On the Renting of Persons
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Abstract
Liberal thought (in the sense of classical liberalism) is based on the juxtaposition of consent to coercion. Autocracy and slavery were seen as based on coercion whereas today’s political democracy and economic “employment system” are based on consent to voluntary contracts. This paper retrieves an almost forgotten dark side of contractarian thought that based autocracy and slavery on explicit or implicit voluntary contracts. To answer these “best case” arguments for slavery and autocracy, the democratic and antislavery movements forged arguments not simply in favor of consent but arguments that voluntary contracts to legally alienate aspects of personhood were invalid “even with consent”—which made the underlying rights inherently inalienable. Once understood, those arguments have the perhaps “unintended consequence” of ruling out today’s self-rental contract, the employer-employee contract.
This wonderful article does a fine job of bringing together (and extending) in a manageable read provocative themes that Ellerman has advanced in a number of his publications over the years. The primary argument is vitally important—the capitalist labor contract fails ethically not because, pace Marx, it arises out of a relation of coercion rather than consent between capital and labor, but because it involves an inherently illegitimate violation of the principle of the inalienability of responsibility and other fundamental aspects of personhood. Certain aspects of personhood may not be alienated no matter how consensual the bargain that effects the alienation. Hence, we look under the wrong stone when we evaluate certain contracts (like the labor contract) by reference to its voluntarism. Once we understand this mistake, we are led to the conclusion that the wage labor contract that features capital renting labor must be displaced by a democratically governed enterprise where all agents retain responsibility for their jointly determined efforts. In the article Ellerman takes care to demonstrate that the test of consent was used historically to validate even the most patently evil of social arrangements, such as slavery and the coverture marriage contract; and that only by suppressing the dark side of contractarianism can contemporary liberals persuade themselves that consent stands as a secure mechanism to ensure appropriate social institutions; that any institution that passes the test of consent, then, is on those grounds legitimate.
These arguments need to be reckoned with not only by liberal advocates of the wage labor contract, but also by its critics. Here (as elsewhere) Ellerman argues that Marx’s critique of the capital-labor contract fails on a number of grounds. Marx wrongly advanced a labor theory of value rather than of property; he lays the injustice of the relation on a quantitative imbalance between the value workers produce and the value they receive in wages; and he erred in basing his indictment on the actual coerciveness that underlies the apparent voluntarism of the contract. Hence, he fails to probe the deeper problem, which is that the capital-labor arrangement effects a de facto alienation of what are actually inalienable properties of the laborer’s personhood.
Ellerman’s interventions are perhaps more timely than when he first began to present them, not least because of the enormous and growing interest today in alternative forms of productive enterprises across the globe. Today, worker coops are sprouting up in the global North and global South; NGOs are working to promote and sustain alternative, worker-owned and managed forms; and many academics are embracing worker-run enterprises as more secure and just sites of employment that also provide richer work lives and greater contributions to the life of the community. In Ellerman this heterogeneous movement finds strong theoretical and normative support—indeed, Ellerman’s work claims that worker democracy is an ethical imperative that is grounded in political liberalism properly understood. In this regard Ellerman offers a basis for critique of the predominant corporate form that is independent of whether and to what degree it achieves the goals that advocates claim for it (and that critics deny): like promoting growth, rising incomes (including wages), technological innovation, welfare, or the public good more generally.
Some of those sympathetic to Marx (like this reviewer) may take offense at Ellerman’s dismissal of the Marxian critique of the capital-labor nexus, however. For some reason, Ellerman neglects entirely (in this essay at least) the humanist tradition in Marxism, taken from “the early Marx” perhaps but carried forward even into Capital, which emphasizes the uniquely human attribute of self-realization and auto-creation (and re-creation) through the process of human labor. In this tradition, human labor entails envisioning in the mind of the worker a result prior to its pursuit, which the laborer then seeks to achieve via the laboring process. The outcome may be beautiful or horrific, but the salient point is that in the process of laboring the worker alters his/her environment, and thereby, alters him or herself. The laborer becomes other-than-she-was through the process of labor—labor that combines the intellectual and physical moments into an integrated whole that is under the conscious control of the laborer. Conscious control of the labor process, which will yield transformation in the external world and in the laborer, is central to humankind’s “species being.” For Marx, that species being is, now using the concept of liberal philosophy, inalienable. Any social arrangement that undermine humankind’s species being is on that ground alone illicit, regardless of whether the arrangements yield untold riches.
