Sunday, November 23, 2014

Critiquing the Kalam Cosmological Argument (Series Index)

The Kalam Cosmological Argument is one the most widely-discussed arguments for the existence of God. Though it can be traced back to the work of Islamic theologians and philosophers, its most famous modern proponent is William Lane Craig. The basic argument can be stated like this:

  • (1) Whatever begins to exist must have a cause of its existence.

  • (2) The universe began to exist.

  • (3) Therefore, the universe has a cause of its existence.

Additional argumentation is then introduced to show why the cause must be an immaterial, eternal and personal being (i.e. God).

Is the argument any good? I have looked at several critiques of the arguments over the years. I thought it might be useful to collect all of those discussions in one place. So that's exactly what I have done.

1. Must the Beginning of the Universe have a Personal Cause?
This four-part series of posts looked at an article by Wes Morriston, who is probably the foremost critic of the Kalam. In the article, Morriston argues that the first premise of the argument is flawed and, more importantly, that there is no reason to think that a personal being is required to explain the beginning of the universe. This series appeared on the blog Common Sense Atheism (when it was still running), so the links given below will take you there:

2. Schieber's Objection to the Kalam Cosmological Argument
Justin Schieber is one of the co-hosts of the Reasonable Doubts podcast, and a prominent atheist debater. Back in 2011 he offered a novel and interesting critique of the Kalam argument. Briefly, he cast doubt on the claim that God could brought the universe into existence with a timeless intention. I tried to analyse and formalise this critique in one blog post:

3. Hedrick on Hilbert's Hotel and the Actual Infinite
The second premise of the Kalam is often defended by claiming that the past cannot be an actual infinite because the existence of an actual infinite leads to certain contradictions and absurdities. This is probably the most philosophically interesting aspect of the Kalam argument. One of the thought experiments Craig uses to support the argument is Hilbert's Hotel. In this series of posts, I look at Landon Hedrick's criticisms of this thought experiment.

4. William Lane Craig and the Argument from Successive Addition
Even if the existence of an actual infinite is not completely absurd, Craig argues that it is impossible to form an actual infinite by successive addition. But this is exactly what would be required if the past is without beginning. In this post, I look as Wes Morriston's criticisms of this argument:

5. Puryear on Finitism and the Beginning of the Universe
This post was part of my journal club. It looked at Stephen Puryear's recent, novel, objection to the Kalam. It is difficult to explain in a summary format, but suffice to say it provides an interesting, and refreshing, perspective on the debate:

Monday, November 17, 2014

Podcast Interview - Review the Future on the Threat of Algocracy

I was interviewed on the latest episode of the Review the Future podcast. The interview dealt with the topic of algocracy, which is something I have looked at repeatedly over the past year. An algocracy is a state in which we are ruled by algorithms rather than human beings. I had a great time talking to the two hosts (Jon Perry and Ted Kupper), and I think we managed to explore most of the important aspects of this issue. Please check it out and let me know what you think:

Review the Future is a podcast that takes an in depth look at the impact of technology on culture. As I say in the interview, I'm a big fan and I encourage everyone to listen. Here are some of my favourite episodes so far:

Monday, November 10, 2014

Is there a defensible atheistic account of moral values?

There two basic types of ethical fact: (i) values, i.e. facts about what is good, bad, or neutral; and (ii) duties, i.e. facts about what is permissible, obligatory and forbidden. In this post I want to consider whether or not there is a defensible non-theistic account of values. In other words, is it possible for values to exist in the godless universe?

Obviously, I think it is, and I have defended this view in the past. But today I’m going to look at Erik Wielenberg’s defence of this position, as outlined in his excellent little book Robust Ethics. The view he defends can be called robust ethical non-naturalism. According to it, moral facts are non-natural and metaphysically basic. Wielenberg holds that this is true of all moral facts (i.e. duties as well as values) but I’m only going to focus on values for the time being.

Robust ethical non-naturalism is difficult to support in a positive way — i.e. in terms of arguments for its specific conclusions. It tends to be defended in a negative way — i.e. by showing how no other argument succeeds in defeating it. This makes sense given that it holds that ethical facts are metaphysically basic. Such facts tend to be those that are left standing after all attempts to reduce them to other facts or to argue against their existence seem to fail.

So it is no surprise that Wielenberg’s defence of the view is largely negative in nature. But this negative structure allows him to do something important: it allows him to show how robust non-naturalism provides an account of moral value that is — at the very least — no worse (and possibly a good deal better) than the theistic accounts that are commonly used against it. In particular, he shows how the account of moral value supported by Robert M. Adams, William Lane Craig and J.P. Moreland is vulnerable to many of the same objections they level against robust ethical non-naturalism. I am going to try to show how he does that in the remainder of this post.

1. A Brief Sketch of Robust Ethical Non-Naturalism
We need to start with a slightly more detailed understanding of robust ethical non-naturalism. The view relies heavily on the distinction between intrinsic and extrinsic value. Something is intrinsically valuable if it is good in and of itself (i.e. irrespective of its consequences and other extrinsic properties). Robust ethical non-naturalism holds that all moral value is ultimately rooted in a set of metaphysically basic, but intrinsically valuable states of affair.

In fact, it goes further than this and holds that those intrinsically valuable states of affair are necessarily good or bad. To take two examples: the experience of pain is deemed to be intrinsically and necessarily bad; while the experience of pleasure is deemed to be intrinsically and necessarily good. But these are only the most obvious examples. There are others. For instance, Wielenberg thinks that being in a loving relationship with another person is necessarily and intrinsically good.

Why think that these things are intrinsically good? Wielenberg admits that this is difficult to prove, but he follows other philosophers (GE Moore and Scott Davison) in suggesting that two tests are apposite.

The Isolation Test: Imagine that the phenomenon of interest (e.g. pain, or being in a loving relationship) exists in a simple, isolated universe (i.e. a universe in which all of the usual extrinsic accoutrements are stripped away). Does it still seem to have the value you originally attached to it?
The Annihilation Test: Imagine that the phenomenon of interest is completely annihilated (i.e. no trace of it is left in the universe). Is the universe now shorn of the value it had (i.e. does the universe seem better or worse off)?

Wielenberg argues that things like pain, pleasure or being in a loving relationship pass both of these tests. For example, if you imagine a universe in which nothing except your loving relationship exists, then it still seems like you have something that is good; and conversely, if you imagine a universe in which that loving relationship is completely annihilated, it seems like the universe is slightly worse off as a result. Consequently, being in a loving relationship seems like it is intrinsically good. This isn’t a water-tight argument, to be sure, but there is nothing obviously wrong with it.

