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Not at all. I understand this distinction perfectly well. Nevertheless, you said:
I'm asking you why this is. Your confusion seems to be that you can't bring yourself to answer the question at hand.
You mean, why can't children and animals consent to acts they lack the mental capacity to understand?
Before you ask, no, I don't think that retarded adults with childlike levels of understanding of sex can consent to sex. Nor do I think that children can consent to e.g. "have parts of their body hacked off, and keep it all secret from their parents!" So neither of the reductios you have mentioned so far are worrying for me, but as I've indicated, I'm probably not the type of person you were addressing above, which was why I was curious as to whether you were addressing me when you used "you" or you were using it in some hypothetical/indirect sense/whatever.
Ok, what is the nature of the mental capacity that they are lacking? Is there something about sex that requires a different type of mental capacity than what is required for children to consent to the variety of other things that they can consent to? If so, what is that nature of that difference, and what are the underlying reasons for why they are lacking one but not the other? Can you help explain the theoretical mechanism to me and to the professional philosophers who have written entire books on this topic, but seem to have just missed the super simple and super obvious way of doing this?
(Before you ask, no, at least Wertheimer didn't think that retarded adults with childlike levels of understanding could consent to sex, either. I'm not immediately recalling off hand Westen's position on this. In any event, Wertheimer again grounded this not in any theoretical explanation of the nature of the mental capacity that was missing. He again simply grounded it in an empirical argument, that he thinks that such people tend to be, on net, harmed by such sex. Moreover, he said that this case was more concerning to him than the case of youth, because while youth tend to grow up, we're essentially foreclosing the possibility of sex for retarded people, ever, regardless of what other importance it might have. Note that this concern is again based on considerations other than a theoretical explanation of consent and capacity, because fundamentally, this area is a big gaping hole in the project of a consent-only sexual ethic. It simply has not been explained.)
Not sure what you mean by "nature" here. Do you deny that children, in general, have weaker abilities to understand the implications of their decisions than adults, in general?
Yes, probably quite a lot of things, but one major respect (which I alluded to with the example of becoming a heroin addict, and which I later suggested with the example of transgender interventions on kids) is the gravity and breadth of the moral implications. A child consenting to buying sweets without parental supervision is a less serious decision than a child choosing to have sex. This is one reason why parents, as a general rule, should have a lot of social and legal authority over children. Why doesn't that authority extend to choosing to let (or require) children have sex, without the child's consent? That's a good example of where a consent-only ethics (or legal doctrine) falls short and something like a harm or corruption principle does work.
(1) There's no reason to expect it to be super simple and super obvious.
(2) In many (all?) of those professional philosophers, they have various background moral beliefs that (a) lead to implications they don't want regarding pedophilia/pederasty/etc., but (b) they'd rather hold onto at least most of them. You correctly alluded to some examples, e.g. their desire to avoid being X-ophobic or (perhaps worse for some people) being regarded as X-ophobic. As you might have guessed from my presence on here or my comments on how I find male homosexuality physically disgusting, I'm less worried about that than a lot of people.
(3) Professional ethicists are seeking a level of rigour that is neither required for law, nor that I expect from my own moral beliefs. It's akin to how I don't need to know professional physics or engineering to do DIY. If you're aspiring to that level of rigour, then great; I only hope you don't have better things to do with your time than working out really carefully why it's wrong to have sex with children.
Of course not. But what aspect of that is relevant to make the distinction below? They still can surely consent to all sorts of things, even having generally weaker understanding.
Expand on this. I'm considering Activity X, and I want to know about the gravity and breadth of the moral implications. How do I check where it falls? How do I connect this to the particular aspect of the weaker ability that you identified in the above question?
Are you aware that, as I mentioned in the linked comment far above, many people think that sex is like tennis? It's just a fun activity that two people choose to do, expecting to have a little bit of a good time, and then nothing interesting follows from it. They don't think there's any gravity to it, and certainly not any breadth of any moral implications... at least not to anyone who isn't a sex-negative prude (probably due to religious superstition). How would you perform the gravity and breadth of moral implications analysis in your explanation to them?
Of course, I am pleased that you do not hold a consent-only sexual ethic. Of course, that does also open up the question of whether there are other areas that do not abide by a consent-only sexual ethic. It is truly a shame that you will be a cancelled bigot as soon as this is found out.
