Part IV of a Five Part Review Essay on
John Tomasi’s Free Market Fairness
Liberalism’s faux “inalienable rights” theory
In Part I of this series, we saw how Tomasi used the standard consent-versus-coercion misframing of the basic issues in his new book: Free Market Fairness . In Part II, we considered the misframing involved in his treatment of the Lockean theory of property. In Part III, we considered the conceptual misunderstanding of what Tomasi calls “productive property” which allows the basic capitalism-versus-socialism misframing of the debate about the so-called “capitalist” system. In this Part IV, we consider the rather fake “inalienable rights” theory that is consistent with right-libertarian principles. The book has also been the focus of a symposium on the Bleeding Heart Libertarians blog that features commentary from the whole spectrum of political thinkers from A to B.
While Tomasi clearly approaches the Hayek-Rawls remix from the side of right-libertarianism and classical liberalism, he thinks that Harvard’s late stellar libertarian thinker, Robert Nozick, had gone too far, particularly in Nozick’s acceptance of the nondemocratic pact of subjection, not to mention the voluntary slavery contract. Nozick pointed out that the libertarian philosophy would accept both these contracts as being valid or legally permitted. He argued that a free libertarian society should validate that sort of a contract with a “dominant protective association” [Nozick 1974, 15] playing the role of the Hobbesian sovereign. And the same reasoning would re-validate the individual version of the alienation contract.
The comparable question about an individual is whether a free system will allow him to sell himself into slavery. I believe that it would. [Nozick 1974, 331]
Even Nozick is reported to have second thoughts in his later life precisely on the question of inalienability, although Nozick never developed a theory of inalienability that would overturn his earlier position.
In any case, Tomasi repeatedly refers to the classical “liberal doctrine of inalienable rights” [e.g., p. 51]. But Tomasi does not enlighten the reader about this liberal theory of inalienable rights that Nozick was unable to discover and yet would provide a definitive critique of individual slavery contracts and the political pactum subjectionis (not to mention the coverture marriage contract).
But Tomasi is correct that there is indeed a liberal “theory of inalienable rights” and it also goes back at least to Locke. Unfortunately, it is a rather fake “inalienable rights” theory since it does not even rule out a civilized form of the voluntary slavery contract (never mind the pactum subjectionis or coverture marriage contract). Again, it was Locke’s genius to choreograph the pattern that would be repeated over and over by liberal thinkers. The pattern is well illustrated by Locke’s and later liberals’ treatment of the slavery contract.
The Lockean theory starts by taking some outrageously total example of an alienation contract, e.g., that gave the slave owner the right to kill the slave. The standard example was Roman slavery where the owner could arbitrarily kill a slave (e.g., to supply food for his goldfish). Then liberal thinkers, “high liberals” or otherwise, take a high moral stand against such alienation contracts.
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. [Locke, Second Treatise, § 23]
This is the fount and source of the liberal theory of inalienable rights. But this is only a type of intellectual sleight of hand. After taking this edifying stand, Locke pirouettes in the next section and accepts a slavery contract that has rights on both sides.
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. [Locke, Second Treatise, § 24]
Of course, any legal regime that bothered to paper over a slavery relation with a contract would have rights and limited powers on both sides—at least in the law books (e.g., the slave owner would not have the right to kill a slave to feed his goldfish). And just as Locke suggested how to linguistically reinterpret expressions like “fruits of one’s labor” (see Part II), so he suggested that contractual slavery should be called “drudgery.”
It might be noted that Locke also accepted the other principal classical legitimation for enslavement, namely as a voluntary choice of a plea bargain in the case of a capital crime.
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. [Locke, Second Treatise, § 23]
Locke seems to have justified slavery in the American colonies by interpreting the slaves as “captives” in just wars [viz. Laslett 1960, notes on §24, pp. 325-326].
The contractual defense of slavery was also used in the debate over slavery in Antebellum America, although one would hardly know this from the usual liberal histories of the debate. The contract might be explicit. In the years prior to the Civil War, there was explicit legislation in six states “to permit a free Negro to become a slave voluntarily” [Gray 1958, p. 527; quoted in Philmore 1982, p. 47]. Or the contract might be implicit.
