Fein on Contracts

Robert Wexelblatt

My good neighbor, Mrs. Ardekian, is a cheerful widow. She lives alone, but her children and grandchildren visit regularly and, when they are coming, she cooks for days in order to stuff them with delicacies. I’m usually offered some too. There was no need for me to acquire a taste for her Armenian specialties, but I did have to learn what to call them. My favorites are lahmajoons, a sort of meat pie that I cannot get enough of and which I had to be forgiven for the grave solecism of once calling “Armenian pizza.” Then there is Mrs. Ardekian’s wonderful doma, and her sublime desserts—souberog and mamoouls. Mamooul is a perfect name for these nutty cookies sprinkled all over with confectioner’s sugar like grandmotherly love.

Mrs. Ardekian lives in a ranch house, everything on one floor, and she keeps it as tidy as if it were a yacht owned by Joseph Conrad. She herself is a tidy person, though never formal or

stuffy. She is fit, trim, with neat white hair; she favors jeans and tennis shoes. Mrs. Ardekian keeps up with the news, reads biographies and popular fiction, socializes with two other widows, one of whom has recently moved to what my neighbor, with lowered eyes and voice, referred to as “a facility,” as if it were the knacker’s. Mrs. A’s real passion, though, is birds. She is a lifelong birder and can identify pretty much anything wild and feathered. This May an unfamiliar bird appeared on my lawn and I rather fell for it, and therefore badly needed to know what it was. I’m not sure but I think this need to name is a common compulsion. Perhaps it goes all the way back to God amusing Himself by having Adam label everything in Eden. I’ve always liked that passage in Genesis, which is also about the invention of language and the power, or at least assurance, that naming confers:

. . .out of the ground the Lord God formed every beast of the field and every bird of the air, and brought them to the man to see what he would call them; and whatever the man called every living creature, that was its name.

It makes you picture God as a playful father, presenting novelties to his son just to see what he’ll say, then adopting his childish words, as doting parents do. This was just before God made Eve. Adam, coming out of anesthesia and doubtless flush with all that naming, called her “woman.”

So, I spotted a bird on my lawn that I couldn’t identify. It caught my eye, a real beauty. It wasn’t a flashy bird, not at all. It was gray and black. But when you looked closely, the gray was the color of a pair of kid gloves Anna Karenina might have worn in her salad days. The black sat like a yarmulke on its head, and was also the color of its perky tail. I looked harder and saw it wasn’t black at all but a truly profound gray. The two colors harmonized so well that they seemed like the same tune, done once in major, once in minor. But it was the grace of the bird that really fascinated me. I had never thought hopping could be such a fluid, balletic movement. At rest too the bird was elegant, sleek as a Maserati. I spotted the bird three days running, watched it hunting worms and bugs, and felt it a privilege to do so. As I say, I felt that need to put a name to the charmer. And so, when I saw Mrs. Ardekian taking a

walk, I decided to ask her, knowing it would give her pleasure to tell me. The difficulty lay in describing my bird to her.

“What’s it look like?” she asked sensibly.

“Well,” I stalled. “It’s gray with a black cap and tail, except the black is really dark gray. It looks something like a robin—same diet too, I think—except that next to it any robin would look like an oaf.”

She laughed. “What you’ve got is called a gray catbird. As in the catbird seat.” Then she made bird noises, as if she were reporting the last parliamentary address by my catbird.

She invited me to walk with her and we began by discussing the origin of the phrase “sitting in the catbird seat.” I recalled that James Thurber had written a short story with that title and she knew that Thurber had swiped the phrase from Red Barber, who deployed it colorfully in calling baseball games. We both figured it must be a Southernism (I later learned that Barber said he’d picked it up in a poker game in Cincinnati). Mrs.

Ardekian explained it to me. “Catbirds like to settle on the highest point available in a yard or a field, you see. Highest shrub or tree. The catbird seat—on top, able to look everything over. See?”

“That, Mrs. Ardekian, is an explanation as elegant as the bird itself.”

“Herself,” she corrected. “What you’ve seen is the female. The male would be a bit stockier and you’d probably notice he’s got a red bum. Watch out for him—he’s certainly around somewhere. Some of them have harems, you know.”

