Volenti goes to market

Journal of Ethics

Volumn 10, Issue 1-2, 2006, Pages 53-74

  Goodin, Robert E ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

Consent; Duress; Joel Feinberg; Markets; Robert Nozick; Third parties; Volenti

Indexed keywords

EID: 33747077146     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1007/s10892-005-4593-7     Document Type: Article

References (67)

1. Or, more precisely, the converse: "The socialist society would have to forbid capitalist acts between consenting adults" [Robert Nozick, Anarchy, State and Utopia (London: Blackwell Publishers, 1974), p. 163].
2. Joel Feinberg, Harm to Others (Oxford: Oxford University Press, 1986), p. 115. The phrase "volenti non fit injuria" itself figures only in tort law, where it often refers more narrowly to the "voluntary assumption of risk"
3. [Peter Cane, Atiyah's Accidents, Compensation and the Law, Fourth Edition (London: Weidenfeld & Nicholson, 1987), pp. 126-132]. For purposes of philosophical discussion, I will follow Feinberg's broadening of the doctrine to those realms of tort and contract law where voluntary consent counts as a defense.
4. Or on behalf of all affected interests, through their legitimate representatives.
5. Taken to its limit, of course, that can justify intervention into almost any competitive markets, once we appreciate that winning any competition inevitably prevents others from winning (Feinberg, Harm to Others, pp. 218-222).
6. G. A. Cohen deploys such an argument against Nozick and in favor of socialism in G. A. Cohen, Self-Ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995), pp. 26f.
7. Nozick, like the common lawyers here under discussion, avoids that conclusion only by insisting that freedom is diminished in ways require consent to justify only where illegitimate "wrongs" were done in restricting another person's options (Nozick, Anarchy, State and Utopia, pp. 262-264, 268-271).
8. In principle, anyway: In practice, laissez faire liberals historically employed weak and implausible standards of "consent" under the doctrine of "coming to the risk," particularly in connection with the risks associated with "common employment" in the days before state schemes of Workers' Compensation [see P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979), pp. 703-708].
9. Perhaps in further retaliation for killings of a party of Frenchmen some 60 years before: The French had already slaughtered some 250 northern Maori during a retaliatory raid in 1772 [See Claudia Orange, The Treaty of Waitangi (Wellington: Allen & Unwin, 1987), p. 9].
10. Orange, Treaty of Waitangi, pp. 11-13.
11. See Article 52 of the Vienna Convention on the Law of Treaties (A/CONF.39/27; May 23, 1969), International Legal Materials, 8 (1969), pp. 679-713;
12. Ian Brownlie, The Principles of Public International Law, Fourth Edition (Oxford: Clarendon Press, 1990), Chapter 25;
13. and Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987), Chapter 2.
14. Again, contrary to historical fact. The Maori also suffered raids by British subjects and their chieftains petitioned the British Crown for protection against them; indeed, the preamble of the Treaty of Waitangi itself suggests as much (Orange, Treaty of Waitangi, pp. 12-13). That the principal threat to the Maori came from British subjects is reinforced by some of the most influential speeches of Maori chiefs in ratifying the Treaty and in the instructions the British negotiator received from London
15. [See, respectively: Keith Sinclair, A History of New Zealand, Revised Edition (Harmondsworth: Penguin, 1969), p. 71;
16. and Lord Normanby's "Instructions to Capt. Hobson," in W. David McIntyre and W. J. Gardner (eds.), Speeches and Documents on New Zealand History (Oxford: Clarendon Press, 1971), pp. 11-12].
17. That is, they say, particularly true in the case of bargaining with a divorced, non-custodial father [Paula England and Nancy Folbre, "Involving Dads: Parental Bargaining and Family Well-being," in Catherine S. Tamis-LeMonda and Natasha Cabrera (eds.), Handbook of Father Involvement: Multidisciplinary Perspectives (Hillsdale: Lawrence Erlbaum Associates, 2001), pp. 387-408].
18. Jane Allyn Piliavin and Hong-Wen Charng, "Altruism: A Review of Recent Theory and Research," Annual Review of Sociology, 16 (1990), pp. 27-65.
19. Joel Feinberg, Harm to Self (Oxford: Oxford University Press, 1986), pp. 196-197. For a completely clean case at law, Feinberg should probably have omitted the "while he may know of clause. At law, if A "learns of the duress before" signing the contract with B, the contract would be voidable by B
