Voluntary Slavery and Lawful Consent

godfatherIn the movie, The Godfather, Michael Corleone relates to his sweetheart Kay Adams a story about his father:

MICHAEL: Well, when Johnny was first starting out, he was signed to a personal services contract with this big-band leader. And as his career got better and better, he wanted to get out of it. But the band leader wouldn’t let him. Now, Johnny is my father’s godson. So my father went to see this bandleader and offered him $10,000 to let Johnny go, but the bandleader said no. So the next day, my father went back, only this time with Luca Brasi. Within an hour, he had a signed release for a certified check of $1,000.

KAY: How did he do that?

MICHEAL: My father made him an offer he couldn’t refuse.

KAY: What was that?

MICHAEL: Luca Brasi held a gun to his head, and my father assured him that either his brains or his signature would be on the contract … That’s a true story.

Of course, we all recognize the pun – making “an offer he couldn’t refuse” ordinarily means an offer so good it can’t be passed up. In this case, it means literally an offer that cannot be refused because Luca Brasi will kill you.

An agreement made under duress is not an agreement at all. Like any other kind of aggressive action, it is what Mises categorized, for the purposes of praxeology, as autistic exchange:

Action always is essentially the exchange of one state of affairs for another state of affairs. If the action is performed by an individual without any reference to cooperation with other individuals, we may call it autistic exchange. An instance: the isolated hunter who kills an animal for his own consumption; he exchanges leisure and a cartridge for food.

Where there is no intentional mutuality, where an action is performed without any design of being benefitted by a concomitant action of other men, there is no interpersonal exchange, but autistic exchange. It does not matter whether the autistic action is beneficial or detrimental to other people or whether it does not concern them at all. A genius may perform his task for himself, not for the crowd; however, he is an outstanding benefactor of mankind. The robber kills the victim for his own advantage; the murdered man is by no means a partner in this crime, he is merely its object; what is done, is done against him.

Ludwig von Mises – Human Action, Chapter X.1

If you were to bring a contract to an arbitration hearing that had been signed under duress, the contract would be viewed as null and void because it had been signed under duress. It is not evidence of an agreement because no agreement was ever made or reached in the first place. All that occurred was an autistic exchange: one or more men acting irrespective of the participation of another.

One of the assumptions behind the idea that a lawful “slave contract” can exist is that a contract is “that which has been agreed to.” Thus, any intelligible agreement can be formed, and enforced, including an agreement to sell oneself into slavery, or to be murdered, or to be raped, and so on. Rothbard explains in Ethics of Liberty the current view of the law regarding what a contract is: “Why should this [contracted] payment now be enforceable at libertarian law? Existing law … largely contends that Jones must pay $1100 because he has ‘promised’ to pay, and that this promise set up in Smith’s mind the ‘expectation’ that he would receive the money.”

“But you promised” is an extremely useful device in the hands of the con artist. It is well-understood how the large crony-capitalist corporations, private cartels and monopolies benefit from State subsidy, lobbies and regulatory favors. These private microcosms of the coercive State order constantly utilize the “but you signed your name on the dotted-line” tactic. As an anecdotal example, the landlord of the apartments I live in once tried to tow my motorcycle for having expired tags. Their claim was that the expired tags proved I was “storing” the motorcycle on their property and the lease agreement I signed prohibits “vehicle-storage”. Of course, they did not think this up themselves; the tow company that contracts with the landlord sends patrol trucks to check for vehicles parked in no-parking zones – and, apparently, to scan for expired tags.

Stipulated settlements – a common situation in divorce – are another abuse of this concept. What was stipulated in the settlement is held “in perpetuity” until some new agreement is reached via the courts. Neither party is permitted to simply change their mind – after all, both parties “freely agreed and stipulated” the terms of the settlement to begin with.

Another legal corruption that is closely related to the perpetual agreement under duress is the confession. “You said you are guilty. You condemned yourself with your own mouth.” Coerced confession was famously used in the Inquisitions but its use has always been widespread and never more so than it is today. United States prosecutors had a 93% criminal conviction rate in 2010. Yet the vast majority of cases that the prosecutor takes up never even go to trial, instead being “plea-bargained” – a kind of confession. These are not unconnected facts – the overwhelming probability of conviction combined with the severity of the sentencing guidelines is one of the chief tools used by the prosecutor’s office to induce a plea-bargain. Stated differently, the prosecutor’s office makes threats to induce confessions; this is nothing else but forced confession.

