From Mises Blog, 10/11/2005. Archived comments below.
The following is from an email list discussion regarding the issue of enforceability of voluntary slavery contracts.
XX,
I agree re “valid” and also re the problem with lawyers. But I believe it’s the opposite: most mainstream lawyers usually mean positive law; and when they confuse the two, they are not usually as bad as the layman, who is even worse in confusing positive with natural law. But if you get a libertarian lawyer, he is probably much better able to separate the two realms than the layman or mainstream lawyer. In speaking precisely however his precision is often disregarded by non-libertarians or non-lawyers.
Re valid: yes, it’s a normative term that is sort of fundamental and irreducible, and is tied up with the notion of legitimacy and justifiability (and thus justice and rightness).
Nonetheless: if you view contract as transfer of title then the main criteria are: was the seller the legitimate owner? And, did he adequately manifest his intent to transfer that title to another. It is only if you view contracts as “binding” “agreements” or “binding promises” that you start to really ask all kinds of (mainstreamish) publicy policy oriented questions, like, “should” “we” “give effect to” this “agreement”–should “we” “treat it” as “binding”. But if it’s just A handing over his property to B, then all we do as outsiders is recognize the new ownership status of the thing, and public policy questions become less relevant.
You wrote: “(2) Natural law theorists talk all the time about “the nature of man”, “the nature of things” etc.; just re-read the first chapters of Rothbard’s _The Ethics of Liberty_…”
Yes. And as Hoppe has pointed out, and as I agree,
Agreeing with Rothbard on the possibility of a rational ethic and, more specifically, on the fact that only a libertarian ethic can indeed be morally justified, I want to propose here a different, non-natural-rights approach to establishing these two related claims. It has been a common quarrel with the natural rights position, even by sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law.”
Furthermore, its description of rationality is equally ambiguous in that it does not seem to distinguish between the role of reason in establishing empirical laws of nature on the one hand and normative laws of human conduct on the other.
See Hoppe’s Economics and Ethics of Private Property, at 313 (quoting Gewirth); also A Theory of Socialism and Capitalism, note 7, p. 235.
Or as Hoppe elaborates elsewhere:
The relationship between our approach and a “natural rights” approach can now be described in some detail, too. The natural law or natural rights tradition of philosophic thought holds that universally valid norms can be discerned by means of reason as grounded in the very nature of man. It has been a common quarrel with this position, even on the part of sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law” (A. Gewirth, “Law, Action, and Morality” in: Georgetown Symposium on Ethics. Essays in Honor of H. Veatch (ed. R. Porreco), New York, 1984, p.73). Furthermore, its description of rationality is equally ambiguous in that it does not seem to distinguish between the role of reason in establishing empirical laws of nature on the one hand, and normative laws of human conduct on the other. (Cf., for instance, the discussion in H. Veatch, Human Rights, Baton Rouge, 1985, p. 62-67.)
In recognizing the narrower concept of argumentation (instead of the wider one of human nature) as the necessary starting point in deriving an ethic, and in assigning to moral reasoning the status of a priori reasoning, clearly to be distinguished from the role of reason performed in empirical research, our approach not only claims to avoid these difficulties from the outset, but claims thereby to be at once more straightforward and rigorous. Still, to thus dissociate myself from the natural rights tradition is not to say that I could not agree with its critical assessment of most of contemporary ethical theory; indeed I do agree with H. Veatch’s complementary refutation of all desire (teleological, utilitarian) ethics as well as all duty (deontological) ethics (see Human Rights, Baton Rouge, 1985, Chapter 1). Nor do I claim that it is impossible to interpret my approach as falling in a “rightly conceived” natural rights tradition after all. What I claim, though, is that the following approach is clearly out of line with what the natural rights approach has actually come to be, and that it owes nothing to this tradition as it stands.
A Theory of Socialism and Capitalism, note 7, p. 234-35; see also Economics and Ethics of Private Property, p. 313 n. 15.
XX, you also said:
Now when it is said that “man is born free” my understanding is that this refers to a categorical property of man, since in a somewhat different sense, under actual historical conditions some men were indeed born in slavery… This categorial property is unalienable and therefore it is not meaningless to assert that the impossibility of certain types of contract results from the nature of man…
And here is where I think I cannot follow you, for a few reasons. For one, I just find this language too diffuse and imprecise (at least in this casual, condensed form here) for me to be sure exactly what it means. I don’t think of contracts as being “impossible” as a “result” of the “nature of man”. For example I am not sure what you mean by a contract being “impossible”. As far as I can tell, this has to mean that the transfer of title intended to be accomplished by means of the contract … somehow “has no effect”. I wouldn’t bother to call that ‘impossible” but I guess you could.