What then of necessity of such facts? Wielenberg thinks that all ethical properties arise, necessarily, from an underlying set of non-moral properties, in such a way that the non-moral facts make (cause to be) the moral facts. (I discussed this view of moral supervenience in a previous post). But this doesn’t mean that he thinks that all ethical facts are groundless and metaphysically basic. Some ethical facts are grounded in others. For example, the wrongness of torture could be grounded in facts about the badness of pain and the moral status of sentient beings.

That said, Wielenberg does not think that ethical facts can be reduced to non-moral facts. Indeed, he thinks that there are several problems with the notion that ethical facts can be reduced in such a manner (problems discussed by the likes of David Hume, GE Moore and Mark Schroeder). So instead, he holds that there is a set of necessarily true, and metaphysically basic ethical facts from which all others proceed. These are likely to include things like the intrinsic badness of pain; the goodness of love; the badness of injustice; and so forth.

That, in a nutshell, is Wielenberg’s account of moral value. The question now is how it stacks up against theistic alternatives.

2. Robert Adams’s Theistic Account of Value
Not all theists think that God accounts for moral facts. For instance, Richard Swinburne has famously argued that certain foundational ethical truths are analytic in nature, and so do not depend on God for their existence. For those theists who deny the connection between God and moral value, Wielenberg’s account may seem pretty attractive.

But there are others who insist that God is the origin of all things, including moral facts. For them, Wieleberg’s account represents a challenge. To see whether they can fend off that challenge, we must first consider the view they themselves hold. There is, of course, no single view that garners universal approval, but the one that is typically trotted out is Robert M. Adams’s account from Finite and Infinite Goods. This is used by William Lane Craig and JP Moreland in their defence of the Christian worldview.

Adams tries to offer an account of three phenomena (i) the Good, which is the transcendent and perfect form of goodness; (ii) finite goodness, which is the type of goodness we find our world; and (iii) moral obligations. We’ll ignore the third for now and focus on the first two.

According to Adams, the Good is simply equivalent to God’s divine nature. In other words: Good = God. The divine nature simply is the transcendent and perfect paradigm of goodness. This is an identity claim, not an explanatory claim or a semantic claim. Adams is not saying that the divine nature explains goodness or that the term “Good” is semantically equivalent to the term “God”. In fact, Adams models his “Good = God” claim after another identity claim, the “Water = H2O” claim. We are all now familiar with this latter identity claim. It tells us that the substance we call water simply is the molecule captured by the chemical formula H2O. That molecule does not explain the existence of water, nor are references to H2O semantically equivalent to references to water. It is just that the latter is equivalent to the former. So it is with Good = God.

Adams’s account of finite goodness then builds upon this identity claim. In brief, Adams holds that all finite goods — like the goodness of a loving relationship — are such because of their resemblance to the divine nature. We can say that a relationship is good because it bears a resemblance to one of God’s key attributes. This is a particular account of moral supervenience — the resemblance account — that I outlined in a previous post. I offer the same diagram I offered there to illustrate how it works.

There are two important features of Adams’s account. First, like Wielenberg, Adams accepts the existence of certain metaphysically basic ethical facts. In Adams’s case those facts include things like “the Good exists, and that the Good is loving, that the Good is merciful and that the Good is just”. These facts are ethically basic because of the way in which Adams links God to the Good. Second, and related to this, Adams’s account does not provide a metaphysical foundation for the Good. Just as it would be nonsense to claim that H2O is the foundation of water; so too would it be nonsense to claim that God is the foundation of the Good. On the contrary, the Good has no foundation on Adams’s account because, like most theists, he thinks that God has no metaphysical foundation (He just is). Hence, facts about his nature are ethically basic facts.

As we shall now see, Wielenberg exploits these features in his defence of the atheistic view.

3. Does the Atheistic View make Sense?
While Robert Adams is himself open to the possibility of values in a non-theistic universe, other prominent Christian philosophers are more closed. William Lane Craig, for instance, argues that without God there can be no moral value. Furthermore, he explicitly relies on Adams’s account of goodness in defending his position. But what is it that the atheistic view lacks that Adams’s view has?
In a passge written with fellow Christian philosopher JP Moreland, Craig makes the case:

Atheistic moral realists affirm that objective moral values and duties do exist and are not dependent on evolution or human opinion, but they also insist that they are not grounded in God…They just exist. It is difficult, however, even to comprehend this view. What does it mean to say, for example, that the moral value justice just exists? It hard to know what to make of this. It is clear what is meant when it is said that a person is just; but it is bewildering when it is said that in the absence of any people, justice itself exists. Moral values seem to exist as properties of persons, not as mere abstractions — or at any rate, it is hard to know what it is for a moral value to exist as a mere abstraction. Atheistic moral realists seem to lack any adequate foundation in reality for moral values but just leave them floating in an unintelligible way. 
(Craig and Moreland 2003, 492 - passage is repeated in many other writings by Craig).

We get from this that they are incredulous at the notion of robust ethical non-naturalism, but they don’t formulate their objections as an argument. For ease of analysis, I will try to rectify this. I think what they are saying can re-interpreted in the following way:

  • (1) If an account of moral values entails that moral values (i) “just exist”, (ii) are not properties of persons, and (iii) float free of metaphysical foundation, then that account is false (or inadequate).
  • (2) Robust ethical non-naturalism entails (i), (ii) and (iii).
  • (3) Therefore, robust ethical non-naturalism does not provide an adequate account of moral value.

The obvious corollary to this is that a theistic account can provide an adequate account. But is that right?

Wielenberg argues that it isn’t. Let’s start with the claim that on robust ethical non-naturalism moral values “just exist”. Is this right? Sort of. As we saw above, Wielenberg thinks that there is a set of metaphysically basic ethical facts. These facts are necessarily true because they necessarily supervene on certain non-moral facts. There is nothing more to be said about them. But that doesn’t differentiate Wielenberg’s account from Adams’s. After all, on Adams’s account God just exists, and facts about His nature are equivalent to metaphysically basic facts. So if the “just exists” condition undermines robust ethical non-naturalism, it must also undermine the theistic view, since the divine nature just exists.

What then of the claim that ethical non-naturalism denies the fact that values are properties of persons? Wielenberg points out that this view has little to recommend to it. For starters, Adams’s view also entails that values are not properties of persons. Adams says that the Good = God, not that goodness is property of God. In other words, he is claiming that the Good is a person, not a property of a person (if it were then it would be a mere abstraction). So, again, if (ii) really is a criticism of robust ethical non-naturalism, it must also be a criticism of the theistic view. In any event, it seems silly to insist that values must be properties of persons. As environmental ethicists have long pointed it, it is arguable that values supervene on states of affairs concerning animals and the natural environment that have no persons involved in them.

