Friday, July 15, 2005

L&S: Contractual Relationships

Tom suggests that couples in romantic relationships would be wise to adopt explicit, or at least quasi-explicit, contracts specifying what activities constitute violations of trust. Agreeing that “If you should engage in any touching of lips or genitalia with someone else, you must inform me before the next time we engage in similar activity” establishes a bright-line rule that coordinates the expectations of both parties.

During the break in Tom’s lecture, Steve H. observed that the above rule makes most sense in a semi-casual “college” relationship. For more committed relationships, more restrictive rules would be justified, because a broader range of external interactions would constitute a breach of trust. Suppose, for instance, that your husband has lunch with a young woman – let’s call her Sara – and they spend their entire meal staring at each other with storms brewing in their eyes. But nothing more happens. Has the commitment been violated? How could a vague rule against “romantic attractions” be properly interpreted or enforced? The problem is that the crime, if any, consists entirely of mental events. Fights could easily ensue from the failure of the rule to coordinate expectations on verifiable aspects of the external world. Even a highly committed couple might do better with a less restrictive but more objective rule (“no touching of lips or genitalia with other people”), or perhaps a more restrictive and more objective rule (“no lunches with members of the opposite sex without prior notice and consent”).

A simplistic way to deal with the problem is to say that any relationship requires trust and good faith. That should go without saying. The point is that even a relationship with sufficient trust and good faith could suffer from divergences of expectations, which can erode the underlying trust. Bright-line rules, in personal relationships as well as in law, can serve an important function.


Steven Horwitz said...

Hey Glen ... how does cyber-sex figure into this analysis?

Glen Whitman said...

Good point, Steve. This is an excellent demonstration of the problem of incomplete contracts: it's impossible for parties with limited time and mental resources to anticipate every possible contingency in a contract. As a result, every contract will leave some aspects of the agreement unspecified. Of course, cybersex is now common enough that wise relationship contractors ought to foresee it -- but changing technology may eventually raise new possibilities that were unforeseen.

James Taylor said...

This issue has been covered at length by Aaron Ben Ze'ev, in his recent book from Cambridge University Press, *Love Online*. Essentially, he argues that the general principles that would guide persons' agreement to, and formation of, relationship contracts absent recognition of the possibility of cybersex would apply to online relationships also.

Anonymous said...

the bright-line-rules-are-good line is a bit glib, of course. often times, they can be counterproductive or confusing. it's nontrivial determining when they are good and when not. it is the reason why there is ample room to argue for or against common law rule-making, statutory modification and codification, judicial or administrative discretion, etc. (and analogs of these in private organizations)

Anonymous said...

“no touching of lips or genitalia with other people"

Don't you mean no touching of lips to the genitals of other people. I guess you really mean no concretisation of one's sexual fantasies with anyone else.

Every "crime" or non-crime consists entirely of mental events. You only enjoy a sexual fantasy or real sex for that matter because it registers mentally. All the five senses relay information to the brain. What you are really getting at is the restriction of one's sense organs, aren't you, e.g., you shan't smell another girls perfume (up close and personal) or ogle her breasts or kiss her lips or taste her sweet sweat etc. Hey, I'm getting excited just THINKING about it. But isn't that where I came in!

Anonymous said...

Woo Hoo!!! This is the only time I promise. I want a blank copy of this contract.
S C.

Glen Whitman said...

"Every 'crime' or non-crime consists entirely of mental events."

I disagree. While many crimes include an intent component, there must also be a physical component. To be convicted of murder, I must be shown to have intended someone's death, *and* someone must die. Even if the crime is only attempted murder, there must be some overt act directed toward someone else's death.

The broader point is that some things are more easily verified and enforced than others. The rule "don't touch her breast" is more easily enforced than "don't fantasize about her," because the former necessarily involves an observable event (breast contact) while the latter does nnot. Adding an intentional component to the first rule ("don't *deliberately* touch her breast") makes enforcement more difficult, but it still makes cases in which no contact occurred a non-issue.