“which makes it a moral rule, and justifies it as a legal rule”
This just doesn’t seem true. Just because a state has written so and so rule into law doesn’t mean the desired outcome of that rule will be actualised. In practise, far from it. Anarchists can agree with all your moral rules (unless you place implausibly high thresholds at times) but we just think anarchy would best satisfy them.
Thanks for the response. I only argue that a legal rule must be supported by a moral principle for it to be justified as a legal rule, so that violating the rule would be wrong. I don't take a stance here on whether it can be actualized or that just because something is legal/illegal it is moral/immoral (although I argue that this is more often the case than people assume under a "reasonable law regime" as discussed here https://neonomos.substack.com/p/laws-must-be-moral-reviewing-three).
I'll expand on this argument that laws tend to be moral in a later piece, but I'm pretty firm on the belief that legal rules must be backed up by moral rules as part of my legal philosophy.
“There are many cases where despite one’s actual consent, there are no binding legal obligations. This includes contracts made under duress, undue influence, fraud, and contracts to minors (with exceptions). “
How are these “actual consent?” By that, do you mean merely that someone said those words, “I consent?” That seems off.
The most obvious problem is with fraud. If I consent to X, but what happens is Y, I have consented to X, which never happened, and did not consent to Y, which did. So my consent is not binding on me. It was conditional on X. (There are of course, complications about how we can distinguish X from Y, but conceptually it is clear.)
Duress seems also very clear, although hard to articulate. If I say “I consent” with a gun to my head, no one would consider that to be valid consent.
I have no idea what undue influence might mean, so maybe you are on firmer ground there.
Consent from minors seems a bit more ambiguous. But clearly, just getting a 5-year-old to say “I consent” is meaningless. But does this mean they have given consent and it is not binding, or that they have not given consent?
So, is this a terminology thing? Are we discussing the underlying concepts, or the words we use to discuss them? If so, we need another word or phrase to denote voluntary consent with all the qualifications that would make it binding.
“we can’t consent to be killed, enslaved, or forced into a HumancentiPad. “
Well, we can (if consenting is just saying the words), we just can't be taken to court if we back out afterwards. Euthanasia is legal in a few states now, and various forms of consent will be required, but this is to protect the person assisting from prosecution, not to bind the subjects to their decisions legally. They can back out any time before it is medically too late, despite having consented. As in sex, consent can be withdrawn; it enables a process to proceed without binding the person who gives consent to continue.
Evers wrote an interesting article contending that contracts (hence consent) were effectively and appropriately only binding in cases of transfer of title to property. Service contracts specify a condition in which money will be transferred, and become void if the condition is never satisfied. Specific performance is almost never used as a remedy, and when it is, it is always in cases involving transfer of title to unusual goods, such as artwork or unusual real estate, where paying money damages seems inadequate. He recommends use of performance bonds in cases where the purchaser of services wishes to incentivize performance by threatening monetary penalties.
Williamson M. Evers, TOWARD A REFORMULATION OF THE LAW OF CONTRACTS journal of Libertarian Studies, Vol. 1, No. 1. Pp.3-13.
So it seems possible that consent is always as in sex, able to be withdrawn at any moment, except when title to property has been transferred.
This possibility raises the question, what would it mean for a person to withdraw consent from the social contract?
Yes, this is the argument I hear from many libertarians, that simply saying “I consent” is both sufficient and necessary to create binding moral and legal obligations. What I call the “magic words” theory of consent.
The argument I present shows why that isn’t true. There are many exceptions where consent is neither necessary nor sufficient to create obligations. And these exceptions can only be justified based on the meta-rules of the social contract, which relies on our hypothetical consent. Or what we would consent to if we acted in accordance with freedom and reason.
And you couldn’t consent out of the moral social contract. The moral universe just is there as an objective property, for us to try and discover it. You may not subscribe to certain moral values (freedom and reason). But to the extent that you do, you should live in accordance with moral principles of the social contract.
“this is the argument I hear from many libertarians, “
We can hear nonsensical arguments from many progressives on the internet, that no notable progressive thinker would endorse, and similarly for conservatives. I recommend arguing against the steel man, not the straw man, or the internet man. If we want to understand the source and nature of binding moral and legal obligations, we should not depend on loose metaphors.
An argument that the social contract justifies exceptions to consent is not the same as showing that “ these exceptions can only be justified based on the meta-rules of the social contract.”
“which relies on our hypothetical consent.”
I'm not sure hypothetical consent is what you mean. An unconscious injured person can be treated by a doctor because of hypothetical consent. But Christian Scientists or other religious persons who object to some modern medical techniques can wear a bracelet or necklace that revokes their hypothetical consent.
“Or what we would consent to if we acted in accordance with freedom and reason. “
Does that really narrow things down much?
“ you couldn’t consent out of the moral social contract. The moral universe just is there as an objective property, for us to try and discover it. “
This shines a light on the loose metaphorical nature of the “social contract.” We are actually discussing social constraints that resemble physical constraints more than contractual terms. We are discussing customs and beliefs of other people, and the fact that the actions of other persons inevitably affect us.
