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To: Shalom Israel

Regarding your first paragraph: That's what's in dispute. Even if you and I totally agreed the paragraph was correct, it would still be in dispute because not everyone believes it to be correct.

Your first paragraph is fine as a statement on your part but it doesn't end any dispute as far as I can see. I see no reason for anyone else to believe it is a true statement as opposed to something you erroniously (from another's view) believe to be true. (Please note that in the preceding I did not dispute your statement. I'm not saying I never will, just that I did not then.)

Now on to something else:

"The only one who can impose limitations on a man's rights is the man himself. He does that by making contracts, whether express or implied." "In our dealings with others we make implicit contracts constantly. "

In other words:

A Implied Contract is an agreement among people, though it’s not necessarily formal (and may even be hypothetical, reached through a sort of consensus). In short, it’s an agreement about what rules to follow in pursuit of whatever goals the people have in mind that they wish to pursue jointly.


331 posted on 02/22/2006 9:11:08 PM PST by KrisKrinkle
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To: KrisKrinkle
Regarding your first paragraph: That's what's in dispute. Even if you and I totally agreed the paragraph was correct, it would still be in dispute because not everyone believes it to be correct.

True: some people are quite certain they have the right to impose their will on my person or property. If it's only one person, I'll defend myself, and that's that. If it's many, many people, then I am ultimately defenceless against them, and must simply cope in one way or another. In fact, that's precisely the situation today.

They're all wrong, though. I can demonstrate it from scripture, from reason, and from utilitarian grounds. They're as wrong as the majority that supported slavery, or witch-burning, or [insert here].

Your first paragraph is fine as a statement on your part but it doesn't end any dispute as far as I can see.

You are quite right: ultimately, all I can do is try and convince tpaine. If my statement isn't utterly self-evident, then I know lots of things about tpaine--but I'm powerless to change them. By my own principles, I cannot change his mind by force. That's why libertarian thinking isn't, and probably never will be, widely embraced. But to any reasonable person, it should be quite clear how right my statement is.

A Implied Contract is an agreement among people, though it’s not necessarily formal (and may even be hypothetical, reached through a sort of consensus).

False. An "implied" contract is actually "implied" by something--namely, the parties' own voluntary words and actions. There's no way I can bind you by an "implicit contract" against your will. It's in no way analogous to a "social contract", which binds me from birth through no action of mine.

 

 

 

 

 

PS:

I'll point out, though, that if you try hard you can come up with thorny questions concerning such contracts. For example, a foreigner might invite you into his house, where you might inadvertantly do something interpreted in his culture as a death threat, upon which he kills you in self defense. I call that sort of thing an "unfortunate misunderstanding," but the correct resolution of such incidents isn't obvious on its face.

Even more interestingly, law has a concept of "quasi" contracts, which are like implied contracts except that there is only one party to them. For example, if a doctor rescues an unconscious accident victim, the victim didn't agree to a contract for services, but the courts will uphold the doctor's right to charge a fee for services anyway. Let me hasten to add, I don't agree with this concept, and find quasi-contracts to be highly problematic. My gut says sometimes the doctor should be paid, but sometimes he should be sued. For example, perhaps he's interfering in a suicide...

This opens an interesting area for continued research, however! Here's a better example: you walk up to my front door and ring the bell; I blow you away. Is this proper? One would argue it isn't: people have front doors and doorbells precisely for strangers' use in requesting entry. In legal terms today, this could be regarded as a "quasi" contract, since two parties never actually met and negotiated terms.

I don't have a formal answer to that hypothetical, but I reject the "one-sided contract" theory. In some sense, the front door represents a contract lying on the sidewalk, signed by the landowner. The visitor, by entering the property, effectively signs that contract. It gives him the right to go knock on the door, but not to borrow the lawn mower.

Culture has a role in this, which would cause tpaine, say, to mistake it for a "social contract". He would say that I'm bound by a social contract to let anyone ring my doorbell who wants to. Culture isn't a "social contract". Culture handles the job of providing a common understanding: it's by virtue of culture that the visitor knows the terms of this invisible contract. And it's by virtue of culture that the homeowner knows what to expect when he leaves his porch light on on Halloween.

The difference is that culture doesn't have binding force. It's purely a matter of communication. If I don't want you knocking on my door, I'll put a gate at the end of my sidewalk with a sign saying, "Absolutely no visitors." I'll do it because I know what people will do if I don't, thanks to the communication medium of culture. I can refuse to enter into any of the implied contracts floating out there, but I must communicate the fact clearly lest I find myself in one of those "unfortunate misunderstandings" that can be so invonvenient.

The distinction between a social contract and an implied contract is sharp and clear, but folks are unused to thinking in terms of contract law because our legal system doesn't really respect it--thanks in large part to O. W. Holmes himself. I invite you to consider this distinction, and see how cleanly it resolves so many seemingly difficult problems today.

333 posted on 02/23/2006 4:38:19 AM PST by Shalom Israel (Pray for the peace of Jerusalem.)
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