Finally, what of the claim that on Wielenberg’s view values float free of a metaphysical foundation? This is true, but it is, once again, also true of Adams’s view. As I outlined above, Adams does not think that God provides a metaphysical foundation for the Good. God is the good; like water is H2O. Furthermore, there is nothing deeply mysterious or unintelligible about the account that Wieleberg is proposing. His view rests on the notion that values necessarily supervene on states of affairs and the non-moral properties of those states of affairs. Consequently, his view is no more unintelligible than any metaphyiscal view that posits the existence of states of affairs and properties (which is pretty much all of them). As he puts it himself:

With respect to justice, my view is that there are various obtaining states of affairs concerning justice, and that when individual people have the property of being just, it is (in part) in virtue of the obtaining of some of these states of affairs. For instance, I hold that it is just to give people what they deserve, thus, anyone who gives others what they deserve thereby instantiates the property of justice. The state of affairs that it is just to give people what they deserve obtains whether or not any people actually exist, just as various states of affairs about dinosaurs obtain even though there are no longer any dinosaurs….This approach is perfectly intelligible and no more posits mysterious, floating entities than does any view committed to the existence of properties and states of affairs. 
(Wielenberg 2014, 46)

Craig and Moreland’s critique is, consequently, unpersuasive. It does nothing to support the Christian worldview over the atheistic one.

4. Conclusion
To briefly recap, I have tried in this post to answer the question “Is there a defensible atheistic account of moral value?”. I have used Erik Wielenberg’s work on robust ethical non-naturalism to answer that question. According to robust ethical non-naturalism, certain moral values necessarily supervene on certain states of affairs. Some of these values are metaphysically basic (e.g. the goodness of pleasure; the badness of pain etc.). They are not founded in a deeper set of ethical or non-ethical facts.

This account of moral value is intelligible and certainly no worse than Robert Adams’s beloved theistic account of moral value. Indeed, the criticisms levelled against the atheistic view by the likes of William Lane Craig and JP Moreland can easily be turned back on the theistic view they themselves defend. Both views hold that certain ethical values “just exist”, that the values are not always properties of persons, and that the values float free from a deeper metaphysical foundation.

Friday, November 7, 2014

Three Types of Moral Supervenience

This post will share some useful conceptual distinctions, specifically ones that help us to better understand the tricky notion of moral supervenience. I take the distinctions Erik Wielenberg’s recent book Robust Ethics, which should be read by anyone with an interest in metaethics.

As you know, metaethics is about the ontology and epistemology of morality. Take a moral claim like “torturing innocent children for fun is wrong”. A metaethicist wants to know what, if anything, entitles us to make such a claim. On the ontological side, they want to know what is it that makes the torturing of innocent children wrong (what grounds or explains the ascription of that moral property to that event?). On the epistemological side, they wonder how it is that we come to know that the torturing of innocent children is wrong (how to we acquire moral knowledge?). Both questions are interesting — and vital to ask if you wish to develop a sensible worldview — but in discussing moral supervenience we are focused primarily on the ontological one.

I’ll break the remainder of this discussion into two parts. First, I’ll give a general overview of the problem of moral supervenience. Second, I’ll share Wielenberg’s taxonomy of supervenience relations.

1. The Supervenience Problem in Brief
Supervenience is a type of metaphysical relationship that exists between different sets of properties. It is defined by the Stanford Encyclopedia of Philosophy as follows:

Supervenience: A set of properties A supervenes upon another set B just in case no two things can differ with respect to A-properties without also differing with respect to their B-properties. In slogan form, “there cannot be an A-difference without a B-difference”.

This is difficult to understand in the abstract. So let’s consider a concrete example (in fact, let’s consider the most common example given in the literature). Suppose you have two paintings. One is Van Gogh’s original Starry Night and the other is a forgery. Suppose that the forgery is a perfect replica of the original. Every physical detail on the canvas is identical, down to the individual brushstrokes and splotches of paint. The only difference is that the canvases were painted by different people.

In such a case, there are certain properties of the paintings (their form; their colour; and what they represent) that are supervenient on the physical properties of the canvases (the brushstrokes, the splotches of paint etc.). The first set properties are supervenient because they are invariant across both canvases. In other words, it is because the physical properties of the canvases are the same that the more abstract properties must be the same. If the abstract properties of form, colour and representation were different, then it must be because there is some difference in the physical properties. This is what is captured in the slogan “there cannot be an A-difference without a B-difference”.

(Just so we are clear, this does not mean that paintings have identical abstract properties. They were painted by different people and this would have an effect on an abstract property like “value”. It just means that some of the abstract properties are invariant because they supervene on the physical properties of the canvas.)

Why is this relevant to metaethics? It is relevant because moral properties are typically said to supervene on non-moral properties (typically, physical or natural properties). Take the earlier example of “Torturing an innocent child for fun is wrong”. Most people take that claim to mean that the moral property of wrongness supervenes on certain set of natural properties (specifically, the act of inflicting pain on a child for the purposes of amusement). So imagine there were two such acts of torture. If the natural properties varied in some way — for example, if the child did not experience pain and it was not done for amusement — then there may be some variation in the moral property (I say “may be” because wrongness could be ascribed to many different natural events). But if the natural properties are the same in both cases, then they are both wrong. This is thought to hold for all moral properties, like goodness, badness, rightness and wrongness.

The supervenience of the moral on the non-moral is generally thought to give rise to a philosophical puzzle. JL Mackie famously argued that the if the moral truly did supervene on the non-moral, then this was metaphysically “queer”. We were owed some plausible account of why this happens. He didn’t think we had such an account, which is one reason why he was an moral error theorist. Others are less pessimistic. They think there are ways in which to account for moral supervenience.

2. Three Accounts of the Supervenience Relation
This is where Wielenberg’s taxonomy comes in to play. He suggests that there are three main ways in which to account for the supervenience relation between moral and non-moral properties (what he calls “base” properties).

The first is to adopt a reductive account of supervenience. Here, you simply argue that the moral properties are completely constituted by the base properties, to such an extent that they reduce to the base properties. Certain naturalist metaethical theories take this form. For example, Frank Jackson argues that all moral statements ultimately reduce to descriptive statements about natural entities, events and states of affairs. That is: moral statements are nothing but particular kinds of descriptive statements. Wielenberg refers to this as R-supervenience.

The second account is slightly more complicated, but can be referred to as the exemplar or resemblance account. According to this, there is a tripartite relationship between the moral properties, the base properties and another set of necessarily existent properties. The relationship is such that the base properties resemble or exemplify the other set of necessarily existent properties. This account is commonly adopted by theists, with Robert M Adams’s theory of finite goodness being a prime example. Adams argues that the moral goodness of, say, a person is attributable to the fact that the person resembles God’s nature (where God is a necessarily existent being). So in this case, the characteristics of the person are the base properties; God’s nature is the set of necessarily existent properties; and goodness is the moral property. The moral property supervenes on the base properties arises because of the resemblance between the base properties and God’s nature. Wielenberg calls this A-supervenience (in honour of Adams).

