Oaths and Pledges

While arguing that corporations should have to take a loyalty oath in order to do business here, a Daily Beast author muses:
Because oaths and pledges are a little creepy, this effort needs something else—something that comes out of the legal and business worlds: a contract.
I have several things to say about that.

1) Could we possibly confuse the distinction between an oath and a contract any more? One of the most damaging things that happened to marriage was that people started thinking of it as a contract -- which, of course, can be renegotiated at will by the parties to the contract, and which may even have breach clauses just in case it doesn't work out -- instead of the sacred oath in which God unifies man and wife into one flesh, until death do they part.

2) Why should an oath or a pledge be "creepy"? Does the language of honor frighten you so much? There is an honor interest at stake, actually, because the corporation wishes to join the polity in the sense of obtaining legal protections and at least property rights. That means that the company takes the business of the polity -- protecting the rights of its members -- to be a common good of which it would like a part. Why, then, should the corporate person not be bound in the same way as the ordinary person: that is by honor, so that loyalty is owed if (and only if) the state does its duty in protecting the rights it was constituted to protect? What makes corporations special, that they should not have to take an oath that properly expresses the relationship between citizens and the polity of which they are a member?

3) Perhaps your real concern is that corporate loyalty to the state sounds like fascism. So, you're a fascist to some degree. But the American project has used the fasces in its iconography from the very beginning. This kind of proto-fascism is not the same as the full-throated Fascism of Mussolini -- for example, it admits of limits such as the right to renounce citizenship, the right of revolution in the cases where the state ceases to perform the duties for which loyalty is the reciprocal reward, and that some of the rights the state is duty-bound to protect include freedoms of association, religion, the press, etc. That we intend to bind everyone together, 'E Pluribus Unum,' does not mean that we shall have 'everything for the state, nothing outside the state, nothing against the state.' Our version creates several areas that are meant to be outside the state, where the state is supposed to be bound not to interfere.

4) Of course you understand that this demand for loyalty raises the price of doing business somewhat: what you are imposing is an opportunity cost. That will have economic as well as political ramifications. You had better be clear on just what you are offering in return, and the deal had better be fair if you want the corporate citizens to accept it. For example, I've heard a lot of noise lately about trying to overturn Citizens United via legislation. If you do, you had better think carefully about what you will use to replace it. If corporations are citizens, they won't get a vote (unless we change the Constitution to permit corporate citizens one vote, in addition to the votes of their members who are American citizens). Nevertheless, you have yourself proven that they will have a legitimate interest in being able to express opinions about the government and its policy. That's one of the traditional parts of loyalty oaths, going back even to the feudal loyalty oaths: in return for loyalty, you have the right to advise on policy.

19 comments:

Ymar Sakar said...

I wouldn't take an oath to a bunch of oath breakers in this Regime, the lawyer caste, or the judge superiors.

That would be a rather circus act of a disgrace on the concept of an oath.

Ymar Sakar said...

A contract that can be re-negotiated isn't bad in and of itself. What makes it vis a vis marriage bad is that they use the lawyer class, a wholly own subsidiary of the Leftist alliance of evil, to do the "negotiating".

It's like trusting in demons and devils to negotiate a contract with God. Their interests are not the interests of the married party.

Before we get corporate loyalty oaths, how about Congress and the various privileged classes of America make a loyalty oath to humanity? And actually keep it?

MikeD said...

I was under the impression that a contract signed under duress was not legally binding. Is this no longer true?

Cass said...

Contracts signed under duress are not legally binding due to lack of (voluntary) consent.

What a moron that guy is. And the comments are even better. My favorite so far:

Oaths are only as good as those oathing them. And corporations are not so good.

"Oathing"??? Dear Lord.

Cass said...

I was under the impression that a contract signed under duress was not legally binding. Is this no longer true?

There are lots of things that make contracts invalid or unenforceable. One is duress. Another is lack of consideration (except for promissory estoppel). What is the government giving up here that's of any value?

OH WAIT.... I get it now...

The government doesn't *have* to pass a law making anything illegal! They just won't let you run a business or incorporate elsewhere unless you sign a "loyalty" contract!

