Can't we all just get along.

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How to Enforce a Deal Among Zombies

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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During this fifth season of “The Walking Dead,” I have been posting on ethical dilemmas that arise in the show. Sunday night’s midseason finale included several scenes raising questions that would be fun to tackle, but I’d like to focus on the hostage exchange at the very end.

Consider what happened: Rick and heavily armed members of his band went upstairs in the hospital to meet Dawn and heavily armed members of her band. There in the corridor, the exchange took place. Why so many guns? Why so many guards? Why couldn’t Rick and Dawn just trust each other to keep their promises?

The answer isn’t difficult. They didn’t know each other, and, given the collapse of government, there was no mechanism available to enforce their agreement. If either party reneged or tried to change the terms of the deal, only informal mechanisms were available.

But informal mechanisms of enforcement can be effective. When Dawn tried to alter the deal at the last minute by demanding that Rick turn over her former ward Noah, a bullet to the head proved that she wasn’t Darth Vader. (Beth also tried to keep Dawn from altering the deal, but informal enforcement wasn’t her job, which may be why she didn’t do it very well.)

Hollywood offers us this image all the time. Two gangs face off, each bristling with armaments, in order to conclude a deal where there is no trust. (Think the hostage exchange involving Nucky Thompson’s nephew in “Boardwalk Empire” or any of several qualifying scenes from “The Wire.”) To the ethicist, as well as the legal scholar, such scenes illustrate the difficulty of making and enforcing binding agreements when no government is available to make people keep their promises.

Academic work has demonstrated repeatedly how agreements might be enforced in the absence of government. The ability of cooperating groups to work out and stick to their own norms of contract has been studied in contemporary life among communities as diverse as Jewish diamond merchants in New York and cattle ranchers in California; and from Mexican California in the early 19th century to the Maghribi traders of the 11th century.

What these groups have in common is the desire to cooperate to further their mutual interests. They share an understanding that their common ventures will collapse if members begin to defect from following their norms. They also suffer severe harm to reputation if they violate the norms -- and a reputation for noncooperation can have both social and economic consequences.

The trouble is that any cooperative group, no matter how well established or sophisticated, is at times to be forced to do business with outsiders. If the outsiders are strangers with whom transactions are unlikely to recur (one-time players), then reputational constraints are relatively unimportant. In the absence of a mechanism to enforce promises, a pair of one-time players involved in a transaction must each take precautions against the possibility that the other may cheat. But precautions are expensive, and drive up the cost of contracting. Thus the need, at least among strangers, for some basic rules of enforceable contract law.

Let’s return to the confrontation in the hospital. If Rick and Dawn had led competing groups of survivors that lived close to each other, they might well have worked out principles of cooperation to their mutual benefit. The aggressive (and expensive ) precautions would have been unnecessary. Mutual trust would be a product of self-interest: Each group would want to survive, and not having to defend itself constantly against the other would ease that task. The desire to avoid this condition of diffidence -- the constant need to defend and counterattack -- was part of Hobbes’s classic argument for why governments would arise from the state of nature.

But in the world of “The Walking Dead,” the state of nature rules, and governments are gone. Everyone we’ve met so far who has tried to establish a workable quasi-government has wound up power-mad or simply evil -- perhaps a libertarian cri de coeur by the writers, but more likely just a fun plot point. Still, four-and-a-half seasons without the discovery of any group that has established large-scale cooperation in some non-monstrous way does make a statement. It seems likely that enforcement of deals at gunpoint will be a part of the story line for some time to come.

  1. Okay, so Dawn thought of Carol and Beth as her wards not her hostages. But to make our point, we’re pretending for the moment that Dawn wasn’t nuts.

  2. Just consider opportunity costs. Each person carrying arms to guard against cheating by the counterparty is unavailable for other duties.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net