But What About Voluntary Slaves?

African Slave Transport

One of the objections that is raised against voluntaryism is that, since “anything goes” in a voluntary society so long as it is voluntary, wouldn’t there be voluntary slavery? If Smith sells himself into slavery to Jones, we as voluntaryists must respect this voluntary choice, no?

Murray Rothbard argues against this view in Ethics of Liberty:

A man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced—for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement. The concept of “voluntary slavery” is indeed a contradictory one, for so long as a laborer remains totally subservient to his master’s will voluntarily, he is not yet a slave since his submission is voluntary; whereas, if he later changed his mind and the master enforced his slavery by violence, the slavery would not then be voluntary.

“An individual may always, at any point in the future, change his mind and repudiate any of his own, past promises”

The phrase “and have this sale enforced” is crucial and I will return to it. Rothbard fills in some more crucial details regarding the difference between a contract and a promise in Chapter 19, “Property Rights and the Theory of Contracts”:

Suppose that Smith and Jones make a contract, Smith giving $1000 to Jones at the present moment, in exchange for an IOU of Jones, agreeing to pay Smith $1100 one year from now. This is a typical debt contract. What has happened is that Smith has transferred his title to ownership of $1000 at present in exchange for Jones agreeing now to transfer title to Smith of $1100 one year from now. Suppose that, when the appointed date arrives one year later, Jones refuses to pay. Why should this payment now be enforceable at libertarian law? Existing law (which will be dealt with in greater detail below) 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.

Our contention here is that mere promises are not a transfer of property title; that while it may well be the moral thing to keep one’s promises, that it is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality (in this case the keeping of promises). Our contention here is that Jones must pay Smith $1100 because he had already agreed to transfer title, and that nonpayment means that Jones is a thief, that he has stolen the property of Smith. In short, Smith’s original transfer of the $1000 was not absolute, but conditional, conditional on Jones paying the $1100 in a year, and that, therefore, the failure to pay is an implicit theft of Smith’s rightful property.

What makes a contract binding, in libertarian law, is that it is a conditional transfer of title – a performance bond. Mere promises are not binding because an individual may change his mind at any time. Thus, Rothbard concludes his case:

Suppose that Smith makes the following agreement with the Jones Corporation: Smith, for the rest of his life, will obey all orders, under whatever conditions, that the Jones Corporation wishes to lay down. Now, in libertarian theory there is nothing to prevent Smith from making this agreement, and from serving the Jones Corporation and from obeying the latter’s orders indefinitely. The problem comes when, at some later date, Smith changes his mind and decides to leave. Shall he be held to his former voluntary promise? Our contention—and one that is fortunately upheld under present law—is that Smith’s promise was not a valid (i.e., not an enforceable) contract. There is no transfer of title in Smith’s agreement, because Smith’s control over his own body and will are inalienable. Since that control cannot be alienated, the agreement was not a valid contract, and therefore should not be enforceable. Smith’s agreement was a mere promise, which it might be held he is morally obligated to keep, but which should not be legally obligatory. (EoL, ch. 19)

Now, some people hold that the non-existence of voluntary slavery is not a settled matter, that Rothbard has overlooked something. In particular, Walter Block has argued against Rothbard’s view:

You are a rich man who has long desired to have me as a slave, to order about as you will, even to kill me for disobedience or on the basis of any other whim which may occur to you. My child has now fallen ill with a dread disease. Fortunately, there is a cure. Unfortunately, it will cost one million dollars, and I, a poor man, do not have such funds at my disposal. Fortunately, you are willing to pay me this amount if I sign myself over to you as a slave, which I am very willing to do since my child’s life is vastly more important to me than my own liberty, or even my own life. Unfortunately, this would be illegal, at least if the doctrine of inalienability (non-transferability) is valid. If so, then you, the rich man, will not buy me into slavery, for I can run away at any time, and the forces of law and order will come to my rescue, not yours, if you try to stop me by force. (ibid.)

You may indeed do as Block has described, but Block’s utilitarian argument fails because any contract which purports to be a sale of one’s will is not a contract at all because one’s will cannot be sold – it is inalienable. The basis of Rothbard’s position on the inalienability of the will rests in Chapter 19 of Ethics of Liberty – no one can make his mind[1] unchangeable. An individual may always, at any point in the future, change his mind and repudiate any of his own, past promises. This is a description of the state of affairs, not a prescription regarding how the world ought to work.

