Voluntary Slavery and Liberal Contract Theory

The core of liberalism is property rights. Every individual has the right to use his or her property as he or she wishes, so long as no harm is done to others. And an essential element in the use of property is contract. Because a liberal society would have no state or government, or only one in a very weak form, a substantial portion of the social functions currently handled exclusively by the state and government would instead be provided through private contracts.

Some people argue that any contract, if entered into completely voluntarily, is perfectly legitimate in a liberal society regardless of its contents and therefore must be enforced unconditionally. Even some liberals take this view. For example, they claim that a liberal society could be filled with voluntary slave contracts or voluntary waivers of bodily integrity.

As of October 2021, the Netflix drama Squid Game had become a major sensation. In it, many participants sign a consent form stating that “participants may not arbitrarily suspend the game,” and they stake their lives in the game for the chance to win a huge cash prize. If they fail to pass the game, they die. But once they decide to participate, they are never allowed to stop the game under the terms of the contract. (The author of this article has not watched Squid Game and does not plan to, so this may not be exact.) This is a kind of slave contract, because it involves completely transferring control over one’s body to the game organizers. Can this kind of contract be accepted as legitimate in a liberal society? Critics of liberalism would probably say yes. Although they may not refer to those contractual provisions specifically, one can already find many Op-Eds on the internet linking Squid Game to capitalism in order to promote left-wing anti-capitalist agitation.

Unfortunately, the game participation agreement portrayed in Squid Game could never be justified in a liberal society. More than that, no matter how much consent was supposedly given, the acts of killing depicted in the drama could never cease to be criminal.

According to liberal ethics, the only contracts that may be legally enforced are those in which one party’s failure to perform would amount to theft of another party’s property. In other words, when breach of contract constitutes an implicit theft of property, that contract should be enforced. Failing to perform such a contract is no different from taking another person’s property without consent or defaulting on a debt.

Put differently, a contract that contains only a mere promise, without involving theft of property, may be breached without legal problem. Rather, the party that tries to enforce such a contract coercively is the source of the problem.

This liberal theory of contract is called the “title-transfer” theory. Let us look at an example. Suppose Smith and Jones enter into the following contract: Smith pays Jones $1,000 now in exchange for Jones’s IOU agreeing to pay Smith $1,100 one year from now. This is a typical debt contract. Now suppose that when the agreed day arrives one year later, Jones refuses to pay. Smith originally paid Jones $1,000 not as a simple transfer, but conditionally—on the condition that Jones would repay $1,100 one year later. Therefore, Jones’s refusal to pay $1,100 amounts to stealing the $1,100 in property that rightfully belongs to Smith.

One representative example of a contract that cannot carry legal force in liberal contract theory is an engagement. Suppose A and B promise to marry. B pays expenses to make wedding plans and prepare the ceremony. At the last moment, A changes his or her mind and thereby breaches this so-called engagement “contract.” Can the law enforcement institutions of a liberal society order A to marry by force? If they can, then the liberal society is instructing A to become B’s slave. Forced marriage is a clear and unmistakable form of involuntary slavery. If A cannot be forced to marry, must A at least compensate B for the wedding preparation costs? If so, then A would be compensating B because A frustrated B’s expectation of marriage.

This may not be called involuntary slavery, but in a liberal society it still lacks legal force. That is because breaking a mere promise or disappointing an expectation does not infringe property. Simply promising to marry, or creating the expectation that marriage may occur, does not amount to implicit theft.

Why can mere promises or expectations not have legal force? The reason is that under liberal ethics, the only valid and lawful transfers of title to private property are transfers of things that are alienable by human beings. All tangible property owned by a person is alienable. That is, one may sell or give shoes, a house, a car, money, and so on to another person. But apart from such property, there is something that is in fact inalienable even if supposedly transferred voluntarily: the human will. More precisely, control over one’s own mind and body cannot be transferred. Because one’s mind and body are bound to one’s own will, transferring them is logically impossible. Therefore, it is also impossible to transfer to another person the right to control one’s own mind and body.

