Jessica Flanigan takes on the question of whether a non-paternalistic case can be made for prohibiting voluntary slave contracts. She considers and rejects both Sam Freeman’s and Seana Shiffrin’s treatment of this issue. However, as I will point out she fails to justify her rejection of Freeman’s approach, and since I think Freeman provides a compelling case for prohibition I will present his argument.
Let me begin by demonstrating why Flanigan’s own approach fails to get her anything like a justification for banning permanent voluntary slave contracts. She argues that such contracts can be prohibited on the grounds that your present self is imposing an obligation on your future self that the future self, because the self has radically changed over a significant period of time, may not be willing to accept. In this way, your present self is effectively imposing a harmful obligation on a different person (radically different future self) and as such selling yourself into permanent slavery is as morally objectionable as selling another person into slavery.
Now consider a situation in which I enter a legitimate contract with another person to pay them $100,000 a year for the next seventy-five years (given my age and dietary habits this effectively counts as a permanent contract). Well, surely my self fifty years from now may be so radically different from me now that he will not want to fulfill this obligation I have imposed on him, but clearly our moral intuition and the law holds that this future self is still obligated to make those payments. I cannot see any substantive differences between my example and the case Flanigan offers and so it appears that her reason for prohibiting permanent, voluntary slave contracts fails. If we were to take Flanigan’s argument seriously it would seem to justify the prohibition of a great many (if not most) long-term contracts, because such contracts impose obligations on future selves that we can reasonably consider to be different persons.
Jonathan Finegold Catalán poses a similar challenge to Flanigan’s argument, although he goes about doing so with a more fully developed argument that is worth reading. However, he then suggests a society should design voluntary enslavement contracts (if these are desired) that allows the slave to exit the contract and pay liabilities to his former owner as a penalty. Its my contention that this idea and similar claims are founded in a conceptual confusion about what it means to be a slave.
What does it mean to be a slave?
To sell oneself into slavery means that you have been transformed from a being with dignity whose rights must be respected into a will-less thing that is exclusively owned by your master. A slave no longer has rights over itself, only its master has rights over it. To be a slave means that you possess the same legal status as any other piece of property. Its just as nonsensical to say that society should allow a cow to dissolve its owner’s property right in it, as it is to say that a slave can choose to cease being owned by its master (even if it compensates the owner for his loss). One may object to my comparison of human slaves to cattle, but my point is that however different they are with respect to their essential ontological properties they share the same normative status. In fact, slavery is such a tragic condition for a human being precisely because he is treated in a way that is in fundamental conflict with his nature as a self-determining being. And this perhaps explains why human slavery is so morally objectionable to us moderns with our deep spiritual commitment to freedom.
I do not think people commenting on this issue fully appreciate what it means to sell oneself into slavery and thus they inappropriately treat voluntary slave contracts as long-term labor contracts, which inclines them to offer traditional legal measures for dealing with those instances when a slave chooses he no longer wishes to be owned by his master. But in signing a long-term labor contract one retains one’s rights as a being worthy of respect, which as I have just revealed is surely not the case when one sells oneself into slavery.
Freeman’s treatment of the voluntary slavery question
I shall now return to Flanigan’s rejection of Shiffrin’s and Freeman’s respective cases for prohibiting voluntary slave contracts. According to Flanigan:
Shiffrin’s reason for claiming that political communities may have no duties to enforce unconscionable contracts, though they may be required to accommodate other immoral projects is that contract-based decisions are not as intimate and personal or important as other decisions that involve matters of religion or bodily integrity. Samuel Freeman makes a related Rawlsian argument against absolute freedom of contract. Insofar as a liberal state is committed to the ideal of a free and equal citizenry, it ought not enforce any contracts that undermine or are intrinsically offensive to that ideal.
Flanigan seems to get the gist of Freeman’s argument for why the state must not enforce voluntary slave contracts, but then she goes on to reject both his and Shriffin’s argument by contending that:
whether contracts are as important or intimate as other decisions depends on how people experience those liberties, but a quick review of cases from the Institute for Justice should convince anyone that these rights are incredibly important at least for some people.
This point may apply to Shriffin’s argument, but I do not see how it is at all relevant to the point that Freeman is making. For this reason, and because I think Freeman is right, I will now elucidate the main points of Freeman’s argument (This comes from his brilliant article, “Illiberal Libertarians: Why Libertarianism is not a Liberal View”.):
People are beings with dignity who deserve respect and this status is reflected in and preserved through the protection of our basic liberties. We are each duty-bound by our own humanity to affirm and respect each other’s basic rights and one of the primary ways by which we do so is through a liberal state. A liberal state on this view is tasked with promoting the equal dignity of its citizens, and thus the state’s first order commitment is to protect the basic rights of its citizens. Also, because these basic rights are essential to the maintenance of the status of persons as beings of dignity they are inalienable.
For the aforementioned reasons the state is tasked with protecting people’s inalienable rights and thus it cannot enforce contracts that strips a person of these rights. Its also the case, as Freeman notes, that the alienation of one’s rights is a morally void act because it disrespects one’s own humanity.
Consider the specific case of the voluntary slave contract: Freeman argues that a voluntary slave contract imposes a demand on society to enforce a person’s right to own another person. Hence, such a contract requires the liberal state to violate its fundamental commitment to preserving the equal dignity of each of its members and to protecting their basic rights. The state by enforcing such a contract would be participating in the dehumanization of one of its members by treating him as a thing. (Assuming such contracts were legitimate, if a slave, at some point, decided he wanted to exit the contract the state would have to coerce him to remain the property of his master.) Also, such a contract, if valid, would impose on citizens, as the ultimate source of the state’s authority, the obligation to violate their fundamental duty to respect the dignity of their fellows, and as Freeman notes, citizens ‘do not have the rights to impose such an extraordinary and morally unconscionable obligation on others as a result of their private agreements.’ (Freeman, 113)
Considering the foregoing analysis, the state and its citizenry cannot justifiably enforce voluntary slave contracts. Further still, insofar as such contracts strip the transferee of their inalienable rights the state is justified in and likely obligated to prohibit such contracts. Philosophical liberalism, as well as the liberal state itself, is fundamentally committed to the idea that basic rights can only be limited for the sake of protecting other basic rights or for preserving the background conditions essential to the maintenance of a just social order. Therefore, the state can justify a prohibition on voluntary slave contracts, which would be a restriction on people’s freedom of contract, on the ground that it is doing so to protect the other basic rights (and preserve the equal dignity) of those individuals who wish to become slaves.
Its very important to note that Freeman’s argument does not justify an all-out ban on master-slave relationships, it only justifies a ban on the legal enforcement of such relationships. As Freeman explains:
Nothing about liberalism’s inalienability restriction prevents people from voluntarily assuming the roles of master and subordinate to nearly any degree they choose. If this is the kind of life a person wants to live with another who consents, so be it; it is protected by freedom of association. The inalienability restriction implies that a person has the right to exit at any time this essentially private relationship. The problem comes with the contrary suggestion: that into this private relationship should be introduced the legal mechanism of contract and the institution of private property, with their provisions for coerciver enforceability. Then the voluntary servitude arrangement is no longer merely a matter “between consenting adults”; it becomes a matter of civic law and a publicly recognized right.
All in all, I think that Freeman, and not Flanigan, has provided the most reasonable argument for when and why prohibitions on seemingly self-regarding voluntary contracts can be morally permissible.