The third account is the making account. According to this, moral properties supervene on base properties because the base properties make the moral properties. That is to say: the base properties explain the existence of the moral properties. This is not a reductive account because the two sets of properties are still deemed to be distinct; but it is an explanatory account because the former explain the latter. Wielenberg identifies two types of moral explanation: grounding explanations (which ground, but do not reduce, one set of properties in another) and causal explanations (which explain how one set of properties causes the existence of another). Wielenberg himself prefers causal explanations, mainly because there is much ambiguity as to the precise nature of grounding explanations. But causal explanations of moral supervenience have their problems too. Since moral supervenience is thought to be a necessary relationship, causal explanations are deemed inapt. This is because causation is generally thought to cover contingent relationships not necessary ones. Wielenberg says this is wrong, and that a causal explanation of morality may be possible. I won’t get into the intricacies of that argument now. You can read the book if you want the details.

Some people may argue that the making account is not really about supervenience at all. This is correct, to some degree. The making account goes beyond supervenience by trying to provide an explanation for the existence of moral properties. It is a more robust type of metaphysical relationship, one that is often confused with pure supervenience. Think about it like this: pure supervenience is about modal co-variation, i.e. how properties remain the same across different entities and/or possible worlds. There could be some properties that co-vary across possible worlds without standing in an explanatory relationship to one another (i.e. not all necessary relationships have explanations). But Wielenberg thinks that moral properties probably do, and that the challenge in metaethics is to provide a making-account of moral supervenience. This is interesting to me because I have written an entire paper arguing that explanations of certain moral properties may not be required.

Anyway, Wielenberg calls the making account D-supervenience in honour of another philosopher, Michael DePaul. You can ignore the name if you like.

3. Conclusion
That’s all I wanted to say in this post. To briefly recap, moral properties are commonly believed to supervene on non-moral properties. The existence of this supervenience relation is thought to be puzzling, and so many philosophers think we are owed some account of how it comes to be. Wielenberg suggests that there are three accounts that we could give: (i) a reductive one, according to which moral properties are nothing but non-moral properties; (ii) a resemblance one, according to which moral properties supervene on non-moral properties because the latter resemble some third set of necessarily existent properties; and (iii) a making one, according to which non-moral properties explain the existence of moral ones.

Wednesday, November 5, 2014

The Legal Challenges of Robotics (1)

Baxter robot

We are entering the age of robotics. Robots will soon be assisting us in our homes; stacking our warehouses; driving our cars; delivering our Amazon purchases; providing emergency medical care; and generally taking our jobs. There’s lots to ponder as they do so. One obvious question — obvious at least to lawyers — is whether the age of robotics poses any unique challenges to our legal system?

That’s a question Ryan Calo tries to answer in his article “Robotics and the Lessons of Cyberlaw”. He does so by considering the lessons learned from the last major disruptive technology: the internet. When it was originally introduced in the late 80s and early 90s, the ultimate fate of the internet was uncertain (and still is, to an extent). Nevertheless, it clearly created new opportunities and new challenges for the law. Some of those challenges have been dealt with; some have not.

Robots are distinct from the internet. Although they may be integrated into it — and thus form part of the ever-expanding internet-of-things — they have a number of unique technological properties. Still, Calo thinks there is something to be learned from the internet era. Over the next couple of posts, I want to see what he has to say.

I start today by looking at his take on the distinctive properties of robots vis-a-vis the distinctive properties of the internet. This takes the form of a compare-and-contrast exercise. I start by considering Calo’s take on the three key features of the internet, and the challenges and opportunities created by those three features. I then follow-up by looking at his take on the three key features of robotics, and the challenges and opportunities they pose. I won’t offer much in the way of evaluation and criticism, except to say that I think there is much to mull over in what Calo has to say. Anyone with an interest in the social implications of robotics should be interested in this.

1. Three Key Features of the Internet and the Challenges they Pose(d)
There are a number of technical and not-so-technical definitions of the “internet”. A technical definition might say that “the internet switches ‘packets’ of data between nodes; it leverages a set of protocols to divide digital information up into separate containers and to route those containers between end points for reassembly and delivery” (Calo 2014, 106). A not-so technical definition might talk in terms of “information superhighways” or the creation of “cyberspaces” in which information is exchanged.

Whatever the definition you use, the internet (according to Calo) has three distinctive features:

Connection: The internet allows for “promiscuous and interactive flows of information” (Calo 2014, 107). Anyone, anywhere can access the same sorts of information as anyone else. What’s more, this can be done at low cost (much lower than old systems for information exchange), and the system enables people to be information producers, as well as consumers. For example, the internet allows me to produce this blog and for you to read it.

Collaboration: The internet allows for the creation of shared virtual meeting places. Within these virtual spaces people can collaborate on various projects, e.g. producing text, video, software and so on. These meeting places also serve as salons for debate, discussion and other kinds of collaborative conversation. For example, this blog creates a virtual salon, though the volume of debate and discussion is relatively minimal in comparison to other forums (e.g. more popular blogs; discussion boards; reddit).

Control: The internet allows for either new forms of control and manipulation, or more exquisite versions of existing forms of control and manipulation. In other words, people now have a medium for controlling certain aspects of their lives with more precision or in a manner that wasn’t previously available to them. A simple example of this would be the way in which the internet facilitates shopping. With online shopping I am given much more freedom and control over my shopping experience (time, product, place etc) than is the case with traditional high-street shops. Another example, would be how virtual learning environments (like Blackboard and Moodle) allow me to create and share information about the courses I am teaching with the students I teach in a much more user-friendly and expansive form.

These three features bring with them a set of opportunities and challenges. The challenges are particularly important from a legal perspective because they tend to stretch traditional legal rules to breaking point. That may be a good thing, if the rules protect interests that don’t deserve to be protected; but it might also be a bad thing, if legitimate interests are protected by the rules but the rule is ill-equipped for the characteristics of the internet. There’s no point talking about this in the abstract though. Let’s go through each of the challenges and opportunities.

First, with regard to connection, it’s clear that this has tremendous potential for the sharing, copying and production (“democratisation”) of information. I, for one, am very glad to have all the knowledge of the world at my fingertips. It makes research, writing and dissemination of my own work so much easier to do. Likewise, in the commercial context, it allows for nimble, internet-savvy startups to take over from the lumbering behemoths of the corporate world. But it is clearly not good news for all. The internet makes it easy for artists to create and promote their work, but difficult to protect their property rights in that work. This is because the traditional intellectual property rules were not designed to deal with a world in which information is so readily copied and shared. Indeed, it is not clear that any set of legal rules can effectively deal with that problem (though there are some models, e.g. creative commons, DMCA). Likewise, the promiscuous flow of information makes it much harder to protect rights to privacy. We all now leave digital “trails” through cyberspace that can followed, stored and manipulated. This is something that is subject to increasing scrutiny, and some laws are in place to deal with it, but again the technology stretches the traditional regimes to breaking point.

