From Mises Blog, 10/11/2005:
The following is from an email list discussion regarding the issue of enforceability of voluntary slavery contracts.
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.
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.
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.