I only hope that the two of us can figure out a really careful, theoretically-solid reason for this, preferably within a consent-only framework, because without it, when we tell the new social revolution that children can't consent to sex, they're going to ask why not, and then they're going to shun us for not having an answer and for being a bunch of outdated bigots (probably clinging to some religion or something).
Agreed, but obviously not everything is beyond a child's understanding.
That's hard to answer in the abstract, because different activities have different moral aspects. I think that value pluralism is a plausible explanation of why moral issues can be so complicated, and (almost?) any moral principle seems to be riddled with contextual defeaters. However, there are some recurring aspects. One of them, which might suggest somewhat of a convergence with a "harm to children is the (main?) reason to think that pedophilia is wrong" is that the harms involved in making a bad decision.
Analogously, think about someone who is blind drunk, staggering back from a nightclub on their own. Should they be able to buy a greasy, fatty, sugary kebab? Well, there's some potential harm to their health, but they can plausibly comprehend that, if they're able to e.g. exchange the cash. Should they be able to hand over all their assets to support the charitable works of the Church of Latter Day Suckers in a legally binding and irrevocable contract? Presumably not, that's a level of commitment and potential harm that's beyond their capacity in that context.
That's a tough one, I think that's what a lot of people say, but not what they actually believe. So I'd start by talking with them about their own personal sexual choices and emotional history. Then I'd probably get slapped in the face...
There is a funny irony here: some (mentally able) adults, especially among the young, the unwise, or the unconservative, don't have a much better understanding of sex than children, yet they can still consent to sex. However, (a) edge cases make bad laws and (b) I don't claim that a sophisticated understanding of sex is required for consent, only a stronger one than children can attain.
Depends on the circles. I was teaching about labour exploitation and sex in a class not long ago; it was the left-wing students (albeit not Americans and not liberals) who almost all found it quite easy to reject a consent-only view in both areas. I also know a lot of left-wing academics and I'm not sure that any of them think that consent is all there is to sexual ethics, though I admit I haven't talked with them a lot about it for years (if ever).
Not sure about that. Eugenics wasn't killed off by carefully reasoned arguments, nor did the careful reasoning of e.g. James Fitzjames Stephens do anything significant against the influence of John Stuart Mill's muddled views and the rise of social liberalism. Outside of the sciences (Newton's Principia and Darwin's Origins are masterpieces of thoroughness; they were rightly once included in some Great Books courses) I struggle to think of many books that were both theoretically solid and very influential in the course of history.
Rigorous arguments are great and I'm glad that people are developing them, but I think that their historical influence is limited, for both good and ill.
Agreed. But how do we know that something is or is not?
Substance use is a very tricky part of both Westen and Wertheimer. Like, suuuper tricky. Most people agree on something akin to "blind drunk" or unconscious. But I hardly think children can be analogized to that. When it comes to lower levels of intoxication, it's really difficult. (I don't have my copy of Westen handy, but Wertheimer was honestly a bit better at trying on a few of these, to my recollection, whereas Westen somewhat more often just fell back on a descriptive, "Here is what different legal regimes do in practice, and here is some vocabulary about how we can describe some of the conceptual differences.")
One commercial analog given is gambling and drinking in a casino. No one argues that drinking and gambling (possibly more than you intended to, on both counts) may result in significant potential harm, but basically no one thinks that it should be flatly prohibited or that gambling losses should be recoverable if intoxicated, at least not until one reaches a pretty extreme state1. He thinks this is partially justified because the gamblers, themselves, would prefer this rule to how the world would be in the counterfactual world. Like, just that there might be some harms, or that they might be significant, isn't really connected in any solid way. I don't think people actually take a measure of the harm that might befall a child who is, say, playing hockey or rock climbing (which could include, ya know, death), and determine that that level of potential harm is just flatly above some threshold, categorically banning them from consenting to the activity.
