Contracts and the NAP

A while back, I mentioned that I think contracts are bullshit. Some day, I hope to get into a full ontology of contracts, but I doubt many of my readers really have much interest in such things. Instead, I’m going to Start a conversation with a few people I know in real life concerning the nuances of the NAP with regards to contracts.

 

Would breach of contract be a violation of the non aggression principle? What about scheduled payments in the future, non-compete, and nondisclosure agreements?

Given that I think contracts are bullshit, I bet most people would assume that the answer I have is simple and straightforward: “no”. Of course, I can never let something be simple. For the sake of this discussion, we’ll just assume the definition I expect to use for the full post on the ontology of contracts and say, “a contract is merely an external explication of an agreement between two or more parties”. In other words, Bruce and Alfred come to an agreement concerning their affairs, say a nondisclosure agreement. That agreement exists as a relationship between the two but, for the sake of clarity (given the human condition), they decide to write the entire thing down and, content that the written document explicates the agreement sufficiently, sign the document to signify their provisional assent to the agreement and the accuracy of the document written to reflect that agreement. Then Bruce and Alfred put the document somewhere where it can be referenced but not altered by either Bruce or Alfred.

That’s a contract, right? It sounds pretty similar to a previous discussion we’ve had. So, lets say the agreement is that Bruce will pay Alfred for services rendered at a certain rate so long as Alfred does not let anyone know some secret Bruce is trying to keep, either by actively communicating that information to someone or letting them figure it out on their own through some form of neglect. Would Alfred be aggressing against Bruce by telling the secret? We can certainly agree that doing so would be dishonorable and vicious, but would it be criminal? Another way to ask would be to say “Can Bruce justifiably kill Alfred if he does so?”

I haven’t gone into that issue in full detail yet, either, but the easy way to put it is I stand by Cantwell’s philosophy of paperclips; It is theoretically justifiable to shoot someone over stealing a paperclip. Admittedly, the odds of encountering someone who would both steal a paperclip and allow the situation to escalate to the point of lethal force are statistically negligible and the odds of encountering someone who values the sanctity of one’s ownership of paperclips over the exorbitant cost of a bullet are equally negligible. However, the moral reasoning remains sound, even if the tactical choice would be tolerance.

Why am I talking about lethal force and paperclips when I should be talking about contracts? Well, is Alfred committing a crime against Bruce if he violates the contract? Can Bruce justifiably kill Alfred for doing so? Surely, the cost of the secret is greater than that of a paperclip. Even so, I argue that the secret is of a different category than that of the paperclip. Whereas a paperclip is property, a secret is nothing more than an abstraction of an individual’s ideas. The primary historical role of contracts such as nondisclosure agreements is an attempt to use the law to transmute mental things into material things, which can then be treated as property. So, even though Alfred may be dishonorable and breach his agreement with Bruce, he isn’t “stealing” anything from him.

What recourse would Bruce have in such a circumstance? Under the legal fictions currently in place, contracts are largely treated as laws are: if one violates a contract and then continues to refuse to play by the rules of the contract concerning breach of contract, eventually the issue would escalate to an encounter with law enforcement, which if the dishonorable man still refuses to comply, will be killed by law enforcement. Because of this, the current state of contract law is every contract follows the formula “We agree to do these things. If we don’t do these things, someone’s gonna fucking die.” Just like a law.

The same is the case if Bruce does not pay Alfred for his services, just for the sake of clarification.

I am obviously not impressed with this formula. As such, I have been exploring contract theories and trying to figure out the exact relationship between the ontology of contracts and the nature of the NAP. Thus far, I have found two possible answers to the question above, and they are mutually exclusive. As such, I’m presenting this post as a conversation-starter (as is the custom at this point).

Option #1: Contracts are 100% bullshit. In this case, the reality of the situation is straightforward: caveat emptor. If Bruce and Alfred make an agreement that Alfred will do butler stuff and Bruce will pay him at the end of the month and either one fails to do so, it renders the agreement void. If Alfred fails to do butler stuff, Bruce doesn’t have to pay him and if Bruce doesn’t pay Alfred, he doesn’t have to do butler stuff. The reality is that all that exists is the agreement between the two with their honor and social standing at stake.

While this solution is simple, it does have some complications. For example, the agreement is temporal in nature: Alfred spends a month of his life performing a service for Bruce before not receiving payment or, if paid in advance, Bruce pays a month’s salary before not receiving the agreed upon service. There are a few technologies which can be employed to prevent such instances, but in the words of Sov Tsu: “If you create a technology to solve a moral problem, you didn’t actually solve the problem.” So, instead, I will simply point out the obvious circumstance surrounding contract-violators: if one is living in a society of a reasonable size, there will be little opportunity to violate agreements without destroying one’s reputation and being dishonored or declared an outlaw. These extenuating circumstances are enough to keep a majority of potential frauds at bay, even in our overpopulated cities and towns.

