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I have received a very thoughtful rebuttal to one aspect of
my post “Libertarians
and Abortion.” The comment should be
read in its entirety; for brevity, I only include a portion of it here:
Anonymous July 15,
2015 at 10:53 AM
…in your attempt to refute Block
citing unilateral contract law you already presume the candidate counterparty
is A) born and B) possesses some semblance of a cognitive faculty, i.e. is not
a vegetable or an animal. The fifteen-year-old boy finding Hitler on skis in
Bariloche meets both these criteria. The embryo, like the vegetable and the
animal, meets neither.
I don’t presume he is born – why would I presume something
so obviously wrong? I presume he is
human from conception, as does Block; therefore there is no issue here.
I agree with you that unilateral
contracts can apply to counterparties that did not exist at the time the
unilateral contract offer was first extended. But at whatever time a potential
counterparty does step forward and take up the contract, he must exist
_at_that_ time_. He must elect to step forward. He must have the cognitive
ability to understand the terms of the contract and agree to them. An embryo
lacks all this. Thus the unilateral contract is never actually taken up.
There are two aspects to this critique: was the counterparty
born at the time the offer was taken up, and does the counterparty have some
cognitive ability. I have addressed the
first already; the remainder of this post will deal with the second.
First, some
definitions:
Minors and Infants: The terms
“minor” and “infant” are used in law to describe a person who is under the
legal age of an adult. In nearly all cases, an “adult” is a person who is 18 or
older.
Please note, “infants” are included.
Voidable Contract: The general rule
regarding contracting with minors or infants is that such a contract is
voidable by the minor. This rule has been established to protect younger
individuals who may not fully grasp the consequences of certain contracts.
Minors are believed to lack the capacity to contract. Therefore, courts and
statutes provide minors with the ability to exit the contract at the minor’s
discretion. This right does not belong to the other contracting party; it is
only at the discretion of the minor.
Please note: the contract is voidable, not void.
A minor or infant need not have the capacity to contract –
in fact, it is “believed” that they do not.
Yet, they can contract! This is
the entire point about “voidable”
contracts. How could the minor or infant
void it if he had capacity when he
contracted? On what basis?
To extend the point further:
A person who is mentally
incompetent (non compos mentis) lacks
the capacity to make a contract. The
cause of the mental incompetency is immaterial.
It can be the result of a mental illness, excessive use of drugs or
alcohol, a stroke, etc. If the person
does not have the mental capacity to understand that a contract is being made
or the general nature of the contract, the
person lacks contractual capacity. A
person who is mentally incompetent may ordinarily avoid a contract in the same
manner as a minor. If the person
later becomes competent, he can ratify or avoid the contract at that time. (Emphasis
added)
A mentally incompetent person certainly does not have the
capacity to contract, yet the contract is both enforceable by the mentally
incompetent party and only voidable by the mentally incompetent party. This should pretty much cover the entire
spectrum of the cognitive abilities of any human from conception on.
Back to the anonymous commenter:
It is an entirely different and
entirely arbitrary thing to claim a collection of biological cells with no
cognitive ability whatsoever necessarily has a particular set of values,
understands the contract terms and conditions, and is necessarily agreeing to
them.
Of or relating to cognition;
concerned with the act or process of knowing, perceiving, etc. 2. Of or
relating to the mental processes of perception, memory, judgment, and
reasoning, as contrasted with emotional and volitional processes.
“…no cognitive ability whatsoever….” Given this definition, the same can be said
about all infants and many minors. Yet,
we see from the above (and by the fact that such contracts are voidable, not
void) that infants and minors can contract.
From conception, the unborn child – like any minor – can contract;
capacity and competence does not change the enforceability against the
counterparty, it only preserves rights to the minor / infant / unborn child.
Thank you for the serious response – a complete article no less. To keep the conversation moving I'll stipulate the zygote is legally equivalent to a minor for contracting purposes. I'll also stipulate that cognitive ability establishing capacity is only pertinent to the question of voidability of a contract.
ReplyDeleteEven so, you fail to address the matter of agreement, which any contract including unilateral contracts and contracts with minors must obtain as a condition of execution.
