Tag Archives: consent

Palmater on the Right to Say ‘No’

The very first post I wrote for The Asking Project set out always take no for an answer as a cardinal rule of asking, and I’ve revisited that rule a couple of times since, drawing connections with Margaret Gilbert’s ideas of joint commitment, looking at the way saying no turns the ethical spotlight back on the person doing the asking and — most important of all — sets conditions for new respectful relationship.

There’s a strong connection between this (ethical) rule of asking and (legal) considerations of consent. This is complex territory, so an illustration might be useful. Consider, for starters, this piece Pam Palmater wrote back in October on the indigenous “right to say ‘no’,” as enshrined in the doctrine of free, prior and informed consent.

A little background. After a Canadian court ruled against the Trans Mountain pipeline expansion, the Trudeau government announced that instead of appealing the decision, it would undertake a consultation process with First Nations. Palmater accused the government of conducting a charade, of “using” or abusing this process “to force the expansion of this pipeline.”

Regardless of whether the new consultations are led by a former Supreme Court justice or Trudeau himself, Canada has already decided that the pipeline will be built, before ever talking to any of the impacted First Nations, including those that have asserted Aboriginal title. This renders our constitutionally protected Aboriginal rights meaningless. What legal value is the federal government’s constitutional obligation to consult, accommodate and obtain the consent of First Nations before taking actions that would impact our rights and title, if “consent” is interpreted as the right to say yes but excludes the right to say no? It makes no logical sense to interpret the law in such a way, especially to a constitutionally protected right.

Imagine if consent was interpreted this way in both the ordinary and legal understanding of the word “consent.” When a school sends home a permission form seeking a parent’s consent to allow their child to take a field trip, if the parent does not give consent, the school cannot allow the child to participate. Similarly, if a patient refuses to give consent to an operation to have their hip replaced, then the doctor cannot perform the operation. The absence of consent means no — in other words, a veto that has real legal power and meaning. Imagine if consent was interpreted in this illogical and diminished manner for sexual relations as it is for Aboriginal rights. Imagine if sexual consent in law meant that a man could consult with a woman on whether she wanted sexual relations, and was even willing to accommodate (“where appropriate”) her wishes about how to have sexual relations, but she had no right to say no — no veto over whether or not sexual relations occurred? That is called sexual assault and it is a crime.

The greatest injustices that have ever been committed against First Nations in Canada have resulted from denying the sovereign right of our Nations to say no. The right to have a real veto over infecting our blankets with smallpox; from scalping our people; from stealing our children and raping, murdering and torturing them in residential schools; sterilizing our women and girls; from the forced adoptions of our children into white families during the Sixties Scoop; to the murders and disappearances of our women and girls; to forced human trafficking and now the destruction of our lands and waters for profit.

The right to say no is an inherent part of the legal concept of consent. To interpret this concept otherwise is racist, discriminatory and self-serving, not unlike the doctrines of discovery and terra nullius. Surely, even the Supreme Court would not interpret their own decisions in such an impoverished manner. To do so would render Section 35 [of the Constitution Act, protecting First Nations rights] an empty shell of a constitutional promise.

When Lily Says “No”

Always take no for an answer is a cardinal rule of asking, I wrote in my first post on this theme. It’s a version of the golden rule that’s especially worth bearing in mind when making plans to collaborate or act with others, or just talking about what we are going to do.

While giving someone an order might be a way to delegate authority and raise her stature in a group, asking recognizes the authority and standing she already has. According this basic respect takes precedence over extracting promises and concessions or getting to yes in a conversation or negotiation, and unless another person can say “no” and have that answer heeded, she will never really be able to say “we”. “No” marks the spot where you stop and we begin.

In other words, taking no for an answer is not just about respecting others, but about respecting and caring for how things are between us (the theme of a post I wrote earlier this week) and for the sense of us we have. That sense of us is how we make up and maintain the social world together. When we ask someone to do something, or ask what we are going to do, we openly acknowledge that there is — or can be — a “we,” not just you and I, but a plural first person. Asking creates an opening. It puts us out in the open.

The philosopher Margaret Gilbert seems to be heading in this same direction when she remarks in passing: “successfully questioning someone involves entering a joint commitment with that person.”

Take a moment to consider the example she offers. Bob addresses Lily with the question, “Shall we dance?” And Lily answers, “Yes, lets!” From this point on, the usual Gilbertian scenario unfolds. Having expressed their readiness to enter a joint commitment — indicating “that all is in order as far as one’s own will is concerned” — Bob and Lily are now jointly committed to dance together.

Once they start dancing, or, actually, even before that, once Lily has said yes and as she rises from her seat, each will have to answer to the other in the event one of them violates the joint commitment, or at least Lily would be justified in complaining if Bob were to drag his feet, go outside for a smoke, or give in to sultry Melissa, who is beckoning with her eyes from the other side of the room.

Unfortunately, Gilbert never elaborates on what “successfully questioning someone” entails, or what might make it different from unsuccessfully questioning someone. On the surface, it looks as if Bob “successfully” questions Lily here because she says “yes” to his request: she accepts his invitation to dance. Bob and Lily have therefore reached an explicit agreement. But let’s not confuse successfully questioning someone with getting to yes, or confuse getting to yes with reaching an agreement. (It’s worth noting that for Gilbert, joint commitments don’t always entail explicit agreements. The way Gilbert puts it is: “everyday agreements can be understood as constituted by…joint commitments” [her emphasis]).

What if Lily says “no”? What if she rolls her eyes, or sticks her nose in the air? In that case, has something like an agreement been reached?

Maybe. As long as Bob takes Lily’s no for an answer, we can say he and Lily have agreed not to dance. Of course, Bob might not like our putting it that way. He might say he failed to get Lily to dance with him, but that might also go to show that he was not prepared to take no for an answer and regarded Lily’s consent as the only acceptable outcome. We might do better if we were to characterize Bob’s questioning Lily in terms of Lily’s responsiveness — on that score, both yes and no would count as success — or if we think about what Bob’s asking Lily to dance and Lily’s refusal puts between them, how it constitutes them as a plural subject.

Though not committed to dance together, Bob and Lily are not done with each other or free of shared commitments after Lily says “no.” In a very important way, their relationship has just begun. When one person addresses or flags the attention of another, with a question or a nod, the squeak of a chair or a sneeze, they “jointly commit to recognizing as a body that the two of them are co-present,” Gilbert writes. People mutually recognize each other in this way all the time, on queues and in coffee shops, in bookstore aisles and on city sidewalks. Here we are, a “we”. Asking helps get us there.

So even if Lily politely refuses Bob with a “no thank you,” or rudely brushes him off, Bob can take solace in the thought that he has successfully questioned Lily. Bob’s failed bid to dance with Lily commits Lily and Bob to recognize that the two of them are co-present, there in the dance hall. Bob and Lily now have a sense of us, even if Lily will never dance with Bob, and that sense — that relationship — will endure.

With that enduring sense of us between them, Bob and Lily are now jointly committed to Lily’s refusal as well. So if Bob were to order Lily or insist that she dance with him, or grab her by the arm and drag her to the dance floor, coercing her, Lily has every right to complain. And if the next time Bob saw Lily he were to pretend that she never refused him at the dance, he would be doing Lily wrong.