Can you sell your future self into slavery?

By On April 13, 2012 · 46 Comments · In Academic Philosophy, Exploitation, Libertarianism, Social Justice

Liberty of contract is a really important right, and legal restrictions on liberty of contract are offensively paternalistic, and are sometimes racist or sexist attempts to entrench the advantage of existing economic stakeholders. Libertarians are often distinguished from progressives based on their opposition to legal restrictions of economic liberties, such as the decision to overturn Lochner and minimum wage laws.

But not all libertarians think that contract is an absolute right. (I hear that even Nozick waffled a bit on this point.) And as progressive liberals sometimes point out, the justification for restrictions on contract needn’t be offensively paternalistic. As Seana Shiffrin writes,

“…The unconscionability doctrine, a legal tool of egalitarians and other liberals, should not be condemned on the ground that it is paternalist. We may reasonably refuse to lend our efforts and be complicit in the immoral project of another, without displaying an improper attitude. But the fact that we may refuse our assistance with-out being paternalist does not fully justify our refusal to enforce such contracts. In social, highly interconnected settings, respect for autonomy may involve lending assistance to behavior we disagree with. The contours of accommodation need further explanation. I have suggested that supporting unconscionable contracts may fall outside our accommodation duties.”

Shiffrin’s reason for claiming that political communities may have no duties to enforce unconscionable contracts, though they may be required to accommodate other immoral projects is that contract-based decisions are not as intimate and personal or important as other decisions that involve matters of religion or bodily integrity. Samuel Freeman makes a related Rawlsian argument against absolute freedom of contract. Insofar as a liberal state is committed to the ideal of a free and equal citizenry, it ought not enforce any contracts that undermine or are intrinsically offensive to that ideal.

I am suspicious of this move. Whether contracts are as important or intimate as other decisions depends on how people experience those liberties, but a quick review of cases from the Institute for Justice should convince anyone that these rights are incredibly important at least for some people. John Tomasi’s book also makes this point. Still, the fact that liberty of contract can be just as important as other rights doesn’t settle the question of unconscionable contracts, because even rights to bodily integrity or religion are not absolute. For example, if exercising any of these rights is harmful to third parties then they can be rightly limited.

Nevertheless, in some moods, I am sympathetic to a nearly absolute liberty of contract, meaning that essentially self-regarding voluntary slave contracts ought to be permitted and enforced like any other contract. Yet in other moods I am resistant to this idea. Signing yourself up for a lifetime of permanent slavery seems too extreme to allow because your future self may be radically different from your present self. In this way, permanent voluntary slave contracts are not necessarily self-regarding because they risk enslaving another person- namely your radically different future self.

Or in any case, that is a preliminary shot at why it seems like restrictions on most ‘unconscionable’ contracts, including temporary slave contracts, are offensively paternalistic violations of liberty of contract, but in the limit, permanent slave contracts may be rightly forbidden. This rests on a claim about personal identity that originates with Parfit, that what matters about your identity is a matter of degree, and you can be a substantially different person 20 years from now. Even if you think (as I do) that we persist through time by remaining authorially connected to our future selves by making plans and commitments (like contracts) over time, as David Shoemaker points out, authorial connectedness is also a matter of degree. What matters about us can still radically change over time.

Notice that this take on unconscionable contracts says seemingly paternalistic restrictions are really prohibitions against harming others. The crucial question is whether a decision that harms your future self is self-harming or other-harming. In the short term, it looks like we are close enough to our recent and nearby selves. But in the long-term radical change is possible, so selling oneself into permanent slavery may be wrong in a similar way as selling another person into slavery, or at least too morally risky to allow.

I’m still not sure this will work, but if any prohibitions on seemingly self-regarding voluntary contracts are morally permissible, I think this is the kind of argument it would take. What do you think?

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  • Thoreau

    The problem with this argument is that it would apply to any permanent or long range contract. If you truly are an other person in the future, then shouldn;t you be able to get out of your mortgage when you are a different enough person?