Before going further, we need to place these arguments in a thought-experimental context. Rothbard has left the context unspecified and Block’s chosen context – “the agents of law” – is less than satisfactory. Hans Hoppe expounds his Argumentation Ethics in a more robust context:

Now, arguing never just consists of free-floating propositions claiming to be true. Rather, argumentation is always an activity, too. But given that truth claims are raised and decided upon in argumentation and that argumentation, aside from whatever is said in its course, is a practical affair, it follows that inter-subjectively meaningful norms must exist—precisely those which make some action an argumentation—which have special cognitive status in that they are the practical preconditions of objectivity and truth. (A Theory of Socialism and Capitalism, Chapter 7)

Hoppe goes on to further expound this idea that argumentation presupposes certain states of affairs:

There are other positive norms implied in argumentation aside from the universalization principle. In order to recognize them, it is only necessary to call three interrelated facts to attention. First, that argumentation is not only a cognitive but also a practical affair. Second, that argumentation, as a form of action, implies the use of the scarce resource of one’s body. And third, that argumentation is a conflict-free way of interacting. Not in the sense that there is always agreement on the things said, but in the sense that as long as argumentation is in progress it is always possible to agree at least on the fact that there is disagreement about the validity of what has been said. And this is to say nothing else than that a mutual recognition of each person’s exclusive control over his own body must be presupposed as long as there is argumentation. (ibid.)

Let’s say a slave – Mr. S – has escaped from his master’s – Mr. M’s – plantation and has found refuge with an abolitionist society. Mr. M sues the abolitionist society, arguing that Mr. S is Mr. M’s property and that he be turned over forthwith. The abolitionist society helps Mr. S locate an arbitrator to hear the dispute between Mr. S and Mr. M.

Now, what is to prevent Mr. M simply slamming his fist down on the arbitrator’s table and yelling at Mr. S: “Look here, you’re my slave, you know it, you signed a million-dollar contract indenturing yourself to me for life. You either walk out of here peacefully or I’m going to whip you and drag you out”? Well, the very fact that Mr. M is at the bargaining table puts the lie to this threat. Arbitration is, by definition, an alternative to direct conflict. If Mr. M intended to merely seize Mr. S and assault anyone who got in his way, he’d have done that, rather than going to arbitration. In other words, the absence of threats and use of violence is constitutive of an arbitration proceeding. Mr. M may not make threats of violence in arbitration because such threats are inadmissible. If he will threaten anyway, then the proceeding is canceled and the state of affairs returns to the prior state with which Mr. M was so dissatisfied as to seek arbitration in the first place: Mr. S under the lawful protection of the abolitionist society.

In other words, if Mr. S is sitting at the arbitration table, he is clearly therefore a person. Thus, any arguments by Mr. M to the contrary are simply inadmissible. You can’t have a dispute with your donkey or with your back yard, so to claim that the person sitting across from you at the arbitration table is your property is absurd. The very fact that Mr. S is able to dispute at all is proof in itself that he is no one’s property, that he is, in fact, a human being possessing a will and capable of expressing it at law (in contrast, for example, to someone who is in a vegetative state and requires some kind of legal advocate).

Now, a very pedantic person might observe that Mr. M has simply constructed a badly-written slave contract. A cleverer slave-owner would insist on a better contract:

1. Mr. M hereby transfers title of $1,000,000 to Mrs. A (wife of Mr. S) at the moment the contract is signed
2. Mr. S will obey Mr. M’s every command without any compensation, starting with the moment the contract is signed until death of Mr. S
3. If Mr. S fails to perform his obligation, he transfers title of $1,000,000,000 to Mr. M

Now, this contract is no mere promise to remain Mr. M’s slave – it is a conditional transfer of title to Mr. of a billion dollars should Mr. S renege on his slavery contract.

But unless Mr. S really is Mr. M’s property (which is the very point in contention), then Mr. M simply may not lawfully enclose or cage Mr. S, or threaten force against Mr. S at the arbitration table. Thus, Mr. M is stuck in a situation that the only way to enforce the “contract” is to act extra-legally, that is, to go ahead and use force against Mr. S that cannot be justified.

More generally, there are constitutive restrictions on the form of any contract. Consider the following contract:

• Mr. X hereby transfers $1,000,000,000 to Mr. Y upon failure to:
• Construct a square-circle and deliver it to Mr. Y by such-and-such date

Now, from elementary geometry, we know that something that is a square and a circle is a definitional contradiction. Such a contract is not even a contract. It’s unintelligible gibberish. Were Mr. Y to have entered into an agreement with Mr. X based on the above contract, he would be very disappointed if he were to try to enforce it. No arbitrator worth his salt would take up such a case because the “agreement” simply is not even rationally intelligible. Hence, we can see that logical consistency (within practical bounds, not in any extremely pedantic sense) is a constitutive restriction on any contract. It must be logically consistent, else it is simply unintelligible and, thus, unenforceable at law.

