Capacity to enter into a contact: A philosophy challenge

[Johnson]

So, I have asked this question of Ian Freeman, Gardner Goldsmith, and Stefan Molyneaux, - and I haven't received any answers... Therefore, I want to crowdsource this...

It seems to me that liberty lovers are in need of a simplified, single sentence principle that can be followed with regard to judging a person's capacity to enter into a contract. I think the Libertarian oath can be modified, or that some kind of similar blurb could be created...

By 'capacity', I am referring to individuals such as children, the mentally handicapped, and the insane or otherwise 'thinking impaired' individuals.

What I'm seeking is something boiled down... Its my belief that if some kind of principle that can be followed in this matter, and focused on in liberty discussions as other principles are, it would really help win hearts and minds of people that might otherwise turn away from liberty in a discussion about an issue that involves someone who is 'thinking impaired'.

Stefan asked me if I had any suggestions as to an answer to this, and really... I wish I had suggestions, but it is such a difficult question, because judgement capacity is not easily measurable - and current standards for judgement capacity are very arbitrary: Adult at 18 years old, .01 blood alcohol level, below 60 IQ, 21 to drink, 16 to have sex.... Who picked these... and why? ETC
 Combining all those into a rational philosophy that people would accept and perceive as logical and functional is a question for which I don't have nearly enough information, as I don't deal with this stuff often in my daily life (not as much as you guys for sure). I suppose looking at any documentation on how the arbitrary standards were reached MIGHT be helpful, but I'm not even certain of that...
How do you codify the principle behind the force necessary to care for or corral those with mental shortcomings into something consistent rather than an arbitrary litany of nonsensical rules laid out by governments? 

[AL the Inconspicuous]

• If you are a dependent (for reasons of young age, alleged mental illness, or unrepentant aggressive criminality) then you have a "right to life" and a "right to emancipation".  The latter means your guardians have an obligation to provide some level of transparency to the outside world, which in any civilized society would interest a mesh of multiple competing child / mental disability / prisoner welfare charities.  It also means that you have a right to have your case reviewed and retried under certain conditions - if you can convince a jury of reputable adults that you deserve to be free, then you ought to be free.

• Dependents can be emancipated by default in situations where it is reasonable to assume that they would be worthy of their freedom, like a prisoner who has worked off his jury-awarded restitution requirements, or a child upon attaining a certain socially-recognized standard of adulthood (age of 18, educational certification equivalent to today's high school diploma, etc).  It would be necessary to convince a jury that a person is insane in order for that default emancipation to be avoided.

• Just as individuals are to be presumed innocent until proven guilty, adults should be presumed competent of entering into a contract unless proven otherwise.

• It is your responsibility to manage your periods of "planned temporary insanity" (ex. intoxication due to alcohol, drugs, medical narcosis, cryogenic suspension, etc) so that you are in a safe environment where no one would take advantage of you, or at least document the fact that you were intoxicated (which modern technology makes very easy) in case you ever need to prove that any contracts that you were tricked into signing are null and void.

• It is not a binding contract unless it is insured as enforceable by a reputable neutral third party (arbitration agency), which receives an enforcement fee upon signing and then becomes responsible for keeping the signers to their promises (within the explicitly-defined rules identified in the contract).  It would obviously be in the best interest of the arbitration agency to make sure the signers are sober adults, and they would probably base their insurance fee on the signers' historical reputation.

[Johnson]

Ok, that doesn't even approach being a single sentence philosophical principle, or even a modification of the existing liberty principle... but It gets the thought ball rolling...

[AL the Inconspicuous]

What is the basis of your belief that it should be possible to fully define this idea in just one sentence?

(And sentences can be made very complicated, so I presume you mean like 70 words or less.)

[ForumTroll]

A person can say "yes", even though they haven't a clue of what you're on about. And that's why there's no answer. Unless you're asking for some universal mental competency test.

[hellbilly]

robin.m whispered something in my ear about a "14/88" or something.. I dunno..

[Johnson]

What is the basis of your belief that it should be possible to fully define this idea in just one sentence?

(And sentences can be made very complicated, so I presume you mean like 70 words or less.)

My belief that this should be able to be codified into the liberty principle is that - if it can't - then Voluntaryism is inherently wrong - because then life cannot be lived under a single simple principle of not hurting other people and voluntary interaction. A government would be inherently necessary and there would be need for many many laws for situations like those that would involve the mentally incapacitated.