The organic connection between the laborer and the (human) laboring process is rent apart by social relations of production that place the worker in submission to another entity—be it the slave owner, the feudal lord, or the capitalist. For Marx, this submission was central—at least as central as the resulting quantitative relation between the value of output and the value of wages, which he recognized as variable. That workers sometimes secured the full value of their output was, for Marx, interesting but beside the point. For him, the alienation from one’s species being that was central to the capital-labor contract represented an affront to human existence irrespective of the resulting terms of the contract. How else to interpret evocative passages with which Marx opens his extended discussion of the laboring process (first pages of chapter 7 of vol. I of Capital), where he distinguishes between the labor of the “worst architect and best of bees”; or the extraordinarily gripping passages that describe the de-humanization of the laborer who, within the capitalist firm, becomes a mere appendage of the machine (in chapter 15)? It’s difficult to sustain the view of Marx as concerned merely with capitalist exploitation—with the theft by capital of the surplus value that labor creates—and not also with alienation of the inalienable that capitalism entails.
Putting these concerns aside—Ellerman can rightly claim that these isolated arguments are dwarfed in Capital by Marx’s value analysis—Ellerman’s arguments about the inalienability of responsibility deserves much wider attention than it has so far received by liberal defenders or leftist critics of the employment contract. In this article Ellerman speculates as to why liberals are so resistant to what is, for him, an obvious implication of liberal thought. He claims that the consequences of recognizing that consent cannot validate alienating the inalienable are just too disconcerting for those who have accommodated themselves to (or even celebrated) predominant economic institutions, like the employment contract, on grounds that it is a consensual. He may be right. But it may also be because in a world that features so much explicit coercion in the so-called free labor market, exposing and eliminating the most egregious instances of injustice is a full-time job. In this campaign, the coercion-consent distinction provides immense service, while the more far more radical claim that all wage labor is an affront to human personhood may, by putting all labor contracts on equal footing, muddy the waters and undermine the moral claims of reformers. It is difficult enough, one might be forgiven for thinking, to convince the public that coercion happens in labor markets; how much more difficult would it be to persuade the public that all wage labor contracts represent inherently indictable transfers of what cannot be transferred?
Many thanks to George DeMartino for his thoughtful comments. I think we are in substantial agreement, and that fact should not be obscured by my comments about our minor disagreements which, not surprisingly, are about Marx. DeMartino prefers a more positive mention of the views of the young Marx which still have some presence in the value-theoretic analysis of the mature Marx. A positive mention of these aspects of Marx is perhaps warranted–and was included in the chapter on Marx in my book Property & Contract in Economics. However, Marx himself is a side issue. The paper focuses on the inalienability rights critique of the employment contract. But one can still ask if Marx was a secret devotee of the inalienable rights critique of wage labor.