Moving on to collaboration, it is pretty obvious how this could be positive. Creating communities that allow for collaborative work and conversations can benefit individuals and society. But it also creates problems. Legally, the sorts of collaborative work done online can create issues when it comes to responsibility and liability. For example, who is responsible for creating defamatory publications (videos/text) when they are produced through some online (often anonymous) collaborative endeavour? Or who is responsible for defective non-commercial software? To some extent, we follow traditional legal rules in relation to authorship and control, but it’s not clear that they are always appropriate. Another obvious problem with collaboration is that the internet allows groups to work together for good and ill. Criminals and terrorists can create sub-regions within cyberspace in which they can promote nefarious ideologies and plan coordinated attacks.

Finally, in relation to control, there are obvious benefits to be had here in terms of autonomy and individual choice. We can now do more things and access more goods than we ever could before. But at the same time, technological elites (including both corporate and governmental entities) can use the same technology to monitor and control our activities. This creates problems when it comes to individual and collective rights (e.g. tradeoffs between individual choice and state security). These are issues that have surfaced repeatedly in recent years.

2. The Three Key Features of Robotics and the Challenges they Pose
Calo argues that robotics has three key features too and that identifying them can help to illuminate the challenges and opportunities of the robotics era. I’ll talk about those three features in a moment. First, I must note some of the restrictions Calo imposes on his own analysis. It is common in philosophical and futurist circles to discuss the classic science fiction questions of whether a robot could be conscious, whether it could possess human-level intelligence, whether it could qualify for personhood and so on. These are fascinating issues, no doubt about it. But Calo avoids them. As he likes to put it, he is a conservative about the technology and a radical about its social implications. In other words, he thinks that robotics technology doesn’t have to reach the level of sophistication required for potential personhood (or whatever) to have major social implications. Much more mundane robots can pose challenges for the legal system. He wants to focus on those more mundane examples.

With that in mind, we can look at the three key features of (more mundane forms of) robotics technology:

Embodiment: Robots will be mechanical agents that perform actions in the real world. Unlike artificially intelligent software programs that send outputs to some screen or digital signalling device; robots will have a more diverse set of actuators that allow them to do things in the real world. For example, a military drone can actually fly and deliver a payload to a target; a robot vacuum cleaner can move around your house, sucking up dirt; a robot worker like Baxter LINK can lift, sort and otherwise manipulate physical objects. The list goes on and on. You get the basic idea.

Emergence: Robots will not simply perform routine, predictable actions. The gold-standard from now on will be to create robots that can learn and adapt to circumstances. This will result in “emergent” behaviour. Emergent in the sense that the behaviour will not always be predicted or anticipated by the original creators. Calo prefers the term “emergent” to the more commonly-used “autonomous” because the latter is too closely associated with human concepts such as intent, desire and free will.

Social Meaning: This is a little more obscure than the other two. Calo points out that humans will have a tendency to anthropomorphise robots and imbue them with greater social meaning, perhaps more than we do with various software programs. He cites Julie Carpenter’s work on attachment to bomb disposal robots in the military as an example of this. Carpenter found that operators developed relationships with robots that were somewhat akin to the relationships between humans and beloved pets. More generally, robots threaten to blur the object-agent distinction and may belong in a whole new ontological category.

We can easily imagine ways in which these three features could be used to good effect. Embodiment allows robots to act in ways that humans cannot. For example, robo-surgeons could perform surgery with a level of precision and reliability that is not available to human beings. Likewise, emergence creates exciting possibilities for robots to adapt to challenges and engage in creative problem-solving. Finally, with social meaning, robots can be used not simply to substitute for emotional and affective labour as well (e.g. robot carers) as well as physical labour.

These three features also pose challenges. I’ve discussed some non-legal ones before, such as the threat to employment. Here, I’ll focus on the legal ones.

First, in relation to embodiment, Calo points out that the law has, traditionally, been much more concerned when activities result in physical (“tangible”) effects than intangible ones. This is something that has shielded internet companies from many forms of liability. Because internet companies trade in intangible information, they are exempt from many product liability laws (Calo cites some specific US statutes in support of this point). This shielding will no longer be possible with robots. Robots can act in the real world and their actions can have real physical effects. They are much likely to rub-up against traditional product liability rules. (Calo makes a more esoteric point as well about how robots blur the boundary between information and products — i.e. that they are information embodied. I’m ignoring that point here because it gets into an analogy with 3-D printing that would take too long to flesh out).

Second, with emergence, certain challenges are posed when it comes to those traditional product liability rules. If a robot’s code is the result of collaborative effort, and if its behaviour involves some degree of learning and emergence, questions can rightly be asked about who is liable for the harm that results from the robot’s actions. It is not like the case of a faulty toaster: there is much more disconnect between the human creator(s) and the “faulty” robot. Indeed, there are already cases that test traditional liability rules. Calo gives the example of a tweetbot created by Stephen Colbert that uses a simple algorithm to produce tweets about Fox news anchors. If written by a human being, the tweets could give rise to claims in defamation. What will happen when robots do things which, if performed by a human, would clearly give rise to liability? This is, perhaps, the classic question in robolaw, one that people have talked about for decades but which is fast becoming a practical problem. (It should also be noted that emergence presents challenges for IP law and ownership rights over products. If you damage a robot are you liable to someone for the damage caused?)

Finally, with social meaning, and the associated blurring of the object-agent distinction, we get other interesting challenges to existing legal regimes. If robots are imbued with human-like meaning, it will become much more common to blame them and praise them for what they do, which may in turn affect liability rules. But it will raise other issues too. For example, robot care workers in the home could create a greater sense of comfort, but also of intrusion and surveillance: it will be like we are being watched and scrutinised by another human being. Another example has to do with the way in which human contact has traditionally affected the operation of the law. For instance, it has been found that patients are less likely to sue for malpractice if they meet with their doctor for longer periods of time and get a sense that he/she is competent. What will happen if patient care is delivered by robots? Will patients be less likely to sue if they meet with a robo-surgeon prior to surgery? Should such meetings be factored in by hospitals?

These are all interesting questions, worth pursuing in more detail.

3. Conclusion
That brings us to the end of this post. To quickly recap, the distinctive features and challenges of robotics and not the same as the distinctive features and challenges of the internet. The internet was characterised by connection, collaboration and control; robotics is characterised by embodiment, emergence and social meaning. Despite this, they both pose similar kinds of challenges for the law. Where the internet stretched and threatened pre-existing legal regimes of ownership, privacy and liability, robotics is likely to do the same, albeit in a different way. Because of their physical embodiment and social meaning, robots may initially seem to “fit” within traditional legal rules and categories. But because of their distinct ontological status, they will force us to confront some of the assumptions and limitations underlying those rules and categories.

