Take Liberty.com
Don't Ask Permission - Just Take It

Post Armageddon, An Expedient Plan
by   Richard   Rieben
April 5, 2005.

This is a post-Armageddon dialogue that takes place between the leaders of two opposing, rag-tag camps. They are mortal enemies, but don't have the resources to battle one another. Slowly, they fashion a peace accord of peculiar dimensions. One of the leaders (with a degree of foresight) has a vague notion of a universal kind of reciprocal contract. What he doesn't explain, is that it would render both the "governments" of these camps irrelevant in short order.

"I agree with nothing you are doing; nothing you stand for; nothing you represent. And you, likewise, by your beliefs and values, perceive me as your sworn enemy."


"Then let us agree to leave one another be; to part company; to separate."


"What would you have? To be locked in mortal combat until one of us is defeated? Using our limited resources in quest of defeating an enemy, another human being, on the basis that we disagree with how he lives? To divert our attention from the necessities of survival in this ravaged land, to undercutting another human being at every opportunity and having to protect ourselves from his, like, enmity? Would this be a viable use of our precious resources?"

"No. But I cannot concede your rightness on any point."

"Concede nothing. Agree to respect the difference is all. As I must do in return. In exchange."

"Then you are proposing what has been called a "gentlemen's agreement" - to agree to disagree, and leave one another alone?"

"No, sir, I will not concede that you are a gentleman, nor you I. Thus I cannot rely upon your honor, nor you upon mine."

"Upon what then?"

"Upon something firmer. Yet, preceding that, would you agree to the principle?"

"To leave one another alone? To respect your right to your beliefs and practices ... to live in such manner as I find repugnant and repellant?"

"To live in such manner as I choose, regardless of how you esteem it."

"Esteem it, I do not!"

"Precisely. Nor I you and yours."

"Then what is it you are suggesting?"

"An agreement to respect the difference, regardless of particulars or evaluations."

"But if your beliefs and values lead you to violate my beliefs and values?"

"Then that would violate the agreement; such then, that the respect is bounded by equally possessed rights of action."

"That you may not transgress upon my rights of action, nor I upon yours, regardless of our mutual repugnance, and ...?"

"... and that my freedom of action ends where your freedom of action begins; likewise unto you in respect of me."

"And that would be the essence of the agreement?"

"The sense of it, yes. The essence would include the power to enforce it."

"Enforce it? How?"

"By contract. That is the form of the agreement: a contract between parties, swearing to respect one another's rights."

"With penalty for breach?"

"Of course."

"Then we must devise a penalty that is also agreeable, else the agreement of respect is meaningless."

"True. And the agreement of respect is meaningless without an enforceable penalty for breach thereof."

"Then what is it you are suggesting? Capitulation of one party to the other as penalty?"

"No, for that would end the contract. I would rather the contract remained in force; that it survive a rash or ill-conceived breach. Indeed, that it be sustained in perpetuity."

"Perpetual contracts have no meaning."

"True. Upon renewal, then. But surviving, nonetheless."

"And the penalty, then?"

"Whatever is sufficient to enforce the contract - to sustain the agreement and, then, I think, to make restitution for damages."

"Restitution. Determined by what means?"

"By the evidence of the particular case."

"But then I would be responsible for my people, and you for yours. This does not seem enforceable. I may agree with you and you may agree with me. We may even sign such a document. But your associates may violate the agreement with impunity, excepting as I hold you accountable for their behavior. Are you then accountable?"

"For the deeds of others? No."

"Nor I for my associates."

"I did not contemplate this agreement between the two of us only."

"Then how? what? I do not understand."

"As a contract signed by all persons in the land, to respect everyone else in the land - as individuals to individuals, and upon their attestations as sovereigns over their own agreements - as persons not belonging to you or to me, as property, vassals or subjects, but as associates by choice, and, thus, accountable unto themselves alone."

"Do we include women as signatories in this contract?"

"We do, for otherwise there would be half of our associates accounted for and unaccountable. Even if we choose to view women as property, as your beliefs evidently do, and mine definitely do not, the practical ability of a man to be accountable for the actions of another human being, perhaps especially one reared as property, would be untenable. On the other hand, if we do not include women, then I foresee them becoming the vessels of discord and chronic petty breaches, whether on their own or accountable to a man. The contract will not hold if all parties are not equally accountable."