    • Jessica Flanigan

      This is a good point! You know, I don’t know… I guess it would. 
      Really I’m just trying to figure out where I stand on this.. and using the blog as a kind of public forum to work out my own unclear thinking on this. 
      Maybe that’s the solution, something like bankruptcy for voluntary labor contracts.. I will think about this more and get back to you, thanks for your comment! 

  • http://twitter.com/JasonKuznicki Jason Kuznicki

    Common law already has an eminently sensible solution to this problem:  You can’t enforce specific performance on a labor contract.  If the laborer quits, the employer needs to find a new laborer.  End of story.

    The most curious aspect of this debate is how “liberty of contract” somehow morphs into “liberty to make contracts of a sort that we already know are destructive to liberty.” 

    I suspect the transformation happens when people forget that the enforcement of a contract is a state action, and as such, “liberty of contract” is in some respects a positive liberty. 

    • Jessica Flanigan

      That is the move that Freeman and Shiffrin make, but all negative liberties require some enforcement. Like all contracts, there needs to be some mechanism for getting out of them, like bankrupcy. The question is whether the state should enforce them in any way, or whether they should prohibit them full-stop. Prohibitions seem offensively paternalistic. so that’s why it’s a question about what to enforce. 

      So like, even if you can get out of it by declaring bankruptcy or something, can you even impose that kind of a choice on your future self? The mortgage case above made me think maybe you can, or on the other hand, with a mortgage they can just take your house if you don’t want to pay for it anymore, in the slavery case it’s less clear what happens when the worker no longer consents to the contract.

      • http://twitter.com/JasonKuznicki Jason Kuznicki

         It’s also the move that Hayek made.  I don’t see why it is such a troubling one.  

        • Jessica Flanigan

          Its just that I don’t think the government should be in the business of deciding which contracts it enforces and which it doesn’t on the basis of paternalistic considerations. It expresses a disrespectful attitude towards citizen’s voluntary choices and it still substitutes a third party judgment for the contracting person’s judgment.

          All liberties, not just contract and property, rest on a system of enforcement, the justification for such a system should not be paternalistic. 

          • j_m_h

            Why does it have to be government that is doing the deciding? Jason referenced common law as the constraint on enforcement of  labor contracts. That seems a more endogenous source than government.

          • derrick field

            D.C.F My wife and I have a mistress slave relationship which is far more enforced than anything you could do with a contract. Of course voluntary contracts should be enforced it is about the price you pay to get out of them. What happens if the slave is happy but the master is not and refuses to carry on could the contract be passed on or sold. In are case we got together I wanted a slave relationship she did not but she did want me so went along with it. As we went along I kept pushing for more believing it was what I wanted. Over time the dynamics changed she started to like it and I had to start using the safe word. To make things more realistic everything was put in her name house all belongings even my earnings went into her account. I had everything I had ever wanted super home in great area two lovely children. After the second child was born for some reason I could not have intercourse with her it made my flesh creep it was terrible. Things got slowly better but intercourse was not possible even after sex guidance. There was a massive row after I lost my job,not thinking I walked out. I found that with no income I could not get anywhere to live other than a bed in a hostel at best I would be housed in a one room place no one else wanted. I went back to my wife asking her to take me back she made it clear it was on her terms obey her totally and instantly or submit to a beating. I believed she did not mean it so agreed. When I refused to comply she kicked me out. I went to a legal advice centre and was told the courts would put the children first and I would get very little if a divorce took place. She took me back making it clear I would be forced to obey. To ensure this she spent over a £I500 on a male chastity device and fitted it with a hi tec electronic male management device which gives electric shocks at the push of a button it can even be controlled through the computer limiting the distance I can move away from it before I get a shock. All I have to do is cut one of the wires and walk away but to what. I am 64 my wife is 34 my choose is do I stay or go.I will not give up my home and children to live in a slum. My wife knows this and takes full advantage. I hate having to kneel at her feet when she walks in and remove her shoes and coat then service her needs going to bed when she says using my fingers and mouth to satisfy her getting little in return. She lives the life of a single women having two lovers on the go. It seems to me that the legal system is condoning,(by giving me very little if I walk away) what is a slave contract unwritten but a contract be enforced.

