03 February 2015

Boilerplate Contracts, Alasdair MacIntyre, and Human Nature

Colleague Kenny Ching has posted a rough draft of an article that you can download here titled Liberalism's Fine Print: Boilerplate's Allusions to Human Nature. This is Kenny's second foray in this area of contract law. You can read my comments about his first here.

"Boilerplate" is the colloquial term applied to contracts that are not subject to negotiation. Their terms are fixed and counter-parties takes the goods or services offered on a take-it-or-leave-it basis. The "Accept" boxes on various website that we click on a nearly-weekly basis are prime examples of boilerplate. No one reads the terms and, if a consumer did read them and found something objectionable, there's no way to negotiate a change.

Boilerplate has been the subject of scholarly debate for at least the past 75 years. What does it mean to agree to a contract whose terms you never read and, what's more, the other party knows you never read? Is such mutually blind assent the stuff of a legally enforceable contract?

Point two. "Crunchy" conservative types are fond of pointing out the foibles of the modern Liberal project (whether in its Libertarian or Progressive forms) as evidence of its incoherence. Some might even count me among those who conclude that the Liberal project ultimately misguided. Alasdair MacIntyre is √©minence grise of the Traditional assault on Liberalism. Liberalism is, he concludes, irrational, and we know it to be so because of its valorization of but consistent equivocation between the "goods" of autonomy and utility. In turn, the inability of Liberalism to define "the Good" reflects its impoverished view of human nature. Indeed, many contemporary liberals deny there is such a thing as human "nature."

Yet, as Kenny argues this architectonic critique of Liberalism does not account for the conflicting approaches to boilerplate. He aptly notes that the battles over the legitimacy of boilerplate might be better explained as disagreements within the Liberal poles of autonomy and utility. In other words Libertarian support of boilerplate and Progressive suspicion do not reveal Liberalism's incoherence on ends but mere disagreement about means. Liberalism lives!

A thought. Ching may be right but he may also be under-reading the anthropological underpinnings of the conflicts over boilerplate. The failure of both contemporary Libertarians and Progressives to address the concept of human nature head-on suggests their understandings may be entirely inconsistent. And, as I have argued, without a thick anthropology, we are doomed to deadening cycles of irreconcilable debate over a host of issues.

Yet even if the only effect of  Ching's article consists in getting Liberals to talk openly about human nature, it will have been a grand success.

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