An oxymoron, you say?? Perhaps, but what if a person should voluntarily sign himself away to someone else with a contract? Can such a thing be done? Read on, and you will find the answer in what is doubtless to be the sexiest article I will ever post on this blog!
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A right which is inalienable is one that cannot lawfully be transferred from its owner to another person. Some libertarian writers have argued that a person’s own body is naturally inalienable, and that voluntary slavery should therefore be illegal in a libertarian society. It is of course always possible to obey another person voluntarily, but under the theory of inalienability one may retract one’s consent at any time and refuse to follow orders without being legally subject to any compulsion to obey. At worst, one might be obligated to pay restitution but never to remain in the service of one’s former master against one’s will. This is the position taken by Rothbard and elaborated by Kinsella. The minority opinion is that there is no inalienability under libertarian law and whatever may be owned, may be transferred just like anything else. This position has been taken by Walter Block. In this post, I will argue that inalienability is not a part of natural law, but it can become a part of free-market law. Inalienability, therefore, can be chosen as a legal standard by people acting on the free market.
Based on the analysis in my previous posts, there does not seem to be any reason why there should be no voluntary slavery—one’s body is property just like anything else, and therefore ownership can be transferred to someone else. If one person gives his body to another, then he has become a slave, for he has given up the right of deciding what is to be done with his own body. He must obey the orders his master gives him in regard to his body because to disobey would be a violation of his master’s property right.
There seem to be two principle confusions which lead libertarians to deny the validity of voluntary slavery. The first is to understand voluntary slavery as requiring that the slave somehow alienate his will and transfer it to his master. This is not, at present, possible, but it is clearly not necessary either. Voluntary slavery need only be understood as a property transfer of one’s body. Once the body is transferred, the slave may certainly disagree with the master, but to disobey would be a violation of the master’s property right. The second confusion is to regard the state of voluntary slavery as a kind of contract rather than as a form of ownership. It is not necessary, however, that voluntary slavery should involve a contract at all, although it certainly may: a slave may transfer only partial ownership of his body and sign a contract with the master that specifies the limits of what the master may order. Should the slave transfer ownership of himself completely, there is no need for a contract because the rights of the master are understood from the general nature of ownership.
Let us now read what others have written and seeing how these confusions affect their thinking. We read in Rothbard,
“The distinction between a man’s alienable labor service and his inalienable will may be further explained; a man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced—for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement. The concept of “voluntary slavery” is indeed a contradictory one, for so long as a laborer remains totally subservient to his master’s will voluntarily, he is not yet a slave since his submission is voluntary; whereas, if he later changed his mind and the master enforced his slavery by violence, the slavery would not then be voluntary.”
Recall that property must be over physical or extensive things, things that can actually be physically fought over. Rothbard should therefore not speak of labor as something alienable because it is not owned in the first place—one owns one’s body, and can labor with it, but this labor is an action, not an extensive object. The same is true of one’s will; whatever it is, it is certainly not a physical, extensive object. It cannot be physically fought over, and therefore it is not owned in the sense that one’s body is. It is therefore irrelevant whether or not the will can be alienated, which, incidentally, it certainly can: one can commit suicide or consent to a lobotomy. It is not inconceivable that there might one day be a futuristic machine that is capable of inducing desires in a human brain. If one consents to be attached to such a machine, thereby becoming a willing puppet for the rest of one’s life, then one has effectively transferred control of one’s will to whoever controls the machine.
However, the whole issue of will is a red herring; transferring ownership of the body is what makes one a slave, not the will. Obviously, animals have their own will and yet may be owned and there is no contradiction in such a thing; in order to make them behave how we wish they are not mind-controlled but trained and confined so as to encourage the proper behavior. Virtually everything I’ve said on Rothbard can be found in far more detail in Block’s paper.
The second confusion about libertarian slavery is to view it as fundamentally some sort of contractual obligation or ongoing agreement rather than as a title transfer of one’s body. Thus we find in David Gordon (as quoted by Block, since I can’t find the original paper online),
“You cannot, then, sell yourself into slavery. You can voluntarily submit to the will of another; but, should you change your mind, no legal force can compel you to obey another’s bidding. Why not? Contract, to reiterate, does not stand as an absolute: only what fits together with self ownership can be enforced. You can only give away your property, not yourself.”
Gordon’s argument fails if slavery is not regarded as a contractual agreement but rather as a property transfer. The whole issue of contracts is just irrelevant; if I own my own body, I can also give it away. That is the nature of ownership. Once again, in refuting Gordon I am simply following Block.
