So I was inordinately fascinated by a paragraph in Schelling’s paper “Enforcing Rules on Oneself”. This is a paper about personal rules, i.e. the rules we all adopt to reign in our behavior against the pest that is hyperbolic discounting. Since Schelling’s wrote the paper for a law journal he needed to outline why the usual tools of lawyering aren’t applicable. Why won’t the courts help you enforce your personal rules? Why can’t you make a contract with your self to say, go to bed at 10pm everyday? Why can’t get the courts to enforce a contact you made with your self? He writes:
“Legal means are not easy to come by. On another occasion (1984a) I looked at the question, Why can we not make legally enforceable vows – promises oriented toward no one in particular, intended to commit ourselves to the behavior we now wish to demand of ourselves? Why is it that certain constitutional rights are inalienable and we cannot contract to be held against our will until we have killed a drug habit, lost thirty pounds, or survived the full moon during which we acquire an urge to commit heinous crimes? Contracts are enforceable, subject to certain safeguards – not under duress, not between minors, not for involuntary servitude; promises are tantalizingly unenforceable unless they can be construed as part of an exchange. I cannot make a will that I cannot change; and it requires extraordinary ingenuity – is usually impossible – to get the state to tell me to do what I wish to be compelled to do, to intercede physically or to sanction with penalties the behavior that I now wish to avoid in the future.”
My first guess: it would be silly if the courts got into the business of adjudicating contracts we made with ourselves. They probably tried it and it did serious damage to the court’s gravitas. The litigant would be running from one side of the bench to the other like a child playing chess with himself. Would he change hats each time? I became less certain of that guess upon recalling the aphorism “The man who represents himself has a fool for a client.” The court could force these disputes into the usual form and require that both sides be represented by council. More work for lawyers!
But hold on. There are cases where society has created mechanisms for enforcing vows outside of an exchange, aka vows directed at no one in particular. Don’t want to drink – move to the dry town. Want to repress your urges to paint the house bright colors? Live on Nantucket. If you don’t know Nantucket’s is a wealthy vacation enclave where zoning rules that limited the color you can paint your house. Recognizing that zoning and condo agreement is a means to enforce personal rules was new to me. The literature on zoning complains, actually, that there isn’t as much zoning diversity as buyers would probably like.
Further there are many cases down through time and space of much more exacting attempts to enforce personal vows. For example: in Arizona you can sign away your right to enter a gambling den. In France there was a time when a family could petition the courts to punish family members who are doing damage to the household’s reputation.
The line between what the courts will get entangled in and what they stay out of, the inalienable rights, isn’t as bright as we often suspect. Subordinate groups (non-citizens, children, fools, the convicted, etc.) often find the court drawn into enforcing their vows. There is currently a fad for having students and parents sign pledges of various kinds. I assume there must be examples where these are enforced by 3rd parties.
Notice that inalienable rights are not entirely about the individual. They are also about what the disputes the courts are willing to entertain. I.e. freedom of speech is a class of disputes that the courts/society may well have just decided to throw up their hands and walk away from. Further there are inalienable rights, such as freedom to travel, which as technology shifts, the courts may revisit and decide “sure we can adjudicate that at reasonable cost; bring ’em on.”