Sunday, September 6, 2015
Tuesday, June 22, 2010
Consent
I worry that with myself and HG we represent a terrible, radical strain, and even if people could read us, they would not, and probably should not, because certain forms of material analysis wreak very terrible consequences.
That being said, one area where I have become more and more radicalized of late is in the area of consent. The concept is absurd: a phantasm upon which we rely so heavily. I have recently been reading Lon Fuller's "The Morality of Law," and my goodness, I agree with its destructive aim whole-cloth. Yet he returns to Anglo liberalism, and that positive project mystifies me. But I digress.
Some Marxist theorists have interestingly, and in my view at least partly correctly, noted that duties and rights presuppose forms of exchange. I recently wrote a paper on the nature of legal obligation, stripped of all discussion of reciprocal exchange, and the project was difficult indeed. If we remove notions of duties arising out of CONSENT, we are left with the only possible picture of legal obligation as a negative one: we fulfill our legal obligations, I argue, when we act in such a way that we FAIL to have a mental state of duty. Hart's "internal aspect" (crudely, the subjective character of law-following, the qualia of law) identifies a place where we have, not a law-follower, but a law-breaker: a man who takes it upon himself to identify and assess the institution to which he belongs, phenomenologically separating himself from the social group. It is the Protestantization of law.
Again, this is a bit of a black box, because I am attempting to salvage rights and duties, and obligation, from a picture stripped of consent. At the very least we can agree that "rights and duties" are intimately (I would argue, inessentially) bound up with exchange.
Thus, men have rights and duties where there is, in some sense, consent to the rights and duties. Yet of course there is a kernal of non-consent that keeps the social order functioning, and which obliges promises to be kept. That is, I think, the exception that swallows the rule. But again, an aside.
We see in law CONSENT at every turn. Rape is legally (and morally) wrong because it is unconsented to. Court authority, jurisdiction, over a dispute can be challenged in certain cases, but tacit waiver, consent, is implied where formal checks are not met. Fail to object to the court's authority over your civil suit, and it is implied that you consent to the court's authority, and thus the court ACTUALLY HAS authority over you. Actions otherwise legally impermissible (battery) can be consented to (e.g. in a boxing ring).
Our present legal system is a mercantile, bourgeois edifice, built upon this foundation of consent. Yet this is precisely my question, which I believe to be truly unanswerable: is consent the foundation, or is it the edifice?
I have been describing consent as the foundation for our conceptions of morality and law. However, I would argue that this is false. Rather, consent was the aesthetic wedge with which the prior order was assaulted. Slowly men "disembedded" (as Taylor says) themselves (poor language of self-motivation, here, for they were also coaxed) from the social order, culminating in liberal notions of the self and of law. Yet the substance of the law remained largely unchanged as the self-understanding of the mass of people in fact did change. That is, the process of liberalisation was largely a function of the margins of society.
Yet once again we are in a period of upheaval, with the phenomenon upended this time. Here the substance of the law is changing as public and consent is being thrown away, but retained in areas where it serves ideological interests. Thus we see "free contract" derided rightly as a fetish, revealing the right of the state to regulate wages, landlord-tenant relations, and to appropriate land for the "public good."
But wait! This derision is purely superficial, because what is the remedy to this fetishization? We invalidate contracts that "couldn't possibly" have been consented to! We freeze social relations where one or the other party was not in a "free position!"
These are some random thoughts. My conclusion, as yet unsupported, is that consent is a term that resonates with bourgeois self-identity. As a result, it is used against that class to advance a particular social vision. This is why consent is lauded in the area of free divorce and rape, but consent is assaulted in the area of, for example, small landowning, injury risk, corporate contract, bankruptcy, experiment, and abortion. Consent is lauded when we seek to permit the licentious. Consent is attacked when it interferes with the march to the Gulag.
That being said, one area where I have become more and more radicalized of late is in the area of consent. The concept is absurd: a phantasm upon which we rely so heavily. I have recently been reading Lon Fuller's "The Morality of Law," and my goodness, I agree with its destructive aim whole-cloth. Yet he returns to Anglo liberalism, and that positive project mystifies me. But I digress.
Some Marxist theorists have interestingly, and in my view at least partly correctly, noted that duties and rights presuppose forms of exchange. I recently wrote a paper on the nature of legal obligation, stripped of all discussion of reciprocal exchange, and the project was difficult indeed. If we remove notions of duties arising out of CONSENT, we are left with the only possible picture of legal obligation as a negative one: we fulfill our legal obligations, I argue, when we act in such a way that we FAIL to have a mental state of duty. Hart's "internal aspect" (crudely, the subjective character of law-following, the qualia of law) identifies a place where we have, not a law-follower, but a law-breaker: a man who takes it upon himself to identify and assess the institution to which he belongs, phenomenologically separating himself from the social group. It is the Protestantization of law.