Meanwhile, your competitors face no such limitations AND they pay lower taxes! What could *possibly* go wrong?

Ymar Sakar said...

Being a Democrat is their loyalty test. As it was for Google and Yahoo, when the NSA came a calling.

Grim said...

I was under the impression that a contract signed under duress was not legally binding.

That's one of the differences between oaths and contracts, since oaths can often be validly sworn under duress (e.g., if you refuse to swear an oath as required for testimony, the court may find you in contempt until you agree).

I suppose one could argue that the oath is the bad deal, and contracts are much more desirable. But they aren't the same thing. If what is wanted is an oath, just as in marriage, calling it a contract only confuses people as to what the standards should be.

There are lots of things that make contracts invalid or unenforceable. One is duress. Another is lack of consideration (except for promissory estoppel). What is the government giving up here that's of any value?

You can't invalidate an oath that way either, another reason this isn't a contract that is being proposed. But even loyalty oaths are meant to be reciprocal in a way. What is gained by citizenship is membership in a polity, access to the common goods of that polity, and a kind of bond with other members so that we are supposed to look out for each other to some degree.

What he really wants is corporate citizenship to go with corporate personhood, with a corresponding citizen's loyalty. Of course, these folks are the very ones who think that the idea of demanding loyalty oaths from citizens -- or even demanding loyalty to the country from citizens -- is "creepy."

Ymar Sakar said...

An oath is something like what people on the internet do when they write (not quote or copy, but write in their own hand) that "they may not disagree with you, but they will fight to death to protect your right to speak".

Except, they don't fight for anyone's right to speak, certainly not to the death, and they haven't fought for it on specific terms either for specific people. So by that sense, the moment they utter that oath, they have invalidated it. They don't take it seriously.

They don't take the promise and the words seriously, even though they make no pretense that they're quoting somebody else. They are claiming those words as the fruit of their own Wit.

An oath requires enforcement even if the original words require stupidly unjust levels of unfeasible actions. If a person cannot fulfill their word, then they should shut up. Simple.



Joseph W. said...

An oath or a pledge of loyalty to the government, forced as a condition of owning property...is indeed creepy, and fascistic, and wrong. It converts the ownership of property from a natural right of humans...which the government, per the Fifth Amendment, cannot take without due process...to a favor of government, granted in exchange for this "loyalty," and to be used as that government directs. And this is the same regardless of whether the property is land, houses, horses, or ownership in a dirty, yucky corporation.

An oath of loyalty as a condition of military service...I can understand that and took it proudly. But an oath of loyalty as a condition of owning property...absolutely not. If I own part of a business, and the government's doing wrong...I want that business to litigate against the government and win, not knuckle under like a good feudal retainer for the sake of this "loyalty."

A corporation is supposed to owe its loyalty to its stockholders. That means investing where it will bring returns...not where some politician wants to buy votes. A business that invests that way will be less efficient than its competitors...that means it'll need subsidies, or protection from competition, to stay afloat. "Crony capitalism" and all that comes with it. No thank you!

The fasces is itself a fine symbol of law and order. But fascism was a brand of totalitarian socialism (really a "heresy of Marxism" as Paul Johnson arrestingly described it). An oath of loyalty freely given is a beautiful and noble thing; an oath of loyalty forced, as a condition to own property, is tyranny.

Grim said...

I don't think Johnson is right about that description. Fascism grows out of this all-unifying tendency of the modern state, which is explicit even in Hobbes (who predates the American revolution by a century even at his death). Marxism's heresies include probably everything that traveled under its name; but Fascism is the natural outcome of the modern political philosophy. America's Founders found a way to restrain it, and those limits alone make it worthy of loyalty; but this was always the way the modern state wanted to grow.

As for property being a natural, pre-political right, now you're talking about Locke instead of Hobbes. But it's a modern idea all the same, and not a very defensible one at all. Aristotle would have had no trouble discussing what kinds of oaths you might take of foreigners who wanted to buy property in your polis; asking some kind of basic loyalty would not be thought out of order at all.