Before going into that critique and the question of whether Marx understood/accepted it, I need to make some clarifying comments about DeMartino’s summary of my argument. It is quite important to keep separate the de facto and de jure (or legal) aspects. DeMartino mentions the “principle of the inalienability of responsibility” which makes it sound like a moral or legal principle. But the basic inalienability of responsible agency is de facto as evidenced in the intuition pump of the hired criminal example (where there is no question the hired killer would voluntarily alienate de facto responsibility if only he could and where there is no question about the auto-creation or self-realization of the hired killer). DeMartino continues summarizing the argument by saying “Certain aspects of personhood may not be alienated” where he should say “can not be de facto alienated” instead of “may not be alienated”. Later the same mixup occurs in the mention “that the capital-labor arrangement effects a de facto alienation of what are actually inalienable properties of the laborer’s personhood” whereas the wage-labor relation only effects a de jure alienation of the de facto inalienable responsible agency of the laborer. Finally DeMartino argues that Marx is ultimately concerned with the “alienation of the inalienable [species being] that capitalism entails” (in spite of Marx’s voluminous development of the labor theory of value and exploitation). But, as it stands, “alienation of the inalienable” is a contradiction in terms like “moving the immovable.” It should be interpreted as the de jure alienation of the de facto inalienable responsible agency (or perhaps “species being”).
Marx himself seems to be similarly conflicted as to whether the “dehumanization of the laborer” or the worker becoming “a mere appendage of the machine” (mentioned by DeMartino) is de facto or de jure. If a wage worker was de facto dehumanized (like the computer-chip-controlled sex worker in William Gibson’s Necromancer sci-fi novel) or de facto an appendage on a machine, then the employee committing a crime in the course of an employment relation would not be de facto responsible. Yet even the capitalist legal system then correctly recognizes the de facto responsibility of the hired criminal (see the quote in the paper). Marx’s moral invective is all well and good, but surely Marx also wanted to develop a serious theory and in that case being about to distinguish de facto from de jure is rather important. For instance, in the older abolitionist debates, it is important to understand the difference between saying that the slave is a de facto person treated de jure or legally as a thing (outside of crimes) or saying that the slave is made into a de facto thing by the slavery relation—and ditto for the current neo-abolitionist debate about the renting of persons.
One can probably find Marx quotes to indicate either interpretation of the wage relation (as a de facto or a de jure alienation of responsible agency or species being). For instance, here is an argument that he actually misinterpreted the de jure alienation of responsibility as a de facto one (to the great relief of hired criminals everywhere).
Perhaps the best critique of the voluntary slavery contract was in Hegel’s Philosophy of Right. Here I can just quote from the paper:
[beginning of quote]
Hegel gave the most explicit treatment that—like Hutcheson—juxtaposed the alienability of things (like a shovel) with the inalienability of the aspects of our personhood (decision-making and responsibility).
“The reason I can alienate my property is that it is mine only in so far as I put my will into it. Hence I may abandon (derelinquere) as a res nullius anything that I have or yield it to the will of another and so into his possession, provided always that the thing in question is a thing external by nature.” [section 65]
But alienation clearly cannot be applied to one’s own personality.
“Therefore those goods, or rather substantive characteristics, which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible.” [section 66]
An individual cannot in fact vacate and transfer that responsible agency which makes one a person.
“The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them.” [Remark to section 66]
[end of quote from the paper]
But there was a “problem” with Hegel’s argument; it rather clearly also applied to the renting of human beings which is not a conclusion that Hegel wanted to draw (not to mention the Prussian censors). Hence Hegel did a little walking-back of his own argument (not quoted in the paper):
“Single products of my particular physical and mental skill and of my power to act I can alienate to someone else^54 and I can give him the use of my abilities for a restricted period, because, on the strength of this restriction, my abilities acquire an external relation to the totality and universality of my being. By alienating the whole of my time, as crystallized in my work, and everything I produced, I would be making into another’s property the substance of my being, my universal activity and actuality, my personality.” [section 67]
In case one missed the point, the translator’s note adds:
“The distinction here explained is that between a slave and a modern domestic servant or day-labourer. The Athenian slave perhaps had an easier occupation and more intellectual work than is usually the case with our servants, but he was still a slave, because he had alienated to his master the whole range of his activity.” [Trans. note to section 67]
But as we see from the hired criminal case, responsible human agency is not voluntarily de facto alienable regardless of the duration or extent of the purported alienation contract. The remarkable thing is that Marx seems to have taken Hegel’s little moonwalk seriously and even quotes it as describing the de facto alienation involved in wage labor.