Again, this is a bit of a black box, because I am attempting to salvage rights and duties, and obligation, from a picture stripped of consent. At the very least we can agree that "rights and duties" are intimately (I would argue, inessentially) bound up with exchange.
Thus, men have rights and duties where there is, in some sense, consent to the rights and duties. Yet of course there is a kernal of non-consent that keeps the social order functioning, and which obliges promises to be kept. That is, I think, the exception that swallows the rule. But again, an aside.
We see in law CONSENT at every turn. Rape is legally (and morally) wrong because it is unconsented to. Court authority, jurisdiction, over a dispute can be challenged in certain cases, but tacit waiver, consent, is implied where formal checks are not met. Fail to object to the court's authority over your civil suit, and it is implied that you consent to the court's authority, and thus the court ACTUALLY HAS authority over you. Actions otherwise legally impermissible (battery) can be consented to (e.g. in a boxing ring).
Our present legal system is a mercantile, bourgeois edifice, built upon this foundation of consent. Yet this is precisely my question, which I believe to be truly unanswerable: is consent the foundation, or is it the edifice?
I have been describing consent as the foundation for our conceptions of morality and law. However, I would argue that this is false. Rather, consent was the aesthetic wedge with which the prior order was assaulted. Slowly men "disembedded" (as Taylor says) themselves (poor language of self-motivation, here, for they were also coaxed) from the social order, culminating in liberal notions of the self and of law. Yet the substance of the law remained largely unchanged as the self-understanding of the mass of people in fact did change. That is, the process of liberalisation was largely a function of the margins of society.
Yet once again we are in a period of upheaval, with the phenomenon upended this time. Here the substance of the law is changing as public and consent is being thrown away, but retained in areas where it serves ideological interests. Thus we see "free contract" derided rightly as a fetish, revealing the right of the state to regulate wages, landlord-tenant relations, and to appropriate land for the "public good."
But wait! This derision is purely superficial, because what is the remedy to this fetishization? We invalidate contracts that "couldn't possibly" have been consented to! We freeze social relations where one or the other party was not in a "free position!"
These are some random thoughts. My conclusion, as yet unsupported, is that consent is a term that resonates with bourgeois self-identity. As a result, it is used against that class to advance a particular social vision. This is why consent is lauded in the area of free divorce and rape, but consent is assaulted in the area of, for example, small landowning, injury risk, corporate contract, bankruptcy, experiment, and abortion. Consent is lauded when we seek to permit the licentious. Consent is attacked when it interferes with the march to the Gulag.
Friday, May 21, 2010
Achievement
I operate in a world where intellectual achievement is revered and seen to have a sort of moral worth. But if intelligence is genetic, and therefore a person can't help but to be smart or dumb, then is the notion of achievement vacuous and akin to congratulating a person for having red hair? I realize that intellectual achievement takes other qualities, like patience, but I think my concern is still a real one (maybe we can say that patience is genetic too).
Friday, April 30, 2010
Legal Obligation
We say that it is wrong to murder. Let us take that as a given. We are obliged not to murder because it is morally wrong.
Now we say that it is the law not to murder. What additional obligation does this give us, and why?
Now we say that it is the law not to murder. What additional obligation does this give us, and why?
A hypothetical
A scientist has information that demonstrates that your genes are slightly poisonous to the world, insofar as each generation after you that comes from your line will be 1 percent more destructive of the social good, whatever that means. If this were found out, society would have to kill you. You have the chance to destroy any trace of knowledge of this fact, and would leave the scientist undisturbed. What do you do? N.b., any answer claiming lack of worth in your life because all life is meaningless would not be fruitful, since if all life is meaningless, all life is meaningless.
Sunday, April 18, 2010
Some assistance required
What is this, in Zizek?
"The easiest way to detect ideological surplus-enjoyment in an ideological formation is to read it as a dream and analyze the displacement at work in it."
I don't quite follow, although I like the idea. HOW exactly does one do this?
http://www.marxists.org/reference/subject/philosophy/works/ot/zizek1.htm
"The easiest way to detect ideological surplus-enjoyment in an ideological formation is to read it as a dream and analyze the displacement at work in it."
I don't quite follow, although I like the idea. HOW exactly does one do this?
http://www.marxists.org/reference/subject/philosophy/works/ot/zizek1.htm
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