by Roderick Long
Slavery Contracts and Inalienable Rights: A Formulation
Slavery Contracts and Inalienable Rights: A Formulation was originally published in the Winter 1994-95 issue of Formulations by the Free Nation Foundation, written by Roderick T. Long.
Liberty vs. Self-Ownership?
Libertarianism stands for maximum individual liberty — and thus against any kind of slavery. Yet libertarianism also stands for self-ownership; and what I own, I have a right to sell. Apparently, then, libertarianism countenances the legitimacy of selling oneself into slavery, and enforcing the slavery contract against those who change their minds. Thus it seems that the ideals of self-ownership and sanctity of contract can come into conflict with the ideal of maximum liberty and the rejection of slavery. How can this conflict be resolved?
On this issue, libertarians are divided. Robert Nozick, in Anarchy, State, and Utopia, maintained that slavery contracts were permissible and indeed enforceable. Since Nozick is the only libertarian most academic philosophers have ever read, many of my colleagues, knowing my libertarian sympathies, assume that I too favor slavery contracts.
Yet the idea that there are inalienable rights — that is, rights of which one cannot voluntarily divest oneself — is one of long standing in the classical liberal tradition, from Richard Overton and John Locke in the 17th century to the Declaration of Independence in the 18th; and the doctrine of inalienable rights was taken to rule out slavery contracts.
My own view is that we do have inalienable rights, and so that slavery contracts are not legitimate, and should not be permitted, much less enforced, by the laws of a Free Nation. But I need to explain why this should be so, and why I do not think it a departure from the icy-pure libertarianism I cherish to deny people the “freedom” to sell themselves into slavery. Let me try.
Supply-Side Virtue Ethics
Moral theorists are fond of dividing ethical theories into two varieties: consequentialist theories, according to which the rightness of an action is a matter of its having beneficial consequences, and deontological (“duty-centered”) theories, according to which the rightness of an action is a matter of its falling under the appropriate rule. But in recent years, many moral philosophers have begun to revive a different approach to ethical questions, one with roots in Greek antiquity. For the Greek moralists, the central question of ethics was not “What rules should I follow?” or “What consequences should I promote?” but rather “What kind of person should I be?” For the Platonists, Aristoteleans, Stoics, and their modern admirers, the rightness of an action is a matter of its expressing the virtues — that is, those attitudes and dispositions of character that best exemplify what it means to be truly human. This ethical approach is known as Virtue Ethics — and I might as well confess immediately that it represents my own ethical convictions as well.
One distinctive feature of Virtue Ethics is that, to borrow a distinction from Douglas Den Uyl, it represents a supply-side rather than a demand-side approach to ethics. According to a demand-side ethics, the way that A should treat B is determined primarily by facts about B, the patient of moral activity; but for a supply-side approach like Virtue Ethics, the way that A should treat B is determined primarily by facts about A, the agent of moral activity.
Let’s apply this distinction to the special case of justice, that virtue which determines the proper sphere for the use of violence among human beings. My having a right consists, at least primarily, in other people having an obligation to act toward me in certain ways; those others act justly insofar as they respect my rights. The rights-bearer is thus defined as the patient of just activity. A demand-side conception of justice, then, would focus on the rights-bearer; its primary concern would be to determine the features of human beings in virtue of which they possess rights.
It seems to me — though not all Virtue Ethicists agree — that a Virtue Ethics approach should reverse this direction of scrutiny. In questions of justice, the focus should be, not on the person qua moral patient, the bearer of rights, but on the person qua moral agent, the respecter of rights. In other words, from the supply-side perspective of Virtue Ethics, the moral agent’s main question in matters of justice should be, not “What it is about other people that requires me to respect their rights?” but rather “What is it about me that requires me to respect the rights of others?”
Virtue Ethicists, particularly those in the Aristotelean tradition, see the aim of the moral life as one that best expresses what it means to be truly human, as opposed to erring on the side of either the subhuman or the superhuman; for example, Aristotle counsels us to live the life of a human being, not the life of a beast or a god. The cowardly, the stingy, the sensualistically self-indulgent, pay too much respect to their animal side, their vulnerable embodiedness, and neglect the divine spark within them; the rash, the spendthrift, the ascetically self-restrained, pay too little respect to their animal side in their quest to divinize themselves. Only the courageous, the generous, the temperate find the distinctively human path, the Golden Mean between less-than-we-can-be and more-than-we-can-be.
Justice for Humans
How does this apply to justice? Well, just as courage, generosity, and temperance are the virtues that define the appropriately human attitudes toward danger, giving, and bodily pleasures respectively, so the virtue of justice defines the appropriately human attitude toward violence. A maximally human life will give central place to the distinctively human faculty of reason; and one’s life more fully expresses this faculty to the extent that one deals with others through reason and persuasion, rather than through violence and force. To choose cooperation over violence is to choose a human mode of existence over a bestial one.