Wertheimer again ends up grounding his reasoning here in something that isn't really "about" ability to consent. He contrasts two frat houses, one in which the members accept consent from a woman only when it is given before she starts drinking and one that will accept consent after she starts drinking (the former is analogized to a "tattoo parlor rule", while the latter is analogized to the gambling rule). Literally says:
So, like, uh, h-what? What has he even done here? It's kind of wild. It's not anything to do with their actual intoxication or mental abilities or anything. And of course, it's not anything to do with their specific regret/lack of regret for a particular action. For surely, every person would prefer the rule to be that they can legally take back every particular donation to the LDS that they regret, every particular gambling loss they incur, but keep every particular gambling gain, and of course have all the particular intoxicated sex that they don't regret. So, he ends with this awful mash of awfulness. It's certainly not anywhere nearly clear cut to tell us anything useful regarding anything about the mental capacities necessary to consent, on some hypothetical sliding scale of intoxication level, or how to understand how children would fall into this approach. That's probably why his attempt for children just completely went down the empirical route rather than even trying for any sort of real analogous reasoning here. Like, I just don't think you actually can reason analogously here at all, because they're just not the same sort of thing, and we have no theoretical mechanism linking them to each other or to anything about the gravity of sex or whatever.
Hot damn, as an aside, I checked to make sure I was remembering completely right that he did, indeed, immediately head for the empirical route for children, and he sure did. What I had forgotten was this doozy immediately thereafter:
This is what the claim will be. Again, you're just a regressive, sex-negative (probably religious) prude if you disagree.
LOL! Nah, tho. They're Aella-based and enlightened-pilled. They'll be as happy as all get out to describe how sex-positive they are about all the sex they chose to have. "Even the sex I kind of regret was good in its own way, and I'm glad to have had the choice," or whatever. See the NYT article that I linked in one of my comments that I linked way back up in our earlier conversation.
I mean, this is going to go very poorly for you. You've sort of given up the game that you can have the same level of understanding of sex (and presumably the gravity and breadth of any moral implications), but somehow, those children still can't attain some mystical additional "sophistication"?! Like, what? How does this even work? What religious magic is this?
Yeah, you have to work a bit to make them actually see the contradictions in their claims. Most of the time, people just shake their head with mood affiliation. But when it comes to serious politics and Supreme Court briefs, they will absolutely refuse to see the contradictions, akin to how they'll suddenly think that opinion polls settle biological science.
Fair enough. We might be doomed, you and I, regardless of whether we can actually complete this project. They're probably going to do what they're going to do, regardless of whether we actually have a rigorous argument that children can't consent. Mayyybe, it miiiight help, but probably they'll just find some way to ignore it or minimize it anyway. Of course, it doesn't help that their counter to, "Children can't consent," is something short and pithy like, "Why not? They consent to all sorts of stuff!" whereas our counter to their counter is, "Well see, if you understand this complicated rigorous argument that fixes all the prior issues with not being able to analogize this situation to intoxication and avoids falling into the trap of, and... and..." I guess we really just are doomed to the fate of being right (ya know, if we can fix all of the problems in the project, which I'm still not seeing yet) but ground under an unstoppable cultural force.
1 - Worth noting here briefly that I think prohibitions on children gambling are, and should be, based on reasoning other than that they "can't consent". But I admit that it would be easy for this issue to get complicated, and that it seems a bit disanalogous.
That's hard to answer unless the standard of "knowledge" is sufficiently defined for the context. We know quite a lot about child psychology in general, which is sufficient for setting general laws and ethical norms for child behaviour. Of course, these get ambivalent and complex at edge cases, e.g. a 16 year old and a 15 and 11 months old can presumably satisfy any ethical demands that anyone might reasonably have for sex, but it still makes sense to have a law at 16 (or 15 or 18 or whatever) that makes sex acts between them technically illegal.
The gambling and drunk example is an interesting one and you give a clear introduction to it. I'd be quite happy to forbid physical casinos from admitting the heavily intoxicated. For online casinos, such a rule isn't worth enforcing, so to me it's regrettable but inevitable (given that the restrictions on freedom from banning online gambling would be so great) that sometimes drunk people will e.g. go broke gambling online.
Depends on the person, but the Aella example is pertinent: my suggested method could be opening Pandora's box (pun not intended).
I never suggested that sexual partners should have the same understanding of sex, only more than that possessed by a child.
At the very least, "Why do you think that children can choose radical medical interventions but not minor sexual acts?" is a simple yet effective question in some debates. Of course, there will be people blind to thinking through the issues raised by the question, but it's an analogy worth drawing.