Of the technologies available to increase the effectiveness of social accountability is that of reputation systems (which I generally dislike); one can have an Angie’s list or a yelp which operates much like a credit score: if one doesn’t have enough honor points, you probably don’t want to get into a contract with them. Another is that of outlaw status; if someone violates fundamental social mores, they can be declared an outlaw by the offended parties, which basically puts them outside of the general functioning of society: you breach a contract without making proper amends, you are refused service at many businesses and won’t be defended if someone were to try to rob or kill you.

Or, alternatively, we can look to the free (black) markets that have existed outside of normal contract law since forever and see what technologies exist there. The one that comes to mind right away is that of escrow holdings: Bruce puts Alfred’s payment into an escrow account at the start of the month, to be paid out to Alfred after a month of service, and they place a third party in charge of that account. Another free market device is that of word-of-mouth; someone trusted would have to vouch for the trustworthiness of each party. In this case, Thomas, Bruce’s father, vouched for Alfred and so Bruce trusts him (and vice versa).

There is opportunity for abuse in this resolution, as with any. Reputation systems can be gamed, are open to corruption, and can become oppressive forms of governance as opposed to useful tools for self-actualization. Public shaming is only as effective as a society is homogeneous, culturally speaking. Escrow services work great for payment plans and such, but do nothing with regards to agreements which do not concern direct exchange of goods. This is why self-empowerment, social cohesion, and populations within the Bunbar number are crucial to a truly prosperous society: the natural market functions of such a society drastically mitigate the harm caused by fraudsters and indolence without resorting to the criminal activities of the state.

Option #2: Contracts have a social function and are therefore not 100% bullshit. In this formulation, contracts have impetus insofar as they can be enforced without violation of the NAP. So, unlike laws, I don’t think one could pretend a contract is valid if it were enforced with the same mechanism (“do X, or we’ll fucking kill you.”). If one agrees to arbitration by a third party and consequences for breach-of-contract as part of the agreement, it is conceivable that polycentric legal systems could manage to serve as a lubricant for commerce in societies, both big and small.

This polycentric system of agreed upon contractual obligations (and punishments) and arbitrators is certainly preferable to the monopolized and criminal system currently in-place throughout the developed world. Between the competitive nature of the market for “justice” and the voluntary nature of contracts (in theory, at least), this system would likely produce something resembling courts which maintains a reasonably high level of satisfaction with legal arbitration. Given the versatility of anarcho-capitalist theory concerning polycentric law, I imagine that such competition would demonstrate the forms of contract theory which produce the most utility over time, independent of their truth-value, of course. If I were to venture a guess, of what that would look like, I’m guessing that the theories of Stephan Kinsella will likely produce the most utility as well as most closely reflect the facts of the matter, even if he has more faith in contracts than I do.

There are two problems I see with this position, though. First, the issue of honor still plays an inescapable role in this dilemma: a dishonorable person who will not honor an agreement will be equally unlikely to honor the specific clause concerning retribution or the presumed authority of the courts. Ultimately, then, we find ourselves in the initial situation presented in option #1. Second, I believe the harm-reduction and forward-thinking provided by standard financial and interpersonal practices far outperform any sort of contract and arbitration service beyond that which is contained in standard interpersonal and fiscal practices. What I mean is putting lenders in-charge of their own interest rates and application process will enable market functions to weed out the honorable and dishonorable, as does actually knowing one’s customers, etc.

This obviously didn’t cover all the nuances of contracts and such, but it is a starting place for a discussion. I need to do more research into the old tort systems and read more Stephan Kinsella. For the meanwhile, I propose that contracts are bullshit and one ought to strive to be honorable and surround oneself with honorable people. It couldn’t hurt to keep records of one’s agreements and obligations, though. Really, the approach one ought to take to contracts is the same as one ought to take to any service that is currently monopolized by government: ask “can this service be provided without the intrinsic threat of murder AND does this service have any necessity in a free society?

TL;DR: Contracts are bullshit, but they are still an important area of discussion to AnCaps and normies, alike. Insofar as that discussion applies to my project, I guess I’m halfway obligated to write about them. Contracts really seem to simply exist as an external point of reference for agreements, which are relational between two or more parties. As such, whether or not violating a contract or agreement (fraud, essentially) is a violation of the NAP is what is really at the heart of the discussion. I argue that most, if not all, cases of fraud are not actually violations of the NAP and that the old adage of “caveat emptor” ought to be kept in mind. As such, the initiation of force against a fraudster is, itself, a violation of the NAP. However, all the finer points of contract theory are currently beyond my expertise and from what I know of Stephan Kinsella, he would be the guy to read for ideas.

