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.