As I hinted above, the “right” being asked for here is (in libertarian terminology) a positive right to others’ help in enforcing the contract … against those others’ objection that they would not willingly choose to help enforce it.
In other words, the question that may need an answer is not “Why don’t I have the right to enter into such a contract?” but “Why should anyone help the other party enforce it against me?”
An ideological “freedom of contract” answer runs into an opposing “freedom of association” response.
“Why should anyone help the other party enforce it against me?”
Because I ask them to. Indeed why not outsource this? Why not have the state allow people to pay non-government agencies to enforce contracts the government does not wish to.
Why not have the state allow people to pay non-government agencies to enforce contracts the government does not wish to.
State monopoly on legitimate violence is a Schelling point for all modern states, both autocracies and democracies. If you break it up, the problem of distributing the right to use violence so that it wouldn’t just lead to tyrannies and chaos must practically be solved from scratch for the modern world.
De facto states do not have monopoly on violence. Also de jure private security firms do have some room for violence.
Also there is the minor issues of Government being this huge amorphous blob, that agents and institutions should have access to violence if and only if they belong to this strange set doesn’t seem like necessarily something that helps to prevent tyrannies and chaos.
Also choosing between many small tyrannies and one big one I see good pro-liberty arguments for the former.
against those others’ objection that they would not willingly choose to help enforce it
Most of the examples given are things governments already do enforce in other types of contracts. And many are things governments used to enforce in marriage contracts.
Most of the examples given are things governments already do enforce in other types of contracts.
Can you give an example of a non-marriage-related contract that specifies a penalty for one party having sex with someone other than the other party? I’m aware of employment contracts that specify termination of contract for disreputable sexual behavior, but that’s not really the same thing. Possibly the closest thing might be employment contracts for porn actors which require them to use protection against STDs, but I’m not sure if those apply to their non-professional sex acts.
And many are things governments used to enforce in marriage contracts.
Yes, policies change; as do societal norms.
Governments once enforced all sorts of conditions on marriage that are contrary to social norms today. For instance, in many Western societies a man could have his wife prosecuted and punished by the state with physical violence for being unsubmissive to him. This is no longer the case — and it certainly cannot be altered by contract, since it was a criminal matter … and since the punishment required a society willing to participate in, e.g., mocking and throwing filth at the condemned “scold”. The institution of marriage has changed in ways that cannot be reverted by mere consent of the spouses, since the surrounding society has changed.
Moreover, governments reject many sorts of claims on enforcement power which they once accepted, both within and beyond contractual matters. Governments in the West used to enforce slavery as a property right; they no longer do so — does that mean that they no longer enforce property rights at all? Similarly, they once enforced racially discriminatory covenants on real estate, but no longer do so — does that mean that they no longer enforce any covenants on real estate? They used to enforce the right of fathers to marry off their daughters against the daughter’s wishes; they no longer do so — does that mean they do not enforce any parental rights?
In each case, no; rather, the enforcing party is picking and choosing which sorts of claims to enforce, on the basis of what I’ve called moral-like (see above; no more quibbling, please!) judgments as to which sorts of claims are harmful and shouldn’t be enforced. This doesn’t work particularly differently for claims on contract enforcement than for claims on property or parental-rights enforcement.
They used to enforce the right of fathers to marry off their daughters against the daughter’s wishes; they no longer do so — does that mean they do not enforce any parental rights?
Actually I don’t see much of a problem with fathers marrying off their daughters against their wishes because arranged marriages work out quite well by most metrics.
And yes fathers losing that right was part of a grand march in taking away most parental rights, in may ways it represents the crossing of an important Schelling fence. Today’s exist only as very weak things since children are now legally de facto property of the state not parents.
arranged marriages work out quite well by most metrics
You seem to be mistaking arranged marriage for forced marriage. This is a grievous error of fact about human social practices; it is not a difference of opinion or values.
The difference between arranged and forced marriage is mostly one of degree. Indeed many studies trying to measure the outcomes of arranged marriages don’t really have good ways to screen out forced marriages, some don’t even attempt to.
I think historically most Western people who used the legal right of forced marriage where closer to the arranged part of that spectrum.
But you know what? I just realized that I simply assumed the latter was the case without good reason. Which tells me that I should drop the conversation and continue it another time, when I’m perhaps more clear headed and have done some more study of history.
I don’t think this carves reality at the joints. Not only are border cases hard to tell apart in many societies most of the instances cluster around where we would deem border cases.