1040Another example of the confession is your tax form: that instrument of oppression known as the Form 1040. Under US law, the argument for why you have to pay taxes is very convoluted – I suppose out of an attempt to avoid having to state in court the naked truth that you are obligated to pay taxes because the government can make you pay them (might makes right). In the US, if you ask why you must pay taxes, the government will respond that you have yourself already stated what taxes you owe the Federal government. You confessed it on your Form 1040: “I owe $X in taxes to the Federal government.” That’s the whole purpose of the form.

But if you ask why you must file a Form 1040, the government will ask you: Why should you be loath to report certain basic financial facts that the Congress – democratically elected representatives who speak for all Americans – has determined that all Americans should report? After all, you provide basic data in the census, you provide basic data for your driver’s license, you provide basic data for jury duty and the draft. Even the telephone company knows your phone number and the post office knows your home address. What, exactly, do you have to hide?

Do you see the trick? You have to file “basic information” about yourself and such a mild requirement could only be interpreted as oppressive by an anti-social personality. But in order to file this information with the government (on your 1040 Form), you must confess the amount of taxes you owe to the government. Should you later decide that you don’t owe any taxes (say, by not mailing in the check), the government will drag you to “tax court” and produce the Form 1040 against you as evidence – your signed confession that you owe taxes.

We all understand that an admission made under torture is invalid or an agreement made with a gun to the back of the head is invalid. In fact, people understood this in the medieval era, they were not stupid. Why else would the Inquisitions have needed to suggest that the victims who required torture methods suffered from madness or demon possession or were threatening society with heretical doctrines as excuses to explain the severity of the measures employed? Nevertheless, the coercive and really unlawful measures employed today – though much milder than outright torture and more subtle than a gun to the back of the head – are every bit as effective and have become so ingrained into the system, so deeply embedded into the culture that it is difficult to even conceive of an alternative.

Our idea of what constitutes valid consent – and the rights that are granted by the consenting party to the consented party – has been corrupted. Our idea of what counts as evidence of an agreement has been corrupted. Our idea of what counts as an admission of guilt has been corrupted. Our idea of what counts as proof of an unreliable witness (the “cross-examination”) is corrupted. Even our idea of what counts as a procedure for determining a just outcome of a dispute is corrupted. The adversarial court process is not just – it is a disguised form of trial-by-ordeal.

Genuine consent is consent given in the absence of coercion, extortion or any kind of duress. This is lawful consent. Consent given under coercion, extortion, and so on will not be acknowledged as valid by any competent arbitrator in an unhampered law market.

Genuine confession is a statement which is maintained in the face of its consequences. If you quote me, in arbitration, as having once said that “all apples are blue” and I respond that I have since changed my mind on the matter or that I was speaking poetically, then whatever I said in the past is no confession of anything. By quoting me, you may succeed in showing that I have been inconsistent or variable on the matter. But you may not hold me to my past words in the face of my own repudiation of my past words.

One of the primary uses of confession is to establish a person’s character based on his own assessments. If a person maintains an assertion about himself that is negative, then this is admissible as evidence against him. Or, if he maintains an assertion about his adversary that is positive, this is admissible as evidence in favor of his adversary. The converse situations are inadmissible. Your glowing reports of your own heroism are inadmissible. And so on. This is all common sense, of course, but outside of the trial-by-ordeal system operated by the government’s courts, it is of little consequence. Perry Mason tactics would be of only occasional use in arbitration hearings.

Genuine agreement is agreement that is still pertaining at the moment it is relied upon. This can be quickly confirmed by an arbitrator by simply asking both parties: “Do you agree to X?” If someone says “no”, then there is not agreement.

