duncanwhitmore

The topic of voluntary slavery – that is, the question of whether an individual who is presently a self-owner may voluntarily subject himself to slavery irrevocably – is understandably controversial yet, properly understood, not an overwhelmingly difficult one to comprehend. This essay will attempt to clarify some of the problems and issues surrounding voluntary slavery, together with a discussion of elements that have not been thus far examined in much detail. Although we will not reach anything other than a modest conclusion here, we will attempt to put ourselves in a better position of understanding the main problems.

The first question that must be resolved is precisely what is meant by slavery. Here we must recall the fundamentals of wider political theory and how libertarianism answers the questions that it raises. The ultimate reason why ethics exist is to resolve conflicts over physical matter. Different people desire to devote physical objects to different ends. Hence, property rights are vested in individuals over physical objects in order to determine precisely who, on the one hand, may use that object to fulfil his ends and who, on the other hand, must yield and seek other physical objects for the fulfilment of his ends. The issue of slavery therefore concerns the property rights over the body of an individual person and whether someone may, from a purely legal point of view, voluntarily transfer ownership of the physical matter that constitutes their bodies to another person. In other words, our question here is whether, in accordance with libertarian theory, one’s own body can permissibly constitute physical matter the ownership of which can be transferred to another individual. Or, to put it a further way, whether someone else’s body could, through voluntary arrangement, come to constitute your outright property and be treated however you like. Importantly, though, ownership rights are not the only type of rights that we might consider. A right may simply constitute the legal ability to perform a specific physical act in relation to a specific piece of property, not to dispose of that property in any way the rights holder may deem fit. Easements and leases, for example, confer upon their holder the right to enforce merely a single action, such as the right to walk across a field between the hours of 9am and 5pm. Any other physical actions towards the property in question are not permitted. Therefore these more diluted rights, short of full ownership, must also be considered in relation to the matter that constitutes a living human’s body. This is important because in certain situations people do contract to grant other people the right to come into physical contact with them in ways that are far less than full ownership and this is not believed to be controversial – most notably professional contact sportsmen who have contracted to play on a certain number of occasions. The question of whether preventing the transfer of the full ownership of one’s body i.e. voluntary slavery – would, in turn, prevent the granting of these “lesser” rights over the same is not something that has received sufficient analysis.

It is important also to distinguish the granting of rights from the granting of mere consent. People come into voluntary physical contact with each other’s bodies in a variety of scenarios – sexual intercourse probably being the most frequent. However, such contact is not permitted on the basis of a granting of a right to the other individual. Your partner, for instance, does not have the “right” to have sex with you. Rather the fact of consent in these situations demonstrates that there is an absence of conflict regarding the physical matter in question (i.e. your body); that both parties are in agreement as to how that matter should be directed at that particular point in time. Thus, if a person is accused of raping a woman, his defence will not attempt to argue that he had a “right” to have sex with the woman but, rather, that the fact of consent established a situation of no conflict. If that consent is withdrawn, however, a conflict exists and the physical contact becomes invasive and unlawful.

Before beginning our examination of voluntary slavery we must expunge from our thought all of the connotations and consequences associated with involuntary slavery with which we are acquainted from our historical experience of the practice. Forced subservience, second class citizenry, racism, slave labour camps and extermination in World War II, appalling living conditions and brutal, inhumane punishments are all issues that fall into this camp, some of which are believed to have consequences today. For example, the lower socio-economic position held by black Americans compared to whites is believed, rightly or wrongly, to be a legacy of black slavery. Libertarianism is emphatically and uncompromisingly opposed to any arrangement of involuntary slavery where an individual effectively imprisons another person aggressively and any dealing of other human beings as property in this regard is absolutely and unrelentingly opposed by libertarianism. A discussion of purely voluntary slavery – which would be a peaceful and mutually agreeable arrangement clearly devoid of all of the effects we just listed – cannot commence with the die loaded against its possibility as a result of us confusing it with the wholly different and abominable practice of involuntary slavery. Indeed, it may be ideal for this purpose to denote some term other than “slavery” for voluntary arrangements, reserving “slavery” purely for forced and aggressive relations. However, as a neologism is not yet forthcoming we will continue to talk of “voluntary slavery”. Moreover, and for the avoidance of all possible doubt, nothing concerning whether or not a person may voluntarily subject himself to slavery has any bearing on his prior right to self-ownership, which is firmly and uncompromisingly established in libertarian theory.