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No Treason: Lysander Spooner

This month’s Lucaf Fits meeting (that’s my philosophy club) is centered on the nature of freedom. I did my best to try and separate my apolitical proclivities from the philosophy club, as I wanted to be a little more culturally ecumenical with the group’s prospective members, but the group demanded it. The difficulty with finding literature for such a discussion is that You have statist bullshit on one side and high-level praxeological works by anarchists on the other side, with a little bit of lefty garbage scattered between the two. However, there is a gem hidden in that grey zone between the two extremes: Lysander Spooner‘s “No Treason: The constitution of No Authority”.

 

As always, a bit of historical context is in order. Spooner was born at the beginning of the 19th century in America. He was a natural-born anarchist/agorist. He set up a law firm in Massachusetts and quickly became recognized as one of the best lawyers available, despite not having the required government permits to do so. He made a compelling legal case against licensure, but that cost him potential clients, as the government did everything in their power to keep him from acquiring new clients. After business dried up, he tried a few unsuccessful entrepreneurial efforts and eventually decided to set up a post office as an act of defiance against the violent monopoly that the US government held on postal services, and quickly outperformed his criminal competitors. Of course, that didn’t last very long, as the government violently shut him down. From that point on, he was a one-man publishing company, writing almost as much as Rothbard, himself, much to the same effect as Rothbard.

One can’t discuss a lawyer, activist, or political commentator in 19th century America without addressing slavery. Spooner was one of the many activists in the 19th century that has been stricken from the mainstream historical record for the heinous crime of not fitting the ex-post-facto justification for the war of northern aggression. He was a die-hard abolitionist AND he was a defender of the Confederacy’s right to secede from the Union and tend their own affairs. He wasn’t alone, but he is certainly one of the more prominent members of that elite group.

No Treason was actually written as a response to the war of northern aggression, pointing out how the lies written and perpetuated by the Federalists had lost any of their legitimacy when Lincoln (at the behest of criminal bankers) purportedly abolished chattel slavery by way of actively enslaving half of the inhabited continent of America by way of military conquest. In many ways, Spooner is the godfather of the sovereign citizen movement, using common law practices and contract law to point out the reality that the existing government is not only criminal but is, in fact, illegal. He met a similar fate as many Sovereign Citizens, as well… he was mostly ignored into obscurity.

That obscurity is unwarranted, though. In “No Treason”, Spooner presents a compelling case using common law and the contract law of his day, demonstrating the Constitution to be neither a legal document nor a reasonable declaration of intent. He attacks the rationale behind the “Social Contract” argument, demonstrating that the Constitution meets no necessary or sufficient conditions for being a legally-binding contract and that, even if it did, “We know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now… And the constitution, so far as it was their contract, died with them.”

He also demonstrates that the secret ballot undermines the legality of the contract and reveals the true nature of the government under the Constitution:
“What is the motive to the secret ballot? This, and only this: Like other confederates in crime, those who use it are not friends, but enemies; and they are afraid to be known, and to have their individual doings known, even to each other… In fact, they are engaged quite as much in schemes for plundering each other, as in plundering those who are not of them. And it is perfectly well understood among them that the strongest party among them will, in certain contingencies, murder each other by the hundreds of thousands (as they lately did do) to accomplish their purposes against each other. Hence they dare not be known, and have their individual doings known, even to each other. And this is avowedly the only reason for the ballot: for a secret government; a government by secret bands of robbers and murderers. And we are insane enough to call this liberty! To be a member of this secret band of robbers and murderers is esteemed a privilege and an honor! Without this privilege, a man is considered a slave; but with it a free man! With it he is considered a free man, because he has the same power to secretly (by secret ballot) procure the robbery, enslavement, and murder of another man, and that other man has to procure his robbery, enslavement, and murder. And this they call equal rights!”