This is one and the same thing as asserting that mere promises cannot be held binding. Rothbard says,

Let us examine … the implications of the now prevalent “promise” or “expectations” theory of contracts. Suppose that A promises to marry B; B proceeds to make wedding plans, incurring costs of preparing for the wedding. At the last minute, A changes his or her mind, thereby violating this alleged “contract.” What should be the role of a legal enforcing agency in the libertarian society? Logically, the strict believer in the “promise” theory of contracts would have to reason as follows: A voluntarily promised B that he or she would marry the other, this set up the expectation of marriage in the other’s mind; therefore this contract must be enforced. A must be forced to marry B.

As far as we know, no one has pushed the promise theory this far. Compulsory marriage is such a clear and evident form of involuntary slavery that no theorist, let alone any libertarian, has pushed the logic to this point. Clearly, liberty and compulsory slavery are totally incompatible, indeed are diametric opposites. But why not, if all promises must be enforceable contracts?

A milder form of enforcing such marriage promises has, however, been employed, let alone advocated, in our legal system. The old “breach of promise” suit forced the violator of his promise to pay damages to the promisee, to pay the expenses undergone because of the expectations incurred. But while this does not go as far as compulsory slavery, it is equally invalid. For there can be no property in someone’s promises or expectations; these are only subjective states of mind, which do not involve transfer of title, and therefore do not involve implicit theft. They therefore should not be enforceable, and, in recent years, “breach of promise” suits, at least, have ceased to be upheld by the courts. The important point is that while enforcement of damages is scarcely as horrendous to the libertarian as compulsory enforcement of the promised service, it stems from the same invalid principle.

Let us pursue more deeply our argument that mere promises or expectations should not be enforceable. The basic reason is that the only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. All physical property owned by a person is alienable, i.e., in natural fact it can be given or transferred to the ownership and control of another party. I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, “stuck” with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so.

Murray Rothbard Ethics of Liberty, Chapter 19

Unless mere promises can be made binding, then genuine agreement is nothing more or less than uncoerced agreement in the present. The “but you signed your name on the dotted line” argument holds no water in establishing genuine agreement. A past agreement that has been repudiated is no agreement at all. Rothbard clarifies this point further:

Obviously, if A says to B, “I hereby give you $10,000,” then title to the money has been transferred, and the gift is enforceable; A, furthermore, cannot later demand the money back as his right. On the other hand, if A says, “I promise to give you $10,000 in one year,” then this is a mere promise, what used to be called a nudum pactum in Roman law, and therefore is not properly enforceable. The receiver must take his chances that the donor will keep his promise. But if, on the contrary, A tells B: “I hereby agree to transfer $10,000 to you in one year’s time,” then this is a declared transfer of title at the future date, and should be enforceable.

It should be emphasized that this is not mere wordplay, much as it might seem so in particular cases. For the important question is always at stake: has title to alienable property been transferred, or has a mere promise been granted? In the former case, the agreement is enforceable because a failure to deliver the transferred property is theft; in the latter case, it is a mere promise which has not transferred title to property, a promise that may be morally binding, but cannot be legally binding on the promissor. Hobbes was not engaging in mere word-play when he correctly wrote:

Words alone, if they be of the time to come, and contain a bare promise [nudum pactum], are an insufficient sign of a free gift and therefore not obligatory. For if they be of the time to come, as tomorrow I will give, they are a sign I have not yet given, and consequently that my right is not transferred, but remaineth till I transfer it by some other act. But if the words be of the time present, or past, as, I have given, or do give to be delivered tomorrow, then this is my tomorrow’s right given away today. . . . There is a great difference in the signification of [the] words . . . between I will that this be thine tomorrow, and I will give it thee tomorrow: for the word I will, in the former manner of speech signifies a promise of an act of the will present; but in the latter, it signifies a promise of an act of the will to come: and therefore the former words, being of the present, transfer a future right; the latter, that be of the future, transfer nothing. (Thomas Hobbes, Leviathan, pt. 1, chap. 14 [italics Hobbes’s])

Murray RothbardEthics of Liberty, Chapter 19

In an unhampered market in law, a past agreement or promise is merely that. The moment an agreement is renounced, it is no longer binding. Hence, promises or agreements are not a sure basis for contracts. Thus, mere promises cannot be the basis of a would-be slave contract, either. A device for making binding contracts, as Rothbard explains, is the performance bond which can be conceptually understood as a conditional transfer of title, consistent with Hobbes’ analysis quoted above.