  • Kevin Carson

    As I understand it the argument from people like Spooner and Rothbard is not based on paternalism, but on the inalienability of human agency. Spooner argued, based on the same principle, that a debtor wasn’t liable for debt beyond her immediate ability to pay at the time of bankruptcy.

  • Kevin Carson

    By the way, after Rothbard argued that promises weren’t enforceable as contracts, he did a mighty fancy song and dance number trying — unsuccessfully IMO — to prove that the principle he’d just established didn’t apply to bankruptcy because the latter was a form of “fraud.” The word “fraud” assumes a particular state of mind at the time a debt is negotiated that, in my opinion, just isn’t there for the great majority of people who later seek bankruptcy protection because of unforeseen circumstances.

  • Daniel Shapiro

    Jessica,

    Have you seen Randy Barnett’s argument against enforcing slave contracts in his book The Structure of Liberty?

    • Jessica Flanigan

      I haven’t! What’s the argument?

  • Bill Woolsey

    The common law solution to the “slavery contract,” isn’t quite what Kuznicki said.

    It is rather that the “slave” can quit, but must pay compensation to the former “master.”

    So, there is never a requirement that the runaway “slave” is forced to go back to work.  But they can be forced to send money.   In other words, wages can be attached.   Though perhaps a bit like child support.

    • Jessica Flanigan

      Yeah, this makes sense to me. I’m not saying that you shouldn’t be able to quit, I think it’s good when the law makes it so people can walk away from contracts. I’m just saying that at least for short term contracts, they should be treated like all the others (so maybe you can declare bankruptcy, or if it’s like a student loan have a portion of your wages go to the other party after you leave for a while.)

      The point is, they should be permitted and treated like other contracts, except maybe in the limit, for permanent contracts, but maybe that caveat isn’t necessary. 

    • http://twitter.com/JasonKuznicki Jason Kuznicki

      This is incorrect. 

      British common law did not tolerate slavery, and slaves setting foot in Britain were deemed to have become free immediately and without compensation.  The cite you’re looking for is Somersett’s case, 1772.

      American common law had great difficulty reconciling itself with slavery as well, and fugitive slave laws became increasingly necessary when northern judges began using the old British understanding of the law to refuse to return slaves to their masters.

      • Jessica Flanigan

        Yeah, just to clarify, I’m only talking about voluntary slavery. Obviously forced labor, which is how we ought to characterize the history of slavery, is wrong. 

        • bill woolsey

          Kuznicki:

          I  am not sure what the value of the world “slavery” is in this context.

          I am referring to contracts for labor services.    You said, correctly, that specific performance cannot be compelled under common law. 

          You are correct, but oddly, charaterized this as meaning that employers must hire a new worker.      Well, I suppose they might do so, but they don’t have to.

          What is important is that the person who promised to provide labor services can only be required to pay money to compensate their former employer for losses.

          Obviously, if there is no contract, that isn’t an issue.   But if you promise to work for someone for 5 years, and you change your mind in year 3, then you won’t be forced to work the extra two years, but will have to compensate the employer for any losses this imposes.  

          If you were prepaid, then giving the money back with interest (for the work not done,) would presumably be a start.   But if they spent money training you or moving you, or whatever, you might owe compensation for those costs as well.

          Rothbard rejected this common law approach and went with this inalienable will business as already explained by Carson.

          (All of the nonspecific performance rules apply generally, and not just to labor.   Rothbard wanted specific performance of everything except labor.)

          But if I recollect, it really has no practical import because according to Rothbard, performance bonds can be used to enforce specific performance.     Of course, you have to agree to this upfront, but assuming I understand it, failing to perform can result in a penalty much greater than amount paid plus losses imposed on the employer.   What you would have to pay your bonder would be so high that you would have “no choice’ but to continue as what amounts to be a slave.