I'd still say consent is fundamental to libertarian thought, which values personal autonomy to the maximal extent. But how would you justify exceptions to consent if not by personal autonomy?
Consent is definitely central to libertarian thought, but that may not be what distinguishes libertarians from other social theorists. Every social theory puts someone in charge, and that makes their consent (at least) important to everyone. (Perhaps permission would be a better word?)
In modern WEIRD societies, mutual consent marks the line between sexual assault and acceptable sexual interaction. This is not unique to libertarians. It seems relevant if not fundamental to any moral or social theory that is not stuck in the Middle Ages.
So I want to put it differently. I think the issue you want to address is the source of obligation, a question regarding to what extent obligations can be placed on someone against their will. Contracts can create obligations, which is why the metaphorical social contract appeals to people. Torts are one of the exceptions you mentioned, and they are sources of obligation. Am I on the right track?
If so, it isn’t exceptions to consent that I want to understand, but exceptions to the claim that all obligations are ultimately a matter of choice for the person who is obligated. Perhaps it would be better to call them commitments. A person can have legal obligations, or customary obligations, or contractual obligations, obligations of family or friendship. People we interact with will expect us to fulfill such obligations, so in that obvious sense they are not chosen. This includes tort liability. But it is always the case that someone can dodge such obligations, e.g. by skipping town. In that sense, all obligations can be looked at as depending on the subject choosing not to skip town. In that perhaps unimportant sense, they are always chosen.
But skipping town is a high cost, which leaves us all vulnerable to a bit of extortion. “Society” (more typically, the government) can impose all sorts of obligations on people, and so long as the cost is still lower than skipping town, the obligation will take effect. This raises the question whether the government has an obligation, or we have an obligation to each other, that would prevent these additional obligations from piling up arbitrarily high but just short of the skip town trigger. Perhaps this would be fairness or equality for progressives, or liberty for libertarians, or pragmatics or custom for conservatives. Where do these meta obligations come from? Are they also chosen? If not, what explains them?
I haven’t really addressed the source of obligation fully, but hey, this is a comment, not a book. And I don’t feel like I know the answer yet.
This is the argument I make throughout my substack, that our actual obligations are determined in reference to our meta obligations in the social contract. There must be a moral reference where actual consent (and its many exceptions) have and lack binding authority, which contractualism can explain.
And the social contract is explained by hypothetical consent to what is reasonable? I really need to catch up on previous posts, I have clearly not gotten the full story yet.
“which makes it a moral rule, and justifies it as a legal rule”
This just doesn’t seem true. Just because a state has written so and so rule into law doesn’t mean the desired outcome of that rule will be actualised. In practise, far from it. Anarchists can agree with all your moral rules (unless you place implausibly high thresholds at times) but we just think anarchy would best satisfy them.
Thanks for the response. I only argue that a legal rule must be supported by a moral principle for it to be justified as a legal rule, so that violating the rule would be wrong. I don't take a stance here on whether it can be actualized or that just because something is legal/illegal it is moral/immoral (although I argue that this is more often the case than people assume under a "reasonable law regime" as discussed here https://neonomos.substack.com/p/laws-must-be-moral-reviewing-three).
I'll expand on this argument that laws tend to be moral in a later piece, but I'm pretty firm on the belief that legal rules must be backed up by moral rules as part of my legal philosophy.
Additionally, if you're defending anarchism, I'd very much appreciate your thoughts on my critique of anarcho-capitalism here https://neonomos.substack.com/p/against-anarcho-capitalism
“There are many cases where despite one’s actual consent, there are no binding legal obligations. This includes contracts made under duress, undue influence, fraud, and contracts to minors (with exceptions). “
How are these “actual consent?” By that, do you mean merely that someone said those words, “I consent?” That seems off.
The most obvious problem is with fraud. If I consent to X, but what happens is Y, I have consented to X, which never happened, and did not consent to Y, which did. So my consent is not binding on me. It was conditional on X. (There are of course, complications about how we can distinguish X from Y, but conceptually it is clear.)
Duress seems also very clear, although hard to articulate. If I say “I consent” with a gun to my head, no one would consider that to be valid consent.
I have no idea what undue influence might mean, so maybe you are on firmer ground there.
Consent from minors seems a bit more ambiguous. But clearly, just getting a 5-year-old to say “I consent” is meaningless. But does this mean they have given consent and it is not binding, or that they have not given consent?
So, is this a terminology thing? Are we discussing the underlying concepts, or the words we use to discuss them? If so, we need another word or phrase to denote voluntary consent with all the qualifications that would make it binding.
“we can’t consent to be killed, enslaved, or forced into a HumancentiPad. “
Well, we can (if consenting is just saying the words), we just can't be taken to court if we back out afterwards. Euthanasia is legal in a few states now, and various forms of consent will be required, but this is to protect the person assisting from prosecution, not to bind the subjects to their decisions legally. They can back out any time before it is medically too late, despite having consented. As in sex, consent can be withdrawn; it enables a process to proceed without binding the person who gives consent to continue.