It pleased me that the affection I felt was for a female.

“You know, if you enjoy birds, you should feed them.”

Mrs. Ardekian herself had half-a-dozen feeders stocked with a variety of seeds; she also put out suet and completed her avian spa with a pair of birdbaths. “But, you have to keep the feeders stocked year round,” she cautioned me. If she was torn between the desire for me to share her

enthusiasm and the wish to preserve her monopoly, she didn’t show it.

Then I asked her a silly question. “Why do you like having the birds around?”

She paused, probably because of the silliness. “They delight me,” she then said with a positively girlish giggle. “You see, we have a contract, my birds and I.”

It was this comment of Mrs. Ardekian’s that has got me thinking about contracts.

When my neighbor claimed that she had a contract with the birds who visited her backyard she may have been speaking metaphorically but, still, she meant it. She wanted to express the reciprocity of her relations with the birds: she provides them with food and, in return, they give her the pleasure of watching them consume it. The question that occurred to me was: can there can be a contract if both—or all—parties are not aware that there is a contract? Mrs. Ardekian might like to

fancy that her sparrows, finches, and nuthatches know of the deal, are pleased with it, and believe they’re getting the better of the bargain; however, the birds don’t know there is a contract. They know only that there is easy food to be had in her yard. It is to food they are faithful, not a contract. On the other hand, Mrs. Ardekian’s metaphor doesn’t seem to me far-fetched. Her warning that one must always keep the feeders stocked is, in a way, saying that I must uphold my end of a covenant. Without seeds and suet the birds will not visit; from the birds’ point of view, I would have broken a contract, so to speak. The idea that human beings can have contractual relations with animals seems plausible enough. Perhaps birds are unaware of the reciprocity of a contract, but what of cows, horses, dogs and cats? People develop complicated relations with their livestock, not to mention their pets. But perhaps these are all imaginary. Do human-animal contracts really exist or is it just that humans are inclined to impose a legalistic framework on all their relationships? Certainly, the idea of a contract between willing parties is useful in all kinds of situations because it simplifies and

makes rational what would otherwise be untidy or emotional. A contract is practical—I mean as a guide to practice—laying out what must be done, or not done, by the parties to fulfill mutual obligations, plus benefits and penalties. Perhaps this is why those of our species most devoted to reason—philosophers and lawyers—are particularly dedicated to the concept.

Adam and Eve had a deal with God, though there were no more negotiations than Mrs. Ardekian had with her sparrows. In fact, this first contract—as one would expect from the Almighty—is imposed and, to speak frankly, has the feel of a set-up. There is a good deal of theological as well as psychological force in Kafka’s saying that the original sin is man’s insistence that the original sin was committed against him.

The next contract is the one God makes with Noah after the Flood, suggesting the Deity might have been feeling some remorse. But this contract is not merely with Noah and his family, not even just with humankind:

Then God said to Noah and to his sons with him, “Behold, I establish my covenant with you and your descendants after you, and with every living creature that is with you
. . . I establish my covenant with you, that never again shall all flesh be cut off by the waters of a flood to destroy the earth.”

Like Mrs. Ardekian, God includes animals in the deal, in fact, everything on the Ark. No more mass extinctions, God promises, at least not by water. In return, all men have to do is refrain from killing one another and “not eat flesh with its life, that is, its blood.” The pattern is set; the Deity will look after us if we follow the rules, especially dietary ones. God binds himself and signs his pledge in celestial style, with a rainbow. We sign by eating dry meat.

The Hebrews really do like this way of putting matters. Abraham is the ur-monotheist, also the first human to enter into negotiations with God, which shows how close Abraham and God become. It is a great moment when this human being stands up and intercedes, however fruitlessly, for Sodom: “Wilt thou indeed destroy the righteous with the

wicked? . . . Shall not the Judge of all the earth do right?” And the contract negotiations are off and running, Abraham getting God down to sparing the city if he can find just ten good people in it.

Abraham’s private relation to God is also expressed as a contract between them:

“I am God Almighty; walk before me and be blameless. And I will make my covenant between me and you, and will multiply you exceedingly.”