          None of this applies to people born to slavery or who were kidnapped.   This is all about whether people have the rigth to sign a contract that makes them like a slave for some period of time, or even life.

  • http://pulse.yahoo.com/_N6HQ4Y5ZPT4HGXE3EPX3Z7KH2E BerserkRL

    I think the first question that needs to be asked is what a
    contract is. 
    Nobody thinks mere promises are enforceable, so if a contract is to be
    enforceable it must have some deeper foundation.  (And the second question to ask is what counts as enforcement.)  Otherwise we don’t know what we’re
    talking about when we talk about the “absolute liberty of contract.”

     

    I think there are some contracts (or attempts at contracts)
    that are not legitimately enforceable (at least in the most obvious sense of “enforcement”),
    but this doesn’t mean I accept limits on the right to
    enter such contracts; I think that’s the wrong way of thinking about it.

     

    I would say that contracts involve conditional transfer of
    property titles.  I’m influenced
    here by Rothbard (Property
    Rights and the Theory of Contracts    ), Evers, (Toward
    a Reformulaiton of the Law of Contracts    ), and  Barnett (A
    Consent Theory of Contract     and Contract
    Remedies and Inalienable Right    ).

     

    If you transfer $50 to me on condition that I mow your
    lawn, then if I don’t mow your lawn the condition isn’t fulfilled, and title to
    the $50 reverts to you; so I may legitimately be forced to pay you back the $50,
    plus damages for the period when it was out of your possession.  Thus the enforceability of contracts is
    parasitic on the enforceability of property titles. 

     

    But what you cannot force me to do is mow your lawn (“specific
    performance”), because I cannot transfer title to my future services to
    you.  It’s not that it would be
    wrong for me to do so, or that the government should
    forbid me to do so; it’s just that nothing counts as
    transferring title to my future services to you.  The future services don’t exist; I don’t have them yet; I
    don’t have title to them yet; there’s nothing to transfer. 

     

    Nor can I transfer title to myself over you.  In this case I do have title to myself;
    but I can’t alienate myself from myself. 
    Since my self-ownership consists (in whole or in part) in a) the
    wrongness of others’ treating me in certain ways, and b) the permissibility of
    my, or my agent’s, forcing them to treat me that way, it follows that in order
    to give up my self-ownership I would have to be able to cancel both certain
    moral obligations on others’ part and certain moral permissibilities on my part
    – and there is no guarantee that I will be able to do this.  I can’t wave a magic wand and suddenly
    cause the moral facts to change. 
    This the illegitimacy of slavery contracts is a matter of
    self-alienation being impossible, not of its being
    impermissible.

     

    This also means I can’t give up title to external goods I
    don’t yet possess.  This puts some
    limits on financial contracts, but there are ways around it to some extent also;
    this was the topic of my APEE talk last week.

  • http://profiles.google.com/troycamplin Troy Camplin

    Every contract, to be a proper contract, has to have an exit. You can exit a mortgage by stopping payment and letting the bank foreclose, by selling the house, and by declaring bankruptcy  (this latter in fact only changes the conditions of the original contract). If you can’t break a contract or otherwise get out of it, it’s not a contract. Equally, if there is not some restitution for breaking a contract, it’s not really a contract, either.

    • Jessica Flanigan

      Exactly, My only thought is that these contracts ought to be treated like all the others, not that no-exit contracts are ok, though, they could be in principle for short terms. 

  • Aeon Skoble

    I agree with much what the previous commenters, esp. Roderick, have said.  But in general, I wonder whether the urge to forbid such contracts isn’t necessarily paternalistic.  What seems horrible to Smith might be a good deal for Jones: Belle agrees to be imprisoned by the Beast because this buys her father’s freedom.  Would she be better off or worse off if forbidden to make that deal? 

    • bill woolsey

      Suppose you have an idea for a business, but you have no money.

      You can’t find anyone who wants to be your partner.