"And children, then?"

"Their actions, up to a certain age, would be the responsibility of their parents, who, then, would be accountable and subject to penalty for breaches."

"Their fathers."

"And/or their mothers."

"I do not like the idea of disrupting and penalizing the family for the actions of children."

"Then it would behoove the parents to discipline their children, and teach them the boundaries of respect that are in effect."

"Yes, yes, parenthood is a responsibility. But the penalties imposed by the actions of unwitting or rebellious children seems a heavy burden upon the family."

"It strikes me as unlikely that such would be the case, as I am sure the penalty would take into consideration the condition of childhood and the age of the child. Unless we stoop to using our children as weapons against one another - and I cannot see this happening - then I do not see that we would place a heavy burden upon the family at all. Indeed, inasmuch as parents are endeavoring to discipline their children to respect the boundaries of other human beings, I see the contract, and its enforcement, as supportive - a neutral reinforcement of the parent's goal."

"Neutral? In what manner?"

"In that it does not prescribe or proscribe any other sort of behavior or activity, excepting that which sustains the contract."

"Our laws have very definite prescriptions and proscriptions for our people."

"Yes, for your people - and by their choice. But your laws do not apply to me, nor mine to you and yours. I repudiate them. If it were otherwise, we would not be having this discussion."

"True. So this contract you speak of would not interfere with our laws, nor with our enforcement of those laws within our own gathering?"

"No. Insofar as those laws apply only to your people, and upon their consent. No."

"What do you mean, 'upon their consent'? Are you implying that they may shirk their duties under our laws?"

"According to the contract that I am talking about, your laws and my laws, separate and supplemental to the contract, applicable to our own gatherings, are irrelevant. Breaches to the contract of mutual respect do not take into consideration the demands that you may make of your people, nor that I may make of my people. This contract supercedes our beliefs and values, and the laws that we impose upon our own for enforcing our beliefs and values. If one of my people chooses to repudiate the beliefs and values of our group, there is nothing in this contract that addresses this transgression. Presumably, we would deal with it within our group, by our own rules; just as you would be left to deal with your own transgressions within your community by your own rules. However, the contract does stipulate respect for the differences. Thus, your rules do not apply to me or my people; and our rules do not apply to you or your people - these are unenforceable upon anyone other than those who are part of our separate groups; the composition of which is by choice of the individual."

"By choice of the individual? You are thinking to woo my people into your group?"

"And, by implication, to let members of my own group migrate to your group, if they find that more to their liking."


[laughs]"Aye, spies - or fools, at the least, eh?"

"Ah, yes. To join your group, they would have to be fools. How would you protect yourself against them, then?"

"Oh, under the contract, I think. That should suffice, since it pertains not to groups, but to individuals. Those who behave differently from their group's values, whatever those rules are. It accords sovereignty and accountability to every individual in confrontation with every other individual."

"Now I think you are dreaming. If it is enforceable upon everyone by everyone else, it would be essentially unenforceable. You are talking chaos."

"No, for I am sure you will have your own rules, as will we. But the contract would signify a prime rule applicable to everyone equally."

"Fantastical. Plausible in theory, but impracticable. I cannot see any means to enforce it, nor any means to sustain it. Every man will seek to evade it."

"Evade it? Why?"

"Because it will be in his best interest to evade it."

"You perplex me. But that is another matter. Look again at the simple concept of the contract: an agreement to respect the boundaries of all other persons."


"Regardless of differences of opinion, values, beliefs, attitudes or any actions which are, themselves, not disrespectful - that is, if they don't violate the boundaries - that is, the rights - of anyone else, then they will be respected regardless of what we may think of them."

"But we can't have people doing whatever they please!"

"You have rules in your own community to enforce what your community considers moral principles, governing behavior and actions; as have we. The point of the contract is to respect the differences of each other's moral principles and the subsequent behavior they result in - as long as that behavior does not violate the contract. People would not be left to do whatever they please, as you assert; they would be bound by the contract of respect, on the one hand, and by whatever moral principles are enforced by the community, on the other."

"So you have two levels of government."