Abraham knows about this contract, even if, like Adam and Noah, he didn’t negotiate it. He sticks to it too, through the awful twenty-five year wait for Isaac (imagine the nightly conversations between Abraham and Sarah about having intercourse in their seventies and eighties!). He adheres to the contract even when the awful command to cancel it comes and goes off to sacrifice the miracle child. The contract between Abraham and God is personal, yet one of the key tenets of Judaism is that is also general; that is, transferable to the unnumbered generations that will descend from

those forty-six chromosomes, including people who may know nothing about it. However, another way of looking at it is to say that it is these later generations who thought up the contract and projected it back onto their progenitor. They really want a deal with God, a collective contract.

This collective contract is explicitly sealed at Sinai, where its true nature becomes clearer. In Exodus the contract between creation and Creator begins to turn into what will later be called a social contract. The covenant becomes more complicated, its strictures ever more legalistic. First, there are the Ten Commandments. Even these are chiefly about humans’ relations with one another rather than with God, whose primary role is that of Sovereign enforcer. After the Commandments one generally stops reading and so forgets what comes on their heels, which is an avalanche of rules governing all sort of situations and social relations:

When a man sells his daughter as a slave, she shall not go out as male slaves do . . . Whoever curses his father or mother shall be

put to death . . . . When a man leaves a pit open, or when a man digs a pit and does not cover it, and an ox or an ass falls into it, the owner of the pit shall make it good; he shall give money to its owner, and the dead beast shall be his. . . .

And so on and on and on.

It was for philosophers fully to secularize the contract, and they have made of it a formidably durable political idea. In a theoretical sense, all this was accomplished at a stroke by Socrates—or Plato—in the Crito. To persuade his old friend that evading an unjust but legal punishment would be wrong, Socrates conjures up a conversation with “the Laws,” a dialogue within the dialogue. Incidentally, the passage has always reminded me of Job because in both texts Power insists on obedience and reverence, never really accounting for its injustice. In this fantasy conversation—a one-sided affair like most of his—Socrates adumbrates the idea of a contract between the

individual and the Laws, or the State. What is too often overlooked is that at the same time he also invents civil disobedience.

Socrates has the personified Laws ask lots of rhetorical questions, just as he does. For example, the Law inquires whether, because it has injured him, Socrates can injure it in return:

“. . . And was that our agreement with you?” the law would say; “or were you to abide by the sentence of the state?”

The Laws enumerate the blessings of civilized life from which Socrates has benefited for seven decades and observe that these were conferred on him because of their rule:

“Do you imagine that a state can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and overthrown by individuals?”

It is a notoriously odd argument, seeming to suggest that one old gadfly skipping town could

overturn the Athenian constitution, albeit only “as far as in [him] lies.” The argument appears to undermine Socrates’ non-conformity, his role as dissenter and social critic, which he had just laid out so eloquently at his trial. Well yes, Socrates does say there exists a binding social contract between him and the state and even awards the greater status to the state for, as in the Bible’s covenants, it is clear which party has the standing to set terms. The Laws are indeed godlike. They ask, “In the first place did we not bring you into existence?” and, in the same vein: “. . . you are not on equal terms with us; nor can you think that you have any right to do to us what we are doing to you.” Socrates even has the Laws call him “our child and slave.” The contract is clear: Socrates gets the benefits of life in Athens, the Laws demand in recompense that he abide by them. I have heard these passages invoked to the un-Socratic end of stifling dissent, which is why the following passage seems to me so significant. Socrates has the Laws say to him that a citizen “. . . must do what his city and country order him; or he must change their view of what is just . . .” This is where Socrates

confirms the meaning of his life and also invents what Thoreau, Gandhi, and King would later amplify. Socrates can establish his moral authority to question the government only by submitting to the Laws, accepting an unjust punishment and so making clear that the injustice is not in the Laws but in the human beings who apply them. Another implication is that Socrates did not think the contract is such that the Laws must furnish justice to the individual in return for obedience. The Laws promise only a just system, the rule of law itself, but cannot guarantee justice itself.

