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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Intellectual Property?

It should be no surprise that the issue of property should become so central on an anarchist philosopher’s blog; nearly every opposing argument to anarchy I have encountered hinges on property rights or one’s fear that their property should become insecure.

It also should be no surprise that intellectual property should come up so quickly; copyright law has been a cultural mainstay sine the Church and publishing companies had decided to try and control society’s intellectual pursuits several centuries ago. IP is a subject almost as involved and arguably more convoluted than property at large, so I’m going to focus on one specific point concerning IP today and add to it more later on. I would have to, as property rights and IP intersect frequently with issues such as innovation and privacy. Some more definitions, some metaphysics, and one not-so-world-shaking claim are all I can manage this week.

What is intellectual property? Despite being a centuries-old cultural mainstay, IP law is very nebulous and unhelpful to rational inquiry. Only slightly more useful is the cultural and academic narrative concerning “stealing ideas” and channels by which one gives credit, which are somewhat informed by IP laws. Instead of teasing ideas out of these frustratingly ad-hoc narratives, we should look at the term and the high-altitude basics with fresh eyes.

So, “intellectual”. I tend to avoid metaphysics on my blog, instead reserving such exercises for in-person discussions and my still-unpublished book. I am essentially a substance pluralist, which means I am not beholden to the materialist doctrine. Today, I am going to be using terms such as “ideas”, “mental/intellectual substance”, “mind” and the like. While these terms sound like some sort of Cartesian dualism (to which I do not ascribe), I am aware that, in some form or another, there are materialist parallels to each of these concepts. For the sake of our discussion, we will have to assume that people possess minds and that the discussion of intellectual matters are concerned primarily with the operation of minds. I don’t think this is too far a stretch for my readers.

Ideas are immaterial. Where apples or rocks exist independent from observers and act on their own (producing gravity, growing, decaying, interacting with their environment), ideas are contingent upon minds (or, rather a medium which can contain the idea, such as a mind). If there is an idea in my mind, it exists solely within my mind. Even as I write these words, the idea I am attempting to express resides solely within my mind. It is possible, though infinitely unlikely, that someone, at some point in time, may have an idea that is identical to the one I am expressing now, but it would not be the same idea, nor would we ever have a method by which to determine that it is identical.

This is due to the phenomenological barrier between our rational minds and the world around them. I am currently experiencing having an idea and attempting to express that idea in precise linguistic terms. I am expressing it in this way, hoping that by reading these words you, the reader, will be able to use this expression to construct a similar enough idea such that we will have a common language for expression of ideas. You can never see or experience the idea in my head, but you can attempt to construct a facsimile idea that is close enough.

In short, I cannot “give” or “take” and idea from you, I can only strive to provide you with the necessary components of an idea I wish to share. If I, for whatever reason, wish to prevent you from constructing a particular idea, I can attempt to avoid expressing hints at that idea. This is the basis of a secret. If I have an idea in my mind and wish no-one else to be aware of it, I can refrain from expressing it and even engage in behaviors that may prevent others from becoming aware of such an idea. For instance, Bruce Wayne can pretend to be a playboy billionaire too busy hanging out with loose women to be beating criminals in the dead of night, thus keeping his secret of being Batman.

Bruce Wayne is an excellent example, as he effectively demonstrates the nature of secrets. For example, the common inhabitants of Gotham have no idea that Bruce Wayne is Batman, primarily because they are ignorant of the requisite evidence to form such an idea. However, every iteration of Bruce Wayne is eventually exposed as Batman to someone else (Alfred, Dick Clark, Catwoman, Bane, etc.). The moment that a copy of the idea that Bruce Wayne is Batman is created, the secret is out. Such a secret inevitably spreads at a geometric rate, sparking the creation of duplicate ideas in fresh minds from the initial host, spreading like a virus and taking on a new form with each duplication.