Furthermore, we must also suspend from our thought anything to do with the cultural acceptability and the tastefulness of (or the motivations that people may have towards entering) an arrangement of voluntary slavery. In spite of the protestations of the handful of dyed-in-the-wool Marxists that the majority of labourers languish in a state of so-called “wage slavery”, it is clear that no one today properly views other human beings as in any way, shape, or form as “belonging” to anyone else as either a matter of culture or as a matter of strict legality. We do not regard employees as belonging to their employers, nor do we think of a wife as being owned by her husband; rather, in spite of conversational colloquialisms such as “my employees” or “my wife”, these are viewed as mutually agreeable partnerships between humans with equal individuality and dignity. The only exception is children who, on account of their immaturity, are said to “belong” to their parents but this relationship is viewed as one of care and nurturing founded upon love and trust and is a far cry from any sense of ownership in the manner one would own an inanimate object. Any relationship between owner and owned founded on voluntary principles would therefore appear to be initiated by some kind of unusual, fringe motivation, perhaps sexual or sadomasochistic, or simply unconscionably “exploitative” such as in the case where a person demands the slavery of another in return for something the latter desperately needs. These issues are not relevant to our main concern here which is the strict legality of an arrangement of voluntary slavery – that is, regardless of the motivations towards such an arrangement, if a person agrees voluntarily can he become a slave? Libertarians uphold the legality of hundreds of other voluntary practices, taking effect through either mutual consent or contract, which may not happen to have the blessing of mainstream, cultural approval. Drug taking, adultery, prostitution, parsimony, selfishness, or even gambling are all, at least in certain settings, socially unacceptable. Libertarians would uphold the legality of an individual choosing to do these things but he may also, privately, believe that such choices would be unwise or even bad choices and would equally uphold the legal right of other people to disassociate from these practices. Similarly, therefore, with regards to voluntary slavery, the question of whether two people should be legally permitted to enter such a relationship is separate from the question of whether it would be a good idea, founded upon good motivations, for them to do so and we must hold firm this distinction in our mind.

At this juncture of our analysis, we will proceed to dispose of two arguments that are frequently asserted in the debate concerning voluntary slavery – one in favour of arrangements of voluntary slavery and one opposed to them. Indeed, these two arguments practically dominate the issue yet they are, in the view of the present author, not really the issues that cause the topic to be problematic. The argument in favour is the straightforward one that if you own your body then you should be able to do what you like with it. Therefore, if you cannot sell that ownership to another person in order to become a voluntary slave then you do not really own your body at all. Thus, so this argument goes, outlawing voluntary slavery is an attack on the concept of ownership. Stated in this naïve, literal sense, the argument misunderstands this crucial concept. Ownership of an object simply means that you have the right to exclude other people from their physical presence over that object in order for you to be able to fulfil certain ends you may desire from that object to the detriment of ends that other people may desire from it. If I own a cup it means that other people may not invade the physical integrity of that cup without my permission whereas I, on the other hand, may do so without anyone’s permission. Thus, ownership is a sociological concept and concerns the sphere of permissible activity towards physical objects vis-à-vis other people. Once exclusion of all other persons has been achieved it does not mean that I can “do whatever I want” with the cup. I cannot turn it into a car or make it vanish to the other side of the world (although, of course, no one has the right to physically restrain me from attempting to accomplish these things with my own property and we can surmise that, one day, the technology may exist to do so). Nor, to a greater degree of impossibility, can I make it a cup and a plate at the same time, or paint it red all over and blue all over simultaneously. The argument that dismissing the possibility of voluntary slavery dilutes the concept of ownership is clearly rendered false by these examples. The fact that I cannot do any of these things with the cup does not in any way afflict my right to exclude all other people from the physical integrity of that cup. If subjecting oneself to voluntary slavery also founders upon a similar impossibility in nature (which, as we shall see, is the chief argument of those who oppose voluntary slavery) then this impossibility in no way diminishes the concept of ownership. On the other hand, if there is no impossibility in transferring ownership over your body to another person, this fact is not predicated upon the concept of ownership necessitating one’s ability to do whatever one likes with one’s property. Rather, it simply means that the there is no barrier to making the right to physically exclude all others from the physical borders of your body transferrable to another individual. The correct way of approaching the issue is to ask whether any attempt to forcibly prevent any arrangement of voluntary slavery would itself be an unjustified interference with your right to exclude all others from your physical property. Only in this sense can the argument that one should be able to do whatever one wants with that which one owns carry any merit.