From all which it appears that, wherever slavery exists as a settled condition or institution of society, the bond which unites master and servant is of a moral nature; founded in right, not in might; … . Let the origin of the relation have been what it may, yet when once it can plead such prescription of time as to have received a fixed and determinate character, it must be assumed to be founded in the consent of the parties, and to be, to all intents and purposes, a compact or covenant, of the same kind with that which lies at the foundation of all human society. [Seabury 1969 (1861), p. 144]
“Contract!” methinks I hear them exclaim; “look at the poor fugitive from his master’s service! He bound by contract! A good joke, truly.” But ask these same men what binds them to society? Are they slaves to their rulers? O no! They are bound together by the COMPACT on which society is founded. Very good; but did you ever sign this compact? Did your fathers every sign it? “No; it is a tacit and implied contract.” [Seabury 1969 (1861), p. 153]
The point is that the Lockean inalienable right theory would not rule out a civilized explicit or implicit slavery contract, and the Lockean volte-face provided the pattern to be followed by later writers using this classical doctrine of “inalienable rights.”
What about the English common law tradition? William Blackstone, 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 turns around 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 1959, section on “Master and Servant”]
Other classical liberal rule-of-law thinkers, such as Montesquieu, employed the same Lockean choreography in their treatment of inalienability but we might jump over to modern times and include the dean of high liberalism, John Rawls.
If any liberal thinker was going to develop a sophisticated counterargument to Nozick’s endorsement of the slavery contract, then surely it would be his Harvard colleague, John Rawls. But in Rawls’ rather brief treatment of inalienability (in Political Liberalism), he follows the Lockean choreography, as transmitted by Montesquieu, by first arguing against an extreme contract that would alienate all the basic liberties. As Montesquieu stated the argument: “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), Vol. I, Bk. XV, Chap. II]. Rawls paraphrases this argument from Montesquieu and goes on 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 1996, p. 366]
After the 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 the liberal theory 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]
Since any modern civilized form of a slavery contract (e.g., a lifetime labor contract) in “a well-ordered society” as envisaged by Nozick or by economic theory, would not involve alienating all the basic liberties, the mighty mountain of the liberal “doctrine of inalienable rights,” so proudly mentioned by Tomasi, seems to have produced only a mouse.
Right-libertarians have produced a few other arguments against the slavery contract, and these arguments have been answered from a Nozickian perspective in Philmore’s Libertarian Case for Slavery . The principal argument is that contracts should allow for exit or breach. The fugitive slave laws would not be in accord with libertarian strictures against personal coercion so the slavery contract would seem to be unenforceable.
Of course, any contract where one party performs upfront (like the lump sum payment from master to slave or the home mortgage money supplied to a home buyer) and the other party performs over an extended period of time, there must be some provisions to allow exit or breach in a manner that is not unjust to either party. For instance, home mortgages would not be feasible if the home owner could just stop making payments, stay in the house, and the mortgage lender had no recourse. Hence the mortgage institution requires some recourse mechanism such as foreclosure on the house.
In a similar manner, right-libertarians have pointed out that a contractual slavery system would not work if the slave buyer made a lump sum payment in the beginning and then the slave could cease to work at some future date without consequence. This is, of course, not an argument against a slavery contract per se but a call for some recourse mechanism in the case of breach (but not something draconian like the fugitive slave laws). This can be dealt with on libertarian grounds.
Thus, if A has agreed to work for life for B in exchange for 10,000 grams of gold, he will have to return the proportionate amount of property if he terminates the arrangement and ceases to work. [Rothbard 1962, p. 441; quoted in Philmore 1982, p. 50]
This libertarian recourse mechanism could be easily implemented using an escrow account. The lump sum payment such as the 10,000 grams of gold would be placed in an escrow account in a bank, and then, as the slave performed the labor over the course of time, the bank would periodically release proportional amounts to the slave or his designated beneficiaries. Indeed, such a mechanism of delayed payments makes the slavery contract essentially into a long term human rental or employment contract.
What is the difference, in the case of the man, who operates by means of labourers receiving wages? The labourer, who receives wages sells his labour for a day, a week, a month, or a year, as the case may be. The manufacturer, who pays these wages, buys the labour, for the day, the year, or whatever period it may be. He is equally therefore the owner of the labour, with the manufacturer who operates with slaves. The only difference is, in the mode of purchasing. The owner of the slave purchases, at once, the whole of the labour, which the man can ever perform: he, who pays wages, purchases only so much of a man’s labour as he can perform in a day, or any other stipulated time. [Mill 1826, Chapter I, section II]
This example points out why one cannot expect any seriousinalienability theory to come out of right-libertarian or classical liberal thought. In the Libertarian Case for Slavery, Philmore made the point explicitly.