The idea of a social contract is dear to philosophers because it is a philosophical idea, because it is their idea. Perhaps philosophers are aware of the extent to which it is a sort of legal fiction, handy for purposes of analysis and political progress but not good history. Thomas Hobbes, the greatest of social contract theorists, walks right up to this telling admission when, immediately after his indelible depiction of the horrid State of Nature, he writes:

It may peradventure be thought, there was never such a time, nor condition of war as this; and I believe it was never generally so, over all the world. . .

Yet he quickly recoils from this interesting disclosure by means of an ignorant error, ascribing to Native-Americans (Hobbes’ favorite representatives of the “savages” just as they were a century later for Rousseau) a lack of political organization, “except the government of small families, the concord whereof dependeth on natural lust. . .”

Still, Hobbes’ idea of the social contract is powerful and seminal. It begot Locke and Rousseau and, arguably, a couple of revolutions. The irony, of course, is that Hobbes was a Royalist who intended Leviathan as a gift to the Stuarts, a stainless steel, up-to-date, state-of-the-art, secular, scientific justification of absolute sovereignty. That there is no such justification is just one problem; a worse one, from Hobbes’ point of view, is that his logic justifies people in pulling out of the contract,

opening the way for revolution. It wasn’t just Hobbes’ deductive logic that led to this, of course. He was an Englishman and limitation of governmental power was part of his heritage. Magna Carta, however fitfully applied, had been around for over four hundred years when he wrote. All the same, whether deliberately or inadvertently, Hobbes included in his contract something neither the Bible nor Socrates did, an escape clause.

Since, by Hobbes’ theory of voluntary motions, we are by nature isolated balls of pure selfishness, we only join society the better to enjoy our lives, liberty, and property and are willing to renounce those rights (to Hobbes every law is an ex-right) that make this enjoyment insecure. The first obligation of the state, then, is to maintain these individual rights. Should the government fail to do so, or violate them itself, it can be justly overthrown. Hobbes never says this; he was a Royalist, after all, but he certainly implies it. Because Locke had no such reluctance he gets all the credit for inspiring the Declaration of Independence.

My point, though, is not to give credit where it’s due, but that social contract theory is not a credible description of history. Hobbes’ story of isolated individuals gathering in a field, clubs at the ready, agreeing to rules, giving up freedom and equality, and choosing the tallest fellow with the biggest club to enforce the rules, get called “Your Majesty,” live in a palace, be bowed to, and accept their collective sovereignty as his alone, so long as he can enforce the rules is absurd. The theory is compelling, not because Hobbes described human behavior in the past, but because he deduces his historical myth from a plausible psychological theory and, still more, because the theory of a reciprocal contract is so useful in analyzing the present. Hobbes was a man of his time. He knew many of the great early scientists and admired their work. In Paris, he sat on a committee to examine Descartes’ doctrines. He traveled to Italy and Germany to visit Galileo and Kepler; Mersenne and Gassendi were personal friends. He pretty much adopted the latter’s neo-Epicurean materialism along with Galileo’s “bodies-in-motion” view of the universe. His contract theory answers the needs of both individuals and states in his time, one when Protestantism,

capitalism, nationalism, and imperialism left everybody on their own, insecure and in need of social structures to replace outworn ones like feudalism and Christendom. The idea of rights maintained through a compact between the individual and the state, also of contracts between states that grew out of Grotius’ ideas and bore fruit in the Treaty of Westphalia, is a modern idea, one that not only suits modernity but contributes to it by putting politics on a rational footing. Hobbes’ notion of universal war in a state of nature replaced by the peace of a civil society may not be historically correct but is nevertheless politically true.

I should now get back to the original question suggested by Mrs. Ardekian: can there be a contract if all parties are not aware that one exists? Well, we never actually sign a social contract, and saying that passing through the process of “socialization” constitutes our subscription is hardly satisfactory. Children and people who have lost their minds are also covered by the social contract, in some way or other, but have even less of a conception of such a thing than Mrs. Ardekian’s sparrows, who will

cavort on her feeders only if there is food. Are most citizens aware of a contract between themselves and the government? It seems to me not a matter of whether, but of when and why they are aware. It is in the nature of a successful social contract that it should be taken for granted. As it is with the electrical grid and the water supply, so it is with social contracts; we become aware of them only when they cease working. I know lots of people to whom being deprived of electricity and water for an hour would seem like a return to the state of nature; but to everyone, life without law and order really is. Cities are complicated places and many work amazingly well; but, as Hobbes more or less said to those who called him a cynic, just take the cops away for a few days and watch what happens.

