Recently I was reading some thing or other linked on Brad DeLong’s blog that was this long series of anti-libertarian straw mans in academic paper form. I know, I asked for it – it’s linked on Brad DeLong, after all. The paper basically assumed that Robert Nozick was the final arbiter of what is and isn’t “libertarian,” and so if Robert Nozick thinks that slave contracts should be legal, then by gum all libertarians must think so.
Wait … what?
Yup – apparently Robert Nozick, Libertarian, thought that people should be able to voluntarily consent to slavery. Surely not, I thought! Or, if so, then there must be a long line of libertarians lined up to refute him. When I googled for it, though, I found a couple of prominent defenders of the idea – and I quickly got the impression that Walter Block was the staunchest such defender, so I decided to do some background reading. Because frankly, if you’re using libertarian logic to reach the conclusion that slavery should be legal, you’ve lost the plot somewhere along the way, right?
So I ended up reading Toward a Libertarian Theory of Inalienability: a Critique of Rothbard, Barnett, Smith, Kinsella, Gordon, and Epstein, which, as you can probably guess from the title, takes several prominent libertarians to task for not supporting “voluntary slavery.” (And, incidentally, proves in the process that opposition to slavery is the libertarian norm, thank you very much!) It’s a strangely rewarding read. I didn’t find it persuasive at all, and yet I have to admit the Block soundly refutes all of his opponents.
Let’s start with the obvious: if you’re using libertarian principles to reason your way to a defense of slavery, even “voluntary” slavery, you’ve lost the plot. If libertarianism can’t rule this out, then what’s the point, really? So, this is one of those things where if that’s where your intuitions lead you, then you need to reexamine your foundations.
Now the not-so-obvious: the fact that there is so much discussion about voluntary slavery among libertarian academics means that the idea isn’t obvously absurd. I’ll have to concede that there is something aobut libertarianism that encourages this kind of thinking. An important piece of the puzzle of why the public doesn’t trust libertarians just fell into place for me, I think. The public sees debates about things like this, and even though they probably trust that libertarians in general don’t agree with legal slavery, they nevertheless have grounds to feel uneasy, and it’s because they see that it isn’t enough in libertarian circles for someone to stand up and give an impassioned sentimental speech. Really, I think it’s strongly related to the point I made in the last post about why people don’t like math and programming. A certain kind of person is made deeply uncomfortable by things that can’t be sweettalked. At least with conventional Republicans and Democrats, the average citizen knows what to expect. He knows that because these parties are motivated primarily by emotion and sentimentality that certain lines will never be crossed. Whatever else may be wrong with them, Republicans and Democrats never stray too far from popular sensibilities, even when those sensibilities make no real sense. Libertarians are more like Mr. Spock. We follow the reasoning where it goes, even if it goes beyond the public’s comfort zone.
This is not, of course, a defense of the major parties. It’s more an indictment of a public that wants to have input into the form of its government without having to think too hard about it. But it is also an acknowledgment that we libertarians do a bad job of appealing to that public.
Now, as for Mr. Block’s argument, it takes the predictable course. Ownership means the ability to dispose of. If I own property, it is implied that I can destroy or sell it. If onerous restrictions are placed on my ability to destory or transfer ownership of it, it is either not properly property, or not properly my property. Libertarians frequently talk in terms of self-ownership. This is the basis of the position that prostitution should be legal, for example. It is the basis of libertarian opposition to paternalistic health policies, like Bloomberg’s soda and smoking bans. Well, if you believe that a person owns himself, then it follows that you support his right to transfer ownership of that self to some other self, else he isn’t properly his own property.
The most obvious way of attacking that position is to deny that ownership of self can be so transfered – and indeed, Block’s paper counters several arguments that attempt to deny just that. You can read the paper yourself for the details, but I think he is mostly successful.
So where did these arguments go wrong? For my money, they went wrong in attacking the problem from the point of view of the person doing the selling. If you’re going to go about it that way, then you’re going to run into problems trying to explain why this, alone among properties, cannot be sold. You might say, for example, that a person cannot sell themselves into slavery because they are giving up their right to revoke consent – but Block makes quick work of this by pointing out that contracts do not typically allow for arbitrary revokation. For example, a pilot under contract to see a plane to its final destination cannot simply parachute out halfway through the flight, even on the grounds that consent given by his past self is no longer granted by his present self. Likewise, Block has no trouble with the argument that allowing a person to sell himself into slavery violates his duties to himself. Block rightly notes that this is paternalism pure. Libertarians do not admit arguments against pornography or prostitution on grounds of nebulous “duties to onesself,” so this line of attack is begging the question. Just as good – it’s easy to reject the idea that a slavery contract can lead to violations of third party rights – as in the case, for example, that A buys B and orders B to assault C. Block has no trouble identifying the problem: B cannot have sold to A a right to assault C that B never possessed. If it’s wrong for B to assault C, then the only difference after purchase of A ordering B to assault C is that the responsibility for any assault done under A’s orders is now A’s, not B’s.
