Communication and Libertarianism [BOOK]
Springer, 3 August 2021
Editor’s note: In Communication and libertarianism, which covers a range of themes, the four chapters below were relevant to consent.
The libertarian non-aggression principle rests on two concepts: the concept of property rights, which defines the borders of individual autonomy, and the concept of consent, which defines unwarranted intrusion. Both concepts depend on communication—borders of property need to be publicly manifested on the one hand, and consent needs to be expressed in order to exist in the reality of human action on the other. Unless consent is manifested, it remains hypothetical, and hypothetical consent is never valid. Even if an action based on hypothetical consent coincides with the preferences of the consent-giver, it happens to be so only by coincidence. Counting on such hypothetical consent is risky, and the actor who takes the risk bears full responsibility for potential mistakes which may lead to uninvited interference. Hypothetical consent needs to be separated from tacit and implied consent, both of which can be valid. Internal “mental” aspects of consent may be important felicity conditions for consent, but they are not enough for a successful performance of the act of consenting. It is “external” or expressive aspects of consenting which are crucial for making the preferences of the consent-giver identifiable to another agent, thus changing the status of his actions. Only communicated consent is capable of performing the “magic” of making actions permissible, and only communicated consent can be used by actors to defend against potential accusations in rights violation.
Communication Ethics: Consent as the Foundation of Non-aggression
One of the major challenges for political philosophy is the postulated impossibility of building a sound theory without a solid foundation in ethics. Ethical questions of what is good and what is bad arise within the context of social interactions—in relation to actions unto other people. But judgements on what is good and what is bad are necessarily subjective. This, however, does not mean that this subjective judgement is not true. Man’s opinion about what is a bad action unto him is a correct evaluation of the action in question. For an acting agent, the opinion of the action’s recipient is thus the source of the correct ethical assessment of the action. This assessment can only become known to the acting agent by the means of communication. Communicating a subjective value judgement on what is good and what is bad gives the other agent knowledge about the ethical value of the intended action. Acting unto another man against his consent thus implies wrongdoing.
Manipulation of Consent
This chapter examines several criticisms of non-fraudulent commercial speech. According to critics, even if business propaganda does not constitute fraud by intentionally misleading consumers, it still may be illegitimate for other reasons. Advertising is accused of coercion through manipulative persuasion, exaggeration and puffery. Other charges include accusations of promoting products and services that are harmful for consumers who therefore later regret purchasing them, and this regret invalidates the consent given at the moment of making the purchase. These accusations are examined from the property rights perspective as well from the communication perspective.
The Role of Property Rights in the Ethics of Consent
Consent is what allows us to tell others whether their actions unto us are acceptable from our point of view. Proceeding with an action without our consent, or after consent has been refused, would constitute a moral wrongdoing. However, consent is only required for giving moral evaluation to actions that are directed towards other actors and affect them. An action can be considered as intended towards another person if it interferes with this person’s “zones of control”—borders of physical objects with which one creates a particular relationship. This relationship is ownership—it assumes that any hindrance to the use of the object without the consent of the owner is a wrongdoing. Ownership comes from the direct control of bodies, and original appropriation of external objects and voluntary transfers forms the foundation of property rights—violation against property is a violation against the owner. A legal system based on the idea that property rights violations constitute an offence recognises the validity of the non-aggression principle. The non-aggression principle prohibits the initiation of force, which is understood as an action of border crossing without the owner’s consent. The concept of consent and the concept of borders are ontologically based on communication, which means that communication is the basis of the non-aggression principle.