The next argument that we will consider, which opposes voluntary slavery, is the doctrine of inalienability. In order for a physical object to be the subject matter of a contract, so this argument goes, it must be alienable, i.e. separate and divisible from that person, and not constitute an integral part of that person himself. The primary fixation in the mind of these authors is the nexus between the body and the mind, or, more accurately, one’s will – that to bind the body by transferring ownership over it is to also bind one’s will, something which supposedly cannot be done. It might be useful, in understanding this argument, to quote its main proponent, Murray N Rothbard:

The only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. All physical property owned by a person is alienable, i.e., in natural fact it can be given or transferred to the ownership and control of another party. I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, “stuck” with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so. Or, as Williamson Evers points out,

“the philosophical defenses of human rights are founded upon the natural fact that each human is the proprietor of his own will. To take rights like those of property and contractual freedom that are based on a foundation of the absolute self-ownership of the will and then to use those derived rights to destroy their own foundation is philosophically invalid.”

Hence, the unenforceability, in libertarian theory, of voluntary slave contracts. 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 (ie., 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.¹

Walter Block has provided an extensive rebuttal against the doctrine of inalienability as understood by Rothbard and several other scholars which we need not repeat verbatim here². Rather we will shall choose a few salient points and add some observations of our own.

In the first place, we must dispose of the argument that property rights have anything to do, as both Rothbard and Evers argue, with the self-ownership of the will. The question of ownership arises as a result of conflicts over physical matter, not intangible concepts such as the will. Indeed, when we begin to talk of the idea that to transfer ownership of a person’s body is synonymous with repudiating any ability to change one’s mind and thus unconscionably binding one’s “will” we see that we run into all sorts of problems, namely that it proves far too much. For all contracts, which transfer title of property from one person to another, do, in fact, bind a person’s will and restrict the choices he can make in the future. If I transfer a car to another person my will is then irrevocably bound from enjoying the services of that car ever again. I have voluntarily excluded from myself the choice to use that car to serve my ends as opposed to someone else’s. I cannot later change my mind and take the car back again. To apply Rothbard’s argument consistently would require one to invalidate all transfers of title to property. Indeed, the fact of scarcity itself results in a world where one’s will is repeatedly and irrevocably bound by choices that have to be made every minute of every day. We make these choices because we believe that the resulting situation is an improvement for us compared to that which we have discarded. Once I have eaten the proverbial cake my will is bound by that fact and my subsequent desire to have the cake instead is fruitless. This is no less true when those choices involve interpersonal exchange rather than autistic exchange. If I make a decision to trade away some of my possessions my will is eternally bound by a restriction from ever using those possessions again. But the reason why I choose to do so is because I gain something from the exchange that is more valuable – that my will has been restricted in one way yet released in another, more satisfying way.