Kinsella has an interesting theory of inalienability which ultimately fails because of the same confusion. Since Kinsella’s theory of inalienability relates to the title-transfer theory of contracts, it is necessary first to digress and explain a little about this theory. I can do no better than recommend Kinsella’s same paper as an excellent introduction to the topic, but I will summarize here what is essential.
When one makes a promise, one agrees to future obligations. When one violates a promise, it is not necessarily the case that one infringes on anyone else’s property rights. Therefore to go back on a promise is not a crime under the libertarian natural law, and making a promise does not subjecting oneself to any coercion to enforce it. To make an agreement that is enforceable at all, one must therefore back one’s agreement with a transfer of property. When one says, “I hereby transfer X to you if I do not perform Y” he has made an agreement that can be enforced by the seizure of X. This is the format of a contract under libertarian law.
Later in his paper, when he discusses inalienability, Kinsella writes
“[P]romises being unenforceable necessarily implies the inalienability of the body, and vice versa. If promises were enforceable, then one could be punished or coerced into performing, implying some rights in the body had been alienated merely by making the promise. And if one could alienate title to one’s body by an act of will, this would mean that promises could be enforceable. For example, one could make a conditional transfer of title to one’s body if one does not perform a specified service. This would justify punishment or coercion against the promisor’s body, which is now owned by the promisee. Thus, alienability of the body and the enforceable promises view of contract go hand in hand. One implies the other.”
This argument strikes me as a total non sequitur. The enforceability of promises has nothing to do with inalienability of the body. If I make an agreement to do something that is backed by my own body, then I have not made a mere promise, but a full-blown contract, whereas if I make a mere promise, then I have by definition not backed my word up with any property transfer. Therefore there are still no situations where I may be coerced into fulfilling my mere promises.
In another paper in which he discusses inalienability, Kinsella says,
“[I]n order to enslave someone, the slave-owner must be entitled to use force against the slave if the slave disobeys or tries to run away. … Putting the issue this way, however, provides a different argument why consent cannot irrevocably be granted by mere agreement or promise—why the prospective slave may change his mind in the future and withdraw his consent. If A promises (or contracts, or agrees; the terminology is not important) to be B’s slave, this is no doubt an attempt to consent now, to force inflicted in the future. If A later changes his mind and tries to run away, may B at that point use force against A?”
However, if someone were to give away his own body voluntarily, it would no longer be coercion against him for the master to punish or confine him, no more than the master coerces against himself by inflicting injury upon himself. To call it ‘coercion’ when a master punishes his voluntary slave is to beg the question of inalienability in the first place. Kinsella simply assumes that the slave has not alienated his body in order to conclude that one’s body is inalienable.
The time has now come to further clarify what voluntary slavery would mean and in so doing to turn upon Block, upon whose shoulders I have stood in order to write this far. Though this may smack of treachery, the inherent drama in such a move makes it irresistible. In his paper, Block discusses the situation of a slave who has been paid $1 million for his own body:
“Suppose that the master says to his human property, “Now that you are my slave and must obey me, give me back that $1 million I just paid for you.” Yes, indeed, this sort of ploy would stop voluntary slavery dead in its tracks. Were the master be able to get away with it, this would place a chill on all such subsequent deals. However, there are several ways to respond. … [T]he slave could have already given the money to a third party, e.g., his child’s doctor, in our canonical case. He could have done this at the very next instant after the slave contract was consummated, before the master could employ this gambit.”
I think that Block has implicitly made the same mistake as his opponents in this passage, that of regarding voluntary slavery as an agreement to obey rather than as a property transfer. This is really a very minor mistake and it has no effect in the end on the validity of Block’s thesis, but this confusion seems so difficult to dispel that I thought I would mention it. Just because the slave’s body is not owned by himself does not mean that he cannot own other property; the money is still his, regardless of what the master orders. Since property is transferred by an act of will, which the master does not own, the master does not have the right to order the money returned to him. He may still punish the slave for not returning it, but the slave is not guilty of a violation of property rights if he gives the money to someone else. The master may make it very difficult for the slave to make his wishes about the money known, and thereby effectively attain control over it, but then he is guilty of theft and the slave may be justified in retrieving his body so that he can take the master to court over it.
As long as the alienability of the body is regarded literally as the alienability of the body, then there is no problem with it from the standpoint of natural law. As long as the rules of private property are agreed upon, the alienability of the body poses no special difficulties. However, Kinsella gives another argument against the inalienability of the body which amounts to a denial of the universalizability of the rules of private property:
“In the case of acquired resources, the rights of ownership include the right to transfer title to others because one can abandon, by manifested intent, a previously unowned resource that was acquired by manifested intent. In other words, rights in acquired resources may be alienated at will because of the way in which they come to be owned.