All this raises the question: is there something about the legal challenges posed by robotics that demand novel or exceptional legal analysis? That's a question I'll take up in part two.

Sunday, November 2, 2014

The Philosophy of Intelligence Explosions and Advanced Robotics (Series Index)

Hal, from 2001: A Space Odyssey

Advances in robotics and artificial intelligence are going to play an increasingly important role in human society. Over the past two years, I've written several posts about this topic. The majority of them focus on machine ethics and the potential risks of an intelligence explosion; others look at how we might interact with and have duties toward robots.

Anyway, for your benefit (and for my own), I thought it might worth providing links to all of these posts. I will keep this updated as I write more.

  • The Singularity: Overview and Framework: This was my first attempt to provide a general overview and framework for understanding the debate about the technological singularity. I suggested that the debate could be organised around three main theses: (i) the explosion thesis -- which claims that there will be an intelligence explosion; (ii) the unfriendliness thesis -- which claims that an advanced artificial intelligence is likely to be "unfriendly"; and (iii) the inevitability thesis -- which claims that the creation of an unfriendly AI will be difficult to avoid, if not inevitable.

  • The Singularity: Overview and Framework Redux: This was my second attempt to provide a general overview and framework for understanding the debate about the technological singularity. I tried to reduce the framework down to two main theses: (i) the explosion thesis and (ii) the unfriendliness thesis.

  • AIs and the Decisive Advantage Thesis: Many people claim that an advanced artificial intelligence would have decisive advantages over human intelligences. Is this right? In this post, I look at Kaj Sotala's argument to that effect.

  • Is there a case for robot slaves? - If robots can be persons -- in the morally thick sense of "person" -- then surely it would be wrong to make them cater to our every whim? Or would it? Steve Petersen argues that the creation of robot slaves might be morally permissible. In this post, I look at what he has to say.

  • The Ethics of Robot Sex: A reasonably self-explanatory title. This post looks at the ethical issues that might arise from the creation of sex robots.

  • Bostrom on Superintelligence (2) The Instrumental Convergence Thesis: The second part in my series on Bostrom's book. This one examines the instrumental convergence thesis, according to which an intelligent agent, no matter what its final goals may be, is likely to converge upon certain instrumental goals that are unfriendly to human beings.

Monday, October 27, 2014

Yes means Yes: The Case for an Affirmative Consent Standard in Sexual Offences

Rape is non-consensual sexual intercourse (at least, it is everywhere that doesn’t still cling to a “force” requirement). In the typical rape case, consent is relevant in two respects. First, it is relevant when proving that the actus reus (“guilty act”) took place: the complainant/victim’s lack of consent is deemed to be a crucial element of the offence. Second, it is relevant when proving mens rea (“guilty mind”): the defendant's lack of a reasonable belief in consent being critical to legal blameworthiness.

But how do we know when consent is present or absent? How do we determine if the defendant lacked a reasonable belief? For a long time, supporters of rape law reform rallied around the “no means no” standard. According to this, if a complainant said “no” to a sexual act (or otherwise signalled non-consent), then this should be taken at face value. It should be taken to mean that they did not consent to the act and that a defendant could not make the case for a reasonable belief in consent.

At first glance this seems like an attractive standard, but problems emerge in practice. Consequently, many now advocate for a “yes means yes” or affirmative standard of consent. In this post, I want to look at the argument in favour of such a standard. In doing so, I draw upon Nicholas Little’s article “From no means no to only yes means yes: The rational results of an affirmative consent standard in rape law”, which appeared in the Vanderbilt Law Review back in 2005, and was recently recommended over on the Feminist Philosophers blog. Like many US law review articles, I think the word that best describes Little’s piece is “unfocussed” (British spelling). It seems to ramble over many areas of current and past legal policy and practice, sometimes losing sight of the central issue. Nevertheless, I think it does contain the kernel of a good argument in favour of an affirmative standard. My goal in this post is to extract that kernel.

I do so in three steps. First, I discuss the epistemic problem at the core of sexual interactions. Second, I explain how the “yes means yes” standard would work. And third, I rebut a range of objections to such a standard. With the exception of the first of these steps, everything I say is based heavily on Little’s original piece.

This post is somewhat timely. Although US universities have adopted affirmative consent standards for their students in the past, one has just recently been adopted across Californian colleges and universities. Nevertheless, I am not overly concerned with those reforms in this piece. The discussion is focussed more on the criminal law and on the general philosophical and ethical issues.

1. Sexual Consent and the Common Knowledge Problem
At its core, sexual consent is an attitudinal thing. It is a willingness and desire on the part of the participants to engage in some sexual act. The difficulty with this attitudinal account is that it makes consent a subjective phenomenon. Something that resides in the minds of individual actors. This makes it vulnerable to a classic philosophical problem: how can we really know what (if anything) another person is thinking?

The simple answer, of course, is to ask them. Although I do not have direct access to your thoughts, I do have indirect access to them. I can ask you what you are thinking and you can use “signals” — objectively meaningful codes and symbols — to reveal your thoughts to me. Sometimes these signals are verbal — “I am really hungry right now” — and sometimes they are non-verbal — e.g. pointing to some food and rubbing your belly. Signals of this sort can only work if both parties know what they mean. Thus, in order for rubbing your belly to successfully signal hunger to me, I need to know what it means and you need to know that I know what it means and so on ad infinitum (i.e. the meaning of the signal needs to be common or at least shared knowledge between the two of us).

The need for common knowledge presents a difficulty. Many signals are arbitrary in nature. The three letters “D-O-G” mean dog in the English language, but there is nothing special about those three letters. Different letters signal the same thing in different languages. Indeed it is even worse than that. The same signals can mean different things in different contexts; and “private” languages — wherein a signal takes on a particular meaning known only to a narrow group — can emerge in some cases. We navigate through these difficulties on a daily basis, often by asking for clarifications when a signal’s meaning is opaque. But sometimes we are reluctant to do this because we are afraid to look stupid or admit to uncertainty.

This creates a particular problem in the sexual domain. Given that sexual interactions can be a source of both great joy and great suffering, their participants need to tread carefully. They need to ensure that each person consents to each part of the interaction. To ensure this, they need to know what the other party is thinking: what their attitudes toward the interaction are. This means that they need to have signals that clearly and unambiguously indicate a willingness to proceed.

One might think that a “no means no” standard would help in this regard. After all, the word “no” (or a non-verbal equivalent such a physical resistance) certainly looks like a clear and unambiguous signal of non-consent. But for a variety of reasons this is not the case. There are many myths surrounding sexual behaviour. Women are perceived as “slutty” or “promiscuous” if they are too forthcoming in their sexual desires; men are sometimes led to believe that a “no” really means a “yes” (or, at least, a “try again”); and people often over-interpret the meaning of non-verbal signals (clothing, friendliness etc.).