Arranged marriages, like work, often involve driving external factors that don’t amount to ‘coercion’. Forced marriages, like slavery, always involve coercion. (The definition of coercion is the border dispute here). Do you concur? Or is there a continuum of marriage where “It sure would be nice to have grandkids someday” is only a matter of degree different from “If you refuse you will be stoned to death” or even “You have married this person.”
More realistic than reality? All four of those are things which currently happen. If there is a continuum, they are all on it.
I would put ‘You will not gain a legal right to the property which I currently have the legal rights to.’ on the arranged side rather than the forced side. Where would you put it, assuming a qualitative difference between the two (or more) categories?
Governments in the West used to enforce slavery as a property right; they no longer do so — does that mean that they no longer enforce property rights at all?
Must … resist …. urge to troll … by steel maning that. :)
I said that I think a plausible steel man of the position that the abolition of slavery was closely tied to the abolition of other kinds of private property can be made. Not obviously from a legalistic perspective but from a moral and cultural one.
I also think it’s plausible. I don’t think that would be trolling, I think that would be a highly useful way to examine one’s values and ethics. Including your own views.
Consider the hardcore “reactionary” position on such relations of dominance and social control:
...The result was, publically, an ideology that strongly linked the subordination of women and the subordination of blacks with the defense of white liberty and white private property. Few issues were as intricately linked in antebellum times as were black rights and women’s rights. Southern ideologists weren’t alone in noticing that in the North women’s rights activists came almost exclusively out of the ranks of abolitionists. While abolitionists imagined liberty as about individual self-possession and control, Southern ideologues imagined it as household self-possession and control, possession and control being exercised by the white man. George Fitzhugh wrote that abolitionists “give at once the coup de grace to the old world, and to usher in the new golden age, of free love and free lands, of free women and free negroes, of free children and free men.” (these are all bad things, for Fitzhugh). In Cannibals All, he constantly refers to the “women, children, and free negroes” as one group, those fit to be ruled. He also, interestingly, accuses all abolitionists of being socialists: “men once fairly committed to negro slavery agitation—once committed to the sweeping principle, “that man being a moral agent, accountable to God for his actions, should not have those actions controlled and directed by the will of another,”[1] - are, in effect, committed to Socialism and Communism, to the most ultra doctrines of Garrison, Goodell, Smith and Andrews – to no private property, no church, no law, no government, – to free love, free lands, free women and free churches.”
And the “compassionate conservative” one (from an interview with a British author whom you’ve linked to, Roger Scruton):
Among the ills of the post-1968 cultural revolution are, apparently, the “deconstructionist, feminist, counter-cultural” ideas that encourage the destruction of all hierarchy. Feminism is an ill? Radical feminism only, it turns out, “which tries to overthrow the whole system of thinking on which we have hitherto depended” as opposed to “the tradition of female emancipation, beginning with Wollstonecraft and people like that, which is I think a completely different thing, and part of the natural reform of our institutions and our way of seeing things.” Wollstonecraft was, of course, no friend of Burke’s; interesting how radicalism, after the passage of years, can safely be absorbed as tradition.
And gay rights activists? In the past Scruton has written that homophobia is understandable. “I took the view that feeling repelled by something might have a justification, even if it’s not a justification that the person themselves can give. Like, we’re all repelled by incest – well, not all, but most people are. And there’s a perfectly good justification, if you look at it in terms of the long-term interest of society. And in that essay I experimented with the view that maybe something similar can be said about homosexuality. And I don’t now agree with that, because I think that – it’s such a complicated thing, homosexuality. It’s not one thing, anyway. So I wouldn’t stand by what I said then.” Though yes, “people got very cross”.
As you can see, the latter view is inconsistent—as you have said yourself many times before, rallying against the futility and weakness of “mere conservatism”, with its aquiescence to nearly any reform. The former view—no government or outsider should restrict a subject’s control over his inferiors and subordinates, to do so in any one case is to threaten the whole structure of hierarchy and dominance—certainly seems to be a stable Schelling point. And to prevent any drift from that point, you’d need a ruthless zero-tolerance policy of enforcement.
So what is your judgment here? Any bullets you’d bite on the subject of hierarchy and dominance?
^ (1) The line in italics, although excluded in the linked quote, appears in the source text (Cannibals All: Slaves Without Masters). I assume that you can recognize the significance. Universalism—as a theistic creed or as a secular one—really did make tyrants “fear for their domination.”
I think that would be a highly useful way to examine one’s values and ethics. Including your own views.
I was thinking of making a strong pseudo-Marxist argument in this direction, so I’m not sure how relevant it would be to my own views.