Definition of “contract”: “An agreement creating obligations enforceable by law. The basic elements of a contract are mutual assent, consideration, capacity, and legality.”
Definition of “mutual assent”: “Agreement by both parties to a contract. Mutual assent must be proven objectively, and is often established by showing an offer and acceptance”
Obviously bona fide assent must involve some volitional act that is distinguishable from a different act signaling dissent. Mere existence of embryonic tissue is not a volitional act. So how and where does the embryo indicate acceptance as opposed to refusal?
Hopefully you agree contracts cannot be imposed upon any parties, including the mentally incompetent or minors, who have no ability to signal acceptance or refusal. That would be no contract. That would be just doing whatever you want to do to someone and calling it a “contract.”
Restating my previous points on this matter:
“Unilateral contract” does not mean random parties who did not agree can be presumed to agree by virtue of their mere physical presence. The debunking of “implied consent” as a valid justification of government authority proves this. Unilateral contract simply means the contract is open-ended as to counterparty. It still requires a valid counterparty to agree. A physiological progression of growth in a cluster of embryonic cells does not constitute agreement to a contract.
Plenty of people have been known to utter the phrase, “I wish I had never been born,” and mean it. Especially, I’m guessing, ones borne of mothers who were incapable of raising their children properly but were stopped from obtaining an abortion. What such people are saying is if they had known how impoverished their situation was and how miserably they would suffer they _would_not_have_chosen_ to take up the mother’s unilateral contract offer. Demonstrating any hypothesized “assent of the embryo” is just that – hypothesized, not actual.
Anon: Definition of “contract”: “An agreement creating obligations enforceable by law. The basic elements of a contract are mutual assent, consideration, capacity, and legality.”
DeleteBM: None of these (except legality as in my case the object of the contract is legal) exist when the counterparty is a minor, and certainly not an infant – yet the contract is valid as long as the minor does not void it. Is it possible that an already “void” contract somehow remains in a “voidable” condition?
Anon: Definition of “mutual assent”: “Agreement by both parties to a contract. Mutual assent must be proven objectively, and is often established by showing an offer and acceptance” Obviously bona fide assent must involve some volitional act that is distinguishable from a different act signaling dissent.
BM: There is no bona fide assent – it is a minor, infant, or unborn child. Yet the contract isn’t void, it is voidable. Why bother with it being “voidable” if it is already “void”?
Anon: Hopefully you agree contracts cannot be imposed upon any parties, including the mentally incompetent or minors, who have no ability to signal acceptance or refusal.
BM: Why bring this up? I never have. My argument has nothing to do with imposing a contract.
Anon: Plenty of people have been known to utter the phrase, “I wish I had never been born,” and mean it.
BM: And plenty of people regret many contracts that they had previously entered into. That does not make the contract invalid.
"BM: And plenty of people regret many contracts that they had previously entered into. That does not make the contract invalid…the contract isn’t void, it is voidable. Why bother with it being ‘voidable’ if it is already ‘void’?”
DeleteAll that is true after a contract has actually been "entered into." How was the contract with an embryo ever entered into without any agreement from the embryo executing it? An infinite number of "contracts" binding some embryo or hapless young lad to onerous terms are possible if, as you hold, counterparties who are minors need not agree to contracts for them to be considered executed.
Mutual agreement is definitional for what a contract fundamentally is. While diminished mental capacity might not preclude contract formation, this does not mean lack of agreement doesn’t preclude contract formation. By claiming so, you depart the realm of contract and move into sanctioning one-way imposition of arbitrary terms onto minors.
Imagine a teenager awakens from a tonsillectomy to discover one eye, one lung, and one kidney have all been removed. The teenager, aghast, asks the doctor what happened. The doctor replies, “I removed and sold off your organs, per our contract.”
“What contract!” demands the teenager.
The doctor replies, “The unilateral one I made up while you were under anesthesia. Since you are a minor, and I read Bionic Mosquito, I know your agreement to unilateral contracts is not required for them to be executed.”
“I now void that contract!” screams the teenager.