      Lenders all want collateral.

      You provide your future labor services as collateral.

      You borrow the money, you start the business, it is a sucess, you repay the lender.

      Perhaps your sucessful business is sufficient collateral to borrow new money to pay off the old money.   Or you save up profit, and gradually reduce your debt.

      Regardless, a happy result for everyone.

      Of course, what if your business fails.   You can’t pay the money back.  The lender seizes the colleteral (your future labor services.)    You are sold into slavery.

      Very sad for you, and probably not all that great for the lender.

      The buyer of the future labor services presumably benefits from the deal (the “slave owner,”) but it is a mistake to treat all of the income generated by worker (“the slave”) as a gain.   The owner presumably pays some upkeep and had to pay the lender.

      Now, not liking this result, the contracts are banned.

      You have a good idea for a business, and can’t obtain funds.

      We can go further down this road.   You can agree to be sold into humane slavery, or slavery where you can be beaten.     Which deal makes your “collateral” more valuable?  Which allows you to borrow more money?

      Or maybe it isn’t “more money” but rather  a lower interest rate.

      Oh, also..

      Suppose you are a farmer.   Bad weather.  The harvest fails.  You need food this year.   You want to borrow.   While one would hope that the land and tools you own would provide sufficient collateral, maybe not.  You post yourself as collateral.

      Also, it could be that posting yourself and your land results in a lower interest rate.

      Everything works out, and before long, your good crops pay off the loan. 

      Or, there is another bad harvest, and yikes, slavery.

      Very troubling.  But, if we ban the contract, then you pay higher interest.  Or maybe, borrow nothing and starve.

      Is the new business different from borrowing because of a disaster?

      Personally, I lean to the “no specific permance” rule, though you can be compelled to pay money back. 

      • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

        Bill, I think your post is pointing to the great importance of federal bankruptcy courts, which is yet another reason why libertarians should not be anarchists.

        Often, bankruptcy is the only way to discharge debt and provide a “fresh start.”

        But in the current economic environment, usually the person emerging from bankruptcy gets sucked right back into being a debt slave, and being a debt slave is very difficult to avoid because almost all money is presently issued as privately-owned central bank debt. No money at all (that I know about) is allowed to enter the economy directly through labor/wages.

        And if I’m not mistaken, a debtor emerging from bankruptcy is often considered to be a good credit risk by the banking system because s/he has to wait several years before filing again.

        • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

           That and their debt-to-income ratio is a lot better after BK. Natch.

    • Jessica Flanigan

      I like this comment, especially for the kids movie reference. Isn’t it funny how central the intuition about unconscionable contracts is in children’s literature? Belle and Beast, Ariel and Ursula, Rumpelstilskin (though in that case, probably she wasn’t entitled to contract away her future child like that). FWIW, I think that if it was just temporary and they were fully informed, that France or King Triton ought to have enforced those contracts, or at least, not to have forbidden them as King Triton tried to… 

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  • Hume22

    An easier way to get a grasp on these things is to think about it in terms of voluntary obligations first, and put to the side questions of “contract” and “enforceability.”  Why is this so?  Because enforcement only comes into play *after* there has been either a “breach” or a threatened breach.  But the question the agent should really consider, at a particular time when considering her contractual/promissory/voluntary undertakings, is whether she has a moral duty to do whatever it is she has undertaken to do.  And it is important to keep in mind the two-part structure of voluntary moral requirements.  Such requirements, although voluntarily assumed, ultimately depend on some more basic, non-voluntary and general moral requirement along the lines of “all persons ought to do whatever it is they have voluntarily undertaken to do.”  In other words, there must be a prior moral duty to act in accordance with one’s voluntary commitments.  And this prior duty cannot itself be based on a prior voluntary commitment.