Clayton -

About these ads

17 thoughts on “Voluntary Slavery and Lawful Consent

  1. dude6935 01/09/2013 at 13:07 Reply

    This is difficult topic to grasp, IMO. I appreciate the elaboration on the corruption of law (in several different areas).

    However, regarding alienability:

    “Specifically, a person cannot alienate his will, more particularly his control over his own mind and body.”

    A man can alienate his body and transfer title to it. By Rothbard’s version of law, it would seem that one cannot sell a kidney. Is that your position?

    • claytonkb 01/09/2013 at 13:12 Reply

      Of course you can sell your kidney. You could even sell your entire body to be euthanized and harvested for organs. But you can’t make your own mind “unchangeable”. Hence, if you sign a “slave contract”, you may at any point in the future come to regret it, escape and get assistance to challenge it legally. If you do so, the law can only take the position that – by virtue of your presence at law and your asserting your will to the effect that you do not want to be bound by any “slave contract” you may have agreed to in the past – you are free to change your mind without threat of violence being used against you. Please cf the forced-marriage argument to see the absurd consequences of denying this.

      • dude6935 01/10/2013 at 09:32 Reply

        Ok, say you sell your whole body and transfer title in exchange for money. But when you approach the moment of euthanasia you change your mind. When you go to arbitration to settle the dispute, the arbitrator’s opinion would be that you have committed theft (of the body that your mind occupies) because you have transferred title conditioned on payment (that you have received). So the sale would be enforced and the body would be repossessed. Correct?

        If that is correct, then:

        If a “slave contract” is a title transfer of the body (not the will), it is enforceable. The slave can always choose to end his enslavement, but once at arbitration, the ruling would be that his body should be repossessed. His mind is free to find another body to occupy, but his body is the property of the master (who purchased it).

        • claytonkb 01/10/2013 at 09:57 Reply

          “So the sale would be enforced and the body would be repossessed. Correct?”

          Incorrect. If you’ve changed your mind you’ve changed your mind. The most the contract can do is be enforced with a performance bond.

          “If a “slave contract” is a title transfer of the body (not the will), it is enforceable.”

          From the law’s point of view, it is only lawfully enforceable.

          “The slave can always choose to end his enslavement, but once at arbitration, the ruling would be that his body should be repossessed. ”

          Well, arbitrators don’t make “rulings”, they simply help parties reach agreements. Who will ever agree to be “bodily repossessed”? It doesn’t even make sense.

          “His mind is free to find another body to occupy, but his body is the property of the master (who purchased it).”

          A mind is not like a vehicle’s engine that can be removed and dropped into another chassis. The mind is inextricably bound to the body.

          • dude6935 01/10/2013 at 11:41

            “Incorrect. If you’ve changed your mind you’ve changed your mind. The most the contract can do is be enforced with a performance bond.”

            The body IS the performance bond. The master didn’t just buy the body (I did say that earlier, but that was in error), he buys the perpetual labor of the slave (or say a term of 80 years). IF the slave changes his mind about laboring, his body is the performance bond. If the slave runs away with the body, he has committed theft.

            “Well, arbitrators don’t make “rulings”, they simply help parties reach agreements. Who will ever agree to be “bodily repossessed”? It doesn’t even make sense.”

            And what thief would agree to his swag being repossessed? No thief will ever agree to such a thing. So either the law allows thieves to walk, or it doesn’t.

            “A mind is not like a vehicle’s engine that can be removed and dropped into another chassis. The mind is inextricably bound to the body.”

            Ok, then if I show you a dead human body, you will assert that a mind resides within it.

            Of course this is trivial. The performance bond could exclude just enough of the body, (the brain for example) to house the mind. Or it could include just duplicated/non-vital body parts (a single kidney, a piece of the liver, etc).