The transfer of ownership of one’s body may, of course, engender a restriction over one’s will greater than that of transferring ownership of an external object such as a cup. Indeed, the core of Rothbard’s problem seems to be that transferring one’s body absolutely, irrevocably and in all cases subordinates one’s will to someone else’s. However, such a restriction must, in the mind of the individual, be worth the resulting gain. Rothbard the economist was emphatic that valuations are subjective so it is not for him to determine whether a person should value ownership of his body higher than some other end. Moreover, it is not always clear that contracts which transfer rights over one’s body would necessarily bind one’s will in a manner that is more restrictive than contracts that transfer external objects. As we noted earlier, not all rights are outright ownership rights. We can imagine types of transfers of rights over one’s body short of full ownership similar to easements and leases – such as the right to keep a person in a specific location. The only right conferred on the other party is to prevent this person from leaving this location, whereas the latter person still retains the ability to do whatever his “will” desires within that location. A could agree with B to remain on a twenty acre estate with a ten bedroom mansion, a personal chef, a swimming pool, a tennis courts, fields, woods and so on. This contract would be invalid in Rothbard’s view and the individual should be able to change his mind and leave. Yet a contract to transfer one’s entire annual salary to another person for the rest of one’s life would, according to Rothbard, be valid and enforceable. Yet it is clear that the latter binds one’s will in far more ways than the former. Moreover, what are we to make of transfers of full ownership of parts of the body as opposed to the whole? Surely I could sell my leg or my arm or, more realistically, a kidney for organ transplant without binding my “will”? Precisely how much of my body do I have to transfer ownership of to another person before my “will” becomes bound? Once detached, of course, it is possible to consider a particular body part “alienated” and thus saleable; but it is difficult to understand how, under the inalienability doctrine, precisely how one could conclude contracts regarding a particular body part prior to such detachment. So if Rothbard’s argument can be extended to the conclusion that a person cannot transfer any part of his body whatsoever to another person it would mean that surgeons, in spite of the full contractual consent of the patient, would be prevented, by law, from removing a malignant tumour in order to save that patient’s life.

In a rare moment of confusion for this author, Rothbard mixes the factual with the normative in order to lend his argument plausibility (Randy Barnett makes a similar argument³). In the quotation above Rothbard says “Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, ‘stuck’ with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will.” In other words because, in nature, the de facto control of a person’s body rests with his mind then so too should the normative power of disposal over that body, i.e. ownership. Now it is absolutely true that in nature a man’s mind and will is always wedded to his own body and this connection would survive any attempted sale of one’s own body to another individual. No legal document can ever confer on me the power, with my will alone, to make another person blink, cough, or move his arm. That individual would still retain the same de facto control over his mind and body just as he was before he sold himself into slavery, and he would still retain his thoughts, feelings, and desires. But these facts have no bearing on the question of ownership, which is who may legitimately determine the ultimate disposal of the matter that constitutes a person’s body. The issue we are interested in is, regardless of whatever the slave’s will desires and the de facto control over his body, can somebody else, through a voluntary arrangement, legitimately intervene with the physical integrity of that body? This de facto control of the voluntary slave to control his own body may have a bearing on how much use and enjoyment an owner could get out of his voluntary slave and, indeed, whether the prospect of ownership is attractive in the first place. A voluntary slave may choose to misbehave, disobey his owner or just be generally lazy and workshy. Other voluntary slaves, though, may be perfectly obedient and accomplish everything their new owner wants. However, this is true of animals too which also retain a de facto control over their muscle movements. Some animals are obedient and need little encouragement to make them do what an owner wants them to do; others are stubborn and need cajoling or physically disciplining. Yet this fact has no bearing on the fact that humans own animals.

In any case, however, it is not immediately clear how any person is “stuck” with his de facto control over his own body. He could, as Block points out, commit suicide and thus permanently and irrevocably sever his will from the physical matter that constitutes his body. Clearly a person does have an option in nature to discontinue his control over his body.

Having disposed of these two powerful arguments – one for and one against voluntary slavery – which have, as was suggested earlier, dominated the topic of voluntary slavery, let us proceed now to discuss what may be a more problematic issue when it comes to voluntary slavery. This issue it that of enforcement of voluntary slavery arrangements – that is, if a voluntary slave runs away, what could or should be done about it? Before we address this, however, let us first discuss, as a brief tangent, how proliferate voluntary slave contracts are likely to be in a libertarian society – are arrangements of voluntary slavery likely to be fringe and marginal or would their legal permission open a Pandora’s Box that would suddenly lead to all manner of “exploitation” of the weak by the strong? The most likely scenario where this would be possible is, clearly, with labour contracts, i.e. contracts of employment. If we allowed voluntary slavery, so a retort would go, wouldn’t that lead to employers demanding arrangements of slavery from their employees? “Hungry? Be my slave!” “Need a home? Be my slave!” “Need money for your children? Be my slave!” And so on. However, such an argument could only be premised upon the Marxist view that the fate of the worker is to sink ever lower and lower and is utterly dependent upon what the capitalists offer him – a view that we know to be false from nearly 200 years of economic progress that the standard of living of even the lowest earning worker has risen significantly. Employers are compelled, through competitive bidding, to offer a real wage rate that is markedly higher than one that provides subsistence. We can surmise that people do not enter contracts of voluntary slavery (or the closely related arrangement of indentured servitude) today not because of legality but because, for the employee, even the lowest free wage is able to offer a position that is far more attractive than an arrangement of voluntary slavery. Indeed, one of the overwhelming reasons why compulsory slavery was gradually abolished was because for the employer or would-be slave owner it was less expensive and more productive to hire free labour than to trade in slaves – and that it is better to risk having an employee quit and to hire another rather than try to “own” the original employee. It is therefore likely that slavery, voluntary or otherwise, would only return in any significant measure if society itself was to revert to primitive economic conditions of low capital accumulation and low productivity per person.

