Should Libertarians Support Slavery?

Should those who call themselves “libertarians” object to people contracting themselves into slavery? If so, are they right? 

I forgive you for thinking that this is a stupid question. Isn’t libertarianism about maximizing liberty, and slavery the antithesis of liberty? Yes and no. Ordinary language would suggest that libertarianism should indeed be about increasing liberty, constrained only by the most pressing claims of other values. Slaves had very limited choice sets for the direction of their lives and day by day. An increase in the choice sets of each and every person is a chef goal of some us who think of ourselves as libertarians. We, however, often need to use such phrases as “left libertarian” or “positive libertarian,” or “opportunities libertarian” to distinguish ourselves from those who are now commonly called “libertarians.” 

The latter might less misleadingly be called “negative libertarians,” or in some cases “corporate libertarians” or “anarcho-libertarians.” Taking some risk of lumping together the disparate, we can think of them all as “right libertarians.” For the remainder of this essay, however, I will follow popular culture and call these right of center ideologues, “libertarians.”

This libertarianism is not at all about maximizing or increasing liberty. More nearly it is about minimizing human, especially state, interference with certain favored liberties. (For much more on this see my book Positive Liberty.)

Libertarians, I concede, denounce chattel slavery as in the antebellum US. Being a South Carolina slave was the result of a kidnapping or of having a slave mother who had been kidnapped or whose mother’s mother had been kidnapped . . . Kidnapping is one of the sorts of infringements on the freedom of movement that libertarians universally condemn. So, this sort of slavery is out. 

You might project that libertarians must be staunch enemies of any and all forms of slavery? Not so fast.

Libertarians tend to believe that their relationship to their own living body is one of ownership and generally think of this particular ownership right as inalienable. Their property theory of personal rights seriously understates the normative relation between persons and their bodies. (See Conjectures & Arguments, Philosophy & Law: April 2016 (lawrencecrocker.blogspot.com). Perhaps the wrongheaded property metaphysics of some libertarians does hide the cyst of a pro-slavery bacillus. I will not, however, involve us in those issues here. Instead, I will assume that no libertarian would believe that one can literally own another person.

Someone who thinks that resort to dictionaries can decisively settle disputes about moral and political values might say at this point that my charge against the libertarians must be dismissed because slavery, by definition, is a matter of ownership – of having a legally cognizable property right in the slave. The evidence bearing on this meaning claim would be muddled at best in that a great deal that is called “slavery” does not involve legal ownership. In any event, my contention is that it is possible to produce a state of affairs that includes what we most hate about slavery without the slave’s being the master’s property.

Slavery, I concede, requires an extreme contract, but it could be, I argue, a contract consonant with libertarian theory. The right to enter into contracts, and in particular the right to enter into labor contracts, has always been a key libertarian right. Coercive contracts are void, but libertarians do not typically count a labor contract as coercive merely because signing on was the only way the worker could prevent her family from starving. One of the most obvious characteristics of libertarians is a great generosity towards rich and powerful contracting parties on issues of contract formation and the validity of dubiously conscionable terms. (Some libertarians would recognize the invalidity of a “take it or starve” contract if the employer were responsible for the threat of starvation in a sufficiently direct way.) Fraudulent labor contracts are, of course void, but, again, libertarians tend to be very sparing in finding materiality in falsehoods uttered by moneyed side in negotiations.

What I want you to consider is a labor contract that not even the most tender hearted would consider coercive and that in which the person selling his labor has full knowledge of everything that any reasonable person would think material to deciding whether to enter the contract. It is the model of a contract freely entered into and for that reason into it would not fall out of libertarian favor because of the number of hours of labor per day or the number of days per year or the number of years, or indeed of the perpetuity of the contract. (If your imaginations strains at this task, put that aside for now. It will be addressed in my final paragraphs.)

Slavery, of course, is more than onerous labor. The master has a right to tell the slave where to be, what to do, and what not to do not just when actively working for the master but at every moment of every day. Assume, however, that the slave is not ordered to do anything that a libertarian would regard as actually criminal or tortious. The whole business, of course, might well be unlawful under laws libertarians consider illegitimate, e.g. those governing wages and hours, safety, and the like, but that would not make it libertarian-invalid.

