The Libertarian Case for Slavery (A Spoof on Nozick)

Liberalism is living a lie.  It pretends that the contract to sell all of one’s labor, the self-enslavement contract, is an invalid contract beyond the pale while the contract to sell one’s labor piecemeal (by the hour, day, month, or year) is a perfectly valid contract above reproach.  The self-enslavement contract is one of the skeletons in liberalism’s intellectual closet.  Defenders of liberal capitalism are quick to accept even the most superficial arguments against voluntary slavery just to shove the issue back in the closet—just so long as the arguments do not carry over to the current contract to rent oneself out, the employer-employee contract.  Who wants to be seen as, in effect, defending voluntary slavery by showing how most arguments against the self-sale contract are baseless (aside from one “J. Philmore”)?

A closer look at the intellectual history reveals a different story.  The inalienable rights arguments developed from the Reformation and Enlightenment against various forms of religious, economic, and political enslavement were based on certain facts of human nature (e.g., the de facto inalienability of responsibility for one’s actions).  Those facts do not change when the proposed contractual alienation is only piecemeal or part-time.  The old inalienable-rights arguments, once understood, run against the self-rental contract as well as against the older self-sale contract.

But how can these points be made to a modern audience that no longer considers slavery to be an issue worthy of sustained thought (aside from the racial aspects) and that tends to accept most any critique of voluntary slavery that will keep the issue relegated to the dustbin of intellectual history?  The occasion to address these issues anew arose with the publication in 1974 of Robert Nozick’s Anarchy, State, and Utopia.  Nozick’s work represented a quantum leap over traditional liberalism in conceptual clarity and intellectual courage to follow an argument to its logical conclusions.  Accordingly, Nozick accepted that the self-sale contract and the political analogue (the pactum subjectionis) were no different in principle from the employment contract, and that all these contracts should, with suitable safeguards, be legally valid in a free society.

Therefore, the author published “A Note on Nozick” showing the superficiality of all the usual liberal arguments to rule out the self-sale contract (while accepting the self-rental contract).  The article was written in an ironic style under a pseudonym [Philmore 1982] as if the author agreed with Nozick’s conclusion that the contract to sell oneself should be allowed.  The pseudonym “J. Philmore” was originally used by the unknown author of a radical 1760 antislavery pamphlet [see Davis 1971].

My purpose was to drag the issue of the voluntary slavery contract back out of the closet so that liberals would eventually have to face the arguments that descend in the inalienable-rights tradition from the Enlightenment against the contract—arguments that apply as well to the self-rental contract.  These genuine arguments against the self-enslavement contract were unmentioned in the Philmore article.  Indeed, most referees and apparently most readers did not realize that the article was ironic in spite of its rather outlandish stated goal (accepting the self-enslavement contract) and a few intellectual jokes sprinkled through the text.  One follow-up article [Callahan 1985] in the same journal agreed with and tried to strengthen the conclusions, but noted that the self-enslavement contract might be more useful in the Third World than in the industrialized countries.  Was that an attempt to trump irony with further irony, or did it illustrate that no position is too bizarre to attract some following (as if Nozick’s reputation had not proven the point)?

The best response to date to the Philmore article was Carole Pateman’s remarkable book The Sexual Contract [1988].  Citing Philmore, she argued that basing male-female relationships on voluntary contracts was not necessarily a solution since contracts could be the basis for a “civil slavery.”  Following many of the scholarly leads uncovered by Philmore (e.g., Reverend Samuel Seabury’s liberal contractarian defense of antebellum slavery), Professor Pateman shone the spotlight on the dark underbelly of liberalism by highlighting the liberal defenses of political, economic, and social subjugation based on voluntary contracts [see particularly her Chapter 3, “Contract, the Individual and Slavery”].

The main purpose of the Philmore article was to resurrect the classical arguments for a civil slavery based on contracts and to show the superficiality of the standard liberal arguments against contractual slavery.  Only by grasping the inadequacy of the standard arguments will one perhaps be led to appreciate the genuine case against voluntary slavery that descends from the Enlightenment (i.e. the de facto inalienability argument).  The “problem” with that appreciation is that the same argument also applies against the contract to rent oneself out, the employment contract, which is the basis of liberal capitalism.

Professor Pateman indeed cites the de facto inalienability argument as the antidote to the liberal forms of contractual subjugation.

“The contractarian argument is unassailable all the time it is accepted that abilities can “acquire” an external relation to an individual, and can be treated as if they were property.  To treat abilities in this manner is also implicitly to accept that the “exchange” between employer and worker is like any other exchange of material property.” [Pateman 1988, 147]

“The answer to the question of how property in the person can be contracted out is that no such procedure is possible.  Labour power, capacities or services, cannot be separated from the person of the worker like pieces of property.” [150]

Unlike Professor Pateman, the philosophers of liberal capitalism have unfortunately not risen to the challenge laid down by J. Philmore that civilized forms of contractual slavery and the pactum subjectionis are in the same basket as the employment contract (which Philmore ironically presented as a defense of the former rather than a critique of the latter).  Pateman accepts the consequences; the Enlightenment de facto inalienability critique of voluntary slavery and constitutional autocracy applies as well to the renting of human beings, the employer-employee relationship.  It is little surprise that liberal philosophers seem to be “constitutionally” incapable of facing up to that line of argument.  For instance, upon reading the Philmore article, the response of a prominent liberal philosopher, John Rawls, was only to inquire into the origin of Philmore’s leading quip that “free-market libertarianism is derived from liberalism by taking the limit as common sense goes to zero.”  For the record, it is an adaptation of Alexander Gray’s “an anarchist is merely the limiting case of a liberal individualist whose commonsense has become infinitesimal” [1968, 246].