Reply to Nicholls' Comment
| DOI | 10.1111/j.1467-9248.1979.tb01193.x |
| Published date | 01 March 1979 |
| Date | 01 March 1979 |
| Subject Matter | Article |
REPLY
TO
NICHOLLS’ COMMENT
ALBERT WEALE
University
of
York
IN
his comment on what
I
said
in
‘Consent’’ Nicholls makes four mistakes.
Three are elementary; the fourth is more difficult to disentangle. He also raises
one substantial issue, to which
I
shall return after discussing the errors.
In the article
I
offered a pair of distinctions relevant to the analysis of
consent. The first was that between arousing expectations and inducing
reliance. The second was that between performing an action intending the
result and performing an action knowing the result. Nicholls assumes that
since
I
move in the discussion
of
tacit consent from speaking
of
intending to
speaking to knowing,
I
must also move from defining consent in terms of
inducing reliance to a definition in terms
of
arousing expectations.
As
this
assumption is gratuitous, nothing more need be said of it.
Nicholls also accuses me of ignorance about world politics. Now
I
am as
willing as the next man to trade value-judgements about the various facade
democracies for inferring that the participants in the electoral process are induc-
ing a reliance in their opponents that they will abide by the result, then no
democracies for inferring the participants in the electoral process are inducing
a reliance in their opponents that they will abide by the result, then no
obligations under the principle of consent apply
ex
hypothesi.
It was precisely
part of the intention
of
the paper to show how the construal of obligations by
appeal
to
the idea
of
consent had
to
be made relative to the beliefs of
participants
in
the electoral process, and could not be discussed in the abstract.
The claim that
I
failed to distinguish between prima facie and absolute
obligation is similarly irrelevant, since the case cited was one where
I
was
criticizing a position with which
1
disagreed.
I
might say, however, that
I
would
be sceptical of the notion
of
prima facie obligations if such obligations can
include, as Nicholls suggests, the duty of persons not to interfere with the
torture of innocent prisoners.
Now to the more complex fourth error. Nicholls’ general criticism is vitiated
by his assumption that intention is a necessary condition of responsibility
or
obligation.
I
am not sure whether he is misled here by Bentham’s language of
direct and oblique intentions,
or
whether he endorses the established utilitarian
view that foresight is proof of intention. Either way the results are unfortunate.
Logically there is
no
reason to confuse foresight and intention: the dentist
who forseeably causes me pain when he drills my teeth does not intend the
pain-if there were another way of achieving his aim he would wish to use
it.
Moreover, in legal reasoning the distinction is important, since, as Hart2
points out, the law does not require intention in the ordinary language sense
’
Political Studies,
26
(1978),
65-11.
Political
Studies,
Vol. XXVII,
No.
I
(124-125)
H.
L.
A.
Hart,
Punishment and Responsibility
(Oxford,
Clarendon Press,
1968).
p.
120
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