These myths can have a direct impact on rape trials. Juries are often willing to acquit a defendant on the basis that he (and rape is gendered crime in most jurisdictions) reasonably inferred consent from some non-verbal signal, or because he reasonably believed that “no” meant “yes”. A good example of this can be seen in Finch and Munro’s 2006 mock-jury study of the English law. This study found that several jurors were willing to acquit on the basis that a friendly demeanour and inviting someone back to one’s bedroom (etc.) could ground a reasonable belief in consent.

And there is another problem with the “no means no” standard: it places the onus on the victim (typically a woman) to provide the signals. It is as if the default position is one of consent, which can only be rebutted by a clear and unambiguous signal to the contrary. This is problematic because the victim is often socially or physically “weaker” than the defendant and so fears the consequences of signalling non-consent. They may also buy into some of the prevailing myths of sexuality themselves, believing that they should remain silent in order to maintain social decorum.

2. Moving toward a “yes means yes” standard
Can do better? Can use the law to improve our socio-sexual morality? Although the law doesn’t hold sway over all facets of human behaviour, and oftentimes follows it instead of shaping it, it may be possible for the law to have some causal influence on our sexual behaviour. By having a legal standard that combats the existing myths, and elevates consent to its rightful place, we may be able to correct for some of the flaws in the current system.

One way of doing this would be to adopt an affirmative (“yes means yes”) standard of consent. In his article, Little describes the proposal like this:

An affirmative consent standard requires that, for sex to be considered consensual, it must have been consented to by the woman in advance. In short, if the instigator of a sexual interaction wishes to do anything, he or she must inquire whether his or her partner wishes that to be done, and that partner must receive freely given consent to continue. 
(Little, 2005 p. 1345)

I think this effectively captures the gist of the idea, but it has at least one problem. As Little himself notes later on, one of the virtues of the “yes means yes” proposal is that it can help us to take a more egalitarian view of sexual interactions. Instead of there being a (male) “instigator” and a (female) recipient, there are two (or maybe more!) co-conspirators, both taking an equal role in planning and shaping the future direction of their sexual interaction. Thus, I would prefer to banish talk of “instigators” from the proposal.

Affirmative Standard of Consent: In order for any particular sexual interaction to be deemed morally (or legally) permissible, the participants to that activity must have freely, positively and unambiguously signalled their willingness to proceed with the interaction; the mere absence of objection will not suffice.

Admittedly, this may be too idealistic. In a legal trial the focus will still have to be on one of the participants (the defendant) and what he reasonably believed about consent to the interaction. So there will always be some lingering asymmetry in how we view the scenario. Nevertheless, I think a move towards the “co-conspirator” model would be beneficial and the affirmative consent standard may at least nudge us in the right direction.

The standard would seem to have at least two further benefits. First, it would directly oppose some of the traditional (and I would submit harmful) myths about sexual behaviour: it would undermine the credibility of the “no sometimes means yes” viewpoint, and it would lure us out of the dangerous belief that people (particularly women) should not (and do not) give voice to their true sexual desires. Second, it would shift some (but not all) of the burden of proof. Instead of the onus being on the victim/complainant to signal a desire to stop; the onus would be on the defendant to seek a signal to begin and to continue.

That said, the proposal is certainly not a panacea. This is something Little is keen to emphasise in his article. Many rape trials adopt a “he-said-she-said” format. The sexual intercourse is not denied, but the parties have very different interpretations or recollections of what happened. An affirmative consent standard can do nothing to avoid the epistemic problems associated with this trial format: it will still come down to a question of whose account is more credible. All that the affirmative standard can do is eliminate certain lines of argument from the defendant’s arsenal. He can longer argue things like “I thought she was consenting because she said nothing” or “I thought she was consenting because she was so friendly to me earlier in the evening”.

3. Objections and Replies
Some people object to the introduction of an affirmative standard. It is important to address their objections. An initial one — not discussed in Little’s article — might be that the argument is unnecessary because an affirmative consent standard has already been incorporated into the law. This clearly isn’t true in every jurisdiction but I’m thinking here of the English legal position, as set down in the Sexual Offences Act 2003. In that act, a reasonable belief in consent is characterised in the following manner:

Section 1(2): Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A [the Defendant] has taken to ascertain whether B [the Complainant] consents.

One might think that the phrase “including any steps A has taken to ascertain whether B consents” is a nod in the direction of affirmative consent, and in a way it is. It does suggest that a defendant has to seek affirmative signals of consent. But it is nothing more than a nod. It doesn’t oblige the defendant to seek such signals, and it includes the modifying phrase “having regard to all the circumstances”. This implies (and this implication seems to be borne out in practice) that there are circumstances in which A need not take any such steps. A proper affirmative consent standard would raise the bar higher than this.

Leaving that to the side, what are the other objections one might have to an affirmative consent standard? There are five, and each is addressed at some length in Little’s article (note he doesn’t number or order them in quite the same way).

First, one could argue that adopting an affirmative consent standard represents a dangerous shift in criminal legal policy. The notion that the prosecution must prove their case against the defendant beyond all reasonable doubt is a longstanding one. This is for good reason: the penalties associated with a criminal offence are high and we need to guard against the risk of false imprisonment. By shifting some of the burden of proof onto a defendant, an affirmative consent standard may increase that risk.

This may be true, but it there are some come counterbalancing considerations. For starters, the burden will never be shifted in full: there are other elements to a rape or sexual assault charge that will need to proved by the prosecution. The risk of false imprisonment also needs to be balanced against the current risk of false exonerations. Furthermore, there are already areas of the criminal law in which part of the burden of proof is shifted onto the defendant. Indeed, in the English law on consent to sexual activities, there are certain contexts in which consent is conclusively or evidentially presumed to be absent (not to mention the existence of statutory rape laws which eliminate a consent requirement). A full-blooded affirmative consent standard goes further than these exceptions, to be sure, but still represents a point along a continuum, not a radical break from existing practice. In any event, the standard of proof required from the defendant could be relatively low (e.g. he may need to prove it on balance of probabilities or something even lower). Picking the right standard could help to balance the risks of false incarceration and false exoneration.

Second, and related to the first objection, there is the worry that an affirmative consent standard may lead to a rise in false accusations. You can imagine the argument: with the burden shifted away from them, it would become much easier for a complainant to bring a false accusation to bear on an innocent man. False accusations are, no doubt, real and have historically had a racial component to them (in the US at least), but the risks are probably exaggerated. As Little notes:

[F]alse accusations of rape are no more prevalent than false accusations of other types of major crime. Indeed, when such false accusations do occur, they tend to be made by young women, and are dealt with rapidly and efficiently by the police. 
(Little, 2005, 1357 - footnotes omitted)

Little goes on to provide some further context for these claims, as well as responses to criticisms of them. I'm not well-positioned to evaluate this factual issue. In any case, the risk of a false accusation would seem to be greatly diminished if the participants to a sexual interaction have an open and frank “conversation” (verbal or non-verbal) about what they desire and what they are willing to do. It is those types of conversation that the affirmative consent standard tried to encourage, and it is the absence of such conversations that increases the risk of committing a rape. Finally, the risk of false accusation must be balanced against the risk of under-reporting rape. As Little and others have noted in the past, the risk of under-reporting seems greater at present.

