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?