          • gotlucky 01/10/2013 at 13:13

            I don’t think you are understanding the distinction between legal and extralegal resolutions. Voluntaryism and law in general do not require thieves to have a change of heart to return stolen goods. The whole point of going to a court of law is to avoid further violence. The thief agrees to return the stolen property because otherwise the conflict may end up violent. Some thieves may have to be forced through extralegal means to return property. This is the case even today in a statist legal system. Not all criminals are arrested without a fight. There is also vigilante justice.

            In the case of slaves, as Clayton has pointed out already, if the case has to go to a court of law in order to be resolved, that right there should tell you that the master has no legal case. The only way the master can keep the slave is through extralegal enforcement.

            Bear in mind that legal and extralegal are being used very specifically. Law is the resolution of disputes that would otherwise turn to violence. This is broader than the modern definition of law as only statutory law and *maybe* common law too. There are far more types of law than just that. The point here is that if you are going to use legal means to resolve your dispute, then clearly the slave-master relationship is null and void, else they wouldn’t be at a court of law to resolve their dispute.

  2. dude6935 01/10/2013 at 14:27 Reply

    “The only way the master can keep the slave is through extralegal enforcement.”

    I agree. I am not saying the master can force the slave to work under the law. I am saying the master can have the slave contract legally enforced in such a way that the slave will usually prefer to continue his voluntary term of work rather than: A. give up his performance bond (a kidney for example) or B. face the possibility of extra legal repercussions.

    Why wouldn’t the slave just sell the Kidney outright and be done with it? I don’t know why. He might prefer indentured work with all his body parts to freedom without all his body parts. Or his need for money might be so great that selling all his “spare” body parts might not be sufficient. So he sells his labor and leverages his body as a performance bond to access a far greater sum of money.

    Clayton has already shown that a performance bond is of little use in a slave contract because a slave is poor. My point is that a slave always has assets in and of his body that can serve as a performance bond.

    The torture is getting Clayton to agree that the body is alienable and that it can serve as a performance bond.

    If we call such an arrangement indentured servitude with an organ-based performance bond, would that create agreement? I doubt it.

    • gotlucky 01/10/2013 at 14:48 Reply

      “I agree. I am not saying the master can force the slave to work under the law. I am saying the master can have the slave contract legally enforced in such a way that the slave will usually prefer to continue his voluntary term of work rather than: A. give up his performance bond (a kidney for example) or B. face the possibility of extra legal repercussions.”

      If the slave is powerful enough to take the master to a court of law, it doesn’t matter if there ever was a performance bond stipulated in their previous agreement. It’s up to the slave and master as to what will settle their dispute, but I seriously doubt the slave will agree to much of anything – he’s already powerful enough to get the master to a court of law.

      The master faces possible extralegal consequences too. That’s why they are in a court of law in the first place. The slave might kill the master and be done with the whole dispute. In order to resolve the dispute, they go to a court of law. You and I cannot know what will resolve their dispute, and it’s quite possibly different for each case. But if they are in a court of law, then that means they are both trying to avoid further violence, and the slave clearly has more to lose by agreeing to anything less than full freedom. It’s always possible, but in an actual voluntaryist society it’s quite doubtful the slave would have to pay anything to end the dispute legally.

      “Why wouldn’t the slave just sell the Kidney outright and be done with it? I don’t know why. He might prefer indentured work with all his body parts to freedom without all his body parts. Or his need for money might be so great that selling all his “spare” body parts might not be sufficient. So he sells his labor and leverages his body as a performance bond to access a far greater sum of money.”

      As I said, you and I can’t know what they will agree or not agree too. Anyway, I think I’m going to have to get to work on getting some of my own articles out finally, because I have one that I think would sufficiently address this point.

      “The torture is getting Clayton to agree that the body is alienable and that it can serve as a performance bond.”

      Well, I don’t want to speak for Clayton, but I have seen him state that body parts are alienable, so I don’t see what the problem is. The body as a whole isn’t alienable from your mind, as he pointed out as well, unless you are dead, but then it’s a moot point.

      • claytonkb 01/10/2013 at 16:53 Reply

        Yes someone can create a performance bond conditionally transferring title to their kidney to their “master” should they escape. However this title cannot permit lawful repossession of the kidney since you would have to commit a crime (cutting someone open without their consent) in order to repossess it. In other words such a title is of no value.

