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Conditional Consent

Why is consent assumed to be binary -- you either consent completely to something, or you totally reject it? Will Baude asks:

What do you do when a nation wishes to enact a code of law based on Shari'a, but also wishes to consult with you-- an American criminal law professor or student with (presumably) more enlightened sensibilities-- about what that code should look like? Does the potential to liberalize and moderate the code, to find effective ways of bringing due process and other such stuff where it might not otherwise be, outweigh the necessity of affiliating oneself with dubious laws that one would not otherwise support?

Let's make up a concrete example. Say the Maldivians are inclined to interpret the Islamic requirement of female modesty to require a burqa (1), while the law professor is able to come up with a plausible interpretation of Shari'a that says only a headscarf is necessary (2), but allowing women to dress as they please (3) is clearly inconsistent with Shari'a*. The "don't do it" position is based on the idea that, in recommending the choice of (2), one implies that (2) is a good choice. But this is an incorrect implication. All choices -- and thus all consent -- are made within the context of certain constraints on the available menu of options. You can't simply decide whether each option is good in an independent sense, then select an unqualifiedly good option from the set of actually available choices. For the professor to choose the headscarf means nothing more than that, when a burqa is the only other option, the headscarf is better (and perhaps that the headscarf would beat anything that is worse than a burqa, though Amartya Sen makes a good case that transitivity of preferences doesn't always have to hold). Thus, to recommend headscarves to the Maldives is not "affiliating oneself with dubious laws." On a moral level, there is no support for Shari'a implied in considering questions whose premise is that Shari'a applies.

Now, even if one personally rejects the idea of non-contextual binary consent, there may be value in turning down the Maldives job because others will percieve your work through the binary lens. The Maldivians will focus on the fact that the professor recommended headscarves and treat that as an endorsement of the policy, ignoring the constraints under which that decision was made and the professor's stated objection to those constraints.

This principle applies more widely than writing codes of Shari'a. Consider the example of people who refuse to vote because that would imply their consent to what they see as a corrupt or oppressive political system. They're wrong if they take a "clean hands" view and believe that voting would be morally supportive of the system. But they have more ground to stand on if their concern is that voting is causally supportive of the system because it leads others to believe that they morally support the system in a non-contextual way. Refusing to consider which of two evils is the lesser is a message-sending act, not a position of moral purity. (In fact, rejecting the principle is guided by a meta-application of it -- given the constraint that "don't interpret my choice as unqualified consent" is not a realistic option, you choose "no choice" over implying unqualified consent to the lesser evil).

*I have no idea what Islamic law actually says on the topic. People more knowledgeable about it can come up with their own set of possible proposals that fit.


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