If Alfred discovers Bruce Wayne is Batman, can Bruce justifiably kill or coerce Alfred in order to prevent such a spread of information? One may make a convoluted case that Alfred, by knowing something that could put Bruce in danger, is aggressing against him… but I don’t have time to waste on such absurdities. All Alfred has done is construct an idea which serves to inform his understanding of the world. The material equivalent would be Bruce creating a tool, say an ax, in order to make woodcutting easier, and Alfred, seeing the utility of such a tool, fashions an ax himself to cut his own wood. It is possible that Alfred’s ax may put Bruce at risk,(Alfred may snap, and murder Bruce in his sleep or a criminal may acquire the ax and use it in the same manner), but the mere fact that Alfred possesses a tool does not threaten Bruce. The same applies to Catwoman, Talia and Ra’s AL Ghul, Bane, etc; regardless of who knows the alleged secret, the only thing that matters (morally speaking) is what they do with that knowledge.

Now that we’ve taken most of our time exploring the term “intellectual”, let’s briefly turn our attention to “property”. My last two posts (here and here) explored the basics of property already. We don’t have to go much further than we already have. I got the least amount of feedback to-date concerning these posts, so I have had very little opportunity to change my mind.

Two key requirements I have laid out for something to be considered property are thus: the alleged “property must be a discrete and identifiable object, and it must be transmissible. Given what we have already covered concerning intellectual matters, it becomes readily apparent that an idea is not really discrete and identifiable. Whether it be an immaterial entity within one’s mind, a specific arrangement of cells and chemicals in a brain, or a series of magnetic charges on a metal plate, an idea is difficult (to the degree of being an impossibility) to identify as a discrete object. Additionally, an idea, in any of the forms I have just listed, cannot really be moved from one medium to another; they are actually merely duplicated with varying degrees of fidelity. Because “intellectual” things cannot meet the necessary conditions for property, “intellectual property” is an oxymoron.

“But what about books? You can own, trade, identify, and move books.” Books are obviously property; they meet each of the necessary and sufficient conditions we have already covered. However, there is a delineation between the material book itself and whatever ideas the book “contains”. The paper, ink, glue, etc. are discrete and identifiable, but the ideas that can be constructed by way of the material object only exist insofar as the mind is able to assemble ideas from its interaction with the material object. When one buys a book, one isn’t buying ideas. One, ostensibly, purchases a book with the intent of receiving fresh inspiration for one’s mind, but all they purchase is ink-stained paper.

“What about ebooks or software?” Legal fictions aside, we can look at identifiable, concrete actions and determine what is taking place. When one creates an ebook or piece of software, they are devising a particular series of on/off signals which are comparable to the phonetic and tonal sounds one makes when one performs a speech or holds a conversation. One can duplicate that series of signals with comparative ease, courtesy of modern computers. However, in order to create a duplicate, one must first have access to an existing instance of that arrangement of signals.

Ultimately, the (ostensibly) easiest method of gaining access to that series of signals is to pay the creator or host for such access. Things like DRM are typically implemented with the intent of making alternative methods of access cost-prohibitive. In the case of software, limiting functionality to people and charging for a password to increase functionality is still a common practice today, even if it is somewhat hidden behind the user interface. A material comparison would be a factory producing fully functional and free cars with locked doors. The easiest way (in this case) to gain access to the car and drive it away would be to pay the factory owner for the key to unlock the door.

Based on these behaviors, I would say that electronic media or, rather, the data stored on those media, are not property. They are certainly intellectual, which disqualifies them from being property. Instead, when one “purchases” an ebook, software, or whatever, one is paying for the service of allowing access to an extant copy in order to duplicate it, for the service of providing a password which grants access to functionality, or some comparable service. If this seems contrary to one’s intuition, I suggest one investigate how exactly services like Netflix operate.

The most informative part of this discussion, though, is a matter of the metaphysical and physical impossibility of theft. When something is stolen from its owner, the owner looses access to and control over the stolen item; that is the definitive quality of theft. Ideas (and data, a subset of ideas)can be copied, modified, and even destroyed, but they cannot be stolen. If it can’t be stolen, it isn’t property.

TL;DR: Metaphysics and science alike will admit that the phenomena of ideas are immaterial (or, at least, have not yet found the specific material components and nature of ideas). Both will also bolster the claim that ideas are not moved about in the same manner as material objects, but are mind-specific and merely copied from medium to medium. Based on our current definition of property and these attributes of intellectual things, ideas cannot be property. Therefore, intellectual property is an oxymoron and ideas cannot be stolen. Nor, despite laws to the contrary, can one justifiably initiate aggression against anyone else over an idea they have, not even Batman

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