Question of the day
Published by Ravikiran Rao December 1st, 2003 in LawIn a free society, which of the following contracts should be enforceable?
“If the contractee of the first part becomes so totally incapacitated that he can justifiably be called a living vegetable, the contractee of the second part (Dr…) agrees to administer a poison to him so as to cause his death”
“If either party to this nuptial contract (also known as ‘marriage’) commits adultery, he or she agrees to be stoned to death by the other party ”
“If the contracting party fails to repay his debt under the terms set out in this document, he agrees to work as the other party’s slave for the rest of his life”
Readers will recognise the first contract as a living will, the second as a provision of the Shariat law restated as a term of a nuptial contract and the third is a loan agreement which will turn you into a bonded labourer if you fail to repay.
We generally hold that a living will should be respected, but most courts in civilized societies will refuse to uphold contracts with such inhumane clauses as 2) or 3). My gut feeling is the same, but my question is, under what fundamental principle can you uphold 1) but not 2) or 3)?
I’m hoping you have an answer.. I can almost sense it, but my braincells have already done all the ticking over they can manage in a day.
Nope I don’t have an answer. My gut feeling will has no answer to my logical mind which asks “If you recognise an individual’s right to end his own life, will you also recognise his right to sell himself to slavery?”
Clause 3) is probably not upheld as it historically led to enforcement of those (similar) clauses without the offending party understanding them in the first place. They were used in deceit.
Clause 2) is probably not upheld as the law provides other approaches to the same problem.
Ultimately a line must be drawn at some stage. The law makers have to decide what constitutes as ‘inhuman’ and what as not so. Laws can rarely be black and white. That is why a cold blooded murder and a similar crime maybe done on the spur of the moment are viewed differently.
I reckon that it [the fundamental principle] is tied to cultural mores. In Japan, seppuku would have been considered a honorable course of action. By extension, (1) would be considered to be “death with honour”. By the same token, I presume that (3) would be considered to be “living with dishonour”. [Interestingly enough, (1) and (3) are recognized as rights in the Mahabharata.]
Note how the damage is self-inflicted in 1 and 3 while in 2 it is inflicted by an aggrieved party. Anya has rightly indicated that there are other recognized courses of action for (2).
Ravikiran -
On your question “If you recognise an individual’s right to end his own life, will you also recognise his right to sell himself to slavery?”
There is more to it than what you have put in words above. In case of (1), it is not only “if you recognize an individual’s right to end his life”. It is “if you recognize an individual’s right to end his life when his life has become equivalent to that of a living vegetable”.
So (3) stands apart because “becoming a living vegetable” is *probably* really bad as compared to “not repaying debt”!
So the principle is not just about “what you are entitled to do with your life”. It is about “what you are entitled to do with your life in certain special circumstances”.
Just my 2 cents.. What do you think?
what makes you presuppose a fundamental principle underlying the cases? Just the fact that all 3 are contracts?
I can only comeup with a polemical argument: The cannons of the law make 2) and 3) illegal…and 1) too in certain judicial systems. And I don’t see a reason why a fundamental principle should underly the rather disparate cannons that ‘cover’ each of the cases.
Philosophically, all three contracts should be legal and binding. However, I feel moral revulsion at contracts (2) and (3). I sense coercion in the act of signing contracts (2) and (3). In most muslim countries, getting married is not a free choice (especially for the woman). Further, without well functioning markets for credit, people often do not have choices about the terms under which they acquire debt - this leads to terms and conditions that can be properly described as horrific.
This is why, even (especially) in free countries, contracts (2) and (3) will never be enforced, because no-one will ever believe that the contract was signed by someone in their right mind, who made a free choice.
contract 1 would be enforceable under anarcap law, but not 2 and 3 for the simple reason that anarcap law would not give anyone the ability to barter away his free will. read murray rothbard’s ‘ethics of liberty’ for more.
Problems with Sauvik’s argument:
1) *Philosophical*: Just as we recognize that that the right to your own life is meaningless without the right to end it, shouldn’t we recognize that the right to free will ought to include the right to give up that freedom?
2) *Practical*: This will involve a judge poring over the terms of the contract to determine whether the contractee’s free will has in fact been violated. The terms need not be stated as explicitly as I have stated them, but I am sure a clever lawyer can draw up a contract which sells a person to slavery without actually mentioning the term slavery.
3) *Practical*: There is a slippery slope involved here. If the law can void such contracts, why can’t it ban alcohol and drugs on the ground that a person may not voluntarily take action that will result in a (temporary perhaps, but still) loss of free will?
Thanks for great info