"I do not see it that way, but I do not speak your cultural language. If you see it that way, then you will see a conflict between them, where there is none. The contract is not a government; it is a contract, with penalties imposed for breach of that contract by any individual against any other individual, upon proof of the breach."

"Oh, and who is to prove the breach? And to whom? I do not understand this. Further, I do not see how it is to the advantage of individuals - my associates or yours - to sustain this contract, unless we - you and I - are in charge of meting out the penalties. Otherwise where is the incentive and where is the authority? You talk of sovereign individuals - signatories to the contract - but are they in any ways self-accountable to anyone else? Listen ... I see the value of this contract between you and I. You go your way, I go mine, and we do not interfere, disrupt or sabotage the development of our separate communities. In our present condition neither you nor I have the wherewithal to give our energies to war, for there would be nothing to gain from conquest but additional responsibilities and the elimination of our discord. By your contract, we could be left in peace without battle. It is a good plan between the two of us, but not for all of our people ... this, no, I cannot see it."

"For two reasons, I think it must be so. The first was our initial discussion of accountability for all the members of our group ... and the spies and intrigue that would result if only you and I signed a contract, as a treaty. The other is the sustainability of that treaty over time, for do you trust me to honor it if me and my people thrive? Do I trust you to honor it if you and your people thrive? You make the very good point that we seek such a contract in the present situation because survival is foremost, and we have no energy to spare for brawls, and nothing to gain but added burdens - and possibly, due to a depletion of resources and energy, the threat of being overcome by the harshness of the environment even if one of us is triumphant over the other. It is not to our benefit to fight - at this time. But later? If we conclude but a treaty between ourselves, you and I, then I think the time must come when we will engage in war against one another, possibly as soon as one or the other feels they have an upper hand - realistically or otherwise ... and regardless of the treaty, for this treaty would become void in the event of war. And so, I ask: do you trust me or my people sufficiently to believe that this will not come to pass? I do not trust you on the matter."

"But a contract of all with all? How is this to avert the possibility of war? And you haven't answered my other objections: If it is not government - as you assert - then upon what authority can it be enforced; and with what incentive?"

"To the matter of incentive, first. For the same exact incentive that you and I would conclude the contract at the present time. That it is in our mutual best interest to do so - that by agreeing to this, I am gaining protection from you; and you from me. And, thence, that each person, under this contract, gains a degree of protection from every other person, and them from him. It is to each and every person's advantage to uphold the contract, as the contract represents his own protection from others. Not just between you and me, but between my people and yours - and amongst my people and amongst yours."

"Oh no, it is not a superior law within my community to our own rules."

"But, yes, it must be. But ... what is this? Do you not wish your people, amongst themselves, to respect one another? How can this be?"

"Yes, yes, that is our rule, though phrased differently."

"Well, phrased however you like, is it not a principle of your beliefs? ... rather, I should ask, does it contradict your beliefs or rules?"

"No, it does not contradict them."

"Then why do you see a conflict where there is none? If the rule is imposed as an over-rule, in addition to your own rules, but one which is binding on all people in the land, and not just upon your own people, but is additionally binding upon your people within their own community amongst themselves, then where is the conflict? It seems that if we - you, I, your people, my people - can all agree on this one simple rule in every instance and without exception, then we are all better off for this single point of concord. And it does not detract from the other rules of either community."

"But it is administered separately from the other rules; and that is what I do not like about it. The rules of my community derive from a great book, which is not divisible. We do not delegate allegiance hither and yon, but hold all in the power of the book, which is enforceable upon all believers. To separate out this or that part, as assigned enforcement to a secular power that has nothing to do with our book, or the authority of the book - of our faith - is to violate the commitment of our belief."

"To violate it? But how?"

"To imply that our faith, our book, the authority of our belief needs a separate, supplemental, and secular enforcement. Our faith is a whole faith. We require nothing more. We have no separate allegiance beyond our faith."

