Can the unseen be contracted away?
Political, Work, Law ·Monday July 19, 2010 @ 01:17 EDT (link)
(This entry inspired by some thoughts I had while writing the entry on property and liberty.)
How much freedom of self (or your car, or other mobile entities) do you have on someone else's property? Do you have a (natural) right to carry concealed weapons, even if the owner is hostile? Can you ever sign away these natural rights to property (contract to not carry weapons) or are such contracts not binding? How about if the property owner has means of detection (metal detectors, guards)? If you believed that contracts can't infringe natural rights, you'd necessarily be similarly opposed to metal detectors infringing privacy, and not think that even if they found something that it could be taken. But on the other hand, right to enter property could be denied for any reason, even assertion of your own natural rights (or because you were wearing a yellow shirt). This puts the rights of the real property owner against the rights of mobile property owners (cars) or individuals (self ownership). This article also examines the rights of (real) property owners.
In a similar vein, the question may be asked, Can you contract away the unseen?
That is, can you sign a contract with, say, an employer, about something he cannot see (or, to be more general, detect). Can you sign away, for example, your freedom to go skiing on the weekends, or to drink apple juice, if it doesn't substantially affect your job? (Going skiing Saturday might make you a little more tired Monday, but it wouldn't affect your work to the detriment of your employer, or at least not more than many other activities.)
For example, you could sign a contract saying you will not do illegal "recreational" drugs, because it could affect your work (more on that in a bit). You could possibly agree to random urine testing to verify this. I would argue that if there were not some indicator (smell, behavior, poor work) indicating a behavior that one had agreed to forgo, then the employer has no business testing for it. And there could be a gray area here. Perhaps you can't easily observe drug use without taking a lot of time to observe a person, but it could still lead to grievous errors (say, on an industrial shop floor); then it might be reasonable to contract to allow random testing, but even then, a zero tolerance policy is not compatible with the "detectable" policy; there must be a level of intoxication that would compromise safety (not 100% chance, just reasonably, and I'll bet that level is above zero).
The policy would even allow for people to bring in those drugs in, say, pants pockets, as long as they would not otherwise influence contracted work (dealing them, for example, is an abuse of company time and property, engenders profit from use of said property, could be breaking the law—depending if we're in Voluntarytopia or not, takes others' time, might result in customer complaints, etc.). It's not merely whether they can be seen, either; even if an X-ray machine could pick them up, until regular people start wearing X-ray glasses, having something in your pocket doesn't interfere with how you do your job.
An alternative but similar view (that would allow for concealed carry) would be to recognize the supremacy of the right to life, liberty, and property, and allow companies only to require people to contract away the ability to protect those rights (e.g., in the case of protecting life, the right to carry weapons for self-defense) if the company can protect those rights equally well. This might involve hiring personal security guards, or controlling physical plant access with metal detectors and armed guards. For most jobs, actually protecting individual rights in this manner would be prohibitively expensive, and so people would be able to protect themselves, but for occupations where employers really (for business reasons, possibly secret labs or weapons development, or even extreme prejudice) want to disarm people, they can accomplish it by providing equivalent protection (who decides what is "equivalent" is an implementation detail).
IÂm certainly a huge fan of property rights, and private contracts, but I could accept that it is not reasonable for employers to be able to restrict things that do not affect the job they are hiring someone to do.
You could have a contract that says, for example, that an employee will do whatever job they're hired for and buy all their groceries from company-affiliated store X (or go to a specific church on Sunday, or only drink water), in return for being paid (and implicitly, being allowed in the employerÂs building to work). But I donÂt think an employee should be held to the groceries-buying part of such a contract because it's absolutely not relevant to job performance. Sure, if you believe in unlimited contracts you can say the employee shouldn't take the job if they don't like it, but I'm having some second thoughts about unlimited contracts. Or, to state alternately, maybe an employee is held to it, but since the employer suffers no harm they have no recourse: no damages will be awarded.
The relevance to the original discussion is that carrying a firearm in your vehicle (or, even, arguably, concealed on your person) doesnÂt affect your job, so, under a "limited scope contract" theory it's off the table for employment contracts (or entirely unenforceable by contract law). Of course, a company could still fire you for any reason, so if they could detect a breach of even an unenforceable provision they could fire you. Does this mean they can install metal detectors? Sure. What if they do, with guards at the doors? ItÂd be a huge expense for companies that decided to go that route, but (depending on the training of those at the doors) might make people feel comfortable being unarmed if they had the choice. (All hypothetical, of course. Usual disclaimers.)
I would also use a broad definition of "affects your job" to the point that if someone else sees that you have a firearm and is alarmed, you may have violated a legitimate contract provision (keeping it undetectable is your problem), and companies can ask employees not to do things that might annoy others, such as wearing excessive perfume, since it does affect the work environment.
(Another argument that was made by others in the thread where I posted some of the above was that if self-defense is a right—via the second amendment, say—standing at the same level as the right to control one's property, then there's a bit of an impasse if both rights must be preserved. I'm not arguing constitutional rights, though, but rather natural rights, and both over one's own property.)
I would thus support a "personal castle doctrine" as it were (extending to more than just defense), where one's own body or vehicle or other property is inviolate if it doesn't interfere with whatever one is contracted to do. (This is all, of course, theoretical.)
Books finished: A Song For Arbonne.
