Political Theory

Re: Specific thought about pedophilia

Autolykos — Sat, 05 Nov 2011 21:17:18 GMT

Is that somehow supposed to be a counter-argument?

Re: Specific thought about pedophilia

Groucho — Sat, 05 Nov 2011 19:11:36 GMT

@Autolykos,

Yes, the actions were rational in the Misesian sense. However, the time horizons were very short.

Re: Specific thought about pedophilia

Wheylous — Sat, 05 Nov 2011 04:41:19 GMT

she did not indeed say no. Is it okay for the man to rape her given that she's not screaming stop or something similar?

Straw man. Try this: "You are out of town. I ask you telepathically whether I can enter your house and take your stuff. You obviously cannot answer. Hence, I take that as a "he didn't say no", so I enter your house.

It is clear that you must actually say "yes" for consent to be given. "She didn't say no" is never a valid excuse. You need explicit consent.

how does a child, who is completely fearful, and intimidated into a kind of submissive paralysis, to the point of not being able to utter a sound of protest

Try this now: Christian girl raised in totally religious family with nothing improper at all. At age of 25 she agrees to have sex. Suddenly, she's so paralyzed that she cannot say anything. Should this be illegal?

Plus, you are making sex out to be something completely monstrous that consumes your soul. Do people seriously freak out like this or is this only a result of our society being super-conservative?

And if you say no, he will honor that, and leave. But you know full well that isn't the end of it, and that it is not the whole story

This is not limited to children. Hence, by this logic all sex should inherently be illegal.

Plus, why is this guy in jail? Finally, this sort of scenario of someone with power can happen in any scenario where there is a human involved. No system solves it. In ancap you can call your police and they can come and pick him up just like in the current system you can call the police and they will come and pick him up.

Re: Specific thought about pedophilia

Clayton — Sat, 05 Nov 2011 03:34:21 GMT

@Steven: I've written at length on the subject of law. Take a look at that and I think that will answer most of your questions on my positions regarding law.

As far as how to distinguish law from personal morality, I think the distinguishing factor is the presence or absence of interpersonal conflict. If there is no interpersonal conflict, we are not really talking about law but individual morality. For example, let's say Robinson Crusoe is stranded alone on an island. Giving in to feelings of fatalism, he simply lies down to die. A week later his body is discovered by some explorer who happened across the island. Aside from being unfortunate, we want to say there is something wrong with what Crusoe has done, that is, that simply laying down to die is reflective of a character flaw or moral deficiency within Crusoe. But, clearly, laying down to die on a deserted island out of a sense of fatalism should not be illegal because it doesn't involve a conflict with anyone else.

If two adults choose to engage in illicit sex, we might question the individual moral problems that these individuals have but, clearly, it should not be illegal because they are doing what they are doing by mutual agreement. I think this is the mistake that some posters in this thread are making in thinking that there is no interpersonal conflict as long as the minor is consenting, so it's merely a problem of individual morality. The fact is that there is interpersonal conflict between the guardian and the adult engaging in the predatory sex and that's exactly how the matter would end up in a court to begin with.

As for your observations regarding the reasons why laws are what they are, I will simply note that the kinds of laws that are written down in the form "No person may _________" are not customary laws but statutory laws. See the linked article above for more explanation.

Clayton -

Re: Specific thought about pedophilia

Steven Douglas — Sat, 05 Nov 2011 03:07:15 GMT

Clayton:
I think it's important to differentiate between the problem of personal moral development (is it normal to think it's OK to have sex with minors?) versus the legal problem. I don't think that law is simply an extension of personal moral development - this is the mistake that leads to so many gross problems in our statutory law system.

I agreed with pretty much everything you wrote, especially the second part. However, I am not sure how much of the law is an extension of our moral development - I don't know how to begin to distinguish that, to be honest. (do you?)

At the risk of a large tangent, I have always had a problem with laws that are written without an accompanying explanation or specific basis of intent, given the amount of time courts spend trying to reconstruct and interpret this very thing after the fact - right down to the "intent of the Framers". For that they do not look to the laws themselves, but to surrounding, and often controversial, sources at that time. I understand the reluctance to make "special laws" and the importance of Equal Application, but in a system rife with unintended consequences, it would seem to me that more clarification of specific intent would pave the way for laws to evolve much more efficiently.

The old Punishment vs. Rehabilitation vs. Protection of the public comes to mind: It is rare that a law will state the precise intent, or degree of reasons for which a sentence is given (e.g. this is intended to punish you, or to protect others from you, to rehabilitate you, or a specifically prescribed combination of more than one), and yet I can state with a fair amount of certainty that both laws created and sentences that meted out with varying degrees of different intent in every case. However, because these reasons, these intentions, are left unstated, they are instead fully conflated, which causes the questioning of their efficacy difficult, if not impossible, to address.