“I may make over to another the use for a limited time, of my particular bodily and mental aptitudes and capabilities; because, in consequence of this restriction, they are impressed with a character of alienation with regard to me as a whole. But by the alienation of all my labour-time and the whole of my work, I should be converting the substance itself, in other words, my general activity and reality, my person, into the property of another. (Hegel, “Philosophie des Rechts.” Berlin, 1840. p. 104 § 67.)” [Marx, Karl. 1967. Capital: A Critique of Political Economy. Volume I. Translated by Aveling and Moore. New York: International Publishers, Chap. VI, p. 168, fn. 2]
This interpretation is corroborated by Marx’s treatment of the labor contract in the sphere of exchange. If responsible agency could not be de facto voluntarily transferred on even Hegel’s restricted basis (e.g., just for killing one person), then the labor contract would be an impossible contract and an institutionalized fraud. Yet Marx insists that the sphere of exchange “is in fact a very Eden of the innate rights of man” (Capital, Vol. I, Chapter VI) so that he must descend into the “hidden abode of production” in order for his labor theory of value to reveal exploitation. That was the path taken by the mature Marx–regardless of one’s interpretations of the young Marx–and that is the Marx who is criticized in the paper as missing the (de facto) inalienability critique of the voluntary contract for the renting of persons (and even using rhetoric that seemingly confused the distinction between de facto and de jure alienation of responsible agency).
Of course, one can just impute the (de facto) inalienability critique to the mature Marx (with an assist from the young Marx), but that is rather hard to reconcile with the above quotes. In Marx’s voluminous writings, he had plenty of opportunity to use the concept of inalienable rights that descends from the Reformation’s inalienability of conscience, from the Radical Enlightenment’s Spinoza, from the Scottish Enlightenment’s Hutcheson, and even from Hegel, and that was applied against the voluntary self-sale or slavery contract, the political pactum subjectionis, and more recently against the coverture marriage contract. He could have shown the internal contradiction in classical liberalism’s use of inalienable rights theory and its affirmation of the renting of persons in the sphere of exchange just as Dr. Johnson noted the contradiction between the Founding Fathers’ evocation of “unalienable rights” and their peculiar institution of owning other persons (“how is it that we hear the loudest yelps for liberty among the drivers of negroes?”). But Marx seems to have accepted the apologists’ characterization of the self-rental contract as the “very Eden of the innate rights of man” and then delved into the “hidden abode of production” where his labor theory of value and exploitation (a colossal failure) was supposed to reveal the “inner workings” of the employment relation—all in his favorite stance of the wizard revealing the secret workings behind the veil of surface appearances. In any case, no matter what critique of the human rental system is finally accepted in a possible future society of political and workplace democracy, the Marxist faithful will argue that it was there all along in the sacred texts (but only took a century or two to be “revealed”).
It might also be noted that the argument that wage-labor undermines the worker’s self-realization is another rather fluffy special-plea and convincing-only-to-the-choir argument like the New Left narrative about the “contested terrain” of the employment relation or the labor-republican argument about the servility of wage labor as frustrating human flourishing. All true enough, but “where’s the beef” that would support the neo-abolitionist call for the abolition of the renting of persons? Was there some social contract that wage-labor had to be uncontested terrain, self-realizing, or nurturing human flourishing which was breached? Liberal economists point out that workers can always demand higher wages and better working conditions to compensate for or mitigate those disutilities of wage-labor, and they can also form their own worker cooperatives to work jointly for themselves—just like consumers who are seemingly “forced” to buy their food in a food store could also repair to the countryside to grow their own food.
Lastly DeMartino juxtaposes this inalienability analysis, which attacks the renting of persons per se, with another analysis that uses the classical liberal coercion-consent framework in “exposing and eliminating the most egregious instances of injustice…” Why use an inalienability argument that condemns all person-rental contracts and thus will “muddy the waters and undermine the moral claims of reformers” when falling back on the old classical liberal framing of consent versus coercion might get reformers some mileage against the “coercion [that] happens in labor markets”?