"I respect that. But you would bind yourself, in contract, with me. How is it, then, that you would oppose such supplemental contract amongst your own people? A contract which may duplicate, but which does not tarnish the authority of your book and faith? Indeed, within your community, as within my own, it may be wholly redundant and superfluous, as our own rules already cover the same ground. Then why is it harmful to allow it? That it may provide recourse to justice ill-dispensed? I don't care how you employ it within your community. Use it as a court of appeals or a court of last resort, if you wish. But I insist that it must be contractually binding by all against any, else it will bog down in bureaucratic exceptions and exemptions - the like of which will do nothing to benefit the individual, justice, nor your rules or mine."

"You insist?"

"Yes, upon the point of practicality. It is an application of a principle which we both subscribe to. If we make exceptions to it, on any basis, then we violate the principle, hinder it, retard its fruition - and to no benefit to anyone, since the contract would be diluted and the people, not having recourse to it within their own communities, would discount its value and fail to employ it anywhere else. Do you see my point?"

"Yes. And taken. Reluctantly, but conceded. And also the point of incentive, such that if it serves each man so well, then it is to his personal advantage that the rule be honored and enforced. And from this, we have the sustainability of the contract over time - that it is not just between you and I, as a treaty, but between all as an agreement that serves each person, individually, and thence will endure from personal interest. But to the point of authority for the enforcement of the contract - the imposition of penalties - I know not. What ... what do you have in mind?"

"Well, the authority of a contract lies in the signatories to the contract. They agree to the terms of the contract, including the penalties specified therein for breach of the contract. It is upon their own sovereign authority that they make the contract, and upon their individual responsibility that they abide by the contract, and upon their own authority that they are subject to penalty for breaching the contract."

"Yes, a pretty theory, but to enforce it? It is well and fine to say that they have authorized the penalty by signing the contract, but quite another to enforce it in the instance of breach. Do you honestly believe that anyone breaching the contract is going to volunteer to suffer the penalty? Even assuming they admit to the breach? I cannot see this point."

"What would you propose?"

"I can only think in terms of a governing body, though you say this concept is alien or repugnant to you, so I can only suppose you are off in your hypotheticals somewhere. The authority of enforcement must derive from a governing body, yours or mine, or some messy, untenable amalgam."

"Agreed, such an amalgam - of opposing principles of governance - would be both messy and untenable ... even difficult to contemplate. However, the idea that your government would impose the contract over my people - or that my government would impose the contract over your people - are both equally untenable, as your people do not recognize the authority of my government, nor do my people recognize the authority of your government. Thence, the authority of a government is not an option."

"You have something in mind, I suspect. What is your proposition?"

"You agree to the point of incentive, yes?"


"And you agree on the point of sustainability if everyone is a signatory, and if everyone has an interest in the contract. Right?"


"Then what I am proposing is that the people themselves enforce the contract."


"Through a formal arrangement, but nonetheless on their own power and authority."

"You're mad."

"Or, rather, on the authority of the contract itself - by its terms and by their individual agreement to abide by those terms. That - right there - is the authority. It is, further, the only authority that exists in relation to this contract. There is no authority external to the contract - not you, not I, not our governmental bodies. All the necessary authority to enforce the contract is contained in the attestation of the parties to the contract. It is sovereign authority. No more is needed."

"Except a practical application, which you've yet to supply. Are you suggesting, then, that by the terms of the contract a ... what would you call it? ... a contractual body or government is created for the purpose of enforcement?"

"You concede the point that the authority of the contract lies within the contract, by attestation?"

"Again, yes to the theory. But your application is obtuse. I would not sanction a third party governing body, born of the contract or otherwise, acting independently of my own government, even if it were likewise independent of your government. I would not trust such an entity. It would form a discordant, competitive government within my community which would be intolerable. So, theory is one thing, but the reality is unacceptable."

"Agreed. It is unacceptable. To me as well. If that were the form it had to take. But I had another idea."

"What then?"

"Consider what is needed to enforce the contract upon a person who breaches it."

"A governing body, insofar as I can see."

"Yes, perhaps, but not the whole mantle of government. Something quite less, and more specifically designed for that sole task and no other. In fact, not to exist except in the case of a breach."

"Or a breach that is disputed ... and proven. A court then. Are you suggesting an impromptu court of some fashion?"

"Yes, but solely unto the contract and matters thereof ... or, born out of the contract, if you will."

"Again, I am not following your application. It is not a government court, but a court solely of this contract. Financed by whom? Constituted by whom? I take it that you are suggesting that it is independent of either of our governing bodies - separate, non-aligned, and composed independently?"

