level, where only 22% - 24% of philosophers are female in the United States (Van Camp 2014), the United Kingdom (Beebee & Saul 2011) and Australia (Goddard 2008).<1> While this is a result of the percentage of women declining at each point through-out the standard career trajectory, recent large-scale studies in the United States (Paxton et al. 2012) and Australia (Goddard et al. 2008) have identified a key drop-off point as the transi-tion between taking introductory classes and majoring in philosophy. So why do dispropor-tionately few female students choose to major in philosophy?

Nearly everyone prefers pain to be in the past rather than the future. This seems like a rationally permissible preference. But I argue that appearances are misleading, and that future-biased preferences are in fact irrational. My argument appeals to trade-offs between hedonic experiences and other goods. I argue that we are rationally required to adopt an exchange rate between a hedonic experience and another type of good that stays fixed, regardless of whether the hedonic experience is in the past or future

You ought to save a larger group of people rather than a distinct smaller group of people, all else equal. A consequentialist may say that you ought to do so because this produces the most good. If a non-consequentialist rejects this explanation, what alternative can he or she give? This essay defends the following explanation, as a solution to the so-called numbers problem. Its two parts can be roughly summarised as follows. First, you are morally required to want the survival of each stranger for its own sake. Secondly, you are rationally required to achieve as many of these ends as possible, if you have these ends

Some people are such impressive altruists that they seem to us to already be doing more than enough. And yet they see themselves as compelled to do even more. Can our view be reconciled with theirs? Can a moderate view of beneficence's demands be made consistent with a requirement to be ambitiously altruistic? I argue that a reconciliation is possible if we adopt a dynamic view of beneficence, which addresses the pattern that our altruism is required to take over time. This frees up theoretical space for understanding how a moral duty of self-development can intersect with the requirements of beneficence, so that the amount that we are required to sacrifice increases without our beneficence becoming immoderate.

Most of us are “time-biased” in preferring pains to be past rather than future and pleasures to be future rather than past. However, it turns out that if you are risk averse and time-biased, then you can be turned into a “pain pump”—in order to insure yourself against misfortune, you will take a series of pills which leaves you with more pain and better off in no respect. Since this vulnerability seems rationally impermissible, while time-bias and risk aversion seem rationally permissible, we are left with a puzzle.