Again, that is in response to your statement of opinion that law is not "simply an extension of personal moral development". Or did I misinterpret what you meant by that?

Re: Specific thought about pedophilia

Clayton — Sat, 05 Nov 2011 02:41:45 GMT

@Steven Douglas: I think it's important to differentiate between the problem of personal moral development (is it normal to think it's OK to have sex with minors?) versus the legal problem. I don't think that law is simply an extension of personal moral development - this is the mistake that leads to so many gross problems in our statutory law system.

In the case of very young minors, I think the primary concern of the law would be establishing that the guardian may rightfully speak in the child's place, at law, and I think it's pretty much a slam-dunk that almost no guardians would want the children in their care engaging in sex, even if those children thought they wanted to... in much the same way I don't allow my children to play ball in a busy street, even if they think they want to.

Clayton -

Re: Specific thought about pedophilia

Steven Douglas — Fri, 04 Nov 2011 23:35:42 GMT

There are many bases for it, mostly personal, based on firsthand observation of people who have, for whatever their bases, such predilictions. And note that I used the example of an eight year-old child. I am not talking about age of consent in general, or using the OP's original "14 years old" as an example. In China, where I have residence and lived, the age of consent is 14, and I actually can conceive of instances, at least in the much poorer western regions, where it makes perfect sense and is not at issue for me; not prostitution, but actual young families forming and getting an early start on survival.

I have had extensive conversations with a sexual predator - a convicted pedophile of small, pre-pubescent children. He had served time for what he does not, to this day, feel was wrong - including sexual intercourse with a ten year-old child. The man, in his early forties, felt comfortable enough talking with me to actually state his case, and present his bases for why there was nothing inherently wrong with what he did. And I listened, for a long time, probing and questioning as neutrally as possible, challenging but not attacking any of his assertions.

"It's very beautiful...not damaging, the only damage done is the stigma placed on them afterward by others, not me...they have rights too...I care deeply about them...who is in a position to define love...what about their rights...who is to say they cannot be attracted to me as well...I never did anything without their consent...they are human beings too...there was a quid pro quo to all of it...age is arbitrary...I'm being persecuted for who I am..." - right down to, "Yes, I would marry any one of them (boys and girls involved) and take care of them for the rest of their lives if that is what they wanted and it was allowed".

While listening to him, I could project his reasoning into other scenarios, like the pre-civil war era, where open interracial relationships were prohibited. That is not a strict parallel with the issue of consent, but rather relationships that are prohibited in general by societal mores. I imagined him talking about anything otherwise taboo in another place and time, and simply substitute age for color, and could hear that he was at least sincere, expressing earnest sentiments that could apply to any number of relationships that are now commonly accepted. To him it was like someone saying to any average person in a courtship situation, "You just want to date or get married for sexual gratification. You're taking her on dates and buying her flowers and necklaces just so that you can lure her into your lair." To him, the fact that you could reduce any intimate relationship to such terms opened the question of who was to arbitrarily decide what was appropriate in his particular case, simply because it didn't match theirs, or align with the norm.

At the most fundamental level, the man I talked to wanted freedom of influence over children, whose freedoms to be influenced, he feels, are being impinged on. In his mind there is a challenge to who, in a society, has rights over children - and, not unlike many ideologues who would not argue in favor of pedophilia, the rightful influencer of children are not necessarily, even by default, the parents or other "legitimate" (and I use that term VERY loosely) guardians. Part of my basis for opposition is essentially the other side of that same coin. He has arbitrarily left the "freedom to influence" (any child) door open to himself. I have no problem closing that door just as arbitrarily to most.

On a side, but quite related, note, the dialogue with the man I talked with brings to mind a consistency with the Jaycee Dugard case, where Phillip Garrido wrote a letter to a judge claiming that Jaycee's civil rights, especially her right to free speech, were being violated. Such a caring soul, what a champion of civil liberties. Phillip Garrido's attitude, in interviews I have heard and watched, mirrors, in many ways, the pedophile that I know and have talked with at length. Said Garrido in an interview, "And you're going to find the most powerful story coming from the witness, the victim -- you wait. If you take this a step at a time, you're going to fall over backwards and in the end, you're going to find the most powerful heart-warming story."

Take away the kidnapping, imprisonment and forcible rape elements, and he might as well have been the man I talked to, who was making his case for sexual intercourse (among other things, which he vehemently claims "isn't all of it...isn't the whole story, or the entire relationship"). In his mind, it was all something very beautiful, very sacred, along with a plethora of other sentiments, that he felt just weren't understood by a society whose norms and mores are both arbitrary and discriminatory. In his mind, and to his way of thinking, he had the misfortune of living in a time where we had not yet 'evolved' to acceptance of what he thought would one day be the future norm (i.e., a forty year-old man can openly court an eight year-old child).