As you can see, the latter view is inconsistent—as you have said yourself many times before, rallying against the futility and weakness of “mere conservatism”, with its aquiescence to nearly any reform. The former view—no government or outsider should restrict a subject’s control over his inferiors and subordinates, to do so in any one case is to threaten the whole structure of hierarchy and dominance—certainly seems to be a stable Schelling point. And to prevent any drift from that point, you’d need a ruthless zero-tolerance policy of enforcement.
A different plausible Schelling point is the preservation of existing hierarchies but opposing the creation of new ones. Note that Americans spoken of had previously rejected the hierarchy of aristocracy without rejecting in general stratification by class, wealth, education, nationality, beauty, ancestry, race, gender, merit or ability. Some of these are preserved to this day.
So what is your judgment here? Any bullets you’d bite on the subject of hierarchy and dominance?
Overall a society without hierarchies is something that I doubt would be optimally matched to human values and I might even find disturbing. At the very least it would have high costs. I however need to think about these issues more before committing myself to biting any bullets.
And in that essay I experimented with the view that maybe something similar can be said about homosexuality
He might actually be right homophobia arising as an adaptive norm in past societies if homosexually is indeed caused as a side effect of a mother’s infection with a pathogen.
As I hinted above, the “right” being asked for here is (in libertarian terminology) a positive right to others’ help in enforcing the contract … against those others’ objection that they would not willingly choose to help enforce it.
In other words, the question that may need an answer is not “Why don’t I have the right to enter into such a contract?” but “Why should anyone help the other party enforce it against me?”
An ideological “freedom of contract” answer runs into an opposing “freedom of association” response.
Because I ask them to. Indeed why not outsource this? Why not have the state allow people to pay non-government agencies to enforce contracts the government does not wish to.
State monopoly on legitimate violence is a Schelling point for all modern states, both autocracies and democracies. If you break it up, the problem of distributing the right to use violence so that it wouldn’t just lead to tyrannies and chaos must practically be solved from scratch for the modern world.
De facto states do not have monopoly on violence. Also de jure private security firms do have some room for violence.
Also there is the minor issues of Government being this huge amorphous blob, that agents and institutions should have access to violence if and only if they belong to this strange set doesn’t seem like necessarily something that helps to prevent tyrannies and chaos.
Also choosing between many small tyrannies and one big one I see good pro-liberty arguments for the former.
De jure security firms are specifically licensed for the violence that they do.
Most of the examples given are things governments already do enforce in other types of contracts. And many are things governments used to enforce in marriage contracts.
Can you give an example of a non-marriage-related contract that specifies a penalty for one party having sex with someone other than the other party? I’m aware of employment contracts that specify termination of contract for disreputable sexual behavior, but that’s not really the same thing. Possibly the closest thing might be employment contracts for porn actors which require them to use protection against STDs, but I’m not sure if those apply to their non-professional sex acts.
Yes, policies change; as do societal norms.
Governments once enforced all sorts of conditions on marriage that are contrary to social norms today. For instance, in many Western societies a man could have his wife prosecuted and punished by the state with physical violence for being unsubmissive to him. This is no longer the case — and it certainly cannot be altered by contract, since it was a criminal matter … and since the punishment required a society willing to participate in, e.g., mocking and throwing filth at the condemned “scold”. The institution of marriage has changed in ways that cannot be reverted by mere consent of the spouses, since the surrounding society has changed.
Moreover, governments reject many sorts of claims on enforcement power which they once accepted, both within and beyond contractual matters. Governments in the West used to enforce slavery as a property right; they no longer do so — does that mean that they no longer enforce property rights at all? Similarly, they once enforced racially discriminatory covenants on real estate, but no longer do so — does that mean that they no longer enforce any covenants on real estate? They used to enforce the right of fathers to marry off their daughters against the daughter’s wishes; they no longer do so — does that mean they do not enforce any parental rights?
In each case, no; rather, the enforcing party is picking and choosing which sorts of claims to enforce, on the basis of what I’ve called moral-like (see above; no more quibbling, please!) judgments as to which sorts of claims are harmful and shouldn’t be enforced. This doesn’t work particularly differently for claims on contract enforcement than for claims on property or parental-rights enforcement.
Actually I don’t see much of a problem with fathers marrying off their daughters against their wishes because arranged marriages work out quite well by most metrics.
And yes fathers losing that right was part of a grand march in taking away most parental rights, in may ways it represents the crossing of an important Schelling fence. Today’s exist only as very weak things since children are now legally de facto property of the state not parents.
You seem to be mistaking arranged marriage for forced marriage. This is a grievous error of fact about human social practices; it is not a difference of opinion or values.