As I said, though, what all of these lines of attack have in common is that they deny the slave’s right to sell his own will. I’ll go ahead and say that I agree with that intuiton – will is not transferable, and probably on the grounds that once you’ve signed away your will, the basis of the contract is void. After all, a contract implies consent, but as soon as this particular contract takes effect, one of the counterparties is no longer in a position to grant such consent. He ceases being a contract-granting agent! Something along those lines, hammered out by more subtle thinkers than I – or at least thinkers with more time on their hands than I have! – should work, I believe. But if we need a pat answer for the general public, then I think there’s a more obvious route, and that’s the route of denying that the slave-owner has the right to enforce the contract.
Basically, in a libertarian system it’s axiomatic that ownership of another agent is not permitted. Agents are the atoms of the system, the things which possess rights, own property and engage in trade. They cannot be coerced to do things in the normal case – every transfer in the system must proceed with the consent of the agents involved. This does not, of course, guarantee that agents always have good choices available to them: circumstances can conspire to put people in difficult positions where they have only bad choices (such as Block’s original example of the person who wishes to sell himself into slavery to pay for his child’s life-saving medical care). Now, we do recognize some instances where coersion is permitted, but these instances are only those in which coersion is necessary to enforce the principle of non-coersion. For example, we can incarcerate people for theft, or kill them in self-defense. Since enforcing the coercive slave contract is not necessary to prevent other unlawful coersion, it is not a permissible instance of coersion. One cannot gain the right to coerce someone in general, therefore – even with his consent – simply because it is axiomatic to the system that agents cannot be coerced.
Now, it can reasonably be argued – and indeed Block has done so – that it isn’t the will or agenthood per se that’s being transfered – rather it’s just an agreement to act in accordance with another’s wishes in perpetuity. If a person can consent to fly a plane – to revisit the earlier example – for the duration of the flight, even should he change his mind in media res, then he can surely consent to follow another’s instructions for the rest of his natural life? After all, it is just a broadening in scope of the actions covered and of the timespan of the agreement to the maximum possible coverage and length.
The proper counter to this comeback is to say that such a state of affairs is functionally indistinguishable from the situation where the will itself had been transfered and so, for the purposes of the law, is the same thing. It is of a kind with the situation where I have “borrowed” something of yours – a car, say – and I refuse to return it, and when the police come to enforce your claim, I cite as my defense that I always recognized your ownership of it, I merely kept it in my possession for my own use. The police and courts would, I hope, say that my claims to recognize your ownership were meaningless if I behaved in every conceivable way as though I did not, in fact, recognize your ownership. If it walks like a duck and quacks like a duck…
At this point, Block faces an unpalatable choice. He can either acknowledge that, for the purposes of the law, something which is functionally equivalent to a forbidden thing is also forbidden, or he can acknowledge that will is, in fact, not transferable in fact – i.e. is inalienable – a point he was at pains to dispute in his essay. If he takes the former route, it’s hard to see on what grounds he would deny that society can decide that the contract in question is illegitimate. After all, he has already conceded that a hitman’s contract is not legitimate on the grounds that one cannot sell services the right of the performance of which he does not have, and it is difficult to see what blazing white line would separate that from attempts to purchase something one does not have the right to own! If he goes the second route and tries to claim that differences in kind matter for the purpose of the law even if they are superficially indistinguishable, he will have conceded that will is not transferable. A person can agree to consent to all legal requests for the duration of the rest of his life, but an act of consent is required in each case. Ownership has not really been transfered, and so the will is inalienable after all, contrary to his claims. The major pillar of his argument will have fallen.
So, I conclude what should have been obvious from the start – that “voluntary slavery” is a contradiction in terms and a legal absurdity undery any conceivable libertarian political theory. Libertarians and slavery do not mix, even if it’s “perpetual consent” masquerading as slavery.
What I do acknowledge, however, is that the fact that libertarians feel the need to work out such issues will make the public nervous. For the political thinkers the public is used to hearing from, it is enough that slavery is a taboo. And so that article linked from DeLong’s blog that I read, while perhaps technically unfair, has a practical point. People like Block are not doing our cause any favors on the popular front. Even so, I consider this a feature and not a bug. Government is important, and the people who claim the right to participate in lawmaking should take the enterprise seriously. Simply voting one’s whim doesn’t cut it. Now, of course it’s true that what the public understands by “consent of the governed” is not really what Political Science understands by it. It doesn’t mean that the general public is in the driver’s seat, but more that the general public serves as a check on excesses. Duly elected representatives are in the driver’s seat, and they’re sworn to act on our behalf and in our interest – a fiduciary arrangement. Such people should, of course, think deeply about what rights exist and what the basis for them is – as Block is doing in his paper.