Before leaving this topic we might as well consider the relationship between the trading of one’s body, i.e. voluntary slavery, and contracts of employment. Rothbard offers the following explanation:

A person’s labor service is alienable, but his will is not. It is most fortunate, moreover, for mankind that this is so; for this alienability means (1) that a teacher or physician or whatever can sell his labor services for money; and (2) that workers can sell their labor services in transforming goods to capitalists for money. If this could not be done, the structure of capital required for civilization could not be developed, and no one’s vital labor services could be purchased by his fellow men. The distinction between a man’s alienable labor service and his inalienable will may be further explained: 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.⁴

This explanation is erroneous. The reason why contracts of employment are valid is nothing to do with the “alienability” of the labour service. A service is an intangible thing and cannot be disconnected or alienated from anything as it is not already in the form of any kind of connection or embodiment. Rather, the validity of the contract of employment rests on the fact that the individual employed has agreed to a conditional receipt of money, the condition being that he carry out certain tasks as stipulated by his employer. If those tasks are not completed then title to the money does not pass from the employer to the employee. If they are completed, on the other hand, then title to the money does pass and the employee can enforce this title as a result of having fulfilled the condition. This explanation is in accordance with (and, indeed, is identical to) the title-transfer theory of contract that Rothbard espouses also in The Ethics of Liberty. Contracts of voluntary slavery, however concern the transfer of the title to the person’s physical body. This too may also be made for money. A may agree with B to transfer a sum of money to B’s family if B transfers title of his (B’s) body to A. Moreover, such a transfer may result in the value of B’s ability as a labourer being capitalised, so that B could, if he wished, sell A for that capital value to another person. But a contract of employment and a contract of voluntary slavery, while they have obvious similarities, concern the transfer of different physical entities and are not distinguished by any “alienable” labour service on the one hand nor an “inalienable” will on the other.

Let us therefore proceed now to discuss the issue of the enforcement of voluntary slave contracts or agreements and why it is this topic which is actually the difficult one when comprehending voluntary slavery arrangements. Dealing first of all with the enactment of transfers of ownership over the physical matter that constitutes one’s body, it is not necessary for the voluntary slave to be in receipt of a sum of money from the potential owner – i.e. he does not literally need to sell himself. He could quite easily make a gift of himself to someone else and this is, as we have examined elsewhere, perfectly in accordance with libertarian contract law. However, we can surmise that in many, if not most, cases a sum of money will be transferred in order for the owner to purchase the voluntary slave from himself. One objection concerning this is scenario is the fact that if the sum of money is transferred to the voluntary slave and the contract is therefore concluded, because that sum of money belongs to the voluntary slave and the voluntary slave belongs to the owner then surely the money too belongs to the owner again. Can’t the latter simply take back what he gave? This is certainly possible but it would, as Block points out, simply point to the stupidity of the voluntary slave and not necessarily to any impossibility of concluding the contract in the first place. However, the more likely scenario is that the contract will require the funds to be paid to a third party – most likely the family of the voluntary slave. In this instance the funds would be irretrievable by the owner once the contract is concluded. But even if it the funds were paid to the voluntary slave himself the contract could easily stipulate that the voluntary slave retains title over the funds and that the owner must grant him time to enjoy spending them. Contracts for voluntary slavery-type arrangements need not be an all or nothing thing and the voluntary slave is quite entitled to reserve specific rights to himself that would preclude the transfer of full, outright ownership over his body to another person. Whatever the specific content of a voluntary slavery contract, however, we can surmise with little doubt that courts will require a standard of proof of transfer greater than that required for transfers of ownership of dead objects – such as written documents and witnesses etc. – rather than simple oral declarations and exchanges. Courts are likely to want to be as sure as possible of the intentions of the parties before enforcing such an arrangement.