Nor can I readily see why it should be. Especially if we are talking about real estate, you hold from the government on exactly and explicitly feudal terms -- probably fee simple, the exact feudal bargain codified by Edward I. There is naturally a loyalty relationship in such a bargain, and of course the government will seize property used in disloyal ways -- as for example to run a meth lab in violation of its laws, to say nothing of fostering a militia bent on revolution.

Joseph W. said...

Oh, I do.

Fascism grows out of this all-unifying tendency of the modern state, which is explicit even in Hobbes (who predates the American revolution by a century even at his death).

...as did every kind of socialism, though the roots are even older; since Marx (and his French predecessors) were classically educated and drew their ideas from the ancient world. (What I've seen you describe as eudaemonia is the first principle of Marxism; but it was being invoked by French socialists before him.) The founders of Fascism, or at least the Italian variety, came from the Marxist parties originally; and the districts in Germany that voted most heavily communist voted most heavily Nazi. (I got this from Erik von Kuehnheldt-Leddihn's Leftistm Revisited...it's a long-ago memory but I believe Prussia was the "worst offender" on both.)

Fascism is the natural outcome of the modern political philosophy.

How "modern" are we talking about here? The notion of an economy controlled by the State and business run for the benefit of the State is ancient; it's classical liberalism (a mere 2-3 centuries old, as far as I know) that's the more modern idea.

As for property being a natural, pre-political right, now you're talking about Locke instead of Hobbes. But it's a modern idea all the same, and not a very defensible one at all.

Well, of course it's defensible. I don't approve of anarchy...but the real anarchies I know (such as Saga Iceland or, sometimes, rural Afghanistan) always included property and property rights. And the holders of that property would defend it as best they were able. Which tells me that the concept of "property" is older than, and independent of, the concept of "state." (A well run state will make property more secure than anarchy and clan tyranny; but it isn't needed for property to exist, or for humans to want to keep it.)

And if this is a "modern" idea, then it certainly doesn't lead to fascism, but rather to its opposite, which is classical liberalism.

Fee Simple, as we use it in law now, is not conditioned on a feudal contract...neither exact nor explicit. It's bought and sold, not "granted," and not conditioned on rendering any service to the State or any lord. Under the Constitution you explicitly can't be attainted as a disloyal feudal lord might be.

Joseph W. said...

In fact, one underlying principle I notice in American real property law is that it tends to get property into the hands, not of people who show loyalty to the current government, but into the hands of people who will use it productively.

Thus, there was no political test for homesteading...you just had to go out and claim the land. (Something like it has been done in Alaska, not so long ago.) Under the law of "adverse possession," if you're actually on a piece of land long enough, openly and notoriously using it, and the owner doesn't do anything about it...after a certain number of years, it's yours.

Joseph W. said...

(Bedtime for me for now. I hope I have time for more tomorrow night, and to write it more carefully too...always stiumulating!)

Grim said...

I think you must be wrong to describe Saga Iceland as an anarchy. These people were always at lawsuits. Remember the scene in Njal's saga where he teaches the arcane form of summons which, if performed correctly, cannot be ignored? A society in which that is true is not an anarchy! (Egil's saga, too: how much of that was motivated by inheritance law?)

Now Saga Iceland is still a great example. Do you own property there? Well, maybe: but if you break the laws in a certain way, you'll be outlawed. You don't have to leave, but we won't protect your stuff anymore. Including your life, but really, all your stuff: if someone takes it, you're not supposed to be here so you can't complain at law.

If you want to have the law defend you -- even in the absence of a formal state -- you have to show some loyalty to the common good. If you are constantly violating basic standards of what we take to be the common good, you're outlawed. That's how it worked there.

I think you are also wrong about fee simple, which is bought and sold -- but that was the whole purpose of Edward I's reforms. People were buying and selling not the whole fee, but 'subinfeudations' that put people in between them and the king. The simple thing about fee simple is that there's only one relationship: you and the state (the king, or the government).

And yes of course you must still do feudal duties to retain your fee simple property. These duties are called property taxes, but they were taxes even then: by the time of Edward I, feudal military service was much less desired by the crown than cash, and readily would the crown take money instead (to buy, among other things, full time professional fighters rather than part-time for-a-season knights).

