A litmus test for liberalism

The last two posts on inalienable rights here and here outlined the theory that descends from the Reformation and Enlightenment. The theory of inalienable rights serves as a litmus test for modern liberal and contractarian theories of justice. There are some historical voluntary contracts that are now deemed invalid and outlawed:

  • an individual self-sale, voluntary slavery, or lifetime labor contract and
  • a political pact of subjection or pactum subjectionis.

Surely it is not too much to ask a modern liberal theory of justice that it provide a coherent account of why such contracts should be deemed invalid and why the rights such contracts would legally alienate are inalienable. In that sense, the theory of inalienable rights provides a historical litmus test for liberalism.

In addition to this historical litmus test, one might apply another more current test. Suppose a philosopher lived his or her whole life in a society with the economy based on some people owning other people, and where the ownership was based on a contractual relationship. Suppose the philosopher wrote extensively about justice but never raised the possibility that there might be something inherently unjust and wrong in a contractual relationship wherein some people owned others. Regardless of what marvelous subtleties there might be in the philosopher’s theory of justice (e.g., how to fairly divide a piece of cake), one might consider it lacking in a rather fundamental way. It would fail a rather simple litmus test. The failure to even raise the question about the ownership of other people would condemn the theory of justice as a sophisticated apologia-by-omission for the status quo.

My contention is that we are now in exactly this situation but with “renting other people” substituted for “owning other people” as the litmus test. Today any contract resembling a self-sale contract (or an upfront paid) lifetime labor contract would not be recognized as valid by the legal authorities. But the self-rental or employer-employee contract is the basis of the current economic system and is accepted by liberal-contractarian philosophers of justice as a matter of course without comment.

John Rawls’ Theory of Justice

John Rawls‘ Theory of Justice is generally recognized as giving the most sophisticated modern development of a liberal-contractarian theory of justice. Rawls’ Harvard colleague, Robert Nozick, had a theory that explicitly accepted the voluntary slavery contract and the political pact of subjection. Although Rawls’ personal views were undoubtedly against such contracts, did he have any theory that would rule out those contracts that have already been outlawed?

It was previously noted how the doctrine of the liberty of conscience was connected to the notion of inalienability with Spinoza and Hutcheson being two of the pivotal figures to explicitly make the connection as they introduced the notion of inalienable rights. The liberty of conscience is a central theme in Rawls’ Political Liberalism.

Thus, the historical origin of political liberalism (and of liberalism more generally) is the Reformation and its aftermath, with the long controversies over religious toleration in the sixteenth and seventeenth centuries. Something like the modern understanding of liberty of conscience and freedom of thought began then. [Rawls 1996, p. xxvi; see also Lecture VIII]

These are precisely the themes underlying Spinoza’s and Hutcheson’s bridge from liberty of conscience to inalienability but Rawls did not cross that bridge. Rawls’ treatment of inalienability is in a brief aside about the inalienability of all the basic liberties where he makes an old and rather standard argument about inalienability [Rawls 1996, pp. 365-7]. Like many earlier thinkers in the broadly liberal tradition, he argues against a straw man extreme case of alienating all the basic liberties. But once the alienation becomes qualified and restricted then it is accepted.

In the earlier post on slavery, we saw this same pattern of argument in Locke and Blackstone who with great moral flourish condemned a contract to enter into an extreme form of slavery (like the Roman slavery where the master could take the slave’s life). But once the contract becomes civilized and limited, then it is accepted and appropriately renamed (“drudgery” in the case of Locke and “perpetual service” in the case of Blackstone).

Montesquieu also used this pattern of argument: “To sell one’s freedom is so repugnant to all reason as can scarcely be supposed in any man. If liberty may be rated with respect to the buyer, it is beyond all price to the seller.” [Montesquieu 1912, Vol. I, Bk. XV, Chap. II, p. 284] Rawls paraphrases this argument from Montesquieu and goes on to argue that in the original position, the “grounds upon which the parties are moved to guarantee these liberties, together with the constraints of the reasonable, explain why the basic liberties are, so to speak, beyond all price to persons so conceived.” [Rawls 1996, p. 366]

Now in the passage paraphrased by Rawls, Montesquieu adds the footnote: “I mean slavery in a strict sense, as it formerly existed among the Romans, and exists at present in our colonies.” [Montesquieu 1912, Vol. I, Bk. XV, Chap. II, p. 284, fn. 1] As with Locke and Blackstone, Montesquieu goes on to note that this would not exclude a civilized or “mild” form of the contract.

This is the true and rational origin of that mild law of slavery which obtains in some countries; and mild it ought to be, as founded on the free choice a man makes of a master, for his own benefit; which forms a mutual convention between two parties. [Vol. I, Bk. XV, Chap. V, p. 287]

And Rawls goes on to note:

This explanation of why the basic liberties are inalienable does not exclude the possibility that even in a well-ordered society some citizens may want to circumscribe or alienate one or more of their basic liberties. …

Unless these possibilities affect the agreement of the parties in the original position (and I hold that they do not), they are irrelevant to the inalienability of the basic liberties. [Rawls 1996, pp. 366-7 and fn. 82]

Moreover, the extreme case argument for inalienability had little relevance in the historical debates (other superficial and ad hoc arguments against slavery contracts or political pacts of subjection were treated in the Philmore paper referred to here).  The proslavery writers were quick to point out the laws protecting slaves on the ante-bellum law books and Hobbes excluded the alienation of the right to life from his pactum subjectionis (since the whole idea was to better protect life by stopping the war of all against all).