Hence the virtuous person will refrain from initiating coercion against others. But what will the virtuous person’s response be to the initiation of coercion on the part of others? In this case, cooperation is not an option, and so the moral agent is not faced with a choice between cooperation and violence. Still, it might be thought that the most human response would be one that forswore self-defense in favor of continuing attempts at persuasion, even in the face of implacable aggression. But this, in my judgment, would make the opposite error from the one the initiator of violence makes; to submit passively to aggression is to try to live a superhuman life, and to value our vulnerable embodiedness too little. Forswear the initiation of violence, but employ violence when necessary to repel the initiatory violence of others; this TIT-FOR-TAT approach seems to me to best strike the Golden Mean balance between the subhuman aggression of the criminal and the superhuman aspirations of the pacifist. Our obligation to abstain from the initiation of coercion translates into a right, on the part of others, not to be aggressed against. On the other hand, since we have no obligation to refrain from self-defense, no right is generated on the part of others to aggress against us. In short, libertarianism. (For more on the issue of self-defense, see my “Punishment vs. Restitution: A Formulation,” in Formulations, Vol. I, No. 2 (Winter 1993-94).)
So what has any of this got to do with slavery contracts? Well, if a person’s rights consist primarily, not in moral facts about the rights-bearer, but in moral facts about other people, then the rights-bearer cannot simply dispose of his or her rights. You cannot, by a simple act of will, release me from my obligation not to coerce you, since that obligation depends on my calling as a human being, something that is not in your control. Hence, on the supply-side conception of justice, no one can divest him or herself of the right not to be coerced. In short, the right to liberty is inalienable.
In forbidding A to sell him or herself into slavery (or, more broadly, any kind of indentured servitude) to B, then, we do not in any way infringe upon A’s liberty; for what A is offering to do is to transfer to B the right of decision over A’s life and actions; but in fact this right cannot be transferred, as it is not under A’s control. Thus A’s offer to sell this right is fraudulent; A is trying to sell something that is not hers to sell.
How are Contracts Possible?
One objection that is sometimes raised against the defenders of inalienability is this: If slavery contracts are impermissible, how can any room be made for ordinary contractual obligation? After all, suppose I have contracted with you to perform some service — say, to paint your dog. If I break our contract and refuse to paint your dog, can you — or the law, acting on your behalf — legitimately force me to paint your dog? It seems not. For in ordinary circumstances, forcing me to paint your dog would be a morally unacceptable act of aggression. How can the fact that I agreed to paint your dog make any difference? After all, on the view I’ve been defending, no mere act of will on my part can free you from your obligation not to aggress against me. But if I cannot legitimately be forced to fulfill my side of the contract, it seems that contracts in general are unenforceable, and so legally void. This seems to present an unpromising prospect for a political philosophy like libertarianism, committed as it is to the free-market economy — which relies so crucially on the principle of contract.
Here I adopt the solution offered by libertarian legal theorist Randy Barnett. Suppose I offer to paint your dog for 200 drakhmas. You give me the 200 drakhmas, whereupon I pocket the money and skip town. On my view, you cannot legitimately force me to paint your dog; that would be involuntary servitude. But you can force me to give back the money; for you only transferred it to me on condition that I paint your dog; since the condition has not been met, the transfer has not gone through, and so I am holding on to your property without your consent. (I also think I can be required to pay you damages, as restitution for the value I have destroyed by depriving you of the use of your money during the intermediate period; for more on restitution, see my article cited above.) Thus, contracts can legitimately be “enforced” in the sense that a person who has received some consideration in exchange for an unperformed service can be required to pay back the consideration. Even “slavery contracts” could be enforced in that sense; for example, if, in exchange for 2000 drakhmas, I agree to do whatever you want, for the rest of my life, then if I ever back out of the contract (which I am free to do at any time), I have to pay you 2000 drakhmas (plus damages) — but I may not legitimately be forced to fulfill the contract. (If I do not presently have the money to pay, then I simply have a debt, like any other.)
Down with Slavery!
All this has been pretty abstract and theoretical. But what it boils down to is that nothing can release us from our obligation to behave like human beings toward one another, rather than like animals. Our classical liberal forebears fought a long hard battle against slavery, that disgrace upon human civilization. Two centuries ago, a newborn Free Nation’s compromise with slavery started it down the path that eventually destroyed its freedom. As for our future, a Free Nation that undertook to enforce slavery contracts would not be a Free Nation worth fighting to build or to defend.