A similar argument could be made for a contract that promises to repay an absurd sum, like $100T, or to transmit information at a speed greater than light-speed, for example. Such contracts are simply not intelligible because they refer to no practically real amount of money or no physically real object. Such restrictions are in no way ad hoc. It is easy to see why contracts must necessarily be bound by such restrictions: try to deny them and see what the consequences are to any arbitration proceeding. The proceeding becomes simply impossible.

That a contract be lawfully enforceable is also a constitutive restriction – if the contract is not lawfully enforceable, then the contract is an implicit threat of (unjustifiable, that is, unlawful) force. By the argument we made earlier that threats of force are inadmissible in arbitration (constitutive violation of the proceedings), any contract which includes threats of unlawful force as part of the terms of the contract is simply unintelligible since the purpose of a contract is that it be admissible to arbitration proceedings as evidence of the exact terms of the agreement that was made.

To turn up the contrast a bit to illustrate the point, consider the following contract:

• Mr. X hereby transfers the opportunity for Mr. Y to rape Mr. X upon failure to:
• Deliver so-and-so to Mr. Y upon such-and-such date

Now, rape is – by definition – unlawful violence (forcible sex). Once again, the contract itself is a threat of unjustifiable force, nullifying from the outset any arbitration proceeding meant to enforce it. This, in turn, renders the contract contradictory and unintelligible. Since it is a constitutive restriction on any contract that it be intelligible, admissible to arbitration and lawfully enforceable, this contract is no contract at all. It merely has the superficial appearance of a contract, the legal equivalent of an optical illusion.

“There is only one kind of slavery and that is slavery-slavery”

Lawful enforceability is a more stringent requirement also than that there be no obvious aggression entailed in the terms of the contract. Certain types of contracts may be found, from experience, to be inherently unenforceable, that is, to always lead to a breakdown of the agreement into conflict. Such contracts are practically unenforceable even though they they are “conceptually enforceable.”

So, what if somebody promises to repay a reasonably existing sum of money that it turns out they could never afford to repay? It’s not quite slavery, but it’s close enough that we could call it a kind of lifetime, credit-based serfdom. Consider the following contract:

• Mr. X hereby transfers $1M to Mr. Y upon failure to:
• Deliver so-and-so goods to Mr. Y by such-and-such date

What can Mr. Y do to recover his property given, say, that Mr. X is completely broke? The fact is that there is very little that Mr. Y can lawfully do. He can inform people: don’t loan money to Mr. X, don’t enter into business with Mr. X, Mr. X is a real worthless loser, and so on. He might wait for some time to let Mr. X build up some savings, buy a nice car, and then ambush him to repossess it out of spite. But all-in-all, Mr. Y has done a foolish thing by signing such a contract which he could never really securitize.

The lesson is: don’t enter into high-value contracts with someone who you don’t have any leverage against, unless you’re prepared to engage in extra-legal securitization. All of the above only concerns the law. The fact is that people still do form their own extra-legal arrangements – “If you don’t repay the money, Vinny here will see to it that you never walk again.”

Because law is not a leave or permission to do things, if you make an extra-legal arrangement, there is nothing in the law that will prevent this. We can concede to the anti-voluntaryists that – in a voluntary society – there will be no publicly-funded prosecutor or police who will busy themselves with snooping around looking for arrangements that are “in violation of the law.” Unless and until an arrangement comes before an arbitrator, it is simply not a matter of law at all. But, at the same time, disputes concerning the correct settlement of such arrangements necessarily cannot be arbitrated at law – they reside in an extra-legal realm.

In summary, a “slave contract” is a contradiction of terms. It is an attempt to alienate what cannot be alienated (one’s own will). It is unintelligible, inadmissible to arbitration and not lawfully enforceable. Voluntary slavery, thus, is a contradiction of terms, as should be apparent from the very words themselves. The utilitarian argument does not do the slightest violence to the impossibility of voluntary slavery because the restrictions on arbitration and contracts which voluntary slavery violates are constitutive. What it even means for something to be a contract, or for a dispute to be arbitrated, is violated by any contract which purports to be a slave contract.

In response to Block and the anti-voluntaryists out there: No, voluntary slavery cannot exist in a voluntary society. There is only one kind of slavery and that is slavery-slavery or coercive slavery, to state it redundantly. Any society in which slavery is lawful is, by definition, not a voluntary society.

Clayton –

[1] Their healthy, normal, awake, conscious mind; other states of mind induced by drugs, for example, are simply side-stepping the argument. It is the awake, normal mind which cannot be made unchangeable.