As I said before, I don't have all the answers, but I really also don't have a problem with standing in firm opposition to his - as long as we are all, including him, flying by the seats of our moral pants.

Does that help?

Re: Specific thought about pedophilia

Autolykos — Fri, 04 Nov 2011 12:17:18 GMT

So on what basis do you form your position here? Surely there must be some kind of basis for it, and for your adamance about it.

Re: Specific thought about pedophilia

Steven Douglas — Fri, 04 Nov 2011 08:01:14 GMT

Autolykos:
Steven Douglas:
Had you had been all-powerful, unaffected by the prospect of risks or rewards, would you have really desired (not just consented, but actually desired) that Bubba be on top of you in the first place? That seems to me, between two people who are otherwise deemed capable of giving consent, to be a fairly reliable test of the "quality of your consent", whatever that might have been.

If being all-powerful and unaffected by the prospect of risks and rewards is your standard for consent, then it seems that none of us ever really truly consents to anything, and the concept removes itself from discourse altogether.

"all-powerful, unaffected by the prospect of risks or rewards" was a poor choice of words to be sure. It was only my weak attempt to establish a prospect where no indimidation or ulterior enticement (I'll be sweet to you, I'll give you candy, I'll take you to Disneyland, etc.,) were leveraging factors. However, since many of these things are commonly accepted parts of consentual relationships between adults, this really boils down to my own personal moral judgments, and I recognize that (and don't have a problem with it).

I stand firmly with the apparent vast majority of people in terms of harsh moral pronouncements against what I perceive to be predatory sexual behavior - like any sexually mature person who views an eight year-old child (again, using only an extreme example) as somehow fair game, and capable of giving meaningful consent. Even if that could be persuasively argued to the same vast majority, I would still shake my head, and my response to such behavior, without any desire for moral equivocation, (my "ought") would be to want to simply stomp/exterminate the molester. I don't derive this from formal reason or logic, nor would I appeal to any moral source other than myself, in circular fashion. If someone claimed clinical proof me that I was a sociopath for even thinking this way, and could demonstrate conclusively to everyone else that this was "wrong" on my part, it would change nothing. I would accept my 'role' as the sociopath in the wrong, and would not mind being the 'evil' man who just would not honor or respect the reason, logic and common sense of the adult who only wanted to have peaceable, consentual sex with a child. I would be the fall guy for that, no problem.

Re: Specific thought about pedophilia

Autolykos — Wed, 02 Nov 2011 03:22:58 GMT

gotlucky:
It seems that it is only within the last 150 years that the age of consent has risen to where it is. As the state got stronger, the age of consent rose. I'm certain there is a connection.

There certainly is, I'd say. The movements to prohibit child labor and establish mandatory child education came about at the same time. I'm willing to bet that most jurisdictions have very similar, if not identical, legal ages for dropping out of school and being able to work without restriction.

Re: Specific thought about pedophilia

Autolykos — Wed, 02 Nov 2011 03:07:39 GMT

Steven Douglas:
Even a child who is paralyzed by fear from the onset, and cannot so much as utter a sound, let alone manifest a hint of protest?

This is akin to a person being raped at knifepoint. Where's the consent? I agree though that Wheylous' wording is ambiguous, since the phrase "end it" is typically used in a telic sense.

Steven Douglas:
Had you had been all-powerful, unaffected by the prospect of risks or rewards, would you have really desired (not just consented, but actually desired) that Bubba be on top of you in the first place? That seems to me, between two people who are otherwise deemed capable of giving consent, to be a fairly reliable test of the "quality of your consent", whatever that might have been.

If being all-powerful and unaffected by the prospect of risks and rewards is your standard for consent, then it seems that none of us ever really truly consents to anything, and the concept removes itself from discourse altogether.

Re: Specific thought about pedophilia

Autolykos — Wed, 02 Nov 2011 03:02:41 GMT

Josh:
Oh I am not trying to say it's wrong, and certainly not defending such statutory regulations. Merely pointing out that at 14, a lot of them really are "just kids." Not to mention 'old age and treachery beats youth and skill,' or something like that.

I like to think I'm a pretty smart fellow, and always thought I was, but I shudder at some of the choices I made at that age that seemed rational at the time.

Under the Misesian definition of "rational", you were acting rationally. To make choices is to be rational.

Fun Fact: in Catholicism, the age of accountability traditionally begins at completion of the seventh year.

