Jairus Banaji & the HUMANCENTiPAD

Prof. Jairus Banaji writes in his essay 'The Fictions of Free Labor'- 

When is a contract ‘voluntary’? The answer is, probably never. The underlying assumption in the claim that some or most contracts are ‘voluntary’is that we can ‘descriptively identify domains of freedom and distinguish them from domains of choicelessness’.

We can't, de se et nunc, 'descriptively identify' ourselves, never mind anyone else, in terms of 'domains of freedom' and 'domains of choicelessness'. If we could, we would be able to say whether we can have the freedom to avoid smelling another person's fart tomorrow or if we really have no choice in the matter.

If the parties to a contract are free to become other people then contracts are voluntary but unenforceable. Thus, suppose I have contracted to fix your roof and taken some money to buy roof tiles. I never show up at your house. You track me down and say 'you are contractually obligated to fix my roof. Why have you not done so?' My reply is 'I have chosen not to be the person who contracted to fix your roof. There may be someone else who has chosen to be that person. Go home and wait for her.' It may be that some other person does in fact knock on your door and carries out the contracted work because she has voluntarily taken up the identity I had when I entered into that agreement with you.

Contracts are voluntary where they are 'complete', uncoerced and conscionable- i.e when consideration changes hand simultaneously, there is no coercion or 'unconscionable' imbalance of power or information and the activity is not repugnant in any way. The Law may choose to make a 'complete contract' incomplete or unconscionable- however its ability to enforce a remedy may be constrained by circumstances.

Incomplete contracts, however, are a different kettle of fish- which is why really smart people get Nobel Prizes for studying them. At any given moment over the duration of an incomplete contract, one side or the other might want to renege. This is why the incomplete contract may feature flexible penalties and bonuses or other types of 'mechanisms' to elicit 'incentive compatibility'.

Prof. Bananaji, however, is writing from a Marxist perspective-

The conception of contracts as the outcome of a free choice generalises to all sorts of contracts, including contracts of employment.

Incomplete contracts are very different from complete contracts. It would be dangerous to make any such generalization. This is because, even if the Courts provide contract enforcement for free, 'specific performance' is generally not a practical remedy.

Courts may propound whatever doctrine they like just as Clergymen may preach whatever they like, the fact remains that where coercion is costly, incomplete contracts have to have flexible 'mechanisms' to render them incentive compatible from moment to moment. Thus, so long as coercive resources are scarce, this is a purely Economic problem- that too of a highly idiographic sort. Neither Classical philology nor Hegel's Logic can throw any light upon it whatsoever.

Still, there have been a number of developments in the theory of incomplete contracts over the last few decades. Bananaji, however, ignores them completely. He writes

Through contract (the general theory/classical law of), the nineteenth century sanitised wage-labour in the sanguine images of individual autonomy, private volition, free will, and free agency.

Some pundits may indeed have spoken in these terms but they signally failed to convince anyone that little kids were freely choosing to work in coal mines because they had an aversion to playing Cricket &  studying Catullus at Eton or Harrow. That is why the Nineteenth Century featured progressive legislation and the curbing of repugnant or unconscionable contracts. However, in many instances, Managerial 'mechanism design' became increasingly ameliorative purely because 'transfer earnings' were on the rise and 'efficiency wages' were required. The Twentieth Century saw considerable Trade Union backed reform which, however, in some instances, continued even after Unions lost salience purely for reasons of retaining incentive compatibility in incomplete contracts. What increasingly mattered was not just 'transfer earnings' but psychic costs and benefits- at least in non-Malthusian shithole type locales.

There was, of course, a long pre-nineteenth-century tradition, going back to antiquity, that had seen wage-labour (contracts for the hiring of labour; ‘service’ in an earlier terminology) in terms of the subordination of the employee to the employer. 

There was an equally long 'Epicurean' tradition which focused on 'mechanism design'- keeping your workers happy and having a bit of fun yourself- rather than pretending that coercion was costless or that preaching sermons had any effect.