The Leviathan was not inspired by anthropological research, but by an experience that was post-social rather than pre-social, the collapse of the British government and the civil war of the 1640s. In the circumstances of Hobbes’ time, his analysis makes excellent sense. It is the breakdown of the law—the uninvestigated crime, the unfilled pothole—that makes us mindful of a

contract. We stop at red lights and pay our taxes, so why are the bridges falling down? It is a Thirty Years War that makes us dream up a Treaty of Westphalia and two ruinous world wars that make us want to give Leagues of United Nations a shot. Social contract theory is not really about the building of societies from an original chaotic state populated by armed, self-sufficient egoists. It is prompted by existing societies that have plunged into dysfunction. The Declaration of Independence is essentially a letter telling George III that he had not held up his end of the deal. The Founding Fathers did not build a new nation from scratch. If the seeds aren’t there, if the baths are dry, the sparrows will opt out of Mrs. Ardekian’s back yard. It is tempting to say that wherever there is reciprocity there is also a contract.

I have been meandering but have not forgotten the original question about contracts of which the parties may be unaware. Perhaps underlying all the contracts of which we are aware is an ur-contract that, as we say with charming anthropomorphism, evolution stumbled upon, the benefit to a single

organism of joining with another for something other than sexual reproduction: the primeval form of giving-to-get. On average, cooperative species did better than those that produced loners. Wolves have complicated social contracts. A lone wolf may look cool, but he is not in an enviable position.

So I cannot say Mrs. Ardekian is wrong to think of her relations with her birds as contractual. It is, after all, a good way of understanding matters. After the Flood and the rainbow pledge, God could look over all that being fruitful and multiplying and, not unlike Mrs. Ardekian at her kitchen window, think of his contract, though those creatures down below are oblivious to the averted danger. A good governor should also look down from his or her corner office and think of the obligations of office, what is owed to all those commuters, policemen, and homeless derelicts on the park benches. The contract is no less authentic because nobody remembers it until the hurricane or the tornado, the riot or the crime wave. Was it really so different in the days of the Mandate of Heaven and the Divine Right of Kings? Even before popular sovereignty, reciprocity was still crucial. On the gates of

Persepolis the subject peoples were promised peace and security in return for submission to the King of Kings. Bad, corrupt, and incompetent autocrats could be removed with or without the pretext of divine displeasure. In choosing their successors, genes were generally less important than ability to Roman emperors; and Chinese ones are known to have passed over their feckless children in favor of efficient ministers when selecting their replacements. I imagine they thought it their contractual obligation to do so.

Suppose I sign a book contract but neglect to read all its provisions, having been assured by the publisher that the language is “standard boilerplate.” The major points are clear, though: I supply the finished manuscript, the publisher undertakes to publish it by a certain date, and we divide up whatever proceeds might eventuate according to some formula. Now suppose the publisher changes his mind; he no longer wants to publish my book and, even though I have fulfilled all my obligations, he cancels our contract without fulfilling his. He points to a clause on page twenty-

three that states he can pull out at any time and for any reason. There is no clause allowing me to do the same. The contract is, perhaps, not a good one, neither reciprocal nor symmetrical; yet it is still a contract. I signed it.

This is a bit like marriage which is often conceived as a contract. Written marriage contracts are still common in many cultures, always have been. In many cases the contractees are a couple’s parents, so those most concerned may be entirely ignorant of the contract’s provisions—dowries, property rights, military alliances—including escape clauses. Save for the rich and famous who go in for prenuptial agreements, in our society the escape clause usually goes unstated because it would be tasteless to include it among vows that still include the phrase “till death us do part.” The public declarations at a wedding are themselves a sort of contract, and one sometimes worries that the more sincere they are the more unreliable they will prove.