Second, assuming that a voluntary slavery contract is valid, the problem surrounding any “enforcement” of this contract rests on the fact that the whole concept of contractual rights requires there to be two continually recognised legal parties to the contract. However, when the voluntary slave transfers outright and irrevocable title over his body (and with it all rights and possessions that he owns) to another person, he ceases to be a legal person in any sense of the concept at all. The voluntary slave is now akin to being simply a piece of property akin to an object like a plank of wood. Rights, however, are not enforced against pieces of property but against other legal persons. What the owner of the voluntary slave now possesses is the right to exclude all other legal persons from the body of the slave that now constitutes his property and to seek legal sanction where third parties interfere with this property. In other words, his right is enforceable against other people and not against the voluntary slave who is now not a legal person. Thus, the right of ownership which the owner receives is not, in fact, any kind of right enforceable against the voluntary slave at all.

If, therefore, the voluntary slave runs away from the owner what would be the response of the law? The answer is simply nothing at all. The owner has no legal right of enforcement against the slave at all for the slave is not a legal person and legal enforcement exists only between legal persons. As the voluntary slave is not a legal person and is simply a piece of property he can commit no crime nor any breach of contract by running away. His running away is, rather, simply an extra-legal event akin to losing one’s car keys or having a pet run away. Such a situation may be very unfortunate for you but you would not, in these circumstances, go to court to enforce judgment against the runaway keys or the absconding pet in order for them to be returned to you. Rather you simply have to try and find them yourself. The situation is no business of any court unless and until there is any interference in your property by a third party who is a legal person and it is against this person against whom your title to the property concerned is enforceable.

Does this fact present any obstacle for voluntary slave contracts? Unless one accepts the doctrine of inalienability then clearly it does not. The situation is no different from that where a person is deceased. If you are, say, a family member who comes to own the body of a deceased relative your right over that body is not enforceable against the deceased individual; the right you possess is to exclude anyone else from that body. The only difference is that, with voluntary slavery, a person has extinguished his legal personage while remaining alive after.

It is submitted, however, that the far more likely scenario with voluntary slavery contracts is that the voluntary slave will continue to be recognised as a legal person with a specific legal identity and, most likely, will reserve specific rights should the contract be broken. This is because, in the event of an absconding by the voluntary slave the owner would retain the advantage of being able to resort to legal sanction and, moreover, in the event that transfer of ownership of his body is conditional the voluntary slave can break the contract when the owner fails to fulfil that condition. Let us therefore proceed to examine the enforcement of voluntary slavery contracts as any other contract would be enforced between continuingly recognised legal persons.