Contractual slavery and constitutional non-democratic government are, respectively, the individual and social extensions of the employer-employee contract. Any thorough and decisive critique of voluntary slavery or constitutional non-democratic government would carry over to the employment contract—which is the voluntary contractual basis for the free market free enterprise system. [Philmore 1982, p. 55]
Hence any serious theory of inalienability (e.g., based on the de facto non-transferability of responsible human action as we see in the hired criminal example) is simply unavailable to our liberal scholars and social scientists who work in the free market free enterprise tradition that values the contractual freedom to rent people—and thus such an inalienable rights theory will not be found in Tomasi’s book that is “one of the very best philosophical treatments of libertarian thought, ever.”
Although unavailable to right-libertarian and classical liberal thought (for the stated reasons), there is a theory of inalienable rights that descends from the Reformation inalienability of conscience through the Enlightenment and through the abolitionist, democratic, and feminist movements to modern times. The basic idea is rather simple. Due to the factual status as being mature person of normal capacity, people qualify for certain basic rights qua persons. Since that factual status is unchanged by voluntarily agreeing, for whatever reason, to a personal alienation contract to give up any of those rights, the person still qualifies qua person for those rights and thus the alienation contract is inherently invalid. Of course, a legal system can still “validate” such a contract and count obedience to one’s master, sovereign, husband, or employer as “fulfilling” the contract, and then legally enforce the consequences. But as a result of the aforementioned social movements, voluntary self-sale contracts, nondemocratic pacts of subjection, and coverture marriage contracts have all been abolished in the advanced democracies, in spite of them all being consistent with the right-libertarian and classical liberal “doctrine of inalienable rights.” Only the system of human rental contract remains, and, in that regard, classical liberal-libertarian thought has so far done its job well.
Blackstone, William 1959 (1765). Ehrlich’s Blackstone. New York: Capricorn Books.
Christ, Carl F. 1975. The Competitive Market and Optimal Allocative Efficiency. In Competing Philosophies in American Political Economics. John Elliott and John Cownie eds., Pacific Palisades, CA: Goodyear: 332-338.
Ellerman, David 1992. Property & Contract in Economics: The Case for Economic Democracy. Cambridge MA: Blackwell. All my references downloadable at: www.ellerman.org .
Ellerman, David 2005. Translatio versus Concessio: Retrieving the Debate about Contracts of Alienation with an Application to Today’s Employment Contract. Politics & Society. 33: 449-80.
Ellerman, David 2010. Inalienable Rights: A Litmus Test for Liberal Theories of Justice. Law and Philosophy. 29 (5 September): 571-599.
Gray, Lewis Cecil 1958. History of Agriculture in the Southern United States to 1860. Gloucester: Peter Smith.
Laslett, Peter 1960. Introduction with Notes. In John Locke: Two Treatises of Government. Peter Laslett ed., New York: New American Library.
Locke, John 1960 (1690). Two Treatises of Government. New York: New American Library.
McKitrick, Eric, (ed.) 1963. Slavery Defended: the views of the Old South. Englewood Cliffs NJ: Prentice-Hall.
Mill, James 1826. Elements of Political Economy. London.
Montesquieu 1912 (1748). The Spirit of the Laws. Trans. T. Nugent, New York: Appleton.
Nozick, Robert 1974. Anarchy, State, and Utopia. New York: Basic Books.
Philmore, J. 1982. The Libertarian Case for Slavery: A Note on Nozick. Philosophical Forum. XIV (Fall 1982): 43-58.
Rawls, John 1996. Political Liberalism. New York: Columbia University Press.
Rothbard, Murray 1962. Man, Economy, and State. Los Angeles: Nash.
Seabury, Samuel 1969 (1861). American Slavery Justified by the Law of Nature. Miami: Mnemosyne Publishing Company.
Sterkx, H. E. 1972. The Free Negro in Ante-Bellum Louisiana. Cranbury, N.J.: Associated University Presses.
Tomasi, John 2012. Free Market Fairness. Princeton: Princeton University Press.
 For instance, McKitrick (1963) collects together essays of fifteen pro-slavery writers but does not include a single writer who argues on a contractual basis such as Samuel Seabury.
 For instance in Louisiana, legislation was passed in 1859 “which would enable free persons of color to voluntarily select masters and become slaves for life.” [Sterkx 1972, 149]
 The crown jewel of modern economics, the Fundamental Theorem of Welfare Economics (“A competitive equilibrium is allocatively efficient”), must assume that the legal system has been “modified to permit individuals to sell or mortgage their persons” [Christ 1975, 334].
 For more on inalienable rights theory, see Ellerman 1992, 2005, and 2010.