Monday, September 22, 2008

A Heathen Reads Contracts

I was speaking with a friend and colleague of mine, someone who is definitely well within the mainstream, and even at times conservatively so, representing a good "slice" of the average American mainstream.

We were speaking about contracts. I said, "Well, you can't sign a contract in which you haven't read all the stipulations."

She said, "What are you talking about? No one reads their contracts. Do you think I read all the stipulations in the 42 pages of my mortgage? Do you think I read all the fine print when I signed up for my credit card? No one does that."

Now I think she's wrong that "no one" does that, but I think she is substantially correct that almost no one does, and that ignoring such legal gobbledy-gook is pretty much the norm. So when I contend with her statements here, I want to make it clear that I am not contending with her nor exposing her to ridicule. In fact, I thank her for so clearly articulating what I think is very much common practice.

It's a practice I've struggled with since I was a young man. Ever since I was beginning my emancipation into this morass we call adulthood, I have been being urged to sign things, and "not to worry" about what the contract said or what it meant. Well, I was in Speech and Debate in high school, and this position didn't make a lot of sense to me. Yet I was continually hounded with it, and ridiculed myself for wanting to know what contracts said.

From a heathen standpoint, this modern attitude --- one often forced upon children, one almost encouraged in the educational systems --- is completely contrary to heathen values.

In heathenism, you never take an oath unless you : a) agree with it in full, and b) are ready to carry it out and be bound by it. A heathen's approach to oaths and contracts is that we get to write our own law, and we do it with the agreements we agree to. It so happens that to a large degree, the legal system agrees with this, and will hold people obligated to what they have signed. In the old days, oaths were filled with stipulations, escape clauses, and qualifications, because a good heathen did not swear to an oath he could not in good faith and conscience agree to and hope to carry out.

But we don't do that, because truly speaking, most of the contracts we are handed are not negotiated in a bilateral manner, but handed down in a unilateral, "take it or leave it" approach where in fact there are few either viable or obvious alternatives.

The result is that we bind ourselves to all kinds of things, things we have no idea about, and end up being bound to jurisdictions that severely infringe upon our full freedom. Since this seems to be the "only" way to "get by" in this world, we all accept this infringement of freedom as a matter of course, and just hope that we're never called on all those obligations, trusting in chance and statistics that we won't, and can just enjoy most of the benefits without incurring the negative side of the obligations. And perhaps this simply does work a lot of the time, and therefore represents a good bet. And a heathen is looking for a good bet and a good bargain in this world, and is not above making a good bet in a world that is often a gamble.

But even here we have to be careful. Heathens may be gamblers, but even gambling can go too far. Tacitus pointed out in Germania 24 that "so great is their love of winning that they ruin themselves through rashness and thoughtlessness and bankrupt themselves, and are at last thrown down from bodily liberty and freedom into voluntary servitude". (My translation.) In other words, people can gamble and become thralls. In the modern world, we can easily be well-fed, well-privileged thralls. A heathen gambles, but his or her freedom is also precious and to be preserved.

In a certain sense, though, the willful ignorance of contractual terms does follow a certain logic, a logic based in pragmatism, and an unspoken cynicism about the system. That is the perception that most "contracts" are in fact adhesion contracts, in which there is unequal bargaining position between the parties to the contract which severely limits the viability of the argument of free consent and ability to negotiate. Almost by definition, a "take it or leave it" contract that has been predetermined and predesigned, in which there is not even an option for negotiation, is an adhesion contract, and adhesion contracts understandably violate our sense of justice. And people have a sense that "what ain't just can't reasonably be bound to hurt you."

Unfortunately, when you give an oath or you sign a contract, you are binding yourself to its conditions, fair or not. If we were raised in a heathen culture, this would be rigorously and uncompromisingly taught from the day one, despite heathenism's common-sense and pragmatic approach to life. You don't give your enemy power over you by signing over your rights, and here, we must differ from a smiley-face kindergarden civics stance of "policemen are your friends" and so forth, and come down to earth with a pragmatic attitude that most of the people wanting you to sign contracts, especially unilateral adhesion contracts, are not your friends, and that in fact, when push comes to shove, they will end up in court as your enemy. (My point here is not to disparage the friendliness of police officers per se, but the namby-pamby idea that societal organizations out there in the real world are all working in one's best interests. A pragmatic viewpoint acknowledges that self-interest, and seldom "enlightened" self-interest, but competitive, cold, and uncaring self-interest barely bounded by the bare minimum of care the law sets down is often the real practice.)

An old-time heathen would almost never agree to a vow or contract in which stipulations, escape clauses, and qualifications were not simply expected and par for the course part of the negotiation-process. That's one of the problems we had with Christianity : its official representatives approached the "conversion" process in a unilateral way, and wanted to force adhesion contracts on us, and we didn't like that very much. We saw that, understandably, as an attempt to enslave us, to subordinate us, to insult us. The reflex was to reach for one's sword. Not necessarily to pull it out, mind you, but to reach for it all the same, as a reminder of the equality of powers. Perhaps that is why Tacitus said that Nihil autem neque publicae neque privatae rei nisi armati agunt, "they conduct neither public nor private business unless they are armed." (my translation.) There's some real gems in Germania that we often pass by and overlook without examining their deeper meaning. What does it mean for a community to never conduct business unless they are armed? Think about it : it says something. It is a reminder. It reminds the other party that they are not dealing with a thrall, but with someone ready at all times to defend their rights, and that their hand will be upon their hilt if they see an attempt to dominate or subordinate them in a way demeaning to their free status. Try bringing a sword into a credit card agreement and see what happens! (No, no, not unless you really wish to go to prison, but you see my point!) I've said before that the spears were there in the public assemblies to remind their leaders that they were not pushovers and would not stand to have their rights taken away. We see many instances in Heimskringla where the odallers show up to the Thing with their arms and make it very clear they're willing to use them in defense of their rights.

No, I'm not suggesting that we show up to contract negotiations with weapons. To a large degree, this quality of Germani culture was symbolic. It reminded everyone of their free and independent status. But it wasn't entirely symbolic. The threat was still there, and ancient Germani wanted to maintain the element of threat, at least enough to be taken seriously, at least enough to never be taken as a thrall.

With so many giants offering us adhesion contracts, aren't we taken as thralls on a regular basis? Nevertheless, a heathen reads contracts, and is careful with his or her gambles. If you make the gamble to agree to an agreement whose terms you rationally cannot agree with, simply because that is what "everyone does" and you will be denied benefits and opportunities widely available, you may lose something precious in the gamble even for all the benefits. You might win. You may gain both security and opportunity through the bargain, even though some essential liberty has been lost. But we know what Benjamin Franklin said about those willing to give up essential liberty for a little security ... Does one contract with a giant in order to receive benefits? Isn't that, in part, how some of the folk of Midgard in the myths became beholden to the giants when Frodi discovered their miserable condition and helped to free them?

Where does Pragmatism meet Principles? This is the real question of heathenism, and in fact, any tradition. Does heathenism's pragmatism go so far that one can run roughshod over principles, or is there a place where the line must be drawn? If the line cannot be drawn in advance for any individual heathen, then perhaps one of the genuinely spiritual questions of being a heathen is, Where will you draw the line?, and having to answer to the Gods, your ancestors, and your own dignity for the answer you give.

The Pragmatism versus Principles struggle is very poignant here. Under a societal condition of widespread, systematic adhesion, from a pragmatic point of view, it can be near crippling to stick to one's guns about free and independent negotiation of contracts, because the benefits and opportunities widely available to those who will sign (away their rights) are so substantial and so prevalent that who wants to be a poor man sticking to his rights? Yet Bú er betra, þótt lítit sé, halr er heima hverr; þótt tvær geitr eigi ok taugreftan sal, þat er þó betra en bæn.Bú er betra, þótt lítit sé, halr er heima hverr; blóðugt er hjarta þeim er biðja skal sér í mál hvert matar, "Home is better, though small, for a man is his own in his own house ; though he owns two goats and a shabby cottage, that is better still than begging. Home is better, though small, for a man is his own in his own house ; the heart bleeds for one who must beg for food at every meal." (My translation.)

Yet if one is a small cottager who maintains one's rights and retains one's arms, won't further benefits come in time if one organizes with others like oneself? Where should our benefits come from? From giants or from mutual aid? We're straying into the very important question that impinges further on our dilemma of Pragmatism vs. Principles of the heathen principles of Prosperity, and what is the difference of wealth and illth. But that is a topic for another time. For the time being, let me say, I know it can be lonely holding to your guns, but a heathen reads contracts...


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