A Theory of Inalienability: Towards a Theory of Jurisprudence

This is a draft paper that presents some of the arguments I have been making for years in a framework analogous to Type I and Type II error in statistics–which seems to clarify the arguments.

Historically, the sophisticated arguments for slavery and autocratic government were consent-based in terms of implicit or explicit contracts. And the legalized oppression of married women was based on the coverture marriage contract. Hence the critiques developed in the abolitionist, democratic, and feminist movements were not simply arguments for consent as opposed to coercion, but arguments against certain voluntary contracts, e.g., in the form of inalienable rights arguments. But today, under the intellectual hegemony of classical liberalism, the historical arguments tend to be simplified to “consent versus coercion.” The older arguments against certain contracts, even if perfectly voluntary, have been largely overlooked, ignored, or lost—perhaps for an obvious reason. When these older arguments are recovered and restated in terms of the underlying norms of ordinary jurisprudence, then the arguments clearly apply against the human rental or employment contract that is the basis for our present economic system.

Click here to download the draft paper.