As for our historical fate, I'm reminded of Allan Bloom in the Closing of the American Mind, when he takes inspiration from Irish monks in the Dark Ages. They were unable to contribute much to the stock of human knowledge, nor to solve the problems of their times, but they lovingly preserved certain ideas and texts, thereby greatly influencing the history of Western Europe and ultimately the world. If those Irish monks did what they saw as their duty, then it seems like others in less hopeless circumstances can do likewise.
Agreed. That's why I was so hopeful with Westen's approach to probing his "knowledge prong" of consent. However, I really don't think he got very far with it. I've said here before that if there is going to actually be solid theoretical development on this topic to actually get something useful, it's going to have to be here.
I mean, do we? This is kind of a mess. At very early ages, we have some pretty standardized milestones. Beyond that, you very rapidly descend into a nature/nurture mire and all sorts of theories about what children could or could not be educated into being capable of. (I would be remiss if I didn't point out that the details here still need to be connected somehow to the theory of consent to sexual relations in order for this project to be completed, and that is no small task.)
More in what way? Vague additional "sophistication"? This, frankly, isn't going to cut it.
This is very nice. I am sort of putting on a bit (hopefully obviously) about us having to put together a theory to be the last line of defense. I'm pretty much at peace with the idea that a couple of schmoes on a whacko corner of the internet aren't going to have a significant influence on the problems of our times. Personally, I actually surprisingly do at the moment feel like I can have a significant influence on my very niche corner of the academic literature (it's about as far of a topic from this conversation as you can imagine; also, I really didn't feel like this about my own work until quite recently, so I hope you don't get the impression that I have a raging ego about my work even in my little niche; my collaborators and I just happened upon what I think is a really cool perspective in the last few years), but I really can't imagine I'll have much influence outside of that. I'm more just curating my own mind, and if I influence any other individuals in the process, I guess that's neat.
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If you want one to provide an argument that wins against your hypothetical nebulous "them", then it's a rigged game from the start. Any opposing force that behaves like you describe will either force their rules through if they're stronger, or won't if they aren't. There isn't any point in discussing arguments, just push against them with the same "ew, date someone your own age, creep" that works well now. Or woodchippers, if you're more physically inclined.
The current concept of the age of consent is a messy empirical thing that evolved from (obligatory disclaimer that the list is non-exhaustive):
A non-empirical, rigorous case can probably be made against the big P Pedophilia, as in involving the big C Children. Anything with teens? I see two ways for you if you want to reduce the impact of any nebulous MAPs who are gonna come out of the woodwork any second now. If you want to prevent the acts from happening, go chip in with the "ew, she's only 19 and you're 25, are you too infantile for mature women?" crowd. If you are more interested in preventing harm, improving society in the direction that will actually make teens better equipped to handle relations with adults (sexual and otherwise) seems to be the way.
Fair enough. The context of this perspective is that we saw them just lie about what we know about reality in order to win political victories and then subsequently freely admit that it was all bullshit, but that it doesn't matter now that they won. Reasonable minds can disagree on whether that model of a rigged game reflects underlying reality or a mere rhetorical trick.
Unfortunately, I don't see much in the rest of your comment that would really go against anything that I've said, in particular. In fact, your closing
seems to dive right into the mire. That is exactly the hypothetical route that I am proposing they will use to achieve their goals, and you are saying that we should plow forward, full steam ahead. More comprehensive sex education, more earlier! Where to draw the line? Lines? Where we're going, we don't need "lines". I don't usually talk a lot about the topic, but it shows up here often, plenty of examples of these folks just brazenly having more sexual "education", with more sexually-explicit teaching materials, at ever younger ages, with it 'never being too soon' to start teaching children how to be better equipped to handle relations with adults (sexual and otherwise). I also don't actually claim a super strong predictive position of to what extent these types of efforts could empirically be successful. But I do strongly claim that the people who think this have a violent, fundamental clash of foundational theoretical principles with the people who think, "It is trivial that children cannot consent." I think a lot of people were forced to parrot the latter in order to not be an X-ophobe and to support the Good and Righteous Fight, and they do not realize that their "enlightened societal learning" is already being implicitly viewed as false, just like they didn't realize that their "enlightened societal learning" on biological determinism of sexual orientation was basically a lie from the start, pushed for political gains, but already disbelieved by those who have other foundational theoretical principles.
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