I don't believe that to be true - so, there must be a way to incorporate into the philosophy of liberty those that don't have the capacity for reasoned consent.

[Johnson]

A person can say "yes", even though they haven't a clue of what you're on about. And that's why there's no answer. Unless you're asking for some universal mental competency test.

I don't think there is a universal mental competency test, but I do believe there may be a way to use language to refer to mental competency universally.

[gibson042]

My belief that this should be able to be codified into the liberty principle is that - if it can't - then Voluntaryism is inherently wrong - because then life cannot be lived under a single simple principle of not hurting other people and voluntary interaction. A government would be inherently necessary and there would be need for many many laws for situations like those that would involve the mentally incapacitated.

Non sequitur.  The lack of a universal principle for determining competence to contract would not support the imposition of one by violent monopoly (and I'm tempted to say it supports exactly the opposite).  It's also worth mentioning that different contracts can have different thresholds... a nine year old might simultaneously be competent to mow a lawn for half an ounce of silver and incompetent to have sex for four ounces.

I don't believe that to be true - so, there must be a way to incorporate into the philosophy of liberty those that don't have the capacity for reasoned consent.

I'm with Libman in saying that adults should be presumed capable.  I'll also go farther and say that anyone claiming competence, whether by presumption or explicit assertion, is competent unless and until such claim is rejected in arbitration (which would void the contract).  Which makes capacity to accept arbitration the singular weakness, but if ever there was a self-correcting system—or a criticism that the State cannot answer—this is it.

[Johnson]

So, a retarded person who is an adult should be presumed capable? So, if a child-like retard inherits 3 Million dollars from his family (with no other heirs), and I get him to sign my contract which states that he is handing over the 3 million to me, with his big red crayon... that should be legally binding... ?

Or... how about when predatory men impregnate retarded women that they have sex with while these adult women we presume are capable hug their teddy bears.

The philosophy of liberty is insufficient to deal with all cases, and this weakness of dealing with those incapable of making reasoned choices to enter into contracts is something I see as a fail point for liberty minded folks talking with others and trying to sell them on liberty... This point of contention makes it very easy to make a liberty oriented person look like someone dismissable as having totally callous Darwinian 'survival of the fittest' type of viewpoint.


What about children... they aren't adults... In many situations you could place responsibility on the parents... but lets say a child has no parents.... Should a 6 year old girl be able to contract out sex for food?

Obviously, I'm playing devil's advocate... but what I'm pointing out - is that with this tactic... I could probably play devil's advocate all day long and demonize a liberty minded person in a political debate VERY easily.

[Wayne]

I suspect its just our perspective of seeing things from the current paradigm that makes this seem difficult. Here's the one sentence I'll present:

All biological adults are presumed capable of entering into contracts.

Aaand here are 3 other supporting principles, in single-sentence form, to clarify things (only bring up as necessary, because they make sense on their own):


1) Open and public proof of a biological adult not having the capacity to enter into contracts does not create a permanent state of incapacity.

(FURTHER CLARIFICATION: The only contracts voidable are those entered into while the condition rendering them incapable continues to exist. Once the drugs they slipped you wear off, you're no longer incapable of contracting. Once science can correct the brain of the mentally retarded, and they provide proof they had the operation--or took the medicines, or whatever--they can contract.)


2) It is incumbent on those entering into contracts to ensure that all the other parties are capable of entering into said contracts.

(FURTHER CLARIFICATION: Failing to establish for oneself the capability of another party does not obligate that other party to the contract, should it be proven they were incapable at the time the contract was entered into.)


3) Sexual activity does not require a contract, merely consent, and consent is a completely different discussion.

(FURTHER CLARIFICATION: Felt it necessary to throw this in. The idea of someone going to a bar, deliberately getting drunk, then yelling rape because they agreed to have sex is ridiculous, but I'm sure someone would have tried to say the above principles allowed for it.)

[mikehz]

This would be as difficult (and, likely, impossible) as the challenge from statists I get to condense an 800-page philosophy for liberty down to a single sentence. You CAN do so ("Don't hurt anyone"), but only by loosing most of the establishing reasons behind it.

If one simply sticks to the dictionary definition of words, and employs a bit of rationality, then I think the term "competent party" pretty much says it all when it comes to the matter of contracts.