Evers wrote an interesting article contending that contracts (hence consent) were effectively and appropriately only binding in cases of transfer of title to property. Service contracts specify a condition in which money will be transferred, and become void if the condition is never satisfied. Specific performance is almost never used as a remedy, and when it is, it is always in cases involving transfer of title to unusual goods, such as artwork or unusual real estate, where paying money damages seems inadequate. He recommends use of performance bonds in cases where the purchaser of services wishes to incentivize performance by threatening monetary penalties.
Williamson M. Evers, TOWARD A REFORMULATION OF THE LAW OF CONTRACTS journal of Libertarian Studies, Vol. 1, No. 1. Pp.3-13.
So it seems possible that consent is always as in sex, able to be withdrawn at any moment, except when title to property has been transferred.
This possibility raises the question, what would it mean for a person to withdraw consent from the social contract?
Yes, this is the argument I hear from many libertarians, that simply saying “I consent” is both sufficient and necessary to create binding moral and legal obligations. What I call the “magic words” theory of consent.
The argument I present shows why that isn’t true. There are many exceptions where consent is neither necessary nor sufficient to create obligations. And these exceptions can only be justified based on the meta-rules of the social contract, which relies on our hypothetical consent. Or what we would consent to if we acted in accordance with freedom and reason.
And you couldn’t consent out of the moral social contract. The moral universe just is there as an objective property, for us to try and discover it. You may not subscribe to certain moral values (freedom and reason). But to the extent that you do, you should live in accordance with moral principles of the social contract.
“this is the argument I hear from many libertarians, “
We can hear nonsensical arguments from many progressives on the internet, that no notable progressive thinker would endorse, and similarly for conservatives. I recommend arguing against the steel man, not the straw man, or the internet man. If we want to understand the source and nature of binding moral and legal obligations, we should not depend on loose metaphors.
An argument that the social contract justifies exceptions to consent is not the same as showing that “ these exceptions can only be justified based on the meta-rules of the social contract.”
“which relies on our hypothetical consent.”
I'm not sure hypothetical consent is what you mean. An unconscious injured person can be treated by a doctor because of hypothetical consent. But Christian Scientists or other religious persons who object to some modern medical techniques can wear a bracelet or necklace that revokes their hypothetical consent.
“Or what we would consent to if we acted in accordance with freedom and reason. “
Does that really narrow things down much?
“ you couldn’t consent out of the moral social contract. The moral universe just is there as an objective property, for us to try and discover it. “
This shines a light on the loose metaphorical nature of the “social contract.” We are actually discussing social constraints that resemble physical constraints more than contractual terms. We are discussing customs and beliefs of other people, and the fact that the actions of other persons inevitably affect us.
I'd still say consent is fundamental to libertarian thought, which values personal autonomy to the maximal extent. But how would you justify exceptions to consent if not by personal autonomy?
Consent is definitely central to libertarian thought, but that may not be what distinguishes libertarians from other social theorists. Every social theory puts someone in charge, and that makes their consent (at least) important to everyone. (Perhaps permission would be a better word?)
In modern WEIRD societies, mutual consent marks the line between sexual assault and acceptable sexual interaction. This is not unique to libertarians. It seems relevant if not fundamental to any moral or social theory that is not stuck in the Middle Ages.
So I want to put it differently. I think the issue you want to address is the source of obligation, a question regarding to what extent obligations can be placed on someone against their will. Contracts can create obligations, which is why the metaphorical social contract appeals to people. Torts are one of the exceptions you mentioned, and they are sources of obligation. Am I on the right track?
If so, it isn’t exceptions to consent that I want to understand, but exceptions to the claim that all obligations are ultimately a matter of choice for the person who is obligated. Perhaps it would be better to call them commitments. A person can have legal obligations, or customary obligations, or contractual obligations, obligations of family or friendship. People we interact with will expect us to fulfill such obligations, so in that obvious sense they are not chosen. This includes tort liability. But it is always the case that someone can dodge such obligations, e.g. by skipping town. In that sense, all obligations can be looked at as depending on the subject choosing not to skip town. In that perhaps unimportant sense, they are always chosen.
But skipping town is a high cost, which leaves us all vulnerable to a bit of extortion. “Society” (more typically, the government) can impose all sorts of obligations on people, and so long as the cost is still lower than skipping town, the obligation will take effect. This raises the question whether the government has an obligation, or we have an obligation to each other, that would prevent these additional obligations from piling up arbitrarily high but just short of the skip town trigger. Perhaps this would be fairness or equality for progressives, or liberty for libertarians, or pragmatics or custom for conservatives. Where do these meta obligations come from? Are they also chosen? If not, what explains them?
I haven’t really addressed the source of obligation fully, but hey, this is a comment, not a book. And I don’t feel like I know the answer yet.
This is the argument I make throughout my substack, that our actual obligations are determined in reference to our meta obligations in the social contract. There must be a moral reference where actual consent (and its many exceptions) have and lack binding authority, which contractualism can explain.
And the social contract is explained by hypothetical consent to what is reasonable? I really need to catch up on previous posts, I have clearly not gotten the full story yet.