I would think of impossibility in a context such as this: X agrees to sell Jupiter to Y, or to make gravity stop functioning, or to give Y a square circle, for a certain price; and X agrees to pay damages to Y if X does not deliver the promised item. The question would arise, when X invariably fails to deliver Jupiter, stop gravity, or make a square circle, does X owe contractual damages to Y? Technically he owes it because of the specified occurrence of the condition (the condition being: failure to deliver). However, I could see a doctrine of contract law developing in a free society that treats such contracts as mere word-games, and non-serious, that is, not evincing a real intent to transfer the item. (but this is really just an empirical or conventioanl question.) In other words, to say a contract is “impossible” simply refers to whether one of the specified performances or conditions is really possible; and the reason we ask this is to determine the full context, so it can be determined whether or not the apparent intent to transfer title is genuine, or just some kind of non-serious wordplay between the parties who never really meant it.
There are a million type of purported “slavery” contracts–or agreements, if you prefer–that you could posit, and I suppose each would have to be analyzed on its own terms to see if it makes sense or is enforceable. From my point of view, an agreement to do something cannot be specifically enforced, precisely because one has no power to sell one’s body. But it is not because there is some “metaphysical impossibility” involved in “alienating one’s will”. As I have repeatedly stated, in my view a real, effective slavery relationship requires only that the master have the right to use force against a recalcitrant slave–despite the slave’s will. And that simply cannot be done by contract, for reasons i’ve given before.
But it has nothing to do with impossibility. It has to do with the nature of ownership: ownership means the right to control, and one’s right to control one’s body is precisely why a slavery contract is not enforceable: at the time the master tries to use force against the slave, the slave can refuse to give consent, because the slave has the right to control his body. Slavery can only be a consequence of the slave’s somehow having lost this right to control. This can be done only if the slave has committed aggression against the master, thereby entitling the master to punish etc. the slave. But “signing a piece of paper” does not commit aggression.
Stephan
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Comments (9)
Difference in degree begs a question of who decides what exactly workplace persuasion is acceptable and which isn’t. A consistently libertarian point of view is that it is solely a matter of contractual agreements between employee and employer. It follows that an employer overstepping agreed-upon methods of “employee motivation” is liable to compensate any damage stemming from this overstepping.
There, obviously, are other ways of partial alienation of someone’s body – by selling body parts such as hair, blood, or organs, for example. A reverse process is, of course, purchase and implantation of body parts or prostetic devices. There is really no question that if someone removes a prostesis from his body he can sell it like anything else – but one would be hard pressed to find the qualitative difference between body parts and prosteses which are becoming increasingly close functionally to the “natural” body parts.
Note that the brain functions can be also improved by prostetic devices – the implantable “brain chips” are already a reality.
So… if someone can sell his body by parts or rent it out, why shouldn’t he be able to sell or rent it permanently (meaning, until it wears out and dies)? Obviously, it is kind of hard to imagine that there can be rewards high enough for someone to do that – but people are known to be able to sacrifice their lives for some psychological rewards, so it stands to reason there can be rewards (for example, a knowledge that someone’s family is enjoying better living, etc) which make this kind of trade worthwhile for the “slave”.
In fact, the slavery itself (with attendant feeling of lowered and better defined responsibility, and feeling of being taken care of) can be a powerful psychological reward (which explains both some aspects of BDSM and the seemingly unstoppable desire of populace at large to hoist a State upon themselves). These desires are a part of human nature, so it would be unreasonable to deny their existance and prohibit their satisfaction.
Finally, there’s such thing as performance bonds, which can be set arbitrarily high by the parties involved (there is no way to objectively value employer’s mental distress and loss in case of non-performance, so it must be solely a matter of voluntary agreement) – resulting in either delivery of promised goods or forced extraction of bond payment by the courts, which (in case if the bond amount exceeds worth of performer’s posessions) may result in what amounts to slavery (i.e. forced labour for the benefit of the employer). This creates yet another route to voluntary slavery (i.e. parties making an agreement featuring very high performance bond with an implied understanding that the slave-would-be would not be able or will fail to deliver).
So, no matter how you slice it, a consistent application of libertarian principles and the principle of subjectivity of value does not exclude voluntary slavery or limit methods of persuasion which can be inflicted upon a voluntary slave – as long as they stay within the conditions set forth in the contract (such contracts do exist, in BDSM subculture, specifying things like “no permanent or life-threateing damage during punishments” or “no permanent marks on the skin” – although they are unenforceable under the democratic laws). In fact, inability to sell one self’s to slavery amounts to restriction of his right of ownership of his body.
Now, the involuntary (or “real” slavery) is another matter – but here the case is clear, and I think nobody would argue that it is bad precisely because it involves aggression upon the slave leading to him being deprived of use of his property (i.e. body – which he didn’t agree to sell or rent).
Digression (talking about metaphysical impossibilities):
It would be very interesting to consider implications of technology capable of actually separating functioning consciousness from its original body (it is estimated that computers will reach the necessary capacity to run a full simulation of the brain within 20 years or so – today’s technology is limited to simulating one column in neocortex); the capability to read and record the exact states of neurons is also becoming feasible – the resolution of imaging methods such as MRI is improving fast.
What is the legal status of the computer running a simulation, and able to argue that it feels and claim its rights? Can this simulation own things? What becomes of its right to its body (i.e. a computer which presumeably is already owned by someone)? Obviously, one can make a copy of this simulation, are those different “persons”? How do they divide their posessions? What is the definion of a single personhood, anyway? Do we make slaves of AIs and “uploaded” humans? And if so, can we be justified in doing so (I hope, not)?
