Time Heals All Wounds.. And Then Kills the Patient
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Tue Nov 30 02:47:37 2004
Freedom and Ladders

by Pat Gunn Modification and distribution are unlimited, provided notice of modification is made and attribution is accurate

One aspect of Libertarian philosophy (note that I mean Libertarian as defined in the United States, not Socialist Libertarianism a la Bakunin) is the focus on a particular conception of freedom. One of the justifications for the free market is that it promotes that idea of liberty. However, that conception of liberty is more of a liberty-as-process than liberty-as-condition. The right to private contract is a foundation for American Libertarian thought, but only benefits a narrow conception of liberty.

P: The contract as understood by libertarians The right to private contract is seen by libertarian philosophy as foundational, based on ideas such as privacy and liberty. It is a powerful concept, distinguishing Libertarian implementations of capitalism from others, as well as other economic systems. Private contract is understood in this context to mean that people have the right to, without oversight or interference from outside parties (such as the government), trade obligations (rights, goods, etc) with each other in a legally binding way. Thus, if person A desires, she may contract with person B, exchanging money for an obligation to paint A's house. This transaction would not be open to person C's objection, unless somehow person C's property or person is involved. Neither person has an obligation to give Person D a cut of the transaction funds without prior arrangement with D (and that obligation, unless otherwise specified in the contract, falls solely on the person who made the arrangement with D). This conception of legality is efficient in several ways -- it limits the deliberation process of contracts, limits the ability of third parties to extract funds from arbitrary transactions, and poses contracts as being largely a private matter between two individuals, with state enforcementLINK.

The right to private contract bears little contact with reality. Within the philosophy, it gives a third party (the state) an obligation to become involved with disputes to which it is not (at least visibly) a party should the contract go awry. Without a special exception, it eliminates the concept of tax, as the need to tax again introduces the state into all contracts. One is tempted to make these exceptions to the rule of third parties, but to make the state party to these contracts is against one of the explicit roles of the right -- to limit government involvement in private contract (as shown by use of this right to suggest that government persecution of prostitution or drugs is a limit on liberty and capitalism). The right also suggests several useful governmental practices, such as government antitrust oversight and environmental lawLINK, should be stopped. Contracts to do illegal things remain an unclear part of the premise -- should the state mandate people, for the sake of a contract, commit crimes? Many countries make it illegal to make contracts of this sort, and do not enforce them. Theorists which suggest otherwise run into the difficulty of having Person A and Person B being able to contract, without person C's consent, designs on C's property or obligation. A perspective given weight in a few countries mandates that for certain types of legal relationships, such as stockowner-company, the interests of communities affected, such as the people of towns where companies have a factory, must also be consideredLINK. One possible outgrowth of this is to suggest that some contracts be negotiated not only by the interested parties, but also by councils to represent local and global interests, which may alter the contract as needed for the public interest.

Power relations are a large part of society. People control resources, and, in present times, often a small group of people control essentials for life (such as landlords, supermarkets, etc) and essentials for democracy (such as news venues, but thankfully not private school consortiums, to the regret of some free-market advocates). The concept of free contract, in this context, advocates a stress on liberty as a process rather than a condition. The actual condition of people, by other perspectives on liberty, is less free in a lassiez-faire system, as while the state withdraws its interference, it makes room for a much stronger worsening of the human condition due to market collaboration and power without input. A landlord cabal, for example, may easily coordinate to fix prices, or independently converge on actions that limit competition, and with sufficient control over the market, can dictate terms to the customer with little chance of negotiation. A possible response is that if they do, they've won their right to do so in a fair game. However, this stresses process over form, and is damaging to everyone because it ensures that business dominions have all the power, compared to consumers. Fortunately, landlord-tenant law has been written to intervene in the free market on this topic, because the stakes are so visible and high. Unfortunately, in other areas where the public has an interest, because of less visibility, this is not happening.

There are several questions opened by this line of analysis on the nature of liberty. Is it the nature of liberty that it must be seen as a process? Is its fundamental nature something which is captured by the day-to-day choices available to one, or the ability to act within predefined realms of perogatives we call rights? Does the lack of opportunity caused by certain social arrangements constitute a threat to liberty? Unfortunately, it seems that liberty is naturally a contentious term, with radically different notions between philosophies, but such a universally good association that people rarely would say they are anti-liberty, instead finding ways to define liberty so they need not oppose it. This makes the term, in the general case, almost uselessLINK.

LINK Anarcho-capitalists, as opposed to American Libertarians, would object to the state enforcement, instead having private enforcement agencies and private courts/arbiters handling issues of this type LINK Libertarians argue that increased property rights will lead to sufficient environmental protections, as presumably neighbours of a polluting plant could then sue because of damage to their property. However, this is unconvincing because much of the damage goes into the air or a landfill and thus, invisibly, hurts everyone, and the neighbours could easily be bought off, so the ecodamage would still occur. LINK In addition to normal stockowner votes LINK Unlike, for example, patriotism, which has a less varied concept-word tie, and where the nearly universal positive connotation is for the concept, not the word. I can, for example, say that I am anti-patriotic and have it still be meaningful.

Sun Dec 5 11:21:00 2004
another criticism

Like other libertarian stances, the private contract theory is vague on how it applies to children and others who have limited cognitive capacity.

If you give a five-year-old girl a lollipop and convince her to "sign" a contract that obligates her to work in your sweatshop for 25 cents a day for the next 10 years, is she then obligated to do so?

How about a mentally retarded adult who cannot read or think in the abstract, and has little vocabulary, but knows how to write his name? Can he be part of a valid contract?