Try not paying your taxes, and see how quickly the state sells your fee simple property on the courthouse steps!

Grim said...

Which tells me that the concept of "property" is older than, and independent of, the concept of "state." (A well run state will make property more secure than anarchy and clan tyranny; but it isn't needed for property to exist, or for humans to want to keep it.)

Chesterton is right here as well: and Aristotle, for that matter. Chesterton puts it this way:

"THE modern man looking at the most ancient origins has been like a man watching for daybreak in a strange land; and expecting to see that dawn breaking behind bare uplands or solitary peaks. But that dawn is breaking behind the black bulk of great cities long built and lost for us in the original night; colossal cities like the houses of giants, in which even the carved ornamental animals are taller than the palm-trees; in which the painted portrait can be twelve times the size of the man; with tombs like mountains of man set four-square and pointing to the stars; with winged and bearded bulls standing and staring enormous at the gates of temples; standing still eternally as if a stamp would shake the world. The dawn of history reveals a humanity already civilized. Perhaps it reveals a civilization already old. And among other more important things, it reveals the folly of most of the generalizations about the previous and unknown period when it was really young."

As to which, anthropologists who make the same error tend to stress that those societies that are purely tribal instead of 'civilized' tend not to have property rights in any developed sense. But that doesn't prove that the absence of property is 'older' than the cities; the truth is, as far back as we can see, there are men organizing themselves in one way or another. And there are other men, throughout each such time, who choose a system based on family alone. Both drives are apparently natural, and there is no reason to think that one is older than the other -- though one is manifestly more capable of creating wealth and power.

What Aristotle says is that both drives are natural, what he calls the connubial and the political. But there were societies even in ancient Greece in which property was held in common, for the whole society or (more commonly) for a class or a self-selected element; and this system has also worked well at times (for example in Sparta, or the military orders of Medieval Spain).

So are property rights pre-political and natural? Not obviously. They neither always precede, nor always survive, civilizations of various kinds.

Texan99 said...

I'm with Joseph W.

Ymar Sakar said...

Fascism and Communism were the inevitable byproducts of Western Enlightenment, with a dark twist.

The West created a social weapon designed to destroy one civilization in particular: their own.

They called it "change" and "utopia", but it meant the same thing, since they first had to destroy that which existed.

This weapon is still active and growing.

Property in ancient times was considered a very stable form of wealth. Thus it is equivalent more to a modern estate or corporation's assets, than to private property. Private property back in the day were supplies, tools, weapons, and armor.

Grim said...

Yeah, Tex, Libertarianism is predicated on the idea that property is the very most important natural right except life itself. It's just that this is not a position that has been very well defended anywhere. Locke's arguments (chiefly in the "Second Treatise on Government") are really not very good, and his examples seem to prove the opposite of his case. There has probably never been a 'state of nature' of the kind he describes as rooting the natural right of property -- certainly there has never been in recorded history. His examples of states of nature turn out to be examples of people who already belong to civilizations interacting.

Meanwhile, there are plenty of examples of tribes like the Bushmen who do without property -- both currently and historically. Now some anthropologists argue that actually the state of nature is propertyless, and that property is thus not pre-political but rather created by the states that are formed in the political process. But Chesterton is right here, I think: there's no evidence that tribes prefigure civilization. The evidence is that, as far back as we can see, we've had both side by side.

So we lack all the markers for a "natural right." It's not something universal to human nature, because in every age whole cultures have done without it and survived. It doesn't seem to exist separately from political systems, rather, the political systems recognize it and defend it in return for taxes -- and always with exceptions.

So property is certainly a political right, at the basis of our system of government. But it's not a natural right, not as far as I can see.

Ymar Sakar said...

That depends on what the ancients considered property, meaning wholly owned by one person.

Did they trade their favorite weapons around? What about their wives and children?

To the tribes of ancient yore, owning the land might as well be deemed owning the solar system or the star in modern centuries, since if you don't occupy and use something, how can you own it?