He also consistently argues against the possibility that most, or even any, individuals consent to be governed under the Constitution. Citing the involuntary nature of taxation, the demonstrated propensity for the government to initiate violence to get its way, the illegality of putting a small group of unaccountable oligarchs in charge of a violent apparatus of coercion and theft, and so on. He also points out that, even though the government consists entirely of criminals, they are not even preferable to common criminals, because:
“The fact is that the government, like a highwayman, says to a man: “Your money, or your life.” And many, if not most, taxes are paid under the compulsion of that threat.
The government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.
The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a “protector,” and that he takes men’s money against their will, merely to enable him to “protect” those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villainies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.
The proceedings of those robbers and murderers, who call themselves “the government,” are directly the opposite of these of the single highwayman.
In the first place, they do not, like him, make themselves individually known; or, consequently, take upon themselves personally the responsibility of their acts. On the contrary, they secretly (by secret ballot) designate some one of their number to commit the robbery in their behalf, while they keep themselves practically concealed.”

Even if people consented to being enslaved by the government and found it preferable to the possibility of falling prey to common highwaymen, Spooner argues that there is no mechanism, physical, metaphysical, legal, or otherwise, by which one could accomplish such an end. Ignoring the performative contradiction of such an activity, Spooner argues: “If I go upon Boston Common, and in the presence of a hundred thousand people, men, women and children, with whom I have no contract upon the subject, take an oath that I will enforce upon them the laws of Moses, of Lycurgus, of Solon, of Justinian, or of Alfred, that oath is, on general principles of law and reason, of no obligation. It is of no obligation, not merely because it is intrinsically a criminal one, but also because it is given to nobody, and consequently pledges my faith to nobody. It is merely given to the winds.” This is a result of the secret ballot, the non-contractual nature of the Constitution, and the manner in which the Constitution is inflicted on those who do not assent and have never assented to be party to the contract.

Lysander Spooner writes with a command of both legal theory and language in a way so as to make slightly-complex legal concepts accessible to the reader while also maintaining a level of entertainment-value which allows one to read through the entire work. It is only about 75 pages long, so one can get through it in an afternoon if one really applies oneself. He touches on other ideas that are central to libertarian discourse, such as the idea of “voting in self defense” and the economic realities inflicted on the peasantry by international banking cartels. I argue that this work, like several others mentioned on the blog, ought to be on everyone’s reading list.

TL;DR: I’ll put the TL;DR version here, in Spooner’s own words:
“Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

Also, here’s a silly video from the Free Thought Project to a similar effect:
https://www.facebook.com/thefreethoughtprojectcom/videos/1765770890309837/

Expression Theory vs Realism

About a month ago, I came to a realization concerning something that has been confusing me for years. As is typically the case, I have no easy way to express it in terms most people can understand. In the easy, precise technical terminology I use, the barrier to communication between me and most “normal” people about crime and punishment is that I’ve been assuming people are reductive realists when they are, in fact, expressivists.

According to expression theory, feelings and ideas can exist independent of the mind experiencing them, which allows for direct communication of ideas and feelings. One largely-known application of expression theory is Leo Tolstoy’s expression theory of art, which I will use as a paradigm example of expression theory at large. Tolstoy argues that the definitive quality of art is the communication of feeling from the artist to the audience. The ontology (and/or metaphysics) that is built around such a definition is the concept that an idea or feeling can exist independent of an agent which could be called a knower or a feeler.

In order for such an ontology to exist, it would require an even more intense version of substance dualism/pluralism than that to which I ascribe. Where I have argued that there must be a substance independent of the material substance which constitutes one’s brain (or anything else that physics looks at) which could be called a “mental substance”, that argument is limited to the existence of a “knowing/thinking thing” which is not fully explained by the interaction of matter with itself. An expressivist must allow for the existence of such a mental substance, but must also argue that the thing known is, itself made up of that substance, independent from any mind that may be knowing it. In essence, to an expressivist, the idea of expressivism is somehow currently contained in this set of black and white pixels on your computer screen.

In such a case, a painting or song could be imbued with the artist’s sadness or joy. When one hears the Haffner Symphony and feels happiness, that’s because Mozart imbued his sheet music with his happiness, and every copy of that sheet music made and, later, the orchestra’s playing from that sheet music have all been imbued with that happiness secondhand. So when one listens to said symphony and feels happy, it’s actually Mozart’s happiness infecting the listener. (Example shamelessly lifted from Douglas Groothuis.) I promise I tried to make that example sound as charitable as I could…

What this means, in the case of “crime and punishment”, is that an expressivist, on some level, believes that a criminal is expressing “crime” by committing said crime. They are imbuing the scene of the crime with “criminality” which may infect the minds of others (causing them to commit crimes, as well). “Society’s” response to that crime, then, will also express a response to the crime, imbuing “Society’s” environment with whatever that response is communicating, which will also possibly infect others.