This is an odd argument. The inalienability argument descends from the abolitionist, democratic, and feminist movements, and it seems to me to be true regardless of how off-putting it may be to the status quo.
The more controversial point here is that much of the Left, following Marx, has decided to accept the classical liberal framing that the basic question is consent versus coercion (and to accept the conventional economics framing that value theory, rather than property & contract theory, is the correct battleground), and then to argue that, in some historical or sociological sense, the employment contract is “really involuntary.” This argument has become some sort of a “Badge of Red Courage” on the Left, and all who dissent are dismissed as being insufficiently lefty, if not outright capitalist roaders. Hence the inalienability arguments, developed historically against the voluntary slavery contracts, the political contracts of subjection, and the coverture marriage contracts, are treated as muddy-the-waters distractions from the Left-defining posture of viewing the employment contract as “involuntary.”
But like the libertarian-defining posture of treating taxes and any state action as coercive, these private inside-the-club definitions of coercion are only “convincing” when preaching to the choir of those who want to wear the same Badge of Red Courage. To someone without Marxist allegiance like me, the arguments about coercion are such loose special-pleas (are feminists to argue that all past coverture marriage contracts were involuntary?) that they could be applied to most any aspect of complex modern society. Since I was not born on a self-sufficient farm grazing my herd on the commons and have long since “fallen” out of the Garden of Eden, am I “coerced” when I have to pay for my food at the local supermarket? Arguments that spending my pay on food is a voluntary contract but working as an employee to earn the pay is involuntary sound to me like special pleas just tailored to get the desired results. Are such arguments really convincing to anyone not already precommitted to Marxist identity maintenance? The concept of “involuntary” on the Left has become a piece of conceptual silly putty to be molded to support one’s pre-analytical judgment and political identity, rather than a serious analytical concept.
In contrast, the inalienability analysis argues that the universally recognized de facto co-responsibility of the hired criminal does not suddenly become the alienable behavior of a robot or part-time thing when the enterprise is non-criminous. As to the question of political strategy, it is an empirical question as to whether the public finds that inalienability argument or the argument that the employment contract is “really” involuntary as being more persuasive.
I enjoyed reading this paper very much indeed. I found the central observation—that the obsessive current liberal interest in the question of coercion vs consent has a tendency to obscure the ease with which generations of earlier theorists had been able to manufacture contractualist (or otherwise consent-based) defences of slavery—a plausible one, and the historical sketch of the various ways in which the distinction between alienable and inalienable rights was drawn is nicely executed. I’m not expert enough in the historical debates around, especially, New World slavery to say anything about exactly what is new and significant here. But, as I say, I very much enjoyed the discussion, I learned something from it, and I am grateful to the editors of Economic Thought for pointing me in its direction (or it in mine).
Three observations.
The first is about Thomas Hobbes. In the modern genealogy of inalienable rights, Martin Luther, Benedict de Spinoza, and Francis Hutcheson feature most prominently. But it is also perhaps worth mentioning Hobbes’s insistence that the fundamental right of defending oneself against attack can never be transferred to a sovereign. One can transfer the right of judging in difficult circumstances whether one is being attacked or not. Indeed, that is perhaps the key transfer of right that is made (as Richard Tuck has been arguing for thirty years now). But if it is just obvious that we are under attack, we defend ourselves to the best of our ability, regardless of what sovereign authority may say. We might find Hobbes a somewhat odd source for the idea of an inalienable right. But that is what he seems to me to be.
