08 December 2016

The Irrepressible Kenny Ching

Earlier this year former Regent Law School colleague Kenny Ching published a new piece in the Marquette Law Review: Liberalism's Fine Print: Boilerplate's Allusion to Human Nature (download here). You can read my comments on his earlier draft here.

Boilerplate are the rarely-read and seemingly interminable contractual terms presented to consumers without an opportunity for negotiation. For example, raise your hand if you've ever read the "terms and conditions" provided in connection with software or an app that you've downloaded. A print-out might run over a dozen pages and virtually no one reads them, and the website or app developer knows that. As Ching explains,
"Boilerplate" refers to contracts of adhesion in which there is a significant disparity in bargaining power between the parties, the offeror offers terms on a "take it or leave it" basis, and the contract is formed after little or no negotiation.
Whatever contracts might really be, the myth that carries them along as a central tool of social ordering in the modern world is that contracts represent the will of the parties. Yet boilerplate seems by its unnegotiated and unread nature to lie outside this justifying account for the legitimacy of contracts.

Boilerplate is thus the subject of interminable debate in the legal academy (see my posts herehere, and here for some examples). To frame the argument: Does the pervasive phenomenon of boilerplate contracts violate the notion of individual freedom we take to characterize modernity? Or is boilerplate a means of maximizing consumer welfare which we also take to characterize modernity?

Kenny does a deft job of describing the opposing and oscillating poles of the political self-understanding of modernity, Liberalism. On the one hand,
[LIberal] Libertarians believe people have natural rights such as life, liberty, property, and freedom of thought and contract.
On the other hand,
[Liberal] Progressives believe that rights are created and defined by society; rights are to limited or extended based on the benefit provided to society as a whole. 
With the demise of the Medieval synthesis ostensibly grounded in a transcendent reality, modern folks (at least in the West) have dashed from one pole--freedom or utility--to the other as their self and group interests have collided with an excess of the deforming effects of the other pole. (Kenny's discussion of the continuing conflict between the freedom and utility bears some resemblance to my recent discussion of the conflict between two competing accounts of justice: subjective rights vs. objective right-order. Check herehere, and here. But we're not talking about quite the same issue.)

Of the contemporary critics of modernity and Liberalism (in both of its Libertarian and Progressive flavors) Alasdair MacIntyre stands out. Ching makes use of MacIntyre's After Virtue to describe Liberalism's failure to give rational grounds for its moral judgments. In other words, Liberalism cannot adjudicate between its Libertarian and Progressive understandings of freedom and efficiency because each is simply a given of the Liberal project. Yet, this situation presents no fundamental problem from the internal Liberal perspective because Liberalism eschews any account of human nature and thus consciously (or at least semi-consciously) deprives itself of any rational ground by which to order the relative importance of these opposing poles. In other words, the race between Libertarian and Progressive evaluations of boilerplate will never end because there's no finish line.

Can we call such a state of affairs "rational." Drawing from After Virtue Ching believes the answer is yes. But After Virtue isn't MacIntyre's final word on the rationality of the Liberal tradition. Nor is MacIntyre's subsequent Whose Justice? Which Rationality? the last word, either. What might cause an irreparable rupture in the Liberal tradition remains to be seen but its bracketing of questions of human nature doesn't mean there is no such thing as human nature which will at some point cause the screw to turn again.

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