I would argue that libertarian law is the only consistent legal system which can be adapted to the existance of non-human (or ex-human) intelligence.
The democratic laws would inherently create confilict by a priori disposessing such creatures – and, conceivably, triggering a war which can result in extinction of biological humans. Given that capabilities of human bodies do not change fast, unlike capabilities of computer hardware – the economic (and, therefore, military) dominance of such intelligence is inevitable (if it can be created at all, which few people in the relevant scientific fields doubt).
Simplarly inevitable are mass protests of neo-luddites who would complain that the new technology is taking away their likelihoods. (In fact, the opposite is true – because of the law of comparative advantage; even if the non-human and ex-human intelligencies are vastly more productive and smart and therefore vastly richer than humans, the trade with them will make humans richer, too).
Now, for now it seems too far away; in fact many of us may live long enough to see it. The notion of “electronic brain” was invented mere 70 years ago. This gives some urgency to getting people to understand that libertarian society is not just something nice to have – we either create a law which allows our peaceful coexistance with superintelligent beings, or be treated as slaves or, worse, as vermin. For a libertarian, there’s nothing to fear from people or beings which are much more capable than himself – as long as they share his ethics.
Published: October 11, 2005 1:32 PM
Published: October 11, 2005 1:40 PM
> body…> ownership of one’s body is categorically
> different than one’s ownership of external
> scarce resources
One of the reasons I digressed into futurism is to make explicit that this assumption of categorical difference is invalid. The plausible futurist scenarios serve as gedankenexperiments to test the theory.
Software exists independently from hardware. It is as simple as that. Hardware is scarce, software (information) can be replicated infinitely. *These* are categorically different, not the different kinds of hardware.
In fact, your body is built by your genetic software. There’s nothing of significance is left in it from the original sperm and ovum except for the information.
To build it, you (to be more precise, your genetic program) needed chemicals and energy – supplied by your mother’s body and, after the birth, by the food you were given. So you didn’t homestead your body – you made it from the scarce resources which were given to you by your parents.
Now, modern humans cannot survive not only without their bodies but also without tools they make. For a ethologist or a biologist there’s really no difference between “innards” of an organism and the external contraptions its genes tell it to build (i.e. the nest, the honeycomb, the anthill) – any complex organism modifies its habitat in order to survive and reproduce. The technical term is “the extended phenotype”. Is there really any categorical difference between a hand and an axe? The modern scientific understanding is that there isn’t.
A grown human continues to rebuild his body (which keeps falling apart with alarming speed, BTW) by supplying it with nutrition and shelter – for which he has to trade or homestead resources. So if he finds a berry and eats it a part of it is transformed into some components of his body – so, yes, it can be said that one’s body is partly homesteaded.
If he wants to have children (and people generally do – those whose genetic program is not instsent enough on doing so don’t leave offspring, so the “deficient” genetic program is eliminated) he has to give part of these resources to them so they can develop to the point when they can sustain themselves.
In a sense, at birth you don’t homestead a body – you are given it as a gift.
Now, if we assume that there’s some technology allowing the state of the brain to be recorded and stored – does recreating a body from chemicals (it was already done with viruses, and demonstration of the principle in bacteria is coming) and replicating the anatomy of the brain (check the progress in tissue engineering, including 3-D cell printing on degradable scaffolds) from the stored state information – any different? It merely makes explicit the fact that resources going into building your body were already owned by someone.
I would say that the fact that you were given the resources which became your body _without your consent_ invalidates any claim for compensation for use of these resources by their former owners. They are yours not because you homesteaded them, and not because they are categorically different, but simply because they were imposed on you without your consent by the voluntary act of their original owners, so you have no obligation to return them, meaning that your body is wholly yours.
BTW, this applies to the artificial bodies as well – as soon as someone becomes conscious in the artificial body, the body cannot be taken from him, and he cannot be made a slave just because the body was created from chemicals (or chips and motors, or whatever). Now, if he (in some previous body) made an arrangement to purchase a new body, he is responsible for whatever payment for the serivce he had promised. If there were no such promises and the new body was created on the whim of whoever did it, the newly incarnated person received it as an irrevocable gift. Assuming otherwise would permit creation of an involuntary slave by copying someone’s mental state and embodying it.
Published: October 11, 2005 2:47 PM
Published: October 11, 2005 2:49 PM
Published: October 11, 2005 4:53 PM
“There is nothing in nature greater than man. And there is nothing in man greater than mind.”
Published: October 11, 2005 5:16 PM
Published: October 11, 2005 9:33 PM
As lawyers would say–connect it up. I don’t see at all how the proposition that slavery contracts should not be enforceable follows from this general musing. Look: don’t you agree that criminals can and may be jailed? But couldn’t you say about them, “you can’t jail someone for a crime, because their rights are inalienable–after all, only the criminal has the capacity to make judgements and choices; ‘therefore’ no one else has the ‘right’ to assume control over them in this way” ??
Published: October 12, 2005 1:14 AM
Published: October 12, 2005 8:12 AM