The second is about the kind of liberal theory that is criticised in this piece. The argument seems to be much more effective against strong natural-rights versions of liberal argument, for example the kind we find in Robert Nozick’s theories, which famously look back to John Locke. But there’s another approach, represented by David Hume and Adam Smith in the eighteenth century and perhaps best exemplified by Friedrich Hayek in the twentieth, in which property rights are understood as social conventions which we observe and maintain for the sake of utility. If we base our account of economic life on that second approach to thinking about rights, which seems to me to be sensible (for all kinds of reasons), does it matter nearly so much about the legal ‘fictions’ that arise through the renting of persons in the way that this paper suggests?
The third is about the argument for workplace democracy. Just as the paper itself worries about how the liberal coercion-or-consent fixation has crowded out awareness of an older tradition of contractualist apologetics for slavery, I wonder whether the argument here, which moves very briskly from the impermissibility of wage contracts to the demand for workplace democracy might also tend to obscure an older attempt to spin this demand out of Lockean premises? That was Thomas Hodgskin’s 1825 pamphlet, Labour Defended against the Claims of Capital, which argued that the Lockean idea that the worker had a claim over the product of their labour seemed to break down in the context of the intensifying social division of labour, such that ‘Almost any product of art and skill is the result of joint and combined labour.’ The question, Hodgskin wrote, was ‘how much of this joint product should go to each of the individuals whose united labourers produce it?’, and he answered that, ‘I know no way of deciding this but by leaving it to be settled by the unfettered judgments of the labourers themselves.’ (One of the other virtues of Hodgskin’s piece is that it further underlines one of Ellerman’s points about Marxian exploitation theory, and the implausibility of defending it through delineating an excruciatingly precise kind of consent theory.)
Reply to Christopher Brooke
Many thanks for the thoughtful comments.
On Brooke’s first point about Hobbes, yes, he did say that it would make no sense to alienate the right to defend one’s own life (since the whole point of the Hobbesian pact of subjection was to preserve one’s life against the war of all against all etc.). But as Brooke noted, it would be odd, but not incorrect, to include Hobbes in a history of inalienable rights.
In any case, the point is to distinguish the rather faux “theory of inalienable rights” in the intellectual history of liberalism from the radical-enlightenment theory that descends from the Reformation doctrine of the inalienability of conscience through Spinoza and Hutcheson. In longer treatments of the topic than in this short paper, I pick up the story at the next step after Hobbes in John Locke who had the most influential treatment of rights for the history of liberal thought.
The intellectual fact-pattern was to make a prominent testimony to the inalienable right to life and then to turn around and treat everything else as alienable—which was hardly the radical enlightenment theory. Let’s review that faux theory of inalienable rights starting with Locke’s treatment of the voluntary slavery contract.
Locke would not condone a contract which gave the master the power of life or death over the slave.
“For a Man, not having the Power of his own Life, cannot, by Compact or his own Consent, enslave himself to any one, nor put himself under the Absolute, Arbitrary Power of another, to take away his Life, when he pleases.” [Second Treatise, §23]
This is the fount and source of what is sometimes taken as a “liberal doctrine of inalienable rights” [Tomasi, John 2012. Free Market Fairness. p. 51]. But after taking this edifying stand, Locke pirouettes in the next section and accepts a slavery contract that has some rights on both sides. Locke is only ruling out a voluntary version of the old Roman slavery where the master could take the life of the slave with impunity. But once the contract was put on a more civilized footing, Locke accepted the contract and renamed it “drudgery.”
“For, if once Compact enter between them, and make an agreement for a limited Power on the one side, and Obedience on the other, the State of War and Slavery ceases, as long as the Compact endures…. I confess, we find among the Jews, as well as other Nations, that Men did sell themselves; but, ’tis plain, this was only to Drudgery, not to Slavery. For, it is evident, the Person sold was not under an Absolute, Arbitrary, Despotical Power.” [Second Treatise, §24]
Locke is here setting an intellectual pattern, repeated many times later, of taking a high moral stand against an extreme form of contractual slavery, but then turning around and accepting a civilized form on contractual slavery (e.g., rights on both sides at least in the law books) usually with some more palatable linguistic designation such as drudgery or perpetual servitude.
