Thank you, minority associate, for writing up this stockphoto modeling contract.
Contracts have to be the answer. Nobody leaves a contract perfectly satisfied, but they’ve come to some agreement over their disagreement and walked away better off. If the goal is the most free and equitable human society, then contracts must be a primary medium in which it is accomplished.
Contract law is such a relief. Maybe because it’s a newish area of law, and so just feels more intuitive. Property law struggles under the weight of its feudal and confusing post-feudal roots, and so is full of terms of art (“enfoeffment” “covenant of seisin” “the rule against perpetuities”) and complex, non-intuitive rules. Torts deals with civil wrongs often not based on specific statutes and with extremely flexible or ambiguous rules (when is someone negligent? What constitutes a battery?). Criminal law of course is really ultimately based on social morals and mores. So, where once any felony got you a trip to the…I don’t know, head peeler–back in the day, now there are about seven levels of criminal homicide (murder in the first, second and third degree; manslaughter–both “heat of passion” voluntary manslaughter and involuntary manslaughter, which can be reckless or negligent).
Or this thing.
Contract law, though, is straightforward. Not that it isn’t complex, because it is, but rather its complexity is elegant. While facts can complicate just about anything, the rules in general make sense because all disputes ultimately lead back to one question: should the state enforce this promise?
Everything else is left to the individuals or organizations for themselves to decide. So long as the contract isn’t for something illegal (thus why bookies break legs but payday lenders garnish your wages) or made under fraud or duress (Cf., Johnny Fontane‘s personal service contract), the courts just try to figure out what people promised to one another and whether it’d be just to enforce those promises.
In theory, contracts can’t be literally one-sided. Part of the formula to determine whether a promise has been made at all is the doctrine of consideration, which basically means you can’t have a contract unless both parties are giving something up. Both parties also have to agree free of duress or fraud, meaning they were voluntarily giving something up. As far as human interactions go, this is pretty swell.
There’s even a rule that contracts that are egregiously one-sided should not be enforced. Yay!
At the same time, getting a contract is an adversarial process. Both sides are trying to get the best deal they can. Neither side gets everything, but they get something–they always end up in a better position than when they started. Nevertheless, there are two competing interests that must come to voluntary solution. So while negotiations can be competitive, even rough, their resolution must be satisfactory to some degree.
Its this simple fact that draws me to the labor movement as a solution for structural social inequality. Because while collective bargaining agreements don’t leave everybody perfectly satisfied, everybody is nevertheless still ahead–and got to their position through their own voluntary actions.
If the program of the left is to make sure people have truly equal opportunity for material security, it seems backward to wait until wealth has accumulated and then use the power of the state to force them to share it. Why not just take out the obstacles to ideal negotiation and let wealth be distributed by private parties by mutual agreement?
Libertarians believe that anti-trust legislation is unnecessary because individuals will naturally defect from the cartel to seek the advantage of offering a lower price. (The assumption being that monopolies will artificially maintain high prices). Thus their token support for collective bargaining in theory but opposition to it in practice: because unions can enforce a monopoly in a specific workplace, they bar individuals from defecting from the “cartel” to seek a comparative advantage. In practice, collective bargaining is probably impossible without that power.
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Empirical proof of the instability of monopolies under natural conditions.