    So instead of talking about contracts and contract law, think of situations that are not connected to legal institutions, in order to avoid getting bogged down in questions of coercive enforcement, political legitimacy, paternalism, etc.  Perhaps this hypothetical could help.  Suppose I consent to your authority over me.  I voluntarily authorize you to issue directives to me that I will be morally obligated to follow (i.e., your directives are first-order reasons to x and second-0rder reasons for not acting on certain first-order reasons to not x).  I also promise that I will *never* revoke this authorization and that I will *never* act on my own judgment of the balance of reasons.  Is this complex of authorizations and promises morally binding?  If so, do the obligations run into the indefinite future?  Can one ever morally commit themselves to such vague and indefinite terms, over a potentially infinite range of actions?

    Suppose we determine that there are some things that no voluntary undertaking will ever morally commit one to do.  Suppose Carol promises to Sara to do X at time T, but X is something that she cannot morally bind herself to do.  Suppose that at time T, Carol fails to do X (an action that she was not morally permitted to do).  Is Carol morally answerable to Sara?  Can she be morally criticized?  Does Sara have moral standing to morally rebuke Carol for failing to do X?  It seems to me that Sara has no moral claim over Carol.  How can one morally criticize another for failing to do that which the other was not morally permitted to do?  Voluntary undertakings morally bind only to the extent that the more basic non-voluntary moral principle requires one to carry out such undertakings.  But we have determined that in this case, Carol is not morally permitted to do the act.  So it appears, to me anyway, that the act of promising (or contracting/authorizing) in this case has no normative purchase.

    Perhaps this conclusion–that Sara has no moral standing to make a claim on Carol–could provide insight into what one can claim on another in the legal realm as well.  These are just some thoughts.

    • Gordon Sollars

      The supposition that “here are some things that no voluntary undertaking will ever morally commit one to do” seems rather sweeping.  We can agree that there must be a prior duty to keep voluntary commitments that is not based upon voluntary commitments without agreeing that all duties are on the same footing.  The problem is in figuring out what the things we cannot commit to are, exactly.

      As to the law, it is already the case that you cannot make a valid contract for an illegal purpose,  so in a legal context Sara would have no claim.

  • Andrew Lister

    About the issue of paternalism, Freeman presents an argument that is meant to avoid the taint of paternalism that attaches to Kantian claims about respect for dignity of the person.  Who are you to tell me how important my dignity is? Freeman’s response is that you are indeed free to treat yourself with disrespect; you can, for example, voluntarily enter a relationship of subordination and servitude.  What you can’t do is to demand that other people participate in enforcing such agreements, because that would involve other people treating you as property, “an owned thing” (p.112).  You can treat yourself in this way, but you can’t force me to do so – you can’t unilaterally decided to suspend other people’s general moral duties. 

    I had thought of this as a conscience-based argument against enforcement of slave contracts – and one might be concerned with what other implications such an argument could have, how far it could extend.    However, it also ressembles the conceptual impossibilty argument BerserkRL makes above, in particular: “in order to give up my self-ownership I would have to be able to cancel both certain moral obligations on others’ part and certain moral permissibilities on my part — and there is no guarantee that I will be able to do this.  I can’t wave a magic wand and suddenly cause the moral facts to change.”  Are these the same or different?

    • Hume22

      Andrew,  Regarding the second paragraph. I wonder if your line of thought could lead to the following: “if you entered into such an agreement, *dont* breach the terms.”  Something seems off here: asking whether certain voluntary undertakings are morally binding by considering what would happen if you breached those terms.

      Regarding the first (without reading Freeman).  I wonder if the situation could be reframed as giving others a liberty to a enforce the agreement.  Note that we constantly change the general moral duties of others by voluntarily doing certain things (e.g., by consenting to a boxing match, I relieve you of your duty to refrain from punching me in the face).  If that is the case, then legal officials would be in a position to determine for themselves whether to enforce the agreement, knowing that the party before them has voluntarily relieved them of certain moral duties.

