Contracts

In his book, A People’s History of the United States, Howard Zinn says that contracts always favor the rich at the expense of the poor and powerless.  Therefore, he thinks, that law simply to enforce contracts is not just since the contracts don’t originate in just conditions.

Zinn thinks the rich party always gains a better advantage than the poor counterpart.  I think this is demonstrably false.  I would argue that the poorer counterpart, in general, has more to gain.

Rich, poor, or middle class, people enter into contracts to improve their position in life.  There is no point to doing it, if gain is not expected.  The rich already have much, materially, so a contract with a poor person is going to typically only improve their position slightly.  A poor person, entering into a contract, has more to gain because they have less to begin with.  Proportionally, based on material measures, it is easy to see the poor person gains more.

On the other hand, the poor person also has more to lose. If he contracts to work for someone, and they terminate his contract, he no longer enjoys the proportionally large gains he was experiencing.  Should the poor person not fulfill his part of the contract, it won’t be that big of a hit to the rich person, since he is already well off materially.

In essence, comparatively, the poor has more to gain and more to lose by entering into a contract with a rich person.

So what does this have to do with law, contracts, and justice?

Contracts favor both parties, because neither would enter into the contract if they don’t see an advantage to doing so.  Value is subjective, and how each party values the contract is individual, and it cannot be objectified by an outside party like Howard Zinn.  His claim that the terms are always unjust fails in the face of subjective value.

We have to assume that both parties agreeing to a contract understand the ramifications of doing so, and what failing to uphold their part will mean for them.  They both understand that the rewards of the contract also come with risks should either party not be able to fulfill their part of the contract.  It is true, that man has a tendency to act on passion, and discount risks.  He may borrow money, in a zeal to improve his condition based on a market opportunity he sees.  He may not want to think about what it would mean for him should he not be able to repay the borrowed funds.  If he doesn’t consider that conditions beyond his control may lead to his inability to repay funds, that is not the fault of the lender.  The lender is still owed the money or the collateral put up.  That collateral was put up, should indicate to the borrower exactly what he is risking.  He should have a plan B, should conditions prohibit his plan A from succeeding.

Does this mean that there will be prudent men who don’t mortgage their farms to take advantage of market opportunities?  Sure.  Does it mean sometimes imprudent men gain great material advantage from accepting risk?  Sure.  It also means that imprudent men can lose everything because they accepted risk or that prudent men take a risk and they are prepared to deal with the repercussions should the risk not pay off.  People need to be treated like rational adults who can deal with the consequences of their decisions, even when the consequences are very serious.

This doesn’t mean the fallout isn’t sad.  It doesn’t mean that we shouldn’t feel sorry for them.  We have all made poor decisions that resulted in sad consequences.  If we can, we should do our best to help them in their time of need.

What we shouldn’t do is pretend that they are victims of an unjust order that always favors the rich.  The remedy to income disparity is leveling. and leveling makes everyone poorer.  Freedom permits the industrious to improve their position.  Freedom means that you should be free to enter into contracts.  Making the choice to enter a contract means you consent to the terms and the risks of noncompliance.  Freedom doesn’t mean that you can just take whatever risks you want and not have to deal with the consequences when the results don’t pan out like you hoped.

It is hard, because it is distressful when people have gotten into debt and lose their property, and livelihood as a result.  Who can listen to Rain on the Scarecrow without feeling dejected?  Feeling bad for people going through a hard time doesn’t mean that a system that enforces contracts is not just.

If people can’t expect that the terms of a contract will be upheld, then there is no justice.  A poor person would expect a rich person to make good on their promises.  If we are to be treated equally, then a rich person should expect that a poorer person should make good on their promises.  Imagine if only rich people were expected to uphold their side of a bargain, and the poorer counterparts would be exempted for various reasons.  The borrowing opportunities for those without much money would dry up, making it even harder for them to improve their material well being.  Therefore, contrary to what Howard Zinn asserts, not only is contract enforcement just, it actually helps encourage the conditions for poorer people to enhance their life.

Justice: Beyond Pro-life & Pro-choice

I have long struggled with being pro-choice.  Abortion is wrong because it takes a human life.  I was pro-choice anyway.  I said it was all about bodily autonomy.  Since you own your body, you have a right to treat it in any manner you so choose.  Since you are sovereign over your body, the state should not be able to tell you what you can and can’t do with it.  I said that while abortion is a violation of the human right to life, the state has no authority over your actual body, so it can’t compel you to carry to term against your sovereignty.

I still believe this.

However, one day I looked at it from a different perspective when I acknowledged that most abortions occur because someone performs them.  So while a woman has the right to do that what she pleases with her own body, what in any sense of justice gives someone else the right to kill a child in utero that is not an immediate threat to the life of its host?

The answer suddenly became clear to me.  Surgical abortions should be illegal.  If it is illegal to kill another unless self-defense is claimed, then abortion should only be permitted if death of the woman who is pregnant is a material threat.  There are exceptions to this, in the case where there is no chance of a fetus developing and it threatens the health of a woman, like in the case of a tubal pregnancy.  I think it is acceptable for a doctor to terminate a pregnancy in such an instance.  However, I think it has to be formally documented that there was no chance of survival of the fetus and the woman’s health would suffer materially from continued pregnancy.  The doctor must be able to account for why the decision was made.

How, then, is a woman to exercise control over her own body if surgical abortion is to be illegal when she simply doesn’t want to carry to term and there is no material threat of death and the fetus is developing normally?

Medical abortion is the answer here.  A woman can self-administer an abortifacient.  This would be consistent with self-ownership and sovereignty over one’s body.  It is true that the child’s right to life will still be violated when the life is terminated. Since everyone is sovereign over their own bodies, the state has no jurisdiction to interfere with this human rights violation.

I see this as a Justice issue.  I think it is bizarrely blind to deny the humanity of a developing child.  Life clearly begins at conception because that is when a unique human comes into being.  To claim that life begins at any other point is arbitrary. As a matter of human cooperation, we acknowledge human rights. One of the rights we acknowledge is the right to life, so it makes no sense to deny the right to life for a human just because it isn’t fully developed yet.  There is no point when it magically becomes human because it was a unique human from its creation.

Justice demands that we grant the developing human the same rights as every other human, unless they are not under our jurisdiction.  For instance, we can’t go into China and force the government to do our bidding regarding human rights because we don’t have jurisdiction there.  China is a sovereign country.  Following that example, we don’t have jurisdiction over a woman’s body because that is her jurisdiction, so we stand by and do not prosecute if she denies the child with-in her the right to life through medical abortion.

What we do have jurisdiction over, theoretically, are actions taken by individuals governed by the state.  We say murder and theft are crimes, and we all agree those should be prosecuted.  Providing an abortion, in the vast majority of cases, is causing the death of a human simply because they exist and it is not wanted for that human to exist.  If they were a born child, we would all consider this abhorrent.  Since there is no magic time when a fetus becomes human, it should be considered by all to be abhorrent to kill the child in the womb as well.  Justice demands that it be illegal for a 3rd party to kill a child in utero.  It is the right thing to do.  It is the consistent thing to do.

It would be better if submitting to government was voluntary, but that is not the world we live in right now.  Dealing with life as it is, being in favor of outlawing performing a surgical abortion is the correct position.

I don’t think the position I propose can be considered either pro-life or pro-choice because it incorporates elements from both.   It incorporates bodily autonomy while rejecting that surgical abortion should be legal.  I call it Justice.