Re: Specific thought about pedophilia

Clayton — Tue, 25 Oct 2011 18:18:43 GMT

In terms of basic Roman-Dutch common-law, someone is considered an "infans" from the age of 0-7. They have no capacity to contract at all, and they do not incur liablity of any kind for their own actions. They cannot give consent to anything in a legally significant sense. Then from the age of 8 up to age 12, they are a "pupillus", and there is a rebuttable presumption in favour of the position that they don't have the relevant capacity, but evidence may be led to prove otherwise on an individual basis. Generally speaking, a contract with a "pupillus" will not be valid unless he was assisted in entering into it by his parent/guardian (i.e they sign it too). From age 13 up to the age of majority (adolescens), the presumption works the other way around - that they do have the relevant capacity for consent or liability, as the case may be, but evidence may be led to prove that they don't on the basis of their youth. You can imagine that it could relate to the particular type of consent or liability in question... It would be more likely that a 14yro would be considered liable for buying a $100 iPod, but perhaps not for co-signing a $3 000 000 mortgage or joining the army.

Thanks for this contribution! I think this just goes to underline my point that some of the armchair legal theory that Rothbard et. al. engage in from time to time is less than satisfactory for application to the real world. I don't think Rothbard's "run away test" is sufficient... my guess is that he got the idea from reading about common law to begin with which shows that the root source of innovation in legal ideas is not philosophers but legal practice. Legal theory is a further specialization of legal practice but I don't think enough respect is given to this discipline by some libertarian legal theorists, Rothbard among them. For sure, the discipline has been almost hopelessly corrupted by the State but that doesn't mean that it ought not to be a discipline in its own right.

Clayton -

Re: Specific thought about pedophilia

Steven Douglas — Tue, 25 Oct 2011 17:36:11 GMT

Remember - the act can end at any time either party says "stop." If the minor indeed is not ready, then he/she may end it.

Even a child who is paralyzed by fear from the onset, and cannot so much as utter a sound, let alone manifest a hint of protest?

This reminds me of dialogue from the movie Ghandi, where an inquest took place in India following General Dyer's infamous Jallianwala Bagh massacre. At one point General Dyer was asked what provisions he had made to help the wounded. General Dyer responded curtly that he was ready to help anyone who had applied. He was then asked, "General, how does a child, shot with a 303 Lee-Enfield rifle, 'apply' for help?"

Likewise, how does a child, who is completely fearful, and intimidated into a kind of submissive paralysis, to the point of not being able to utter a sound of protest, end it, let alone say "stop"? Advantage molestor, who, absent an explicit refusal, may presume consent.

And what about explicit consent that is obtained by the same sort of fear or intimidation - only far more subtle? For example, a very kindly, very large, Bubba enters your cell, gives you a pack of cigarettes, and proceeds to put himself on you at will. Very gently, very "lovingly". He has not threatened you, he is not physically forcing you to do anything. And if you say no, he will honor that, and leave. But you know full well that isn't the end of it, and that it is not the whole story. There are repercussions to everything you say and do. Including say "stop" to a guy like Bubba.

Now, for the sake of further discussion, let's say that you did give Bubba your explicit consent. No problem then? One question that remains, in a world where choices are based on risks and rewards: Had you had been all-powerful, unaffected by the prospect of risks or rewards, would you have really desired (not just consented, but actually desired) that Bubba be on top of you in the first place? That seems to me, between two people who are otherwise deemed capable of giving consent, to be a fairly reliable test of the "quality of your consent", whatever that might have been.

I am not saying I have the answers, but I can state with some confidence that what you wrote, about a child simply saying "stop", does not even begin to be the answer.

Re: Specific thought about pedophilia

James — Tue, 25 Oct 2011 16:54:44 GMT

I'm sure it's only "pedophilia" in regards to pre-pubsescent children. No one thinks it unnatural for teenagers to be sexually active, surely... They just don't like the idea of a huge age gap in a relationship. Does a 15yro dating a 40yro seem any weirder to you than a 25yro dating a 50yro?

Anyway, you have to be a bit nuanced with this sort of thing. Even in the country where I'm studying to practice law today, the courts take a nuanced approach with certain age-related matters. Admittedly not sexual matters, where the age of consent is set rigidly by statute at 16 - that's obviously too important to allow for nuance and the consideration of individuals as individuals. /s The same principles could and should apply.

In terms of basic Roman-Dutch common-law, someone is considered an "infans" from the age of 0-7. They have no capacity to contract at all, and they do not incur liablity of any kind for their own actions. They cannot give consent to anything in a legally significant sense. Then from the age of 8 up to age 12, they are a "pupillus", and there is a rebuttable presumption in favour of the position that they don't have the relevant capacity, but evidence may be led to prove otherwise on an individual basis. Generally speaking, a contract with a "pupillus" will not be valid unless he was assisted in entering into it by his parent/guardian (i.e they sign it too). From age 13 up to the age of majority (adolescens), the presumption works the other way around - that they do have the relevant capacity for consent or liability, as the case may be, but evidence may be led to prove that they don't on the basis of their youth. You can imagine that it could relate to the particular type of consent or liability in question... It would be more likely that a 14yro would be considered liable for buying a $100 iPod, but perhaps not for co-signing a $3 000 000 mortgage or joining the army.