A Theory of Inalienability: Towards a Theory of Classical Liberal 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.

Classical liberalism tends to respond to the criticism of any voluntary market contract by promoting a wider choice of options and increased information and bargaining power so that no one would seem to be ‘forced’ or ‘tricked’ into an ‘unconscionable’ contract. Hence, at first glance, the strict logic of the classical liberal free market philosophy would seem to mitigate against ever abolishing any mutually voluntary contract between knowledgeable and consenting adults. Yet the modern liberal democratic societies have abolished (i.e., treated as invalid) at least three types of historical contracts: the voluntary slavery contract, the coverture marriage contract, and an undemocratic constitution to establish an autocratic government. Thus, the rights associated with those contracts are considered as inalienable. This paper analyzes these three contracts and shows that there is indeed a deeper classical liberal tradition of jurisprudence that rules out those contracts. The ‘problem’ is that the same principles imply the abolition of the employment contract—which is the foundation for the economic system that is often (but superficially) identified with classical liberalism itself.

Click here to download the draft paper.