        • dude6935 01/11/2013 at 11:18 Reply

          Clayton

          “However this title cannot permit lawful repossession of the kidney since you would have to commit a crime (cutting someone open without their consent) in order to repossess it.”

          Ok, so what is the crime? It is trespass and/or destruction of property, correct?

          Then, to be consistent, repossessions are not legal if they require an easement in order to collect, OR they are not legal if they require property damage to collect.

          Either way:

          Then say the performance bond conditionally transfers title to the “slave’s” hand. A hand can be removed without cutting into the slave’s body. The incision could only contact matter whose title belongs to the “master”. Thus no trespass or damage occurs to the slave’s property.

          • claytonkb 01/11/2013 at 11:50

            “Then, to be consistent, repossessions are not legal if they require an easement in order to collect, OR they are not legal if they require property damage to collect.”

            This is the point at which the property-in-land metaphor begins to break down. If I steal your automobile and then stash it on my property, you may have a legal right to come onto my property without my consent – which would ordinarily be trespass – to repossess that automobile. But the body is different in that it is organically connected to me, to my will. Hence, you cannot do any violence to any part of my body under any pretenses except to protect your own property against invasion or theft. The holder of a title to someone’s kidney might argue, “But it’s mine!” but this simply isn’t true… in the case of the body, possession is ten-tenths of the law. My body is mine because I possess it.

            “Then say the performance bond conditionally transfers title to the “slave’s” hand. A hand can be removed without cutting into the slave’s body. The incision could only contact matter whose title belongs to the “master”. Thus no trespass or damage occurs to the slave’s property.”

            Huh? How do you remove a hand without cutting it?? Even binding or immobilizing the hand would be a crime. There’s nowhere you can go with this.

            Laws are not magical incantations. People will not abide by rules that are anti-human in nature. This doesn’t preclude the use of “bizarre” circumstances in the course of making a thought-experimental argument, of course, but for the logic of a thought-experiment to be effective, it must be logically indistinguishable from the real conditions it is meant to enlighten. In the case of applying trespass law and repossession law to the body itself, this condition is violated… there is clearly a “distinction with a difference” between the body and a slab of real-estate – the body is the vessel of action… real estate is just real estate.

      • dude6935 01/11/2013 at 11:17 Reply

        gotlucky

        “I seriously doubt the slave will agree to much of anything – he’s already powerful enough to get the master to a court of law.”

        The same could be said of the master… If the slave is so powerful, why doesn’t he just ignore the master?

        “and the slave clearly has more to lose by agreeing to anything less than full freedom.”

        I don’t agree. The master has plenty to lose too (his investment).

        “I think I’m going to have to get to work on getting some of my own articles out finally, because I have one that I think would sufficiently address this point.”

        I look forward to it.

        “Well, I don’t want to speak for Clayton, but I have seen him state that body parts are alienable, so I don’t see what the problem is. The body as a whole isn’t alienable from your mind, as he pointed out as well, unless you are dead, but then it’s a moot point.”

        Indeed. I see that as support for my position. He doesn’t.

        • claytonkb 01/11/2013 at 11:57 Reply

          “The same could be said of the master… If the slave is so powerful, why doesn’t he just ignore the master?”

          For the same reasons that anyone chooses not to ignore a dispute with someone else… they are wary of having to handle the matter in the extra-legal context.

          “Indeed. I see that [the alienability of the body and its parts] as support for my position. He doesn’t.”

          That’s because you are assuming that alienability is sufficient for repossession. It is not. The will is inalienable. The body is alienable but it cannot be repossessed against the individual’s will because the body is the vessel of his will.

          This is where I differ with Rothbard. He believes that if I punch him in the face, this confers on him title to two punches in my face. I don’t think it does. I think that the justifiability of violence is conventional and emerges from settled case law. We can’t know, a priori, what sorts of violence are justifiable under what conditions. If you punch me in the face, it may be that I am justified in shooting and killing you at that moment (the violence being justified by self-defense) but not to hunt you down a week later and punch you in the face two times (separate act of aggression).