For this reason, a voluntary slave contract is impossible in a liberal society. Suppose Smith makes the following agreement with the Jones Company: Smith will, for the rest of his life, carry out every order that the Jones Company may wish to prescribe, under any conditions. This remains true even if such orders threaten Smith’s life. If Smith agreed completely voluntarily, does a liberal society have no way to prevent the Jones Company from commanding Smith without limit and Smith from obeying without limit? So long as Smith continues to wish to obey entirely voluntarily, yes. The problem arises when Smith changes his mind. Suppose that after entering the contract—10 years later, 20 years later, or even the very next day—Smith changes his mind and wants to leave. Must he keep the prior voluntary slave contract? Of course not. Smith has not transferred to Jones any title to private property; he has merely promised to become a slave. Since transferring control over one’s mind and body is logically impossible, the so-called voluntary slave contract was never a legally valid contract in the first place, and could be sustained only by Smith’s purely voluntary favor toward Jones. Therefore, even if Smith decided to become the Jones Company’s slave, he may leave whenever he wishes.

Then must Smith at least compensate the Jones Company for the damage measured by the company’s expectation of lifetime slave service? Of course not. Smith has stolen nothing from Jones. He has taken no legitimate property of the Jones Company. The labor power and other values he supplied through the use of his mind and body always depended solely on his own favor; they were never something he owed to Jones as a debt.

What if the Jones Company had planned all its future business on the assumption that Smith would provide slave services for life, and when Smith decided to leave all those plans collapsed and the company went bankrupt? Even then, nothing changes. Jones would simply be in the same position as the party to a broken engagement. Life is always uncertain and risky, and entrepreneurs in particular operate on the front lines of a world full of uncertainty. If Jones planned his business around a voluntary slave contract that had no legal binding force whatsoever and went bankrupt as a result, that would mean only that Jones was an inferior entrepreneur.

Let us move away from the extreme case of a voluntary slave contract and consider mandatory employment contracts encountered in real life. It is so obvious that liberal ethics does not permit conscription that it hardly needs to be discussed. But what if, under a volunteer military system or a privatized national defense system, the military requires a certain number of years of mandatory service from those who enlist voluntarily? If a soldier leaves the military during that mandatory service period, should he be treated as a deserter, forcibly returned to the military, punished, and then compelled to complete the service term? In a liberal society, no. A volunteer’s promise to serve for several years is not a gift of property to the military; it is merely a promise. Since every person has the right to change his mind at any time regarding the disposition of his own mind and body, he must be free to quit immediately if he wishes. The rhetoric that a soldier’s mind and body belong to the nation while he is serving is plainly wrong under conscription, but it is also wrong under a volunteer system.

The same applies not only in special environments like the military but also in private companies. Suppose Smith signs on to work as an engineer for the Jones Company for five years, but quits before completing the five years. In a liberal society, the Jones Company cannot impose any legal constraint on Smith. That is because mandatory service itself cannot be justified. However, that does not mean the Jones Company has no way at all to disadvantage Smith. The Jones Company may place Smith on a blacklist and share that information within the industry to block his future employment. That is entirely within the Jones Company’s rights. And suppose Smith was paid $1 million in advance in exchange for working at the Jones Company for five years, or for life. In that case, the Jones Company is clearly entitled to recover the $1 million from Smith. Smith may change his mind at any time, but if he does so, he no longer retains the right to keep the $1 million. Furthermore, he must return it with interest on that prepaid $1 million as well.

In conclusion, there is no possibility whatsoever that voluntary slavery could be justified in a liberal society. At the same time, performance bonds for contractual fulfillment would function as a kind of privatized voluntary punishment or binding penalty, operating as a mechanism to prevent various social disputes.

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Original title: 자발적 노예와 자유주의 계약이론

Author: Kyeong-hun Kim

Date: 2021-10-27

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=free_opinion&pn=9&idx=24291