      I’m just playing devil’s advocate here.  I dont think such agreements are morally binding.  But I’m not sure it’s because of the type of third-party effects Freeman envisages.  Such effects are easily avoided by simply living up to the terms of an agreement.  Note that if the terms of an agreement are morally binding, it seems odd to claim that someone is “treating you as property” by rebuking you for violation of morally-binding duties.  I think we need to first determine what one can and cannot morally bind themselves to do before we analyze the proper third-party response for violation of certain terms of voluntary undertakings.

    • Jessica Flanigan

      I agree that the conscience based argument against enforcement like Shiffrin and Freemans are not explicitly paternalistic, but they are paternalistic if you accept an account of paternalism that paternalism (or whatever it is about paternalism that is wrong) involves substituting a third party’s judgment for what is ‘best’ instead of the chooser’s judgment, even when it is self-regarding. On that motivational or judgmental account of paternalism, which I think is the best characterization of the phenomenon, treating self-harming choices differently for conscience based reasons still involves a paternalistic judgment, whether the justification takes that form or not. 

  • Richard

    I am leery of any argument that  rests on describing harm to one’s future self as “other-harming”. If such an assessment is accepted, what exactly limits its consideration just to contract law? For example, of my smoking tobacco today is harmful to my future self, then why couldn’t the government forbid this on the basis that it harms another? Is spending all my money rather than saving for retirement a form of theft from my future self? This could be the Pandora’s Box of “libertarian” paternalism.

    • Jessica Flanigan

      This is totally true, the boundaries of personal identity are really blurry, and our future selves wont always be others on the authorial connectedness view. Smoking is an interesting case, are we entitled not to inherit preventable illnesses from our forbearers? I don’t know… but yeah, I totally get that this could get really paternalistic in a hurry.. maybe the argument doesn’t work? I go back and foth! I like this comment though, it illustrates the tension nicely. 

  • Tiger Blood

    Jessica:   If you were my criminal defense lawyer and asserted the affirmative defenses of insanity or diminished capacity then I might believe a jury could acquit. However, I cannot think of one case in which a creative criminal defense lawyer alleged that the defendant had changed so much since the time of the commission of the crime that the prosecution had charged the wrong person.  Are you serious here? Is libertarian inalienability/alienability analysis based on something so speculative as abstract theories of the  metaphysics of personal identity? This expedient nullifies concepts of “my birthday” or rewrites it to coincide with life changing events.  My “childhood experiences” become another persons experiences?

    Certainly there must be stronger arguments for inalienability than denying the universal folk wisdom that personal identity begins sometime after conception and only ends at death.

    Also, the “I’ve changed defense” doesn’t address common sense intuitions supporting at least limited slavery contracts.  For example  why shouldn’t a protection agency enforce a voluntarily included “slavery contract” clause in an agreement  if knowingly, intelligently, and wisely entered into e.g., in order to secure a higher price for labor services? For example, if I owe a child support obligation (assume by consent in a prenuptial contract) or any other obligation (by stipulation in a contract)  to make monetary payment and I stipulate in advance that if I fail to make the payment then why shouldn’t an  arbitrator/court be able to find me in contempt and jail me or compel my performance by force? Essentially the argument for inalienability is an argument that force (even in retaliation) can never be exercised against a person thereby eliminating much of justice.

  • Tiger Blood

    I wanted to express a reservation about allowing protection agencies the freedom to reserve the right to not enforce contracts they believe to be unconscionable.

    What precisely do we mean when we negotiate with a protection agency (PA) to require the PA to enforce contracts among PA clients?   Do we ask the PA’s arbitrators to review every term and condition in a contract to pass on whether the terms are completely compatible with PA staff’s consciences? I might give this authority to my church, but a PA is there only to interpret and enforce the terms of a contract within a predefined set of parameters.  You may select a PA which confers this discretion. However, if you do I will not contract with you as I am relying on the moral subjectivities of PA staff, instead of our own freely negotiated moralities.  PA staff, in there moral-wisdom, may overrule our terms if not in line with their personal moralities.  The central purpose in precisely delineating the terms of interpersonal contracts (including terms on enforceabilities) is to avoid the vagaries of our or our PA’s read of a less precise and unarticulated sense of natural morality.