  3. dude6935 01/14/2013 at 13:30 Reply

    “This is the point at which the property-in-land metaphor begins to break down. If I steal your automobile and then stash it on my property, you may have a legal right to come onto my property without my consent – which would ordinarily be trespass – to repossess that automobile. But the body is different in that it is organically connected to me, to my will. Hence, you cannot do any violence to any part of my body under any pretenses except to protect your own property against invasion or theft. The holder of a title to someone’s kidney might argue, “But it’s mine!” but this simply isn’t true… in the case of the body, possession is ten-tenths of the law. My body is mine because I possess it.”

    And this is where we just won’t agree. ‘The body as property’ is not just a metaphor. The body is property. It is homesteaded by the mind. Do you disagree that the body is homesteaded by the mind?

    I see no compelling reason why a car inside a garage can be repossessed but a hand cannot. What does organic-ness have to do with anything? It just does not follow that because your body is “organically connected” to your will, that parts of it cannot be repossessed like any other property. What is the reasoning here?

    This also begs many questions. What about an artificial heart? What about a prosthetic leg? Can either of these be repossessed? What if the prosthetic leg is controlled neurologically?

    “The body is alienable but it cannot be repossessed against the individual’s will because the body is the vessel of his will.”

    Why? Why does being a “vessel of his will” matter?

    And how do you know that the body is the vessel of the will? You have no proof that the will actually resides inside the body. Even if we assume it does reside in the body, it must be assumed that it is confined to the brain, where its action is first observed. That makes the brain the vessel, not the hand. Therefore your logic regarding vessel repossession does not apply to the hand.

    “there is clearly a “distinction with a difference” between the body and a slab of real-estate – the body is the vessel of action… real estate is just real estate.”

    You are conflating the matter of the body together as if it were one inseparable thing, a vessel-of-action. A bike can be a vessel of action if you sit on it. You can remove a wheel and make a unicycle and it is still a vessel of action. The same is true of the body. You can remove a hand and your remaining body is still a vessel of action. What is the difference? You can walk away from a bike, right? It is alienable. Well, you can walk away from a hand too. You can walk away from a kidney, even though that is a little harder. You are trying to have it both ways. You are saying that the body is both alienable, and not. How is a bike not a vessel of action, but a hand is?

    “Huh? How do you remove a hand without cutting it??”

    I am saying the hand can be removed without cutting the property of the slave. The master has title to the hand. He can cut into only the parts of the body to which he holds title. Thus one can remove property in such a way that no damage or trespasse occurs to parts of the body that the slave has title to. The body will be cut, but only parts owned by the master.

    I am trying hard not to be gruesome here.

    • claytonkb 01/14/2013 at 14:21 Reply

      “And this is where we just won’t agree. ‘The body as property’ is not just a metaphor. The body is property. It is homesteaded by the mind. Do you disagree that the body is homesteaded by the mind?”

      What is the mind?? It seems to me you are just spouting Platonic mumbo-jumbo. I don’t believe in disembodied minds for the simple reason that I’ve never interacted with one; have you? In other words, the mind and the body are inseparable… the body is the vessel of the mind (and will and soul and whatever other intangible components of the human being you care to mention).

      “I see no compelling reason why a car inside a garage can be repossessed but a hand cannot.”

      Well, a car inside a garage cannot automatically be repossessed, even under statist law where the property rights of debtors (as well as creditors) are frequently trampled on.

      “What does organic-ness have to do with anything?”

      Hmm, let’s say I borrowed the foundation of my house from you (let’s say, hypothetically, there exist “movable foundations”). The term of the loan is up and I have not yet returned the borrowed foundation. To repossess your foundation will destroy my house. If there is a way to repossess the foundation without destroying my other property, then I think the law will likely require you to work out that arrangement if I’m willing to do so, rather than simply rampaging in and taking what’s yours regardless of the costs to me in the process. In other words, if you repossess the foundation improperly (needlessly destroying my house in the process), then you have committed a new, separate tort.