It took me far to long to realize that this is what people meant when they say such absurd things as “We can’t rehabilitate drug offenders with medical science, we must lock them in rape cages… we don’t want to send the wrong message!” What such an individual believes is that a criminal is infected with an idea of criminality which could have been transmitted to them by another individual, by coming into contact with a thing imbued with “criminality” or by a criminal idea that simply happened to float by at that given moment. I’m not certain whether the belief is that the criminal lacks any free will, such that they are merely the slave to whichever ideas and feelings they are exposed to or if one would have free will, but only insofar as one could fight off the infection of an idea or feeling in the same way one fights off a cold or flu virus… the literature is murky in that regard.

If I had to venture a guess, though, I would point out that Toltsoy is a proto-Marxist and sympathetic to anarcho-communism. Because of this, I think his cultural influences would lead him to argue that individuals only have free will insofar as they can overcome the influence of capitalist marketing and join something akin to the communist revolution, which would mean that most people are merely slaves to the ideas foisted upon them and only the great men of history can rise above mere servitude. In full disclosure though, Tolstoy was not a fan of revolution, he was too much a fan of Buddhism for that. For example:

“The anarchists are right in everything: in the rejection of the current state of affairs and in the assertion that under contemporary moral conditions there can be nothing worse than governmental violence. However, they are profoundly mistaken in believing that anarchy can be established through a revolution. Anarchy can only be established by the process of people becoming less and less reliant upon governmental authority and by people becoming more and more ashamed of participating in this authority.”

To get back on subject, though, I am convinced that despite Toltsoy’s positive contributions to philosophy and culture, expression theory is riddled with absurdities which could not be reconciled with any ideology other than a naive platonic idealism, one which claims that the only thing that exists are ideas that exist independent of any particular media which may contain said idea… that everything which exists is nothing more than a perception of some ideal divine form beyond direct human apprehension. This is, conceivably, self-consistent, but requires an incredibly complex ontological and metaphysical framework to be constructed around each individual aspect of the human experience which could more elegantly and directly be explained by simply allowing the material things with which one interacts to be real. Instead of reifying (making real) ideas and feelings, instead of making them exist as non-contingent and independent entities, would it not make more sense to apply Occam’s Razor and ask if ideas and feelings are not merely phenomenological experiences contingent upon the sense-perceptions and brain-states of the experiencer?

A (reductive) realist will restrain their ontology to only include that which must necessarily exist and/or observably exists. To such a realist, ideas and emotions are phenomenological events confined to individual minds, derived from stimuli. Meanwhile, a realist will look at actions, incentives, and outcomes with regards to individual actors, or “communities” by way of statistical aggregate. So, a criminal, then, is choosing to commit crime, based on whatever phenomenological event is occurring within her own mind, and expressing nothing. Subsequently, any individual/institution punishing a criminal is not expressing anything, but merely attempting to accomplish an end by physical means (reform, punishment, removal from the general population, sending a market signal that “crime doesn’t pay”…) What little explanative power the expressionists have concerning crime or social stigma being “contagious” can better be accounted for by what amounts to “market signals”.

For clarification, what a signal amounts to is a discrete physical phenomena (such as black and white pixels on the screen) which lend themselves to individuals observing and constructing an idea from that stimuli, which then informs their action (such as decoding the sentence constructed from these pixels and understanding, to some degree, the idea in my head). In the case of market signals, prior events provide stimuli for constructing ideas which inform market functions such as risk-assessment, cost-benefit, and value acquisition.

I didn’t really set out on this blog post to argue with Tolstoy and his unknowing inheritors, though. I am writing this post to bring attention to a language barrier I’ve discovered between myself and a great number of people. I believe this language barrier is derived from a distinctly separate and unaddressed ontology. This post is really just a call for feedback so that I can come to a better understanding of how my audience sees the world and to increase the dialogue between me and my readers. This issue, I think, is surprisingly central to all of the disagreements between statists and anarchists as well as between AnComs and AnCaps, and I therefore feel I need to come to a better understanding of all sides of the issue… if for no other reason than to secure my paradigmatic awareness for future discussions.

TL;DR: This post is short enough that I don’t think it really needs a “too long; didn’t read” section. Instead, I want to take this portion of the post to express my gratitude to those of you readers that have provided support for this project by way of donations, getting things from amazon wish list, using my affiliate links, and sharing this content on social media. I also want to give the readers/listeners an update. A few of you have noticed that the site has been getting a little less attention of late, with a lack of podcast episodes and the timing of blog post releases. I’m honored that you noticed and felt that yo should let me know. I recently switched jobs, moving from a low-level grunt to management. My new workload and schedule precludes being able to write blog posts while at work, and we are still trying to get family life back into a regimen we can survive with the new schedule. Hopefully, but the end of this month we will be operating at full-capacity again. Thank you.

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