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Monday, April 09, 2007

Contracting with Intimates

I have finally made it through the entirety of Ellickson's very interesting YLJ article, Unpacking the Hearth.  [Being away from one's computer for a whole week really helps one get through a "to read" pile!]  To oversimplify radically, Ellickson thinks it is good to keep the law out of the hearth because people in liberal societies are pretty good at self-organization and find optimal living situations in households without too much recourse to legal institutions.  We consort with intimates -- and it is bad to contract with our intimates because it is not efficient and it debases those relationships. 

In truth, I am fundamentally ambivalent about this core thesis.  I have some sympathy with this view -- so don't, for example, argue in my recent UCLA article, Friendship & the Law, for the contractification of the friendship relation.  I also side with the anti-contractarians in the debate about fiduciary duties -- at least when the duty is triggered because of an intimate relationship; I don't think you ought to be able to contract out of special duties that intimate relationships may trigger in the law.  Finally, I fail to endorse David Chambers' proposal for "designated friends" and "reciprocal beneficiary" statutes precisely because they all seem to contractify intimacy in a way I find distasteful (though, I concede, a similar distaste likely renders people averse to my own ways of promoting friendship through law).

Yet, I also have more sympathy with the contractification of intimate life than I let on.  In Friendship & the Law, I fully acknowledge that certain of the legal consequences for friendships that I endorse might incentivize people to "disclaim" friendships and be more careful before allowing intimacy to proceed.  But I like that result: I think, as Aristotle has argued, that many betrayals and disagreements in friendships stem from failures to be clear on just how much we are friends with someone.  If legal duties of friendship will incentivize clarity, friends may suffer less personal hurt; we will know where we stand.   

Last year, in Law & Philosophy, I also argued for the contractification of intimate affairs.  I had the view then that sometimes we want our intimates to show their commitments through formal choices, choices to forego other opportunities (think marriage contracts), choices to agree to do things and bind themselves to promoting our welfare.  Perhaps sometimes we can infer these choices from actions -- and perhaps we'd never want our intimates to act from a mere sense of legal or moral duty; if we need to resort to such contracts, we're no longer intimate.  But at the time I was thinking that no love or friendship can always sustain itself on love or friendship alone: intimacy is fragile and contingent and respecting it (rather than debasing it) requires a self-binding that contracts -- even if implied ones -- are pretty good at expressing and structuring.

I remain ambivalent.

Posted by Ethan Leib on April 9, 2007 at 01:17 PM in Article Spotlight | Permalink


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I can not claim a legal background; yet, I find at the very least that the spirit of Ethan's topic, and Robert Ellickson's abstract and introduction, to be in near congruence with my own armchair opinion, at least on the surface. I am sure I will enjoy Ellickson's full article.

Undoubtedly, our neighbors, like Patrick (and others who echoed similar responses to my own similar thoughts on the matter), find the practice unseemly to formalize a relationship that is of a deeply personal and commonly occurring nature because it supposedly amortizes the relationship. The relationship is not worth less (even thought that is the phrase commonly chosen for declaring a denial of a formalized relationship); instead, they really object to duties and benefits acknowledged at a distinct and appreciable value. Many contend the value of the relationship outweighs any value. That might be possible, but not without employing some degree of irrationality, personal dishonesty, or illusion about ones stake in a relationship. I suspect that is why most people object to, not the value clause proposition of formalized intimacy, but the acknowledgment that irrationality is part of that intimacy. There is always a price to be paid for failure to perform the duties of a relationship, even if the relationship, defined by the the parties, duties, benefits, and consequences involved, is informal and the consequences are not defined in monetary terms. The cost might be bore to the injured in terms of either disillusionment (they come to their senses) or further illusion (looking past transgression), or even amicable resolve under the pretense of consequence (wrongs acknowledged; a price, counseling for instance is agreed to; a tally is credited; and the relationship continues as normal).

The practice of formalizing acquaintances and associates already occurs quite regularly. Why else, but to formalize expectations and consequences, do we form associations, societies, clubs, teams, blog rolls, and the like. It is not merely for the convenience of organization and scheduling, but those might be considerations in declaring and defining our expectations when we enter into those relationships. Those we deliver intimacy to (it may not be given and may not be reciprocal) may not share our bed or our name, but they definitely possess trusted knowledge of us and expectations for us that few others do.