Practically all discussions of voluntary slavery make at least the tacit assumption that should a voluntary slave decide to escape from his now owner then the appropriate remedy should be that the voluntary slave is forcibly returned to the owner – so in the lexicon of contract law, the appropriate remedy is specific performance. This is undoubtedly a hangover from considerations of what used to occur with involuntary slavery. The slaves did not wish to be there in the first place; if they ran away their forced return did not alter the situation – they were still unwilling workers and we can surmise that whatever the owner was getting out of them after their return would have been the equivalent of what he was getting out of them before they escaped. However, our topic here is voluntary slave contracts and we can surmise that the voluntary nature of the contract itself does have a bearing upon the benefits of the contract to the voluntary slave owner. We see that in contract law generally, which concerns only voluntary relations, specific performance is often considered to be the least viable remedy, particularly in contracts that involve a personal working relationship such as those between employer and employee or a contract to provide services. This is precisely because the benefits to be gained from services performed under a contract depend, in a large measure, upon the relationship between the contracting parties and their continued willingness to serve each other. To compel specific performance in instances where this relationship has soured or where this willingness has otherwise been lost usually makes a bad situation worse. But even where this is not the case and the contract concerns delivery of physical property rather than a service specific performance is not always available. If the defendant is unable to deliver a specific piece of property it may be because it has been lost or destroyed. But it also may simply be that an alternative form of recovery is easier (i.e. cheaper) than trying to extract the particular piece of property that was the subject matter of the contract. At all times the plaintiff will normally seek, and the court will be prepared to enforce, the option that most ably restores to the plaintiff that which he owns for the lowest possible cost. Very often this will amount to the payment to the plaintiff of a sum of money equivalent in value to the property that cannot be rendered (and in the case of services to permit the plaintiff to seek those services elsewhere from a more willing party). In other words, just because you have contracted to receive something does not mean that the court will grant you receipt of that specific good or service and, moreover, nor are you actually likely to be interested in receiving it if the attempt to do is onerous. We can surmise in the vast majority of cases that the benefit to be gained by a voluntary slave owner from specific performance of a voluntary slave contract where the slave is no longer willing is likely to be greatly diminished compared to the situation where the slave remains willing.

So what is likely to happen, then, in cases where a voluntary slave runs away from his owner and wishes to break the contract? Let us recall that what the slave has done is to abscond with the owner’s property, which in this case is the physical matter that constitutes his own body. He has, in effect, stolen from the owner although we may like to note that outright theft may not appear in all circumstances and, like contracting parties, negotiations to dissolve the contract peacefully may be more frequent. The precise remedy available to the plaintiff may depend upon the precise nature of the contract. The contract itself may, of course, specify remedial title transfers in the event of a breach. Assuming it does not, however, if the contract concerned required the owner to transfer a sum of money in exchange for receiving title to the voluntary slave’s body, the most likely remedy is to compel the runaway slave to pay that sum back to the owner, restoring the latter to his original, pre-contractual position. Where, however, there was no initial payment of money then payment of some other equivalent to the capitalised value of the service that the voluntary slave would have rendered to the owner may be ordered by the court. This may, of course, result in de facto continuing slavery if the voluntary slave is required to turn over the best part of his annual salary while working as a free individual in another occupation. But we must recall here the equivalent situation where gifts of ordinary property are made by one person to another. If A makes a gift to B, A cannot then change his mind and demand the gift back. If he takes it he is required to either return it or pay B a sum of money equivalent to its value. The decision to make the gift, contra Rothbard, binds for all of time A’s will vis-à-vis the title of that property. A does not have a right to change his mind and repudiate his decision without facing consequences. Likewise, therefore, where the property concerned is A’s own body so too will there be consequences if, having gifted that property to B, A attempts to take it back for himself. This may indicate that making a gift of one’s own body is, perhaps, gravely foolish or, at best, necessitates a thorough degree of consideration. But in terms of strict legality there is no reason to suspend the consequences that flow from A repudiating his own, freely made decision – a repudiation that would involve simply shifting a loss from himself to B.

A further element of enforcement of voluntary slave contracts is, of course, whether the voluntary slave could enforce the contract in the event that it is the owner who is the breaching party. Let us say, for example, that A agrees with B that B will pay A’s family a sum of money each month in return for A transferring ownership over his body to B. If B ceases to make these payments then A can either enforce the contract or seek to have it rescinded.

Conclusion

What we can see from all of this, therefore, is that while in terms of strict legality there appears to be no bar in libertarianism towards entering arrangements of voluntary slavery, any institution of voluntary slavery is likely to be markedly different from the institution of involuntary slavery and is fraught with many more issues and complications. Hopefully this essay has outlined and explored some of the main topics for further consideration in voluntary slavery, while revealing something of its nature and the sorts of arrangements that may be entered into (if at all) in a free society.

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¹Murray N Rothbard, The Ethics of Liberty, 134-6 (footnotes omitted).

²Walter Block, Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon and Epstein, JLS Volume 17, no.2, 29-85.

³Randy E Barnett, Contract Remedies and Inalienable Rights, Social Philosophy & Policy 4, no. 1, pp. 188-90.

⁴Rothbard, pp. 40-41.