Like most modern liberal-contractarian philosophers of justice, Rawls not only fails the litmus test of ruling out the renting of people; he does not even raise the question as a topic for a Theory of Justice—which leaves that theory as a sophisticated apologia-by-omission for a society based on the human rental relationship.

But there is also a low-hurdle historical litmus test: does the theory rule out a civilized non-discriminatory version of the older alienation contracts, e.g., the self-sale contract and the political pact of subjection? Since all these contracts have been abolished in modern democratic societies, it would seem that a theory of justice should, at a bare minimum, be able to give a direct and coherent account about why these contracts should be invalid in spite of consent, and why the underlying rights are inalienable. This is not a question about Rawls’ personal views but about whether his theory of justice ruled out these contracts.

There is something of a continuum between the self-rental contract and a civilized form of the self-sale or lifetime labor contract. Rawls’ theory of justice accepted the self-rental contract completely as a matter of course so it is hard to see how the theory could suddenly generate a bright line constraint to rule out the longer version of the master-servant contract. In ante-bellum American law, the self-sale contract was formulated in racial terms which would violate Rawls’ veil of ignorance. But a limited race-neutral contract, e.g., the self-sale contract envisioned in Nozick’s “free system,” would not violate that non-discrimination condition.

Similar remarks could be applied to the political pact of subjection, the contract for the alienation of self-governance rights. Some traditional views of the hierarchy embodied in an autocracy saw most people “born with saddles on their back” with “a favored few booted and spurred, ready to ride them” [Jefferson 1904-5, p. 225] and such views might have the contractarian gloss of an implicit contract of subjection vouchsafed by the prescription of time. But such hierarchical classifications would violate Rawls’ veil of ignorance. However, a classless modernized self-governance-alienation contract, such as Nozick’s contract with a “dominant protective association,” would not be ruled out by Rawls’ theory just as the theory does not rule out the workplace self-governance-alienation contract, i.e., the employment contract.

The contractarian approach is quite important in the history of philosophy since it provided the ‘best’ apologies for personal and political subjection and Rawls was well aware of that tradition from the history given in Philmore (personal communication). Since those two contracts are already outlawed in the modern democracies, it would seem to be a reasonable litmus test for any theory of justice set forth today that it provide a plausible counter-theory to refute those ‘best’ contractarian arguments. Such a theory of inalienable rights was indeed hammered out in the democratic and abolitionist movements but that theory did not survive in Rawls’ work in spite of the direct connection with the liberty of conscience.

John Rawls lived his whole life in an economic system where employees are “not counted as sources of claims” on the products they produce and are “not counted as capable of having …obligations” [Rawls 1996, p. 33] to meet the costs they incur in production, and where other persons, the employers, “control and own the product of their labor”. [Rawls 1996, 122] The given quotes are from Rawls’ description of slavery but the specific aspects quoted also apply to the system where workers are rented, hired, or employed rather than owned by an employer or master. Those aspects of the legal structure of a productive enterprise do not depend on the duration of the labor contracts, i.e., on whether the workers are hired or owned by the masters. For instance, the masters or employers “control and own the product” of the servant’s or employee’s labor regardless of the duration of the hiring contract. Yet in Rawls’ considerable writings about justice, he never raised the question of a potential justice problem inherent in the whole system of renting human beings.

The alternative form of a private property market economy after the abolition of the employment relation would have all firms reconstituted as democratic organizations with the people working in the firm as its legal members. [see Ellerman 1990] Since Rawls did not explicitly consider the inalienability analysis of the employment contract, the contract which also functions as the workplace pactum subjectionis, the “Theory [of Justice] leaves aside for the most part the question of the claims of democracy in the firm and the workplace… .” [Rawls 1996, p. xxx]

Conclusions

Our overall purpose was the examination of liberal-contractarian philosophies of justice—with John Rawls as the principal modern example—from the viewpoint of the theory of inalienability that descends from the Reformation and Enlightenment.

Perhaps the biggest surprise in the recovery of inalienable rights theory is that it clearly applies to the contract for the renting of persons, today’s employment contract. Since the employment contract is the basis for our present economic system, it should perhaps not be a surprise that the inalienability theory has been neglected by modern economists, legal theorists, and philosophers.

As each of the historical contracts of subjection were outlawed as a result of the efforts of the anti-slavery and democratic movements, liberal-contractarian philosophy recasts each of the historical debates into a discourse of coercion versus consent (and Marxism, as the preferred foil for liberalism, obligingly accepts the bogus framing and counterargues that wage labor is “really” involuntary). The past institutions of subjection are then seen as being coercive by definition and are supposedly ruled out on those grounds. Hence there is no need to consider any potentially troublesome theory about certain voluntary contracts being inherently invalid and certain rights being inherently inalienable even with consent.

This post is based on a paper, “Inalienable Rights: A Litmus Test for Liberal Theories of Justice,” published in the journal: Law and Philosophy. A reprint can be downloaded here.

References

David Ellerman, 1990. The Democratic Worker-Owned Firm. London: Unwin-Hyman. Downloadable here.

Thomas Jefferson, 1904-5. The Works of Thomas Jefferson in Twelve Volumes. Vol. 12. Correspondence and Papers: 1816-26. Ford (ed.). Federal Edition. New York: G.P. Putnam’s Sons.

Montesquieu 1912 (1748). The Spirit of the Laws. T. Nugent (trans.), New York: Appleton.

Rawls, John 1971. A Theory of Justice. Cambridge: Harvard University Press.

Rawls, John 1996. Political Liberalism. New York: Columbia University Press.