Sex and Contracts
Trigger Warning: I will be discussing rape and some things here that I will say sound like I will be uestioning our common judgment about the wrongness of rape. Inevitably if I think that our common judgments should not be taken for granted and my attention turns to rape, my Y chromosome has never prevented me from asking stupid questions
If sex is no different than any other kind of activity, why are sexual contracts unenforceable?
Ok, so this is mostly aimed at the more progressive among us since conservatives have a simple out: sex really is different in important ways and thus pornography and prostitution are not simply matters left to consenting adults but can be legitimately regulated.
But Progressives and Libertarians presumably don’t have that option. Sure, enforcing a sexual contract against a person’s will is going to involve rape, but why is that any worse than, for example, making a person paint the house he was contracted to paint?*
About the only option, then, is that there are multiple dimensions along which we can compare sexual and non-sexual activity. Along the dimensions that pertain to regulation, sexual activity like many other kinds, is relevantly similar that it should not be regulated so long as all parties are consenting adults. Along dimensions that pertain to enforceability of contracts, sexual activity is relevantly different such that sexual contracts aren’t enforceable.
So, here are some questions for the league:
1) What are those dimensions?
2) Would those pertaining to enforceability of contracts have anything to do with why slave contracts are unenforceable?
Of course any answer you give to 1. cannot be so ad-hoc as to be jury rigged to yield our intuitions. They must have an independent plausibility in their own right. This leads to:
3. Can the reasons you give be reconcilled with reasoning in a pluralistic society?
i.e. 3a) are these reasons accessible to diverse others given their existing commitments and beliefs?
3b) can it be shown that different people whatever their commitments and beliefs will reasonably infer that sexual contracts are both unenforceable and that sexual activity between consenting adults should not be interfered with.
*I’m presuming that the latter is not obviously wrong. Contracts routinely require that the party who has agreed to perform the task make good.