Thick Contractarianism

Fourth in a series. See thick libertarianism, thick individualism and thick voluntarism.

I’m generally skeptical of contractarianism. I simply can’t imagine non-feudal contractual arrangements. Perhaps I’m not thinking far enough outside the box, or maybe I’m just too bogged down with surviving in the world as we know it. One idea that might make me more open-minded about the idea of contract is a social convention (not legislation, of course, for anarchy’s sake) that only publicly disclosed contracts need be honored. I’d probably go farther and not honor contracts between institutions and individuals; ‘boilerplate’ if you will. The trouble with boilerplate contracts is that they tend to be drafted by professional lawyers, often in a spooky “computer aided drafting” way, to maximize the intricacy of the interlocking implications and inferences, and signed by people not represented by lawyers. As Elizabeth Warren tells us:

Underestimating the intelligence of the American consumer because I think that they can’t read a contract that I’ve got to tell you I can’t read? I teach contract law at Harvard Law School, and [also] commercial law and bankruptcy … but if you put me under oath right now, I tell you, I don’t know what the effective interest rate will be on my credit card next month, because I can’t read it in my contract.

Perhaps the principle of American criminal law that accused persons are entitled to legal services should apply to contracts. Either both parties are represented or both parties aren’t. I refuse to allow liberty and equality to be played off against each other, so in terms of the types of contractarian ideology that frame contracts as voluntary limitations of one’s freedoms, I’m inclined to think that in a legitimate contract, the other party (especially if a business entity) is also making some sacrifices that “hurt.” This is the central reason I’m skeptical about contractarianism.  It seems to be a clever (i.e. sophistic) way of framing the freedom issue as voluntarism instead of anti-authoritarianism; paving the way for private sector fiefdoms.  I can’t imagine an objective standard of equitability, but transparency should go a long way toward building an informed public that knows the going rate for not having various strings attached to one’s life.

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8 Responses to Thick Contractarianism

  1. Pingback: Contract hacking | In defense of anagorism

  2. Poor Richard says:

    I think there is a great deal of utility in contract theory, law and practice, but it is imperfect. It can be said that a contract, explicit or implied, is associated with every inter-agency transaction. Ideally, the parties to a contract must be PEERS in a number of respects. Information asymmetry between parties, often due to deliberate obfuscation, is the most prevalent flaw in contracts. Despite a great deal of corruption and power bias in the legal system, there is also a long history in the common law and in consumer protection law respecting “full disclosure” and “informed consent”. “Fine print” and other forms of obfuscation are antithetical to the theory and application of fair contracts. As I think you suggest in your post by referencing “legal services”, social and economic justice would argue for some system of leveling the playing field for the parties. This might mean some form of “handicapping” (i.e. regulations that mitigate unfair advantage) or a system for impartial third-party cost-benefit analysis of all contracts in order to permit a fully informed consent of the parties. Contract theory, doctrine, and law can get very complex, especially if we try to minimize “externalities” and asymmetries, but I think it is a potentially a good foundation for social organization, especially if we pay close attention to the vast history of common law. In my opinion, common law is the DNA of civilization.

  3. Poor Richard says:

    BTW, “caveat emptor” does not belong in our contract vocabulary. It is simply code for legal darwinism, the law of the jungle, in which any true contract is a priori absurd.

  4. Pingback: The AFFEERCE method of business plan generation | In defense of anagorism

  5. Pingback: Let’s equivocate | In defense of anagorism

  6. Pingback: More on “right to work” and issue framing | In defense of anagorism

  7. Buck Rogers says:

    Contracts that clearly benefit only one party should be Unlawful, (notice I didn’t say “Illegal”) We have become insensitive to Fictional Party’s having the upper hand in contract law. I believe At one time living beings didn’t contract with a Fictional entity.

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