Moreover, Locke agreed with Hobbes on the practice of enslaving the war captives as a quid pro quo plea-bargained exchange of slavery instead of death and based on the on-going consent of the captive.
“Indeed having, by his fault, forfeited his own Life, by some Act that deserves Death; he, to whom he has forfeited it, may (when he has him in his Power) delay to take it, and make use of him to his own Service, and he does him no injury by it. For, whenever he finds the hardship of his Slavery out-weigh the value of his Life, ’tis in his Power, by resisting the Will of his Master, to draw on himself the Death he desires.” [Second Treatise, §23]
In Locke’s constitution for the Carolinas, he seemed to have justified slavery by interpreting the slaves purchased by the slave traders on the African coast as the captives in internal wars who had accepted the plea-bargain of a lifetime of slavery instead of death. [See Laslett, Peter 1960. Introduction with Notes. In John Locke: Two Treatises of Government, notes on §24, pp. 325-26.] Thereafter, the title was transferred by commercial contracts. If the slave later decides to renege on the plea-bargain contract and to take the other option, then “by resisting the Will of his Master, [he may] draw on himself the Death he desires.”
Another staple in liberal jurisprudence is English common law. William Blackstone (1723-1780), in his codification of English common law, stuck to Locke’s choreography. Blackstone rules out a slavery where “an absolute and unlimited power is given to the master over the life and fortune of the slave.” Such a slave would be free “the instant he lands in England.” After such an edifying stand on high moral ground, Blackstone pirouettes and adds:
“Yet, with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term.” [Blackstone, William 1959 (1765). Ehrlich’s Blackstone, section on “Master and Servant”]
Another source of liberal thought is Montesquieu (1689-1755). On the question of voluntary slavery, he employed the same Lockean choreography in his treatment of inalienability and that treatment was paraphrased in modern times by the dean of high liberalism, John Rawls (1921-2002). Montesquieu begins with the usual repudiation of the self-sale contract in an extreme form:
“To sell one’s freedom is so repugnant to all reason as can scarcely be supposed in any man. If liberty may be rated with respect to the buyer, it is beyond all price to the seller.” [Montesquieu 1912 (1748). The Spirit of the Laws, Vol. I, Bk. XV, Chap. II].
Rawls paraphrases this argument from Montesquieu to argue that in the original position, the
“grounds upon which the parties are moved to guarantee these liberties, together with the constraints of the reasonable, explain why the basic liberties are, so to speak, beyond all price to persons so conceived.” [Rawls, John 1996. Political Liberalism, p. 366]
After the “beyond all price” passage paraphrased by Rawls, Montesquieu goes on to note: “I mean slavery in a strict sense, as it formerly existed among the Romans, and exists at present in our colonies.” [Montesquieu 1912 (1748), Vol. I, Bk. XV, Chap. II] Then Montesquieu performs his volte-face by noting that this would not exclude a civilized or “mild” form of the contract.
“This is the true and rational origin of that mild law of slavery which obtains in some countries; and mild it ought to be, as founded on the free choice a man makes of a master, for his own benefit; which forms a mutual convention between two parties.” [Montesquieu 1912 (1748), Vol. I, Bk. XV, Chap. V]
And then Rawls goes on to follow the same choreography in his treatment of inalienability.
“This explanation of why the basic liberties are inalienable does not exclude the possibility that even in a well-ordered society some citizens may want to circumscribe or alienate one or more of their basic liberties. …
Unless these possibilities affect the agreement of the parties in the original position (and I hold that they do not), they are irrelevant to the inalienability of the basic liberties.” [Rawls 1996, pp. 366-7 and fn. 82]
Of course, no one thinks that John Rawls would personally endorse a voluntary slavery contract, but the question is not his personal views, but his theories. And in his treatment of inalienability, he repeated the pattern and even some of the language (“beyond all price”) of a “liberal doctrine of inalienable rights” descending from Locke, Blackstone, and Montesquieu that did endorse a civilized form of voluntary contractual slavery, drudgery, or perpetual servitude.