By contrast, although one may be said to own—to rightfully control—one’s body, the same reasoning regarding acquisition, abandonment, and alienability does not apply. The act of acquisition presupposes that there is an individual doing the acquiring, and an unowned thing acquired by possessing it. But how can someone “acquire” his body? One’s body is part of one’s very identity. The body is not some unowned resource that is acquired by the intentional embordering action of some external, already existing acquirer.”
There no reason why something should alienable simply because it was previously acquired and vice versa. Just because something is acquired does not imply that it is alienable and just because something is alienable does not mean that it was acquired. Property is alienable because we say it is, and because we understand the concept of transferring ownership from one person to another.
Furthermore, this argument is contradicted by other conclusions of libertarian theory. A person can certainly alienate parts of his body—he may give (or sell) his organs and blood to those who need it. It would be a gross injustice to claim otherwise. Why should he not therefore alienate his entire body? A person may certainly give up his body for another—he may kill himself as a means to save someone else. Why should he not, in a similarly affectionate gesture, give his body to someone else? A person may certainly alienate tumors and other body parts that threaten his life or well-being, so why should he not, finding the responsibility over himself too burdensome, cede his body to someone else? In the future libertarian society, there will no doubt be people who preferred the regimentation and (illusion of) order provided by the state to the vibrant revolutions of the market. Why should they be denied the opportunity of attaining on the free market the same comfort that slavery under the state once gave them?
Finally, it seems to me that a person’s body is acquired. Can a baby be a self-owner? Clearly not, for the baby is not rational, and is therefore incapable of owning anything. Once the baby grows older and becomes independent from the parents, then it acquires its body from them.
Having disposed of the idea that the body is inalienable, I would like to combat an opposing fallacy, expressed by Block, who says,
“In my view, in a fully free market system, there would be two kinds of contracts: those that specify specific performance, and those that allow financial penalties and monetary recompense. In the absence of any such distinction, I would enforce specific performance with the understanding that the contractually obligated person could buy his way out of the contract at a mutually agreeable price. For example, an opera singer with laryngitis would be dragged onto the stage, kicking and screaming (well, whispering) if need be. One such publicized incident of that sort and people would no longer be so willing to sign contracts without escape clauses.”
However, it is absurd to imagine that I must, as a libertarian, sit back and complacently watch such treatment going on. Though in resisting, the singer may be guilty of theft (of his own body), this does not mean that I must condone such cruelty against him as Block desires. Just because a contract is enforceable does not mean it is enforceable by any means necessary; for any crime, there are limits as to what, morally, may be done to the criminal in response. As I argued in another post, it is a subjective matter whether retribution against a criminal is just or not; therefore I am not in any way compelled to regard the treatment of the opera singer as just. I may just as well regard force used in retrieving his stolen body as a greater evil than that which he committed in stealing it, and then heroically leap on stage to intervene on his behalf.
As I have previously argued, a system of free market law is capable of establishing standards of justice in punishment and in self-defense, so although the just retribution is naturally subjective, objective standards will tend to evolve on the market, in the same way that objective prices will evolve despite the value of products being subjective. Therefore, depending on the circumstances, the representatives of the opera company may be able to drag the singer on stage, or they may not. It may be that very little coercion is regarded as appropriate in the retrieval of a runaway slave. In such a society, the body will have effectively become inalienable because the prevailing legal system will bring criminal charges against the master who coerces his runaway slave into returning. In this society, my decision to intervene on behalf of the singer would be supported by the legal system, and I would not be convicted of anything. On the other hand, the law may sanction a great deal of coercion in the retrieval of a runaway slave . In such a society, I and the singer would be the ones who ends up with a conviction, and the opera company representatives would not.
I believe that previous libertarian writers have supported the inalienability of the body because they feared that a person who allowed himself to be enslaved would be subject to unlimited mistreatment without any recourse to stop it. However, my theory of free-market justice shows that this would not be the case; if there is an established system of voluntary slavery, there will always be limits to the treatment a slave can receive before the law will side with him should he attempt to escape. Although under a system of free market law, people may end up bound to rules that may seem unlibertarian, they are not born under these rules but instead have agreed to them under their own free will for their own individual benefit in mind. Therefore the principles of law which emerge as the standard must tend to the benefit of everyone.
Any system of voluntary slavery that evolves on the free market must tend to benefit both slave and master. Although not entirely in accordance with the theory I have given here, the system of indentured servitude which existed in the Colonial days of America is a fairly reasonable example. The fact that people continued to become indentured servants in exchange for passage to America shows that it was considered to have been a good deal for both sides.