20. [Robert Braucher and E. Allan Farnsworth, reporters, Restatement of the Law, Contracts, Second Edition (St. Paul: American Law Institute, 1981), § 175, Comment (e), Illustration 10; Volume 1, Chapter 7, p. 480].
21. Feinberg, Harm to Self, p. 197 (see Chapters 24 and 31 on "coercive offers" and "unconscionable" contracts, respectively)
22. [Anthony Kronman, "Contract Law and Distributive Justice," Yale Law Journal 89 (1980), pp. 472-511, goes further, in arguing that the issue is not about consent and duress at all but, rather, about what sorts of taking of advantage are consistent with our preferred notion of distributive justice].
23. In tort law, of course, duress or blackmail is itself a tort - grounds for an action, as well as a defense against a tort action brought against you by someone else you have harmed. But it is the latter application, along with its contract-law analogue, which is more germane to my discussion here.
24. William L. Prosser and John W. Wade, reporters, Restatement of the Law, Torts, Second Edition (St. Paul: American Law Institute, 1979), § 892B;
25. Braucher and Farnsworth, Restatement of the Law, Contracts, Second Edition, § 175.
26. Warren Seavey and Austin W. Scott, reporters, Restatement of the Law of Restitution, Quasi Contracts and Constructive Trusts (St. Paul: American Law Institute, 1937), § 70.
27. Prosser and Wade, Restatement of the Law, Torts, Second Edition, § 892B, Comment (j).
28. Criminal law differs on this point, counting as "duress" threats to anyone; American Law Institute, Model Penal Code, § 2.09. I comment further on this, below.
29. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, Fifth Edition (St. Paul: West, 1984), p. 121.
30. See similarly Henry Campbell Black, Black's Law Dictionary (St. Paul: West, 1979), p. 453.
31. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, p. 121.
32. Braucher and Farnsworth, Restatement of the Law, Contracts, § 175, Comment (e), Volume 1, Chapter 7, p. 479.
33. P. S. Atiyah, An Introduction to the Law of Contract, Third Edition (Oxford: Clarendon Press, 1981), p. 229. Recent departures from that generalization have occurred where, for example, a shipbuilder extracts a promise of extra money as a condition for the delivery of a ship that the purchaser desperately needs; or where a debtor agrees to pay part of the money owed, on condition that the creditor promise not to sue for the balance. The general rule is that a threat is deemed "improper," and the resulting contract voidable on those grounds, only under some very special conditions: "(a) the threatened act would harm the recipient and would not significantly benefit the party making the threat; or (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat; or (c) what is threatened is otherwise a use of power for illegitimate ends;"
34. Braucher and Farnsworth, Restatement of the Law, Contracts, § 176 (2). Notably absent from that list is any reference to the sheer desperation of the promisor's situation.
35. The law of quasi-contracts also holds that, "where a person acquires property from another by fraud, duress or undue influence under such circumstances that a third person is entitled to restitution from the transferee" - because, for example, the transferor would otherwise have transferred that property to the third person - "the transferee holds the property upon a constructive trust for the third person." Furthermore, the law of quasi-contracts allows you to recover if you perform another's duty toward a third person, provided you do so "unofficiously" and "with intent to charge therefore" (Seavey and Scott, Restatement of the Law of Restitution, §§ 169 and Comment a, pp. 133, 113-15).
36. Seavey and Scott, Restatement of the Law of Restitution, § 167, Comment c.
37. Seavey and Scott, Restatement of the Law of Restitution, § 70, Comment a.
38. Seavey and Scott, Restatement of the Law of Restitution, §§ 172, 174.
39. In the course of those broader reflections, political philosophers might of course prescribe different rules of contract and tort law, ones which took more account of "duress via third-parties." The considerations in the paragraphs that follow however suggest reasons for thinking that the rules of contract and tort law ought be as they are, and that correcting those effects ought be done through systematic public interventions rather than through adjustments to the rules governing private orderings.
40. Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process (Mineola: Foundation Press, 1994; circulating as a "temporary edition, Harvard Law School" since 1958).
41. See similarly Joseph Raz, "On the Functions of Law," Oxford Essays in Jurisprudence, Second Series, A. W. B. Simpson, (ed.) (Oxford: Clarendon Press, 1973), pp. 291-293.