Bananaji- who may well have taken a Summer job (perhaps just to find out what it felt like to be a prole) while studying Latin and Greek at Oxford- tells us that when you go to work for a Company, they have the right to sodomize you-

In one formulation of this, what the worker sells is the ‘right to control his labour-power’. Since labour-power is never disembodied, what employers buy when they ‘buy’‘labour-power’ is command over the use of workers’ bodies and their persons.

Indeed, they are not just buying your rectum, they are also buying your cock. This is why, when you leave Uni and get a job, you receive a somewhat unwelcome surprise. The first thing H.R does is get all the new recruits to form a conga line of buggery which then snakes its way through the Financial District. If this conga of anal coition is judged to display superior vim and vigor, the shares of the Enterprise sell at a premium and Financial Capitalism can lurch on for a few more years before its final crisis and self-wrought demise.

In other words, ‘The worker and his labour, not his labour power, are the subject of contract’. Liberal legalism, or the ‘pure’ or ‘general theory’ of contract that developed in the nineteenth century, grounded the almost limitless subordination of the wage-labourer in the anodyne fictions of consent.

Whereas the hideous truth of Financial Capitalism is that it survives only upon the spectacle of sodomitical conga lines featuring such young people as are foolish enough to quit the 'safe spaces' of the Ivy League or Oxbridge for the hazards of a commercial career.

This does not mean that becoming a Professor of 'Agrarian Studies' or 'Post Colonial Theory' will preserve your anal cherry.

Bananaji warns-

At another level, however, it is possible to argue that no contract is free
because economic coercion is pervasive under capitalism... Coercion is everywhere, because the ‘outcomes [of bargaining] are heavily conditioned by the legal order in effect at any given moment’. The line between freedom and coercion is impossible to draw, ‘either as a matter of logic or as a matter of policy’.
Indeed,
'In every contract . . . it is an open question both whether the more informed party ought to have shared more of his information with his trading partner (that is, a question of ‘fraud’ arises, in some sense, in every case) and whether the contract would have been made had each party had other physically imaginable though socially unavailable options available to him (that is, a question of ‘duress’ arises in every effect at any given moment’.

This is an important point. Even if Apple has not yet exercised its power, under the Terms and Conditions we all unthinkingly agree to, to create one vast 'HUMANCENTiPAD' out of us, the fact that this is physically imaginable, though (prior to Brexit under BoJo) not socially available, means that, in some sense, we are all already shitting into each others' mouths in the manner Marxist savants have long been habituated to do.

Back in 2003, Bananaji was briefly taken note of by the Indian press when he disturbed a Confederation of Indian Industry function in order to raise slogans against Narenda Modi.

Bananaji did Modi a favor because Modi was obliged to take a high hand with Indian industrialists- more especially Gujerati speaking Parsis. Some of these blue-bloods were foolish enough to believe that the Communists in West Bengal would help them open factories on greenfield sites. This caused a peasant backlash, which eventually toppled the Communists from their bastion and obliterated them as a political force. This destroyed the illusion that people like Bananaji mattered in India. The Parsi industrialists had to kowtow to Modi who, however, would cancel any land acquisition which the peasants had changed their minds about. In this manner- i.e by ignoring or humiliating Parsi blue-bloods irrespective of their political affiliation, Modi and his party has consolidated its power over a large part of India.

Smriti Irani has avenged her husband's people upon Parsi origin people like Rahul Baba who looked down on these more recent migrants from Iran. It seems the star of 'kyonke Saas bhi kabhi bahu thi' has been able to put 'the Nation's daughter-in-law's' nose out of joint by depriving her son of his ancestral pocket borough.

Meanwhile, it is cheering to reflect, Bananaji and his ilk are still engaged in their conga line of coprophagy. They, at least, are preparing their students for life in the real world.