The difference between arranged and forced marriage is mostly one of degree. Indeed many studies trying to measure the outcomes of arranged marriages don’t really have good ways to screen out forced marriages, some don’t even attempt to.
I think historically most Western people who used the legal right of forced marriage where closer to the arranged part of that spectrum.
But you know what? I just realized that I simply assumed the latter was the case without good reason. Which tells me that I should drop the conversation and continue it another time, when I’m perhaps more clear headed and have done some more study of history.
If the difference between arranged and forced marriage is one of degree, than the difference between employment and slavery is also one of degree.
I don’t think this carves reality at the joints. Not only are border cases hard to tell apart in many societies most of the instances cluster around where we would deem border cases.
Arranged marriages, like work, often involve driving external factors that don’t amount to ‘coercion’. Forced marriages, like slavery, always involve coercion. (The definition of coercion is the border dispute here). Do you concur? Or is there a continuum of marriage where “It sure would be nice to have grandkids someday” is only a matter of degree different from “If you refuse you will be stoned to death” or even “You have married this person.”
What about a more realistic scenario: if you refuse, you’ll be disinherited?
More realistic than reality? All four of those are things which currently happen. If there is a continuum, they are all on it.
I would put ‘You will not gain a legal right to the property which I currently have the legal rights to.’ on the arranged side rather than the forced side. Where would you put it, assuming a qualitative difference between the two (or more) categories?
It isn’t?
Is slavery immoral? Is employment immoral? Can morality be a matter of degree?
Probably. Possibly. Yes.
Can you describe something which is a difference of kind instead of a difference of degree?
Must … resist …. urge to troll … by steel maning that. :)
What are you talking about?
As a lawyer, I think I qualify as a relevant expert.
I said that I think a plausible steel man of the position that the abolition of slavery was closely tied to the abolition of other kinds of private property can be made. Not obviously from a legalistic perspective but from a moral and cultural one.
But that I think that would be trolling.
I also think it’s plausible. I don’t think that would be trolling, I think that would be a highly useful way to examine one’s values and ethics. Including your own views.
Consider the hardcore “reactionary” position on such relations of dominance and social control:
http://phdoctopus.com/2012/03/02/liberty-for-the-few-slavery-in-every-form-for-the-mass-the-deep-roots-of-the-birth-control-freakout/
And the “compassionate conservative” one (from an interview with a British author whom you’ve linked to, Roger Scruton):
http://www.guardian.co.uk/theguardian/2010/jun/05/roger-scruton-interview
As you can see, the latter view is inconsistent—as you have said yourself many times before, rallying against the futility and weakness of “mere conservatism”, with its aquiescence to nearly any reform. The former view—no government or outsider should restrict a subject’s control over his inferiors and subordinates, to do so in any one case is to threaten the whole structure of hierarchy and dominance—certainly seems to be a stable Schelling point. And to prevent any drift from that point, you’d need a ruthless zero-tolerance policy of enforcement.
So what is your judgment here? Any bullets you’d bite on the subject of hierarchy and dominance?
^ (1) The line in italics, although excluded in the linked quote, appears in the source text (Cannibals All: Slaves Without Masters). I assume that you can recognize the significance. Universalism—as a theistic creed or as a secular one—really did make tyrants “fear for their domination.”
I was thinking of making a strong pseudo-Marxist argument in this direction, so I’m not sure how relevant it would be to my own views.
A different plausible Schelling point is the preservation of existing hierarchies but opposing the creation of new ones. Note that Americans spoken of had previously rejected the hierarchy of aristocracy without rejecting in general stratification by class, wealth, education, nationality, beauty, ancestry, race, gender, merit or ability. Some of these are preserved to this day.
Overall a society without hierarchies is something that I doubt would be optimally matched to human values and I might even find disturbing. At the very least it would have high costs. I however need to think about these issues more before committing myself to biting any bullets.
He might actually be right homophobia arising as an adaptive norm in past societies if homosexually is indeed caused as a side effect of a mother’s infection with a pathogen.
I was thinking of making a strong pseudo-Marxist argument in this direction, so I’m not sure how relevant it would be to my own views.
You should note this is a left-wing take on a a reactionary position, not writing done by an actual reactionary.
And that this is a left-wing take on the conservative positions of the author, not a summary written by the author himself.
You will find plenty of ungood thoughts and writings in the original sources no need to add an additional layer of interpretation to them.
Ah. (I had taken “by steel manning that” to be modifying “resist” rather than “troll”, and couldn’t make sense of it.)