Contracts and the Rhetoric of Dehumanization
It’s a fundamental tenet of contract law that contracts require consent. Yet, the meaning of consent has been distorted beyond recognition in some cases. In areas of the law other than contracts, consent means a knowing, voluntary act that is intended to manifest agreement (even if not always approval) of an act or activity. In contracts, however, consent has been diminished to a mere construct where the so-called “manifestation of consent” has replaced efforts to assess the existence of consent. In other words, the signfier (the manifestation) replaces what it signifies (consent). There are economic justifications for doing this in most commercial contracting situations.
But where the so-called contract involves services, the economic justifications are outweighed by fairness and policy concerns. This is why courts do not require specific performance of employment contracts. Economic rationales are not the only reason to enforce contracts; there are social, moral and cultural reasons as well. Similarly, there are reasons not to recognize something as a contract. Perhaps the most important reason is if the so-called contract lacks consent. This is precisely why the law makes a distinction between void and voidable contracts. A contract entered into under a threat of imminent physical harm – a gun pointed to the head – is void, meaning that it never existed at all, despite the fact that the victim may have signed a piece of paper with a caption at the top that proclaims that THIS IS A LEGALLY BINDING CONTRACT. The law ignores that piece of paper given the circumstances under which it was made.
So I was puzzled when I heard about a paper written by a certain Harvard law professor, J. Mark Ramseyer, titled “Contracting for Sex in the Pacific War.“ I had heard the paper was about Korean women who had been forced to work in brothels during the 1930s and 1940s. Surely the author of that paper understood that contract law distinguished contracts that parties entered into freely and voluntarily from those which a party was coerced into signing? Not surprisingly, the paper generated controversy and many scholars refuted its dubious assertions. There were several excellent commentaries, including this one from Harvard law professor Jeannie Suk Gersen here and this one by Professors Yong-Shik Lee, Natsu Taylor Saito, and Jonathan Todres here, which address many of the historical and factual inaccuracies in Ramseyer’s account.
To be honest, Ramseyer’s paper is so heartless, arrogant, and just plain distortive that it almost reads like satire. He refers to sex traffickers as “entrepreneurs,” and confuses “rape” for “sex.” He makes claims about contracts even though those contracts don’t seem to have actually existed. Moreover, Ramseyer appears to have invented a universe where there is no such thing as gender violence, racism, colonialism, poverty, war, kidnapping, or deceit. He overlays a not-very good type of “game-theory” analysis on his assailable version of history, and his tone is bloodless and detached, as though he were discussing fungible goods rather than actual people.
Particularly offensive to readers of this blog is Ramseyer’s lazy and flippant use of the word “contract.” He uses the term “contracts” in an attempt to legitimize his outrageous claims, a rhetorical sleight of hand which attempts to transform a heinous international human rights violation into just another commercial exchange. But context matters to contracts and Ramseyer ignores both the identity of the parties and their circumstances. The women he is referring to as “prostitutes” were poverty-stricken Korean women during wartime who were living as colonial subjects stripped of rights by a militaristic, imperial Japan. These young women were tricked into being transported, allegedly for work, miles away from their families, and then they were told that the work they thought they were signing up for – “sex” to Ramseyer, “rape” to most other people – was something entirely different from what they expected. There isn’t a lot of free will or choice involved in this situation. No consent, no contract. There is no bargained for exchange here.
His paper is especially jarring to read in the aftermath of the murders in Atlanta – a tragedy which sparked a nationwide discussion of the intersectional nature of the violence and discrimination faced by Asian and Asian-American women. By ignoring the context, Ramseyer puts forth a particularly disturbing image of Korean women. His paper feeds the sexualized racialized stereotype, the sad and dangerous one that dehumanizes and erases the actual women – women who were desperate, frightened, subjugated, and trapped. To Ramseyer, who they are and what they were experiencing doesn’t matter. But even the most ardent supporter of “freedom of contract” would not go so far as to recognize a bargain in this situation.
Institutions everywhere are talking about the value of diversity in hiring, which is important for reasons of fairness and equity, but also because the work produced by institutions itself will be better with different perspectives and experiences to inform it. Ramseyer’s article is not only tone-deaf and revisionist, it is a perversion of basic contract principles and demonstrates just how far we still have to go.