      But in the case of the body, there is no proper way to repossess any part of it. There is no way to sever part of it without putting the whole thing at risk and without doing damage to the body’s capacity to effect its intentions in the world. If you remove my hand, you cripple me, that is, you are making a direct attack on my will. Hence, no part of my body – even if it can be alienated – can be lawfully repossessed against my will.

      And since we’re just off in la-la land here, anyway, it is best for simplicity’s sake to just say it this way: the body is sacrosanct and may never be violated under any pretense against the will of the individual except as a matter of *operational* defense. By “operational” defense, I mean in the course of an ongoing “live” conflict.

      “It just does not follow that because your body is “organically connected” to your will, that parts of it cannot be repossessed like any other property. What is the reasoning here?”

      I think I’ve explained it well enough already but I’ll recapitulate it once again:

      a) The inalienability of the will follows from the idea that mere promises are not enforceable. If a mere promise is not enforceable (over the present objections of the promissor), then “signing over title to oneself” is a charade… it is a moot transfer. Any contract that depends for enforcement on such a bond is worthless and unenforceable.

      b) The non-repossessability of the body follows from the self-ownership axiom, which is presupposed – as Hoppe points out – in the very structure of a verbal dispute/argument. If the conflict is operational (martial contest), then there is no question of control, control is established by the outcome of the martial contest itself. If I beat you, I control you. And vice-versa. But a verbal argument already presupposes that we each – for whatever reason – would prefer not to have a martial contest. But this is not the only thing presupposed, as Hoppe points out. Also, self-ownership is presupposed; at least as much self-ownership as is required to engage in a verbal argument (rather than a martial contest).

      This part of the argument can become problematical if you rely solely on a priori arguments, which is why I prefer to just shortcut to the a posteriori facts: human law has invariably respected the basic integrity of the human body in the course of verbal argument. Self-ownership is not only an a priori prerequisite to verbal argument, it is also built into human nature and is a cultural universal.

  4. dude6935 01/15/2013 at 11:54 Reply

    “What is the mind?? It seems to me you are just spouting Platonic mumbo-jumbo. I don’t believe in disembodied minds for the simple reason that I’ve never interacted with one; have you?

    What the mind IS is irrelevant. It controls the body and thus homesteads and owns it. We don’t really know where the mind resides. Where-ever it does reside, I don’t think you claim it resides in the hand. And even if it did, there are numerous example of amputees whose minds function without an attached hand.

    If you believe that the mind (the will) IS the brain, fine. The brain cannot possibly be harmed by the safe removal of the hand (or any separate body part).

    “In other words, the mind and the body are inseparable… the body is the vessel of the mind (and will and soul and whatever other intangible components of the human being you care to mention).”

    You mean that the mind and the brain are inseparable. Since the mind and some parts of the body (such as a hand) are unquestionably separable.

    “If there is a way to repossess the foundation without destroying my other property, then I think the law will likely require you to work out that arrangement if I’m willing to do so, rather than simply rampaging in and taking what’s yours regardless of the costs to me in the process. In other words, if you repossess the foundation improperly (needlessly destroying my house in the process), then you have committed a new, separate tort.”

    I totally agree. IF there is a safe way to repossess, the law would require you to do so. IF there is not a risk free method, then the risk would be taken.

    “There is no way to sever part of [the body] without putting the whole thing at risk and without doing damage to the body’s capacity to effect its intentions in the world.”

    There are very low risk ways to amputate in modern medicine.

    Of course repossession does “damage to the body’s capacity to effect its intentions in the world”. That is the very nature of a title transfer, to transfer valuable property.

    “If you remove my hand, you cripple me, that is, you are making a direct attack on my will. Hence, no part of my body – even if it can be alienated – can be lawfully repossessed against my will.”

    Your will isn’t in your hand, and you have signed over title to your hand. Therefore your hand can be lawfully repossessed. Just as your will is not in a car… The connectedness of a hand is irrelevant since it can be safely severed.

    You have not shown how organic-ness is relevant. You imply that perfect original connectedness is vital in organic life. This is not true.

    I wrote a new example but I posted it on the mises forum to see what others think.

  5. willytruth 10/20/2014 at 16:50 Reply

    Link to this forum discussion?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 334 other followers

%d bloggers like this: