Steven Landsburg's Fair Play


    In Chapter 9, "The Perfect Tax," Landsburg argues for enforcing a hypothetical, Rawlsian, behind-the-veil contract on the grounds that "courts frequently enforce the contractual provisions that litigants would have written if only they'd thought of it, and economists generally applaud the courts for doing so.  If we enforce the contracts that people forgot to write, why shouldn't we enforce the contracts that people were unable to write only because of the inconvenient fact that they hadn't been born yet?"  (p. 102)

    But in Chapter 10, "The Perfect Tax, Deconstructed," Landsburg argues against enforcing hypothetical contracts on the grounds that they infringe human dignity:  "Dignity is the pride of ownership....That sense of ownership is shattered if we can be held to commitments that we never actually committed to."  Thus, respect for human dignity forbids us from enforcing contracts people didn't write because they weren't born yet.

    But doesn't the same consideration also argue against enforcing contracts that people "would have written if only they'd thought of it"?  Are not contracts we forgot to write, just as much as those we were unable to write, equally "commitments that we never actually committed to"?

    If we shouldn't enforce the contracts that people didn't write because these were unable, why should we enforce the contracts that people didn't write because they forgot?
 

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