"Yes, but also not composed as a distinct or separate - or third - governing body. Its arena is strictly the enforcement of the contract. But, to your first question, financed by whom? I think by no one, as it is not an entity that would exist apart from a breach of the contract."

"What do you mean?"

"I mean that it would only exist at the time there is a breach and only to resolve that breach - that is, specifically, to verify the breach, determine a likely perpetrator of the breach, gather and examine the evidence, listen to the case for and against, determine guilt or innocence, and specify an appropriate penalty ... mostly, as to the last, a matter of restitution, as we discussed earlier in the case of the contract or treaty between ourselves."

"And then, after the matter is concluded, the machine would disappear until the next time?"

"Yes, I think that would be the case."

"And to finance it?"

"I wonder. Mostly I am inclined to think no one ... that it would be comprised upon the voluntary efforts of members of the community?"

"Comprised? What? You mean constituted by them, as well?"

"Well, why not? Who has a better vested interest in the enforcement of the contract and in the fairness of the enforcement process than the signatories themselves?"

"Why would you say they have an interest in the fairness of the proceedings?"

"Because any one of them may be subject to the proceedings as an accused perpetrator. And all of them would want to ensure the fairness of the event, so as not to carelessly penalize someone who is innocent, as might be the case for themselves at some future time, as well."

"Again, you are counting on self-interest."

"Yes, but more, upon a vested-interest. As equal signatories, they are all accountable to the terms of the contract and subject to the same penalties if they breach it ... moreover they are all, equally, subject to the same process for resolving breaches."

"So the process cannot be impromptu, I think."

"No, I think not. It should be specified as to form within the contract itself. But each case would likely be unique or dissimilar, so the form should be rigid where it needs to be and flexible to events. Moreover, I think it must be easily comprehensible to every signatory - such that anyone can understand the terms of the contract, the idea of what constitutes a breach, the concepts of penalty and restitution, and the process for handling breaches ... to the point, I think, that any person would have the knowledge, from the contract itself, to take part in the process and apply the rules."

"And they would be called upon to participate?"

"Yes, I think that would be the sole composition of the proceeding. Signatories to the contract, acting in their capacity as signatories, and with a vested interest in the contract and in the fairness of the proceedings."

"I am allowing you your fantasy, as much out of curiosity at this point as perplexity. But, all right, who would call them? And, again to the question of financing it, how would they be compensated for their participation?"

"Let us say they would be called by lot. And therefore that every signatory, by contractual attestation, would be bound to participate in the process whenever it fell to them by lot. As to compensation, whyfore compensation?"

"Whyfore compensation? You are mad. They are going to do this for free?"

"Well, consider: if they were compensated, who would provide that compensation?"

"No doubt a fund of some kind."

"Correct. But how would the fund be raised?"

"By contributions. Perhaps by taxes."

"Upon the people?"


"Then, I don't understand the idea of compensation. Who is compensating them?"

"The fund."

"Yes, I know 'the fund.' But who is paying them?"

"The taxpayers or contributors."

"Which is themselves. Is that not so?"

"I see. Yes, which is themselves, in fact."

"So, if they do not require compensation, then they also do not require to be taxed or otherwise imposed upon for contributions. In this matter, their contribution or tax is the participation in the proceeding, which, by the way, is in their best interest to attend and participate in, anyway - both to enforce the mutually beneficial contract and to personally ensure the fairness of the proceedings. Agreed?"

"But you still must pay for certain technical functionaries of the proceedings."

"Yes, some, I suppose. Perhaps then out of the penalties."

"So these would not all be restitution."

"For the most part, but perhaps also an assessment of minimal court costs, of the actual proceedings."

"And in the case that the party is found innocent, then there would be no penalty assessed and the court costs would go unpaid."

"Well, then, perhaps a revolving fund, though I think not. Specific technical costs should be paid for as needed by the parties involved."

"And if the party is destitute, then they are out of luck?"

"No, perhaps a fund for that situation. And perhaps that would depend upon the community, then - apart from the proceedings - and in the interest of fairness - but with no likelihood of reimbursement if the party is found innocent."