42. Jeremy Waldron, "Superseding Historic Injustice," Ethics, 103 (1992), pp. 4-28.
43. Cf. Waldron, "Superseding Historic Injustice"
44. ; Janna Thompson, "Historical Injustice and Reparation: Justifying Claims of Descendants," Ethics, 112 (2001), pp. 114-135;
45. David Lyons, "Unfinished Business: Racial Junctures in US History and Their Legacy," Historical Justice, Lukas Meyer and Chaim Gans (eds.) (Baden-Baden: NOMOS Verlag, 2003);
46. and J. Angelo Corlett, Race, Racism and Reparations (Ithaca: Cornell University Press, 2003).
47. Under Coke's rule, as discussed in Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 42-43.
48. Wertheimer, Coercion, p. 47, recounting Detroit National Bank v. Blodgett, 115 Michigan, 160.
49. Atiyah, Rise and Fall of Freedom of Contract, p. 436, glossing Williams v. Bayley (1866) L.R. 1 H.L. 200.
50. Braucher and Farnsworth, Restatement of the Law, Contracts, § 176, comment a, remark similarly: "An ordinary offer to make a contract customarily involves an implicit threat by one party, the offeror, not to make the contract unless his terms are accepted by the other party, the offeree. Such threats are an accepted part of the bargaining process. A threat does not amount to duress unless it is so improper as to amount to an abuse of that process."
51. As Werthheimer, Coercion, p. 47, puts it, trying to make sense of the principle that "A's coercion of B should not undermine B's contract with an innocent C:" "while B's agreement is involuntary, it should be upheld nonetheless, because it would be unfair to make C bear the costs of A's wrongdoing."
52. Through the criminal law and through public policy, as I shall be discussing below - where I give some reasons for thinking that that approach is superior to the common lawyer's proposal, which would merely call for the systematic application of the same principles of contract and tort law to all concerned, transforming those who were "third parties" in one context into direct parties in other actions.
53. From Robert E. Goodin, "Compensation and Redistribution," in John W. Chapman (ed.), Nomos XXXIII: Compensatory Justice (New York: New York University Press, 1991), pp. 143-177.
54. Prosser and Wade, Restatement of the Law, Torts, § 871, Comment f.
55. Marc Galanter, "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," Law and Society Review, 9 (1974), pp. 95-160.
56. Note, particularly, that whereas "duress" in the common law is defined as harms or threats of harm merely to parties to the dispute and their immediate families, the criminal-law standard of "duress" includes harm or threats of harm to anyone. "It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist." The independently-operating principle of "lesser of evils" holds, similarly, that: "Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that... the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged ..." (see American Law Institute, Model Penal Code, §§ 2.09 and 3.02 respectively). These are both much more systematic, "all-in" assessments than the sort of "justice between parties to the dispute" that preoccupies contract and tort law.
57. Cane, Atiyah's Accidents, Compensation and the Law, Chapter 13.
58. Joel Feinberg, "Noncoercive Exploitation," in Rolf Sartorius (ed.), Paternalism Minneapolis: University of Minnesota Press, 1983), pp. 218-219. On the principle that "a wrongdoer should not profit from his wrongs,"
59. see Ronald M. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p. 23, discussing Riggs v Palmer, 115 N.Y. 506, 22, 22 N.B. 188 (1889).
60. Atiyah, Introduction to the Law of Contract, p. 229. For an itemization of wrongs that make a threat improper
61. see Braucher and Farnsworth, Restatement of the Law, Contracts, § 176.
62. Richard A. Posner, Economic Analysis of Law (Boston: Little, Brown, and Company, 1972), Chapter 10.
63. John Locke, First Treatise of Government, Section 42; in Peter Laslett (ed.), Two Treatises of Government (Cambridge: Cambridge University Press, 1967), p. 188.
64. Jeffrie G. Murphy, "Consent, Coercion and Hard Choices," Virginia Law Review, 67 (1981), p. 82, quoting Justice Pitney in Coppage v. Kansas, 26 US 1 (1914).
65. Murphy, "Consent, Coercion and Hard Choices," p. 88.
66. As individual-level excuses so often do [Robert E. Goodin, "The State as a Moral Agent," in Alan Hamlin and Philip Pettit (eds.), The Good Polity: Essays in the Normative Theory of the State (London: Blackwell Publishers, 1989), pp. 123-139].
67. Although in the law of marine salvage, we might well be concerned to rectify extortion on the high seas.