Sunday, June 28, 2015

Some Thoughts on the Nature of Contracts

One of the main issues of our time is the nature of contracts into which we can enter.

I know, that doesn't sound quite as sexy as "gay marriage" or "Obamacare," but really that's what those two issues are about. And not just those two issues.

There is not a lot of consistency of thinking on the nature of contracts. What, if any, role should governments have in the contents of contracts? Courts will have to determine the validity of contracts, what should happen if contracts are violated, etc., but does that mean we have to have governments legislating the contents and who can be involved for the courts to do their jobs?

The issue with gay marriage is that the marriage contract is not simply between the two people getting married, but among each of the couple and the government. You have to register to get a marriage license. So you have to get the government's permission to get married at all. Of course, one can still go through the ceremony -- the ritual -- that makes you married, but you won't have the legal protections involved. And those legal protections are what are at issue in the licensing.

The protections aren't frivolous, but at the same time, what is being protected involves government legislation that perhaps shouldn't be in place in the first place. When a hospital restricts access to a patient, do you really think it is the hospital alone doing it, or is there a law on the books determining who can and cannot visit this or that person under this or that condition? So being married in the eyes of the government means you can visit your spouse, meaning a restriction created by government is lifted by government.

While one would perhaps prefer to get rid of all of this nonsense, it seems easier for now to simply expand the franchise to allow more people to get the privileges from government. That at least provides equality under the law, even if we may not be fans of the law.

Really, adults ought to have the liberty to enter into any kind of interpersonal relationship they wish. Christians who insist that Christians must only ever enter into monogamous, heterosexual marriages should keep in mind that 1) not everyone is a Christian, so your religious laws do not apply to them, and 2) nobody is or should be preventing you from or forcing you into entering into the kinds of marriages with which you disagree.

Which gets me to another main issue surrounding contracts. We should not be forced into contracts, either. There was a civil war fought over this issue of forcing people into contracts -- what more or less is slavery, after all? We would be outraged if a woman were forced into a marriage. We would be outraged if a man were forced into a work contract out of which he could not exit. But too many are not outraged if a person is forced to bake a cake for someone. Or if a person is forced to buy insurance against their will. All of these are interpersonal contracts, and we should not be forced into them if we do not want to be.

Along these lines, it does not logically follow that by allowing people to enter into one kind of contract (such as a marriage) that one must then force other people to enter into other kinds of contracts (such as making your wedding cake, catering your wedding, or performing your wedding). However, if you are a justice of the peace or other government official whose job description involved marrying people granted a marriage license,the only thing you can do is apply the law equally or resign your position. No one is forcing you to marry people; you can always quit your job if you have moral objections to doing it. This would also apply if the owner of the bakery wanted to make wedding cakes for gay couples but one of his bakers refused on religious grounds. The baker can quit the business and start his or her own, if they so desire. Or find someone with the same world view to hire them. But so long as they work for the owner, they have to do the job they were hired to do. You must abide by the contract into which you have entered, or you must exit it. And equally, you should not be forced to enter into a contract into which you do not wish to enter.

As for breaking contracts, many contracts have such provisions. Those should be worked out by the people in question. If a contract is broken and the provisions in question have been violated, that's what we have courts for. The courts may discover that a given provision of the contract is unenforceable (say, the contract states you can never break the contract -- which violates the very nature of contracts as temporary and provisional). Courts are thus sufficient for resolving any and all issues surrounding contracts. Out of their decisions emerges the common law regarding contracts, which stands as law (and in no way requires legislation).

Most of the problems we find in society involve confusion about the nature of contracts and who should be involved in their creation and decisions about their content and ends and ending. We need to work on clarifying these things. By doing so, we see what it is we are supporting and what we are against in clearer terms. And, hopefully, many of us will change our minds about what we support when we understand the nature of the contracts we are supporting.
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