Brooke’s second point is that the arguments of the paper are stated against those of the rights tradition of liberal thought, but that there are other liberal thinkers who see property and contract “as social conventions which we observe and maintain for the sake of utility.” There are three points to be made.
1). The arguments in the paper could be described as “neo-abolitionist” since they argue for the abolition for the whole institution of renting other people just as the original abolitionists argued on a natural rights basis for the abolition of the whole institution of (voluntarily, not to mention, involuntarily) owning other people. One of the strategies of defense of slavery was to reject rights-based arguments as “nonsense on stilts” (along with Bentham) and then to take refuge in vague notions of the “welfare of the community” and the like [e.g., Elliott, E. N. ed. 1860. Cotton Is King and Pro-Slavery Arguments, Augusta, GA: Pritchard, Abbott & Loomis]. And one can certainly expect the apologists for the institution of renting people to take similar refuge. But I see no reason to follow them into the swamp of quite socially-conditioned judgments about “community welfare” or “social utility.” The historical debate about owning other people hinged on rights arguments so I see no reason to do otherwise than extend those historical rights-based arguments against the institution of renting people.
2). There is a supposedly more rigorous modern treatment of property & contract using social-welfare (measured by social wealth) or efficiency-based reasoning in Law-and-Economics (which is a legal variation on cost-benefit analysis) based on the Kaldor-Hicks principle. As one of the founders of this approach to jurisprudence, Richard Posner, put it:
“But to the extent that distributive justice can be shown to be the proper business of some other branch of government or policy instrument…, it is possible to set distributive considerations to one side and use the Kaldor–Hicks approach with a good conscience. This assumes, …, that efficiency in the Kaldor-Hicks sense–making the pie larger without worrying about how the relative size of the slices changes–is a social value.” [Posner, Richard. 2001. “Cost-Benefit Analysis: Definition, Justification, and Comment on Conference Papers.” In Cost-Benefit Analysis: Legal, Economic, and Philosophical Perspectives, edited by Matthew D. Adler and Eric A. Posner, 317–41. Chicago: University of Chicago Press. pp. 318-9]
But it turns out that the whole Kaldor-Hicks analysis is based on a logical or methodo-logical fallacy that I analyzed in a recent paper: Ellerman, David. 2014. “On a Fallacy in the Kaldor–Hicks Efficiency–equity Analysis.” Constitutional Political Economy 25 (2 June): 125–36 (it is downloadable from my website at: http://www.ellerman.org), and in an earlier paper: Ellerman, David. 2009. “Numeraire Illusion: The Final Demise of the Kaldor-Hicks Principle.” In Theoretical Foundations of Law and Economics, edited by Mark D. White, 96–118. New York: Cambridge University Press.
3). The ultimate goal is to analyze not just other people’s theories but institutions of property and contract themselves, and they function in terms of legal rights, so there is no need to get bogged down in socially-formed opinions about the “social utility” of slavery or of the employment relation.
Brooke’s third point is that the results of the contractual arguments against the employment relation and in favor of workplace democracy might also be the results of property-theoretic arguments such as those of Thomas Hodgskin. This is absolutely correct, and that is how I approached these issues in my many writings on the labor theory of property over the last 40 years. On my website, there are six categories of my papers, two of which are INALIENABLE RIGHTS and PROPERTY THEORY. Click on that Property Theory link to see those papers and on my downloadable 1992 book, Property & Contract in Economics, which contains both the contract-theoretic and property-theoretic approaches, and which indeed recognizes Hodgskin as the closest 19th century precursor to the modern property-theoretic arguments such as: Ellerman, David. 2014. “On Property Theory.” Journal of Economic Issues XLVIII (3 (Sept.)): 601–24. The paper under comment is a brief introduction to the contractual approach to these questions.