[Harry Tuttle]

How about the principle that it is incumbent upon those entering into a contract (and congruent with one's self interest) to ensure that the other party is capable of understanding and complying with the terms.

There, I got that in one sentence. The only problem is that it is way too simplistic and is not explicit in the assumption that enforcement might be problematic if any appellate authority disagrees with your definition of competence.

[gibson042]

So, a retarded person who is an adult should be presumed capable? So, if a child-like retard inherits 3 Million dollars from his family (with no other heirs), and I get him to sign my contract which states that he is handing over the 3 million to me, with his big red crayon... that should be legally binding... ?

Do you not understand the meaning of the word "presumption"?  Any reasonable arbitration would void the contract when evidence showed the adult child to be incompetent.  Though I suppose those without guardians would get taken advantage of by these unscrupulous thieves... under any system.

The philosophy of liberty is insufficient to deal with all cases, and this weakness of dealing with those incapable of making reasoned choices to enter into contracts is something I see as a fail point for liberty minded folks talking with others and trying to sell them on liberty... This point of contention makes it very easy to make a liberty oriented person look like someone dismissable as having totally callous Darwinian 'survival of the fittest' type of viewpoint.

I've yet to find a voluntary situation that would be improved by the imposition of a State... especially when considering the effects on everyone.  Even if a few isolated cases turn up, they could never outweigh the destruction wreaked by a violent monopoly.

What about children... they aren't adults... In many situations you could place responsibility on the parents... but lets say a child has no parents.... Should a 6 year old girl be able to contract out sex for food?

Is this how one justifies aggression upon everyone within reach, with the thought of orphaned child prostitutes?  Again, no reasonable arbitration would enforce those contracts (or even let her go without a guardian) unless the six-year-old herself convinced everyone of her competence.  How likely do you think that is?

Obviously, I'm playing devil's advocate... but what I'm pointing out - is that with this tactic... I could probably play devil's advocate all day long and demonize a liberty minded person in a political debate VERY easily.

So you're proficient at emotional appeals and argument from consequences.  A logical response to you here would change nothing.

[Johnson]

Do you not understand the meaning of the word "presumption"?  Any reasonable arbitration would void the contract when evidence showed the adult child to be incompetent.  Though I suppose those without guardians would get taken advantage of by these unscrupulous thieves... under any system.

Yes, but under the existing system the state does act to protect the handicapped and children from many levels of harm. Don't take me for supporting the state as a wonderful nanny, I'm just saying, that for the purposes of convincing others that a free society would be the best society, that we need a better argument.

I've yet to find a voluntary situation that would be improved by the imposition of a State... especially when considering the effects on everyone.  Even if a few isolated cases turn up, they could never outweigh the destruction wreaked by a violent monopoly.
Is this how one justifies aggression upon everyone within reach, with the thought of orphaned child prostitutes?  Again, no reasonable arbitration would enforce those contracts (or even let her go without a guardian) unless the six-year-old herself convinced everyone of her competence.  How likely do you think that is?

Very valid point, however, I wasn't really talking about the state per se. I think this weakness of philosophy is in how such a situation could be handled under even a Libertopia, with competing justice systems. For example... you say "evidence showed the adult child to be incompetent". Showed incompetent to WHOM??? Who decides that? Who gets the authority to determine who is sane? Who chooses the guardian for the six year old orphaned prostitutes? See what a briar patch this is? Also, lets be clear, I'm bringing this up not as an attack, but as something I truly believe that when we can figure out a concise philosophy which can be applied here. I believe that having such a philosophical tenet will make answering all those little extremes so many people like to bring up, as breezy and easy as it is to address an issue like free speech.

So you're proficient at emotional appeals and argument from consequences.  A logical response to you here would change nothing.

No, because ANY liberal is good at emotional appeals, and argument from consequences... and if you want to achieve a liberty oriented society, you need to learn to win hearts and minds. Liberty lovers need to focus not only on the mind, but on those that speak from the heart and ironically use very little of their mind to defend those that can use even less.



The short and sweet liberty philosophies I am referring to by the way are either

The Libertarian Pledge - “I hereby certify that I do not believe in nor advocate the initiation of the use of force to achieve political or social goals.”

or

John Galt's Oath - "I swear by my life and my love of it that I will never live for the sake of another man,
nor ask another man to live for the sake of mine. "