Friday, January 25, 2008

An interesting contrast.

A thought has just struck me. On the one hand, take a US military deserter, who has left because of an unwillingness (for whatever reason) to fight in Iraq. This person signed a contract with clear penalties for failing to fulfill it and is now trying to evade those penalties by deserting. While I'm sympathetic to the claims that many volunteers do so because they don't have a lot of other options, the fact is that they freely agreed to serve in the military, under certain conditions laid out in their agreement. Unless there was coercion or deception involved, that contract has to be binding.

On the other hand, take someone who's walking away from their mortgage given the current collapse of the housing market in much of the US. This person also signed a contract with clear penalties for failing to fulfill it, but is perfectly willing to accept the penalties (i.e., foreclosure and, in some states, being sued for the difference between the debt and the sale price of the house). I have some sympathy with this person, too: they may have believed the pie-in-the-sky promises of their mortgage broker, after all, and may not be that financially sophisticated. And, there's still the cultural belief that home-ownership is a mark of adulthood and maturity.

In my view, the deserter deserves little consideration (unless, again, there was coercion or deception). A contract is a contract and you don't get to break it just because it didn't turn out the way you thought. So, the deserter is doing something wrong. The mortgage-abandoner also deserves little consideration, but is doing something right: that is, accepting the penalties spelled out in the contract. And yet, reading around the web, opinion seems to be precisely reversed: the person who abandons their mortgage is evil and the deserter is innocent.

The funniest reason I've seen for the former has to be: "because that's going to screw up the housing market for everyone else!". Clearly, that remark was given by someone with less than no understanding of markets: the whole point is to only worry about how things affect yourself, and not worry more generally. If the market is so fucked up that you have to worry about others in your own individual economic decisions, then the problem lies in the regulation. As for the deserter, I really haven't seen any clear reasons as to why the deserter is innocent. Because the Iraq war is bad? Granted; but that's irrelevant. The military are obligated to fight in bad wars, just as the police are obligated to enforce bad laws. That's what they signed up for. If they don't like it, they need to exercise whatever contractual procedures they have to leave their jobs and find something else to do. Or, alternately, protest as private citizens. But running away from responsibilities is nothing to respect.


undergroundman said...

And yet, reading around the web, opinion seems to be precisely reversed: the person who abandons their mortgage is evil and the deserter is innocent.

I don't know where you get this from the web. Reading Digg? You must be reading the forums of some banks. They're pretty pissed about these defaulting homeowners. :p

Without a strong understanding of contract law and the individual contracts, I probably shouldn't be commenting on this. However, it seems like defaulting on a loan is actually kind of like breaking the contract. You said you were going to pay, and you decide not to. You've broken the contract. However, since this happens often, and we don't have debtors' prisons anymore, we've designed some ways to efficiently deal with these people. And really it's the banks' fault for not managing risk. The bank will take the rather painful hit from this breach of contract.

Your castigation of the deserter is strange. So all contracts are completely valid? Can the average citizen really be expected to read all the contracts they sign, esp. the fine print? Keep in mind that most people have no legal finesse, and even the average lawyer doesn't know the details of contract law. The average citizen expects that certain things which can be encountered in contracts are illegal, for example, arbitration agreements. So they trust the government.

The military are obligated to fight in bad wars, just as the police are obligated to enforce bad laws.

Hitler's soldiers were obligated to fight for him? The secret police of Russia were also obligated? Resisting, either discreetly or openly, would have been immoral? It seems like you're stretching pretty far here.

I can see from an economic perspective why we would want to enforce contracts strictly, but I don't think you're right morally. I suppose you are a fairly strong legal positivist, but from what I'm reading here this is a moral issue for you as well. I didn't realize a contract could make an ordinarily immoral action moral.

ADHR said...

Reading blogs, mostly.

The point is that the consequences for default are spelled out in the contract. So, I'm not sure how it's evil if you've decided those consequences are better than sticking with the deal. Unlike deserters, who seem to think they should be able to avoid the penalties spelled out in their contract.

Keep in mind that I didn't say that it was wrong come what may or all things considered to desert; just that it was wrong. A contract creates a prima facie obligation: it's a form of promising, after all. And, insofar as my promise was freely given, it binds me; it creates a genuine obligation on my conduct. That obligation may be defeated by something else, but it doesn't cease to be an obligation just because it's defeated. (If it did, imagine how easy it would be to get out of something you didn't want to do. Just assume another obligation that contradicts it.)

Hitler's soldiers were obligated to fight for him, and the secret police of Russia to enforce bad laws. Insofar as they freely accepted these obligations, of course, which may be where the example falls apart. I'm not convinced that either Hitler's soldiers or Russia's secret police had much choice in the matter. But, assuming that they did, then they were obligated to do what they agreed to do. (And were blameworthy insofar as what they agreed to do was itself morally wrong.)

I'm not a positivist, actually. ;) Which puts me in the tiny minority of those who think about the philosophy of law. But the point isn't that the contract itself makes some immoral thing moral. The point is that by freely agreeing to something -- recorded in a contract -- you are binding yourself to certain conduct. That is, you create an obligation that you have to live up to, unless some other obligation overrides it. And even if the original obligation is overridden, you can still be held to the consequences, spelled out in your agreement, for not living up to the obligation.

undergroundman said...

Why is breaking a promise always such a bad thing? Sure, it might fuck up the status quo (in this case), but sometimes that's a good thing. You're opposed to civil disobedience, I suppose? Thoreau never paid taxes because he didn't believe in slavery -- he was breaking his implicit contract with the state. Promises are a tool -- there's nothing intrinsically wrong with breaking them if you've got good goals.

So someone joins the military thinking that they can handle shooting people. Then they decide that it's immoral and they don't want to do it. They're not justified in leaving?

Have you heard about the military's "stop loss" program?

Also, I would argue that the the penalties for deserting are in the contract, and that deserters who flee completely are accepting the burden those penalties -- the expected value (risk multiplied by probability of all outcomes) of jail time, plus the hassle of having to stay hidden.

ADHR said...

Your consequentialist tendencies are bleeding through, methinks. That's one of the objections I have to consequentialism: that an overridden obligation is deemed to be no obligation at all. My point is that the obligation exists. It can be overridden, but that doesn't destroy it. Since the obligation exists, someone who violates the obligation -- even with justification -- can be legitimately punished.

I would object, then, to the idea that deserters who stay hidden are accepting the penalties in the contract. Hiding from punishment looks like a way of avoiding the penalties. It'd be like if Thoreau had run away rather than going to jail for refusing to pay his taxes. To my mind, the fact that he went to jail, and objected when his aunt paid his taxes, suggests that he was willing to accept the consequences of violating his agreement with the state.