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The Difference Between Implied and Explicit Consent

Implied and explicit consent are concepts that have practical uses, like consent to personal acts, but are also important in understanding the government.

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By Joshua D. Glawson | United States

Conflicts between ‘implied’ and ‘explicit’ consent are numerous and ongoing in the legal world, ordinary life scenarios, and the academic world. At times, the two ideas are seemingly conjoined in the contracts, words, and philosophy of various people, we even sometimes find both ideas residing within our own thoughts and speech as it pertains the very same subject or topic. It is first important to discern the differences between ‘implied’ and ‘explicit,’ and to find out where we stand on certain issues as explicitly as possible. Some of the reasons for finding our explicit thoughts is so that we can better understand our own views, possibly have our views changed for the better, or to have a firm understanding when discussing the particular topic with others so they do not get confused with our own stance.

What does ‘implied’ mean?

For something to be implied is to be implicit; that is to say, the topic, subject, or circumstance is capable of being understood from something else though unexpressed. It can also be a form of potential, where the ‘implied’ standing is involved in the nature or essence of something though not specifically revealed, expressed, or developed. This suggests that not every specification is listed, but there are some cues to indicate the establishment of the consent between two parties.

Some people will naturally confuse the subtle differences between ‘implied’ and ‘tacit.’ The difference is that to be ‘tacit’ it is expressed or carried on without words or speech, or implied or indicated as by an act or by silence but not actually expressed. A ‘tacit’ contract, for example, would be a contract established from non-verbal cues and exchanges, where ‘implied’ could have had some words of exchange.

What are some examples of ‘implied’ consent?

Examples of ‘implied’ in the legal world run amok, but a specific example is found within the US Constitution, (Article 1, Section 8, Clause 18), where there are not enough examples to provide for unknown situations where Congress, according to the Constitution, may require extra powers beyond that which are specifically, i.e. explicitly, spelled out within the legal document. These are known as the “implied powers,” found under the “necessary and proper” clause of the US Constitution. This, by no means, of course, indicates that I support such a clause, rather I am merely pointing out its place within current legal context; and, of course, there are difficulties in comparing this “contract” with private contracts between two tangible, voluntary, free, parties, as opposed to a “contract” set long before our birth without our ability to explicitly consent or negotiate, etc. By merely being a citizen of the US, or arguably even within the US, people are said to be implicitly empowering Congress to act accordingly to fulfill both their explicitly stated powers and their implied, “necessary and proper,” powers.

In the ordinary world of daily life, implied consent can be seen in our ordinary interactions with our friends and loved ones. Such an example may be our exclusivity to joke about certain things, kiss or touch, or being a friend that is able to talk about anything under the sun with, depending on your various relationships with these people. Of course, it would also depend on whether explicit statements have been made to determine certain circumstances or behaviors. Nevertheless, our ordinary and ongoing interactions continue to perpetuate the implied understanding of that relationship between you and the other person.

In the academic world, such as that of political science or philosophy, there are certain implied thoughts and viewpoints that every author and speaker will provide throughout their particular or general work. An example of implied “consent” may be more difficult to find as a general statement, but ‘implied’ thoughts are normal. Some writers in politics or philosophy will align their views with other well-known figures, and the author will continuously hone in on the particular characteristics of that other writer or philosopher and their respective ideas.

 

What does ‘explicit’ mean?

To be ‘explicit’ means to be fully revealed or expressed without vagueness, implication, or ambiguity, leaving no question as to meaning or intent. ‘Explicit’ is to also be fully developed or formulated, which is why we should continuously push our ideas in order to have them fully developed while ridding ourselves of contradictions, doubts, or inconsistencies.

What are some examples of ‘explicit’ consent?

It is much easier to find examples of ‘explicit’ consent in the world, as they are clearly stated and specified. For example, when people get married, they specify their conditions and with whom. In law, ‘explicit’ consent is found in contract law (K) when terms are specified in the mutual agreement. In politics, much like that of contract law, there are specified conditions. Although, the political world can also be much murkier and fogged by other circumstances making it easier to change later for the good, but mostly for the worse, as history has shown over and over.

How can there be conflicts between ‘implied’ and ‘explicit’ consent, or other variants of the two terms?

One of the most common ways that ‘implied’ and ‘explicit’ get convoluted is when they are in direct conflict with one another. For example, a philosopher may explicitly state that they do not believe in one thing, but their entire work reflects that they, indeed, do ‘implicitly’ support what they are explicitly saying they are against. For example, a philosopher, such as Kant, has stated that his ideas are not subjective, and yet much of what he stated throughout his work was, in fact, subjective to the person living their life (Metaphysics of Morals). Another example is that of French Socialist economist, Thomas Piketty, who specified that he was not a Marxist and in no way supporting Communist rhetoric, yet throughout his work, even in his title, he is espousing Marxist ideology and economic philosophy (Capital in the Twenty-First Century).

Throughout history, this has also occurred, especially under the guise of government. For example, when a politician will ‘explicitly’ say they are not attempting to remove Civil Liberties, but every policy they sign ‘implicitly’ removes Civil Liberties. This has been an ongoing issue throughout politics and history around the world, and specifically throughout US history from its very inception.

What can we do?

The best solution is to first start with our own core beliefs while assessing what is valuable to our standing in the world. If you are truly against theft, murder, rape, molestation, coercion, etc. as I am, analyze all aspects of your beliefs and understanding of the world to purge any contradictory beliefs to those core values. This is all subjective to the person, yes. However, I solemnly believe most people believe these things to be wrong and the antithesis to Liberty and to a purely prosperous life filled with genuine love for fellow humans. Perhaps I am still putting more faith in humanity than I should, but I am confident that putting total control into the hands of a few so-called “elite” is much more dangerous.

Do more to read and think critically about the world around you, the philosophy you read, the statistics presented to you, and be critical of the continued destructive path of more laws. Find ways to solve social and political issues through free and voluntary means, as opposed to force and coercion. Once we have sought our own non-contradictory understanding of how the world is and how it ought to be, we can move forward in our own lives and hope to provide a positive influence on those around us as we continue to help one another.


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