Social contract or bond of indenture?

The Deptford Croppy is currently making some efforts to learn the law but events ‘trasna na dtonnta’ (‘across the waves’ for my Gaelically-challenged bredrin) are a definite distraction to my jurisprudential inquiries.

From Redlegs to Gombeens and back again...

Now, in the case of the law of Contract, that distraction can be very welcome indeed. This afternoon for example, while groping through the maze of occasionally flawed reasoning in the wonderfully named Carlill v Carbolic Smokeball Company, my thoughts turned, as they often do, to that sainted Isle....

But before I am wafted away on zephyrs of Celtic wistfulness: the Carbolic Smokeball is one of those precedent-setting cases that every poor law student must study. It came to court in the 1890s and essentially involved some charlatans making grand claims of efficacy and wild offers of compensation for their product; a smokeball which they said could effectively inoculate its users against influenza.

The problem was that one Mrs Carlill (we never do get her first name but she’ll always be 'Gladys' to me) caught the flu after a dose of the miracle smokeballs and the Carbolic boys didn’t want to pony up their advertised compensation for such unlikely eventualities. The case more or less hinged on whether or not a contract existed between Mrs Carlill and the Carbolic Smokeball Company (they just don't name companies like they used to, eh?).

Great Balls of Smoke...

In my struggle with the metaphysics of offer and acceptance and whether or not the advertisement with its £100 compensation claim amounted to an invitation to treat or whether it created a contract that only needed to be completed by the buying or use of the smokeballs (or possibly even the catching of flu after using the smokeballs), my mind wandered to Rousseau and his social contract.


And once I started down that road, it was never going to be too long before I dumped poor dowdy 'Gladys' Carlill for the racier charms of Kathleen Ni Houlihan. 

Predictably enough, yours truly was always going to be much more interested in Social contracts than their grubby commercial counterparts (no undue disrespect intended to m’learned friends at the Commercial bar). But, as they say in mafia movies, one hand washes the other....

The legitimacy of the social contract with government and how it dovetails with the nature and essence of common precepts of commercial contract is hardly a new idea but it’s always got legs.

Straight away in a social contract, there is an intention to create legal relations between ourselves and our government, which is a prerequisite of all contracts, so far so good.

But then we look at some of the contract’s other requirements, such the one that posits that there be a clear offer followed by a clear acceptance. We really start running into difficulties there; what are they (the government) offering and what are we (the people) accepting?

Well, it’s safe to say that the document containing the terms and conditions of the Irish social contract (Bunreacht na hÉireann) sets out the rights duties and obligations of all parties to the agreement. And by that logic, their record in public life is evidence of performance or in our case, non-performance of the contract.


Never mind the Carbolics...


It seems to be almost a matter of public record at this stage that, on any reasonable interpretation, this government is then in breach of its ‘contractual duties’ to its citizens.

But this social contract is not just some hazy metaphorical construct. Following Thoreau’s reasoning in Civil Disobedience; that each man holds to his own moral compass and thereby implicitly offers his allegiance or explicitly offers opposition to the state according to his own guiding light.

The people therefore -- each and every one -- have what is essentially an individual bilateral contract with the government and not only is this government guilty of a plethora of derelictions in the performance of this contract to people as a whole (a sort of 'class action' if you'll pardon the pun); by signing Ireland up to IMF-imposed measures without adequate consultation or plebiscite, they are also acting far beyond their ‘contractual’ powers.

Another important aspect of a bilateral contract which makes it a binding agreement is consideration. Contract is all about deals struck and bargains made but both sides must gain something from the bargain and that, in Contract 101, is called consideration.

For the Sovereign Irish People in this ‘bargain’, I’m struggling to see where their consideration is coming from. Of course, you might say that the Sovereign Irish people have contracted to work and live in a state near-perpetual indebtedness and in return for that undertaking, they get the offer of a vague promise that some day off in the future, the great grandchildren of this generation might get out from under this loan.


I guess it does sound like some kind of contract all right. The people of Ireland now find themselves signed away into a bond of servitude.

If legitimacy is the lifeblood of this precious social contract, then the Irish government has bled it white.  Our social contract has become a bond of indenture. The Irish people are now once again the chattels of Commerce; to be bought and sold, every bit as much as our Redlegs forbears in the Caribbean.