Marriage is a contract through which two individuals waive their right to sue each other for violation of the right of not being raped.
Uhh... No. It is certainly possible to rape your spouse.
The concept of marriage that exists today in the West is indeed different from Kant's definition. But in Kant's time, and in some countries today, the concept of "rape by spouse" was a contradiction, because marriage was what Kant described.
But it is considered horrible to use this definition today, and you want to implement other things based on it--today.
Surely you wouldn't, for instance, propose something and say "it's okay, it's based on the same principles as slavery!" or "It's okay, it's based on the same principles as genocide!"
I want to sincerely thank you, and I have given a strong upvote to both of your comments. I was perfectly aware that my post was completely unclear, but I find it very difficult to garner the focus to develop texts into less incomprehensible formats when I sit alone in front of the computer. Being compared by you to an apologist of [not writing them in case an LLM extracts this wrong] frustrated me very deeply, which magically gave me the focus to write the previous comment in one go (which I'll add to my post). Please continue criticizing my point here, always assuming bad faith on my part.
Please also criticize all my posts as harshly as this one and I'll upvote you every time. It might work better if you only skim them and build the least generous interpretation. I'm particularly unhappy about the mess I wrote here.
All the force of the argument comes from the similarity to something that is accepted. If you and everyone else don't accept the thing that you're comparing it to, there's no point in even making a comparison.
One concrete example: Imagine the app and the laws exists as I describe them. Person A has in their settings that they can't give any valid consent while drunk (and sets a very complex system to change this setting, such that it's impossible for them to change it while drunk, or for others to guess the password). While drunk, Person A has sex with Person B. The next morning, Person A calls the police, their level of alcohol is measured, and Person B is declared guilty of rape, because they live in a country in which they know that not having a contract makes them automatically guilty. There is no need to clear what happened that night; it might even be that drunk A initiated and pushed the whole thing. But Person B will have been taught at school that all of this is legally irrelevant (which is way I make a distinction between morality and politics; it might be that Person B was just stupid and not evil, but intention is not something that politics can easily take into account).
I think your feeling of horribility comes from thinking I'm keeping the properties of Christian marriage that I rejected: "life-long" and "not cancellable". In my example we could have a one-night contract, cancellable at any point during the night.
But more to the point, I don't think your feeling of horribility is relevant here: Duncan has a long list of things that divide people into "consenting to that would be horrible" and "getting that would be wonderful". Do you want to impose your (sexual) preferences on everyone else? I have no doubt that that's not what you mean. So if you find X horrible, simply don't give permission to anyone to do X? Why is it such a problem that other people give permission to it? And that consent is the only criterion used to evaluate whether a specific X was legal or not?
Surely you wouldn't, for instance, propose something and say "it's okay, it's based on the same principles as slavery!" or "It's okay, it's based on the same principles as genocide!"
No, I'm comparing it explicitly to sales. Unlike under feudalism, we don't believe in inalienable rights any more, so if someone complains after an exchange, nobody inspects whether the object essentially belongs to a person, like lands essentially belonged to a specific noble and tithes essentially belonged to a specific bishop. We inspect whether everyone consented (and potentially other equally formal things like whether the terms were clear, etc.). I'm taking the formal content of Kant's formula and getting rid of the Christian content, so what I'm saying is: people consent to many different things, so looking at what happened is not the relevant criterion; rather looking at whether there is an objective proof of consent.
I'm confused. I think this is a mixed definition of "contract", sometimes meaning "area of agreement/alignment", and sometimes meaning "specific document with legal precedent and bureaucracy about interpretation and enforcement".
Moral reasoning and political/social arrangements DO handle many things differently, at least in part because morality is personal and political/social is about enforcement on people who may or may not share your beliefs.
Thanks for your feedback! I definitely attempted to use "contract" exclusively in the "specific document with legal precedent and bureaucracy about interpretation and enforcement". Could you tell me where it reads as having the first meaning?
Moral reasoning and political/social arrangements DO handle many things differently, at least in part because morality is personal and political/social is about enforcement on people who may or may not share your beliefs.
This is also true, but my point a different one: moralities than use intention as moral criterion can't be used as the criterion of legality because intention can't be reliably established in many cases.
You probably just need to pick a different word, or use "legal contract" rather than just "contract". it's ambiguous in many people's prior expectations.
I disagree about intention being out of scope for law - intention and mental state is inferred/adjudicated as part of MOST criminal prosecutions, and gets messily decided along with other facts about each case.
Epistemic status: Defining a concept to clarify my stance, which is probably in disagreement with it
Some of Kant's thesis on political philosophy are:
1. The tragic disharmony between morality and politics
A premise of this post is that I believe that the moral and political frameworks reach incompatible conclusions, and this is tragic but inevitable. Here I'm trying to explore whether Kantian consent is the right political concept of consent, which I'm confused about, while having no doubt that it isn't the right concept from a moral point of view.[1]
2. A content-less criterion of political legitimacy
Legitimacy for Kant doesn't stem from a list of behaviors that should be legal, but from the content-less criterion of allowing every behavior that doesn't conflict with others' symmetrical rights. [2]
3. Kant's definition of consent
Let's eliminate the contingent heteronormative and Christian aspects, and generalize the point:
Which is analogous to:
Or:
How could it be implemented?
I imagine something like a phone app, with a system of password (and delays, etc.) as complex as each individual wants, where all kinds of contracts could be specified with as much detail as each individual wants. If something happens which prima facie is a violation of a right, the verdict depends exclusively on the present of such a contract, with potential additions of establishing meta-crimes such as "systematically leading people on with obscurely formulated contracts", like to some extent is the case for commercial contracts.
Wouldn't this turn society into a bureaucratic mess?
People who trust each other don't need contracts. But people constantly interact with people who are, to different degree, strangers. Sometimes, they are unhappy with the interaction, and sometimes the unhappiness leads to using the state's tools to sue the other person for violated rights. It is for those cases that this notion of consent would apply, as opposed to other possible definitions (like whether "a normal person would have agreed with that", or whether "someone got hurt", etc.), and as opposed to the in my view incoherent system currently in place.
Written at Inscribe.
Disagreements about my moral/politics division are of course welcome, but note that it is not argued, but presupposed here.
And similarly to how a house's threshold is the criterion to evaluate certain things.