"A comment?"


"As you come into the application, you are playing very close to the edge, you realize. Very, shall I say, improvisational."

"Or inventive, yes. Looking for a way to do this that eliminates bureaucratic costs and complications ... also with the intent of leaving the matter in the hands of the parties who have a vested interest in the proceedings, which means all signatories to the contract. And as a way of avoiding creating a third, independent governing body in competition with our own community governance. If we don't do this, it would be like a standing militia, of dubious loyalty to either side, and of decreasing credibility to either side."

"Yes, all right, then. The need to make it transient, yet ever-present. And your solution is to vest the whole activity in the signatories - at large - equally. Does that mean, by the way, that you and I, as signatories, would be liable for participation by lot?"

"Yes. Undoubtedly. I had not thought of that, but why not? I myself would be delighted to participate, even partially, so as to be an observer of one part and an actor in another. Would you find this a burden for yourself?"

"No, I, too, would find it an interesting experience, although not to stand as an accused, and to be judged by my own people."

"Odd, I would have thought you would have welcomed the test."

"Would you?"

"It would be annoying in the case that I was innocent, and just in the case that I wasn't."

"But would you be willing to subject yourself to the process itself. That is, would you trust the people to reach a fair resolution?"

"I suppose I must. All the more reason to design it with care, I think - both initially, and in the detailed terms of the contract."

"One thing I wonder, is whether the judge would be experienced and professional. This would be a necessary cost, I suppose, along with the court reporter, clerk, bailiff and investigators."

"I think not."

"You want the judge to be a volunteer as well? Called by lot?"

"Yes, but I would not vest the resolution in a judge, but in a jury. The position of the judge, to oversee the proceedings, should be one that any signatory could fill - although some will do better than others."

"Ah, by jury, then. An interesting concept. And no appeal then?"

"Not specifically, though a mistrial could be called for if the proceedings are careless. And perhaps there should be an appeal to law, in the case that they jury is vigilante."

"'An appeal to law'? How would that work?"

"Well, that would be, I think, the recourse for a person found guilty by a jury he feels to be biased. It could also be a mistrial. Some details to be worked on in the terms of the proceedings. But I think you are starting to agree that it is not an unworkable plan."

"Overall, I find it may work, though much seems to be riding on the element of self-interest or vested-interest ... enough that people would agree to being called by lot to enforce the contract and resolve disputes, without compensation - but also without taxation - and being committed to the fairness of the proceedings, all of this above and beyond their personal interest in resolving the matter quickly so they can return to their personal affairs. They may find it more of a burden than you imagine."

"I think not. By being directly involved in the matter, and by having a personal stake in the contract and in the fairness of its enforcement, and, further, by having no one in authority over them, I think they will enjoy exercising their responsibility. I think it will matter to them; not as a boring ritual, but as a meaningful exercise of their own sovereignty - as signatories. I think that participation will be assumed with a certain exhilaration whenever the opportunity arises. An unpleasant necessity, in one sense, but one which serves their own interests and values and, hence, a duty to themselves, for themselves, and by themselves."

"You still haven't dealt with the actual enforcement, you know. The jury makes a ruling. In the case of guilt for breach, a penalty is assessed and imposed by the ruling of the jury. Who or what, then, enforces that ruling?"

"We could leave that to the enforcement branches of our own governments, I suppose. Though somehow I would like to avoid that."


"Partly because I wonder if the enforcement of the ruling may be lax in the case that it is against one of our own, or overly stringent in the case that it is against someone in the other community. I do not know what attitudes our governing bureaucracies may take toward the proceeding. They may conclude that it has nothing to do with them, and fail to enforce it at all."

"Yes, I see your point. Although, like you, I was thinking that giving that job to our own police would be obvious. But, I see. Not necessarily without jealousy or discord. But how to make it independent, then?"

"I suppose by giving the contract court the power to impound or attach property or assets up to the value of the penalty, which is then valid in any of our courts of record and financial institutions as a lien."

"And the power to collect on the lien?"

"Same as any other, though I am not sure it would come to that."

"And what of non-financial penalties?"

"Such as?"

"Incarceration, or restrictions of other kinds."