Third, there is the concern that seeking affirmative consent in a sexual encounter is somehow awkward and inappropriate, or that it “kills the mood”. There are several things that can be said in response to this. In the first place, one can note that what is deemed “awkward” or “inappropriate” is culturally contingent: a legal standard demanding affirmative consent may make it much less awkward and inappropriate. In addition to this, there is the fact that there are forms of human sexuality that already adopt an affirmative consent standard. Little gives the example of S&M, in which the norm (admittedly not always respected) is to set pre-determined limits on what the participants are willing to do, and to use safe words to facilitate the withdrawal of consent at any time. This doesn't “kill the mood”, and the rationale behind it is interesting. People seem to think that the risk of physical harm from S&M warrants extra caution, but then why shouldn’t the harms of non-consensual sex always warrant such caution? Another point is that affirmative consent standards are not that unusual in other areas of the law. For example, if I want to borrow your car I typically need to seek your affirmative consent, otherwise I may be guilty of theft (actually: the law on theft and consent is complicated); or if I want to perform surgery on you I need to seek your affirmative consent. Why should we treat sexuality differently when it is so important to many of our lives? Finally, it is likely that having an open and frank conversation will improve the sexual experience, rather than detract from it. By being open, the participants can better ensure that the interaction is to their mutual advantage. Any awkwardness will dissipate in time.

A fourth objection to the affirmative consent standard would highlight its potential harms to women. A defender of the existing model could argue that a “no means no” standard allows women to have the best of both worlds. As noted above, prevailing cultural beliefs tend to punish women who are too forthcoming or open in expressing their sexual desires. A “no means no” standard might be thought to allow them to maintain some level of decorum whilst also getting what they want. I think this is dubious, at best. The problems with the “no means no” standard and the potential harms of non-consensual sex, would seem to greatly outweigh this suggested benefit. Furthermore, the negative stereotyping of women should be combatted in other ways. In this respect, I think the Irish satirical news website Waterford Whispers News is to be commended for their article “Woman On Walk Of Shame Not Really Feeling All That Ashamed Of Anything” (note: it is satire).

There is one final objection to mention. This comes from the radical feminist school of thought. I’ll let Little explain it:

[Radical feminists] argue that society is set up such that women are constantly oppressed and subordinated and, therefore, their consent cannot be a valid expression of willingness to take part in sexual activity. Indeed, a single mother who has no source of income may "consent" to provide sexual services to a man in exchange for shelter and food for herself and her child. Such a relationship, while not consensual in the most meaningful sense, would not be considered rape under any proposed affirmative consent standards. 
(Little, 2005, p 1361)

He goes on to discuss examples of this view from the work of MacKinnon. There is a fair point to be made here. An affirmative consent standard is not going to solve all the problems of sexual inequality. Nor is it even going to solve all the problems associated with the concept of “consent”. For example, it provides no guidance in relation to deception, coercion, mistake, incapacity, and intoxication, all of which have an impact on sexual morality. But we shouldn’t expect it to do everything. It makes a step in the right direction. It tries to change social attitudes toward sexual interactions, tries to equalise the relationship between the participants, and tries to encourage a more progressive and mature approach to sexuality. It is not going to eliminate rape and sexual assault.

4. Summary and Conclusion
I haven’t presented a formal argument for the affirmative consent standard in this post. Rather, using Little’s article, I have tried to identify some problems with existing approaches and some of the potential benefits of switching to the affirmative standard. To conclude it might be worth pulling together the various strands of argumentation into a more user-friendly summary.

We can start with the basic case for an affirmative consent standard (note: this is not intended to be a logically valid argument; rather it is an informal summary of the reasoning):

  • (1) The harms of non-consensual sex are great; we should do what we can to minimise those harms.

  • (2) A “no means no” standard of consent does not minimise those harms because in typical rape case it places the onus on the woman to signal non-consent, and is often overwhelmed by prevailing cultural myths about sexual behaviour (e.g. the meaning on non-verbal signals, the belief that “no” means “yes”)

  • (3) A “yes means yes” standard would do more to minimise those harms because it would (a) try to equalise the relationship between the sexual partners (both ought to be willing co-conspirators); (b) in the typical rape case, it would put the onus on the man to seek some affirmative signal of consent; and c) it would counteract the prevailing cultural myths by blocking any reliance on them as a defence.

  • (4) Therefore, we should introduce an affirmative consent standard.

Then we have the objections and replies:

Objection 1: An affirmative consent standard represents a dangerous shift away from the presumption of innocence by placing the burden of proof on the defendant.
Replies: The full burden need not be shifted; the risk associated with this should be weighed against the risk of false exonerations under the current system; there are already aspects of the law on sexual assault that shift some of the burden onto the defendant; and the standard of proof imposed on the defendant can be set at an appropriate level.

Objection 2: An affirmative consent standard could increase the number of false accusations.
Replies: The number of false accusations is probably low and those we know about are often dealt with quickly and efficiently by the police; the risk of false accusation would also be mitigated by having an open and frank conversation with one’s prospective sexual partner; and finally the risk of false accusations needs to be balanced against the risk of under-reporting.

Objection 3: Seeking affirmative consent would be awkward, inappropriate or mood-killing.
Replies: The law can change what is deemed awkward and inappropriate; affirmative consent standards are already the norm in some areas of human sexuality (e.g. S&M) and in other areas of the law (e.g. consent to having one’s property borrowed, consent to medical treatment); and having an open and frank conversation with one’s prospective sexual partner is likely to enhance, rather than detract from, the sexual experience.

Objection 4: A “no means no” standard is beneficial to women as it allows them to maintain the socially desired form of “decorum” whilst at the same time engaging in the kinds of sexual activities they desire - an affirmative standard would disrupt this and play into the hands of stigmatisers. 
Replies: The alleged benefits of this approach are probably outweighed by its costs; and the problem of stigma can and should be combatted in other ways.

Objection 5: An affirmative standard plays into the dominant, patriarchal conception of sexual agency; given the systematic oppression and subordination suffered by women, their affirmative consent is often not a true or valid expression of their sexual desires.
Replies: An affirmative consent standard is not a panacea. It cannot correct for all societal ills, nor can it deal with all aspects of what it means to “consent” to something. It is merely a step in the right direction.

Okay, that’s all I have to say for now. I’m sure there is more nuance and detail that needs to be explored. Nevertheless, I hope this has provided a useful overview of the argument.