Contract theory as an attack against human rights

(above: a contract of indentured servitude)

Contract theory is at the center of voluntaryism. This alone should be enough to make it suspect. Strangely, despite its centrality, voluntaryists talk very little about the nitty-gritty of contracts and how they are to be enforced. Molyneux fans blather on and on about defense contracts as a substitute for law, but the enforcement and limitations of such contracts, which raise numerous questions, remain unexamined.

As I’ve pointed out in the case of the child renter argument and Block’s corollary, voluntaryists who uphold contracts as absolute must therefore reject the concept of human rights. This is a very difficult dilemma for them: either they reject human rights or they reject contracts as absolute standard. Voluntaryists fail to give a satisfactory answer to this dilemma, because they know very well that giving up either is the death knell for their beliefs.

Consider the concept of self-ownership, which treats living, thinking bodies as pieces of property. If something is property, then it can be given away or exchanged at will. But this must be done by contract, since any person could otherwise retract their agreement at will, since the person is the body. The contract provides a written binding agreement that continues to exist beyond consent.

The most obvious example would be the constitution of any country. Constitutions bind people who are long dead, and yet they are still assumed to legally hold today, despite the lack of consent from people currently living. The only way to make sense of this contradiction is to assume that citizens are, to some degree, property of the State through the expired agreement of “their” constitution. But this only makes sense to us because we’ve been indoctrinated to believe in self-ownership and in absolute contracts. In no other context would the concept of a constitution make any sense: as Lysander Spooner points out, most contracts we enter into are not this absurd.

Suppose an agreement were entered into, in this form:

We, the people of Boston, agree to maintain a fort on Governor’s Island, to protect ourselves and our posterity against invasion.

This agreement, as an agreement, would clearly bind nobody but the people then existing. Secondly, it would assert no right, power, or disposition, on their part, to compel their “posterity” to maintain such a fort. It would only indicate that the supposed welfare of their posterity was one of the motives that induced the original parties to enter into the agreement.

[T]hese men who claim and exercise this absolute and irresponsible dominion over us, dare not be consistent, and claim either to be our masters, or to own us as property. They say they are only our servants, agents, attorneys, and representatives. But this declaration involves an absurdity, a contradiction. No man can be my servant, agent, attorney, or representative, and be, at the same time, uncontrollable by me, and irresponsible to me for his acts. It is of no importance that I appointed him, and put all power in his hands. If I made him uncontrollable by me, and irresponsible to me, he is no longer my servant, agent, attorney, or representative. If I gave him absolute, irresponsible power over my property, I gave him the property. If I gave him absolute, irresponsible power over myself, I made him my master, and gave myself to him as a slave. And it is of no importance whether I called him master or servant, agent or owner.

Lysander Spooner, The Constitution of No Authority

The notion of a contract, while not by far ideal, is not in itself absurd; the union of contracts and self-ownership is what leads to absurdities. It led to the belief, which has only recently been dispelled, that marriage contracts make uxorial rape logically impossible. It leads to the belief that work contracts make all sorts of attacks against human rights valid, and the belief that the social contract (as instantiated by the Constitution) makes assault and murder valid, although as time goes on, the range of possible attacks gets narrower.

If this reminds you of the way Christians approach the Bible, that’s no coincidence. The more that permissible contracts lag behind social mores, the more incentive there are for legal reforms, just like how religious doctrines get progressively left behind as social mores change. Sexual harassment used to be an accepted (implicit) part of a work contract: nowadays, not so much, because sexism is somewhat more toned down from where it was a hundred years ago. In the case of political crimes, it’s hard to say that there’s really been any progress, and that’s because people still have as much faith in the law and law enforcement as they did a hundred years ago, a faith which is not always extended to corporations.

So contracts-as-ethics is ultimately a subjective standard. The more self-ownership we grant people, the more human rights we imagine them being able to surrender, and the fewer human rights we will see as absolute. The less self-ownership we grant people, the less human rights we imagine them being able to surrender, and the more human rights we will see as absolute.

This may seem counter-intuitive because it goes counter to the capitalist way of thinking, with which we are indoctrinated and therefore seems intuitive. The standard reasoning is that self-ownership is the basis of rights, and that therefore both are proportional. But this is usually an ad hoc rationalization: the more we see people respecting each other, the more we arbitrarily assume that self-ownership is granted. Logically, this makes no sense. Slavery and other attacks on basic rights can only make sense if we first assume that bodies are a kind of thing that can be owned, a property which can be trespassed upon.

Likewise, the marriage contract have supported the enslavement of women for centuries. For more on the relation between marriage contracts and other hierarchical forms of contracts, see The Sexual Contract, by Carole Pateman (I haven’t yet read it, so I won’t comment further).

Voluntaryists sussed out a long time ago that full self-ownership should mean that people can sell themselves into slavery. This conclusion is distressing to most of them, so they have concocted various rationalizations to get around this. But this does not improve the situation, since virtually all attacks on human rights are not outright slavery, but rather degrees of slavery (if we use “slavery” in the more colloquial sense of one person having control over what another says and does). While rejecting slavery contracts, voluntaryists cannot get themselves to reject work contracts or social contracts, demonstrating their failure to grasp the commonality between all these contracts.

Can contracts be a valid means of formalizing agreement? Sure, but we have to introduce issues of consent. Consent cannot exist unless viable alternatives exist as well. Much like we shouldn’t evaluate individuals as if they lived in a social vacuum, or evaluate actions as if they took place in a causal vacuum, a contract can not, and should not, be judged in a vacuum, but rather must be contrasted with the institutions that sustain it. A contract may or may not be valid in itself, but if these institutions do not provide or allow any alternatives, then the contract cannot possibly be justified.

Suppose a group of equals come together and decide on how they are to live. They may decide upon something like a constitution, and this form is not necessarily problematic, as long as every person bound to it consents beforehand. But when such a constitution is applied to people who never consented to it, and provides no other choice, then it cannot be justified (the work contract, on the other hand, is in itself invalid because of its illogical nature).

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