“Very well,” replies the doctor, “It is henceforth voided. But per BM, previously it was not void. Therefore its enforcement during that time period was legitimate and stands.”
Freedom in the future for a counterparty to void a contract is _not_ the same as failure to enter into a contract in the first place. In the period between putative execution and voiding, the contract is enforceable. In fact, your argument relies on this fact to justify use of force to stop a mother from aborting. Even if the child later resents his birth and emphatically voids the “contract,” an ineffectual gesture, because the “contract” has already been enforced against his wishes, to his detriment, with no allowance for redress.
"How was the contract with an embryo ever entered into without any agreement from the embryo executing it?"
DeleteAn offer was made by the mother - in my example, apartment for rent. The embryo took her up on it. Proof enough.
Beyond this, we are talking in circles.
The notion of evictionism is based on the fact the foetus is a guest and that privilege can be revoked at any time. By the same token so too the taking care of a child - it's a privilege not a right. The law has made the artificial minimum age of abandonment at age 15 but some may note a 15 year olds may not automatically have the maturity to take care of themselves properly. Nonetheless the law already allows adults to not be obliged to take care of other peoples' children even if it leads to death.
ReplyDelete"The notion of evictionism is based on the fact the foetus is a guest and that privilege can be revoked at any time."
DeleteSo if I invite you to my house, you get incapacitated for any reason while at my house, and even though I brought you there, I can kill you if you don't leave immediately?
Fetus: a human being or animal in the later stages of development before it is born.
And you seriously think it's ok for a parent, who brought the child into the world, that the parent has the right to decide to abandon him/her even unto death, cause he/she doesn't feel like caring for them anymore?
Seriously?
Yes I know I am committing the worst of sins by saying this, but on these issues, Rothbard was wrong.
DeleteThe notion of evictionism, while being the correct libertarian position, is incomplete. Evictionism only applies after personhood is homesteaded by the fetus, sometime after the 20th week of gestation.
DeleteSo much of this is such nonsense.
ReplyDeleteSeriously.
Zygote? We aren't talking about a series of unorganized cells. We are talking about a human being. Who is no different than any other human, apart from being smaller. With the exact makeup of everyone who is writing here. Just smaller. But, everyone writing here was in the exact form earlier in their life.
I understand de-humanising a person (zygote) is an important part of many peoples arguments, but trying to de-humanize a person doesn't give it legitimacy, any more than trying to de-humanize Iraqis, Syrians, Muslims, Japanese, jews, blacks, and on.
Define your terms. And stick to them.
Zygote: In multicellular organisms, the zygote is the earliest developmental stage. In single-celled organisms, the zygote can divide asexually by mitosis to produce identical offspring.
Certainly doesn't sound like a human does it?
We are talking about humans. Of course we are, otherwise this story, http://www.vox.com/2015/7/14/8964513/planned-parenthood-aborted-fetuses, wouldn't be a story.
Do we value a humans life or not?
Do we scream about killing people in wars, pontificate about the NAP, and act like abortion doesn't kill a human?
This is the issue.
I like to think that living in a voluntary society would be a great thing, and I know it would be, but I have second thoughts when I read Libertarians say things like," abortion on demand is a settled issue with Libertarians" (how very Al Gorish) and "the real problem for Libertarians is the matter of children".
What?
All of us were children at one time. Children are how humanity continues. Children are as natural to human life as natural gets. And they are a problem in a Libertarian society? Seriously?
Let's stop the arguing of who can contract and when and blah blah. The issue, is this a human life, is really what matters.
Establish that first.
If it isn't, none of these arguments mean anything.
If it is, then let's argue about why it's ok to kill this human. And if it's ok, let's argue why we can't just kill any human.
For most of history the notion of child rights were unknown. The worst and deadliest jobs were staffed by children with zilch safety requirements.
Delete@ Joshua Bennett
DeleteYou are using three different concepts as if they were one and the same, when in fact they mean three different things. These concepts are human, human being, and person. You start with "human" and slide into "person." A zygote is certainly human (an adjective), as is a sperm. It is not a person, though. Personhood has to be homesteaded. A fetus homesteads personhood when it develops certain parts of the brain (the certain parts to be determined by science).