"I do not see, for the purposes of the contract, that any other kind of penalty, aside from restitution, is relevant. The concept of restitution is to 'right the wrong,' insofar as possible. It may be accomplished by returning stolen goods, by paying money for damages, or by direct labor to restore things to their prior condition. There is, I think, additionally, the penalty for breaching the contract itself - on top of restitution. Or as another form of restitution."

"Another form of restitution? How so?"

"To the contract itself and/or to the signatories of the contract - beyond the individual who has suffered for the particular breach. To that individual, the victim, restitution is due for the damages or loss sustained. But there is also the tear in the fabric of the contract which must be repaired, in part by 'righting the wrong,' and in part by the person who tarnished the inviolability of the contract by breaching it. In that action, he may have thought he could get away with it, or he may have been thinking - if restitution were the only penalty - that all he had to lose was the possession of stolen goods, so it may seem to him worth the risk. Therefore, there should, additionally be a penalty for the breach itself."

"Ah yes, to provide incentive to avoid breaking the contract."

"No, I think the contract itself provides plenty of incentive to keep it. I think the penalty exists neither as punishment nor as a disincentive, but simply in recognition of the inherent value of the contract to all signatories, such that its breach is a blemish which demands restitution - the removal of the blemish and the re-establishment of the security under the contract. Its attestation is not lightly made, and its breach is not lightly tolerated. But it is a penalty, and not a punishment or disincentive."

"A very fine distinction. You think it is a necessary one?"

"Yes, actually, essential. It is a distinction of principle. An important one, I think - for people to understand what the penalty represents. Those who might breach the contract, as well as those who sit on juries and assess the penalty. Calling it punishment or a disincentive would change the nature of the proceedings in a way that I would not like to see, making it perhaps vengeful or vindictive."

"You think vengeance is not appropriate to justice?"

"It belongeth to the Lord, I think you would say. Whether it is just or not is irrelevant; it does not belong in the realm of human justice - I would say."

"Sometimes you surprise me, though I think perhaps you are merely mocking me."

"Not at all. It is not unlikely that we will find occasional agreement here and there; but extremely unlikely that we would find agreement to philosophical packages. But, let it go. We are not here to find concord, but to establish a boundary of respect for our discord, if you will."

"I think it might work. How well, I cannot say. But there seems to be a chance."

"Good. But don't stop questioning me. Your questions spot the flaws I have yet to see for myself. If we are agreed to the contractual plan, then it is to our benefit to make the general plan as coherent as possible."

"I am surprised to find that, in regard to the contract and its plan, you are so much concerned with matters of principle. I would have thought you and your philosophy was more a pragmatic, expedient course."

"A misperception, perhaps, from your own vantage, of which I will not offer criticism or comment. From principle comes application. This is true in every philosophy and of every application. Applications have their roots in principle even when one erroneously thinks one is merely being pragmatic, which is another word for unprincipled or sloppy thinking. But I think I am not here to educate you, nor you to enlighten me. We find ourselves at this table not to resolve our personal and philosophical discord, but to evade it, respectfully ... by a contractual agreement that, if our plan is to be followed, will bind every individual in the land to respect the boundaries of every other individual in the land. Meaning, for our immediate objectives, the respect of all of mine for all of yours and vice versa. And meaning more, in a design that will ensure the viability and the endurance of the contract. To this end, it would be ... ah, expedient, shall we say, that you continue to poke holes in my thesis, that we may weave a tighter plan."

"Shall we suffice with 'practical' rather than 'expedient,' for I think it is the better term, and I am agreed to the practice, but I am, for the meanwhile, seeing no holes in our fabric. And, therefore, let us adjourn and meet again tomorrow, by which time I shall, upon reflection, find a hole or unsightly wrinkle that needs addressing. As to the contractual details, do you feel yourself competent to its construction, or shall we collaborate on that?"

"I agree that our collaboration is mutually beneficial to our end. If pushed to the point, I could say that I am competent to the task. But your vantage is not without its praiseworthy elements, chief among them a critical eye. So, I rely upon you to perfect our mutual goal. And, then, until tomorrow."

"Until tomorrow."

Link: What the dude came up with: www.contractforliberty.com

(feel free to poke holes in it at the forum)


copyright © 2005 by Richard G. Rieben