One-Sided Contracts

A Twitter friend facetiously raised the question today of whether the Constitution is America’s “Terms of Service,” following up with “[Expletive]. I knew I should have read the fine print instead of quick scrolling down to the bottom and hitting ‘Agree.'”

Soon after, I read an account of a lecture in which Doc Searles referred to the rules govering most online experiences — EULA agreements, placement of cookies, and other one-sided relationships — as “contracts of adhesion.” In legal terminology, a contract of adhesion is any contract drafted entirely by one party in an unequal power relationship, which the other party is “free” to take or leave — but in practice really can’t afford to leave. Pretty much any “standard contract” or boilerplate used by an entire industry is a contract of adhesion.

Our relations with the powerful institutions that control our lives are largely governed by contracts of adhesion. Instead of individually negotiated contracts, whose terms we play a role in defining, we’re faced — in Searles’s words — with “contracts we never made,” that “one side built and the other side was required to accept.”

This observation applies, obviously, to the “Social Contract” so often cited versus libertarianism. By continuing to reside on the state’s territory, governed by laws created pursuant to a “contract” already in being between the people living here — so the argument goes — we consent to the state’s authority. This is an exercise in question-begging, assuming what is to be proved (the state’s right to issue such an ultimatum in the first place). If I walked into your living room and said “by continuing to reside here, you agree to comply with my rules,” you’d notice that problematic unstated premise right off the bat.

But it also applies to our relations with the large “private” institutions that govern our daily lives. As Roderick Long points out (“How Inequality Shapes Our Lives,” Austro-Athenian Empire, September 17, 2010)  with regard to a rental agreement:

“Did you write it? Of course not. Did you and your landlord write it together? Again, of course not. It was written by your landlord (or by your landlord’s lawyer), and is filled with far more stipulations of your obligations to her than of her obligations to you. It may even contain such ominously sweeping language as ‘lessee agrees to abide by all such additional instructions and regulations as the lessor may from time to time provide’ (which, if taken literally, would be not far shy of a slavery contract). If you’re late in paying your rent, can the landlord assess a punitive fee? You betcha. By contrast, if she’s late in fixing the toilet, can you withhold a portion of the rent? Just try it.”

The same is true of workplace relations: “[I]f you try inventing new obligations for [your employer] as she does for you, I predict you will be, shall we say, disappointed.” And your utility providers can much more easily dock you for late payment than you can claim a refund for service interruption. This principle permeates every part of our lives governed by large institutions. “They’re cases in which some people are systematically empowered to dictate the terms on which other people live, work, and trade.”

The right wing of the free market movement sees nothing problematic in this. It takes such contracts at face value, treating them as genuine examples of the free, uncoerced contracts between equals so dear to libertarianism. That every aspect of our lives is dominated by giant, powerful, hierarchical institutions is just how things turned out in the “free market;” such institutions are more efficient, see?

Those of us on the left who advocate freed markets beg to differ. The power of these giant authoritarian institutions, whether nominally “private” or not, didn’t “just happen.” It results from a rigged game, an unholy corporatist alliance between big business and the state dating back 150 years or more. Our society and economy came to be dominated by an interlocking directorate of government and corporate oligarchies through the deliberate use of power.

As libertarian blogger “thoreau” says of homeowners associations at Unqualified Offerings (“wHOA,” June 19, 2012), “We certainly don’t need libertarianism if we’re just looking for a way to justify the fact that somebody is telling you what sort of flowers to plant in your yard.”

The whole point of libertarianism, at least a libertarianism that appeals to actual human beings who want more liberty in their lives, is to increase the autonomy of individuals against arbitrary rules made by institutions of all kinds. As anarchist artist Shane Thayer says, “I don’t want a society that ‘liberates’ itself by replacing the flag on the police uniform with a company logo.”

We left-wing market anarchists want to level out these unequal power relationships, dissolving concentrations of power both public and nominally “private,” so that freedom of contract becomes reality rather than mockery and smokescreen. We see the state, in alliance with privileged classes and plutocratic interests, as the root cause of these asymmetries. The state’s subsidies, artificial property rights and regulatory cartels midwifed the corporate economy in the first place. It has since grown into an entire interlocking eco-system in which even nominally “private” and “voluntary” parts are fundamentally coercive.

By striking at the root of this power — coercion — we anarchists want to destroy the state-corporate complex.

Translations for this article:

Anarchy and Democracy
Fighting Fascism
Markets Not Capitalism
The Anatomy of Escape
Organization Theory