I feel this topic is important for immediate social, religious, economic, otherwise political reasons to develop the framework for declaring, defining, and understanding the expectations and consequences of intimate relationships. It is my opinion that much of the social discord between 'right' and 'left' could be absolved if the legal community developed a rational body of language and procedure for uniform intimacy code. Even if it was not utilized in all cases or all eligible participants on all eligible occasions. Often it should not be formalized; nevertheless, categorical removal of pretense, and answering some taboos would occur and the air would be finally clear, one way or the other, to develop, what I would consider, much more meaningful relationships and the opportunity to finally focus on issues that will prove much more pressing in the very near term about the big Triple-E: energy, environment, and ultimately the economy.

Posted by: Justin | Apr 9, 2007 6:19:39 PM


I’m glad you’re ambivalent, if only because I think the ‘contractification of intimate affairs’ is as unappealing as it is linguistically awkward in sound and formulation. Contractual relations are, ideally, between more or less equal subjects (or between agents meeting minimal desiderata of rational and moral agency), and many of our relations of intimacy are, let’s be frank, of a more hierarchical sort, involving dependencies, vulnerabilities, and duties outside the frame of the contractual picture. This is not unrelated to Annette C. Baier’s reminder that ‘not all morally important relationships can or should be freely chosen.’ Indeed, Baier addressed these issues some time ago, spelling out their implications ‘for the plausibility of contractarian moral theory' in her book Moral Prejudices: Essays on Ethics (1994). To be sure, Baier’s book appeared before T.M. Scanlon’s contractualist reconstrual of personal and political morality in What We Owe to Each Other (1998), but I think much of what she had to say remains important and certainly deserves consideration before lauding the possible benefits of an endeavor to ‘contractify intimacy’ (an unhappy locution, that). (And although she relies on well known differences between Hume and Kant to make her point, I think there are other thinkers and other ways to reach her conclusions). Love and loyalty, sympathy and empathy, even the accumulation of or reliance on trust, elude any strictly contractualist account:
‘As the child approaches adulthood, and as the parents draw nearer to the likely dependency of old age, the trust may approximate much more closely to mutual trust and mutual vulnerability between equals, and they may then make explicit or ever formal agreements about what is to be done in return for what. But no such contractual or quasi-contractual agreement can convert the young child’s trust and the parent’s trustworthiness retrospectively into part of a contractual mutual exchange. At most it can transform what was a continuing relation of mutual trust into a contractual obligation to render some sort of service to one’s parents. The previous parental care could become a moral *reason* for making a contract with parents, but not one received as “consideration” in such a contract. At best there could be a virtual “consideration,” perhaps symbolized by the parents’ formal canceling of any until then outstanding “debt” of gratitude, in return for the rights the contract gives them. But normally whatever grateful return one makes to another is not made in exchange for a “receipt” which is proof against any outstanding “debt.” Only those determined to see every proper moral transaction as an exchange will construe every gift as made in exchange for a receipt. Only such trade fetishists will have any reason to try to construe the appropriate adult response to earlier parental care as part of a virtual contract, or as proper content for an actual contract. As Hume says, contract should not replace “the more generous and noble intercourse of friendship and good offices,” which he construes as a manner of spontaneous service responded to by “return in the same manner.” We can resist this reduction of the more noble responses of gratitude to the fulfilling of contractual obligations if we focus our moral attention on other sorts of trust than trust in contracts.’ Needless to say, Baier has more to say by way of clarifying or maybe even overcoming your ambivalence.

I also think it would help to examine this question in cross-cultural terms as well, in which case I think you’ll find, for good reasons, a paucity of contractual construals of intimate relations, be it in classical Chinese worldviews like Confucianism or Hindu traditions centered on the various meanings and scopes of the notion of dharma (under which this subject would in part fall).

(While the marriage contract might be seen as shoring up commitment and strengthening self-binding mechanisms (or at one time did in fact serve these functions), it seems today to have little or no effect on such things, and for this reason rightly serves more explicit legal and economic ends than it does psychological purposes or ethical principles and values. At any rate, I do not see the commitment I made 27 years ago to my wife in contractualist terms.)

Posted by: Patrick S. O'Donnell | Apr 9, 2007 2:50:37 PM

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