Mrs. Ardekian is happy watching over her birds. I take pleasure in the feeling she has for them. A few days ago she and I and another neighbor, Mr. Lundberg, met by the mailbox and the talk turned to birds. Mr. Lundberg, it turns out, is a bit of a birder himself, though, next to Mrs. Ardekian, merely a dilettante. He makes no contracts but looks without feeding. Lundberg listed, as if it were a personal merit, the most colorful and unusual birds he had spotted so far this spring. He claimed to have seen a titmouse, a flicker, some purple martins, any number of goldfinches, a red-tailed hawk, and a couple of indigo buntings.

“Which birds are your favorites?” he asked Mrs. Ardekian rather condescendingly.

“Oh,” she said, “I love my brave little sparrows best.”

One day in Hebrew school Rabbi Weiser asked us boys what the most important Jewish holiday was. Most said it was Yom Kippur, the Day of Atonement, highest of the High Holy Days; a few argued for Rosh Hashanah, the New Year, beginning of the Days of Awe. One candid fellow said that the

most important holiday was obviously Chanukah because you get money and presents and it lasts for eight nights, too.

The old rabbi just shook his head at us and, without troubling to explain why, said, “No. It’s the Sabbath.”

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EDITOR’S NOTE

I found this piece in Fein’s file for 1983, the year before his death. The manuscript is rough, mostly corrected typescript but partially handwritten. It is untitled; I am responsible for the admittedly unsatisfactory title “On Contracts.” I have prepared it for publication with some compunction because it is obviously fragmentary and, more than other posthumous pieces I have seen through publication, in an unfinished state. Perhaps if he had lived Fein would have returned to the essay, but it seems to me even more likely that he simply

abandoned it. He may have despaired of its rambling nature, as he himself admits to “meandering.” I have to admit that its point is elusive, even with the reiterated question about a contract between parties unaware of its existence. So there is a theme, or at least a motif, but here Fein seems to resemble a pianist improvising on a nebulous tune. Digression characterizes a good deal of Fein’s writing but he usually pulls things together in the finale, often delightfully. Many of his essays resemble boots that have been loosely laced, with a final cinching at the end. Here he concludes with the touching memory of a rabbi teaching that what is most holy is what is most commonplace and familiar, not what is most grand or exceptional—Mrs. Ardekian’s sparrows, not Mr. Lundberg’s indigo buntings. The faithful attend to the weekly Sabbath rites, the pretenders only the High Holy Days. But what this has to do with the Flood and Abraham, with Socrates and Hobbes, I’m not entirely sure.

Fein’s interest in social contract theory is easily accounted for, though. It is owing to his recent stint teaching ethical philosophy as a visiting professor

at Brandeis University. To judge from his syllabus and the assigned readings, Fein’s ethics course stressed political theory.

The somewhat bitter paragraph about marriage may be read as a reflection on his own experience or on the general rise in the divorce-rate during the 1970s. Fein had commented on this phenomenon before, in Want, Desire, and Need, published in 1977, four years after his own marriage fell apart. Here he noted the high number of divorces among the educated in the years following 1973, from which he dates the start of the Women’s Liberation Movement. He stresses the significance of 1973, calling it “the real end of the sixties.” He observes the coincidence of Women’s Lib with the withdrawal from Vietnam, the first oil embargo, a stubborn recession accompanied by equally intractable inflation, the resultant pressures on families to generate two incomes in order to remain in the middle class, and the stirrings of a transition in the nature of the economy from muscled manufacturing to dexterity in handling information and keyboards. Fein considers that the majority of these divorces were initiated by women, and he

expresses sympathy for their position, their “peculiar identity crisis,” the pressure not to resemble their mothers, as well as compassion for the negative fallout for all concerned. He notes that most of the divorced men he knew had remarried within a couple years while many of their ex-wives struggled on alone. When the book came out he was asked by an interviewer about why he had not also remarried. Fein replied dryly: “I have too high a regard for the institution of matrimony to mar it by my further participation.”

Copyright© Robert Wexelblatt. White Whale Review, issue 2.3