  • http://www.facebook.com/profile.php?id=720322378 Rajiv Shah

    Jessica,

    I don’t know if you have read this article http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1996.tb02073.x/abstract (free) but in there Stephen Smith addresses broadly the same argument as you consider.

    Jake Roundtree has also posted his thoughts on the matter here http://www.jacobroundtree.com/2012/04/15/an-ethical-justification-for-prohibiting-voluntary-slave-contracts/ and I will hopefully add mine very soon.

    Rajiv

    • Jessica Flanigan

      Thanks Rajiv! I’m kinda getting pushed away from my tentative support from this argument upon reflection, though I still think there is something to it. If I decide to look more into it I’ll check out that citation. 

      Regarding Jake’s post, I said above what my problem with the Freeman line is,  and in my response to Andrew… Whatever the truth of the ethics of these contracts, I’m skeptical that their strategy can avoid the charge of being offensively paternalistic. 

  • j_m_h

    You might want to hunt around to see if you can find an old paper by Davie Levy (GMU). It was something of an analysis of why laws against consumption of addictive substances can be desirable even in the context of free markets (IIRC). He seemed to think it was something of a theory of morals.

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

       I’ve heard arguments (from libertarians, no less!) that addictive substances impair your full autonomous agency, therefore laws banning them MIGHT be permissible.

      It sort of jibes with the intuition that many have that marijuana, which isn’t substantially physically addictive — although there can certainly be a psychological dependency — should be legalized, while other substances such as meth, which arguably simply can’t be used recreationally in any safe way, probably shouldn’t. I disagree, but I don’t think the argument is crazy.

  • http://www.facebook.com/astrekal Alex Strekal

    The mere fact that is even something libertarians debate about among themselves indicates something fundamentally wrong with libertarianism. You don’t generally see people from other political philosophies debating about some justified context for slavery contracts.  

    • Jessica Flanigan

      Of course you do, marxists worry about slave contracts all the time too, as do feminist theorists. the limits of consent and commodification is a hard topic for everyone in political philosophy, for different reasons. Feminists worry that allowing any kind of contract will allow the commodification of women’s bodies, but that placing limits on contracts for surrogacy and prostitution unduely limit womens voluntary choices. marxists worry that all labor is a kind of slavery, and that no contracts can be fully voluntary, at the same time they too confront the very real interest people have in using their bodies and property as means of production. If theres something fundamentally wrong with libertarianism for this reason, other political philosophies have this deficiency as well. 

      • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

        This SSRN article “The Law of the Body” by Meredith Render is rather long, but I think addresses important issues surrounding self-ownership, and why our legal system is having such a difficult time recognizing a property right in one’s mind, body, labor, energy, actions, etc.: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2019152

    • Hume22

      Egalitarians debate among themselves whether the unequal distribution of working eyes and ears needs redistribution, etc., seems to me a silly debate, but it does not by itself indicate that egalitarianism is fundamentally wrong, just that it has gone astray.  I think the same can be said about the slavery debate within libertarian quarters. 

      That being said, Jessica’s post got me thinking.  Does the debate about slavery contracts have any relevance to, e.g., vaccination policies?  Suppose a group unanimously agrees that a certain virus (say polio) needs to be eradicated.  They have access to a vaccination that, if taken by the whole population, will do away with the disease.  But here’s the catch.  Some people who take the vaccine will die from it, and no one knows prior to a vote who these people are.  But they will know after the vote (similar to the Speluncean explorers).  Is a promise to abide by such a procedure enforceable?  Can you morally bind yourself to your own death?  How is this related to the issue of contracting yourself into slavery?

  • Damien S.

    I note the benefits of consequentialism here: rather than getting entangled in definitional edge cases and deontology, one could ask whether, in our society, the harm from limiting investment opportunities by banning labor contracts is outweighed by the harms prevented by limiting the possibility of being forced into onerous contracts.  The modern-liberal intuition is “yes”.

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