With these crime/tort exceptions, I don’t see how the libertarian can object to any detail of the contract so long as it is genuinely freely entered into and, recall again, that libertarians are not at all demanding when it comes to this voluntariness condition. I have never heard of libertarian objections to the practices of even the most rigorously of regulated monastic orders, so long as the monks or nuns had full knowledge in advance of what they were getting into – a condition typically supposed to be satisfied by a novitiate period.

That the contract permits the master to punish the worker, even corporally, need be no problem. Libertarians believe that the prohibition against assault can be contracted around. Think of heart surgery, of ultimate fighting, and of consensual sadomasochism. If voluntary contracting does not extend to permission for the application of bull whip to ditch digger’s back, we need an explanation why not.

So almost all of conduct of the 1840 Mississippi slave owner towards the field hands can be contractually sanctified pursuant to libertarian contract doctrine (excluding only the masters’ rights over the children of slaves.)

Will the libertarian support for contractual slavery stop when it comes to state enforcement? It would depend, I think, on the kind of enforcement. The libertarian would have no problem awarding damages under standard contract theory if the slave breached the contract and walked away. I do not anticipate that the libertarian would become squeamish if the court ordered a garnishment of the ex-slave’s future income that would leave her living on a shoestring.

Where the libertarian would draw the line, I think, would be at criminal proceedings or mandatory injunctions to hold the slave to his bargain. Here we, again, return to the definitional objection.  I can almost hear a libertarian chorus: “Only the state can create slavery. No fugitive slave law, no slavery.”  (It is something like the libertarian claim that if only the state would keep its hands off the economy, there would be no monopolies.) They might suggest, instead of “slaves,” “perpetual omni-service workers.”

That it should make all the difference in the world to liberty whether the voluntarily enslaved absconder is brought back by the sheriff or by a private security firm would be just one of the consequences of the insistence on certain definitions by libertarianism that, I hope, strikes you as paradoxical.

In any event, those who would abscond in breach of their contracts might well be recovered without state action. The master might ride them down by horse or ATV before they had left his land. The rights of property for the libertarian, are easily strong enough to support the validity of that term in the contract. Indeed, I see no reason the libertarian would balk at a term that would permit private persons to effect a forcible recovery anywhere. Bounty hunters would be a possibility. Alternatively, an association of masters might fund a private recovery force. Just put permission to be apprehended by such into the contract.

Private recovery of absconders might be every bit as effective or more effective than state enforcement of a fugitive slave law. Libertarians might still resist calling it “slavery” harkening back to the fundamentals of their understanding of liberty. It is not important for liberty, as they theorize it, what a person can choose to do. There is no loss of liberty unless a person is prevented by the state or another person from doing what she has a right to do. Having voluntarily agreed to be apprehended by private persons upon absconding, the bounty hunters infringe no right of hers. There is no violation of contract, and for that reason there is no debit of liberty and no slavery. Assuming the voluntariness of the contract, it’s all fine.

Here, again I hear a libertarian voice. This time it is almost screaming:

Your assumption that such a contract could possibly be voluntary is nuts. You convict us of theoretical support for what you are pleased to call “slavery” by foisting on your readers an utterly farcical hypothetical. You ignore the fact that free markets, unimpeded by the interference of the state, will never leave workers truly destitute. If you had any understanding of the economics of a libertarian society you would know the impossibility of your imagined “voluntary” accession to a contract of, what we agree, would look something like slavery.

If they were correct in this, it would be a fair, though only a partial, objection. The libertarians would not be at the slightest risk of actually sanctioning contracts of the sort I imagine. Still, the thought experiment would show something important about the underlying values of right libertarianism.

The “utter impossibility” accusation, in any event, is overstated. That there cannot be desperate poverty except as the result of state action is a theorem of economic models based on stunning oversimplifications and breathtakingly naïve assumptions. Real world evidence is strongly to the contrary.

Moreover, it is not necessarily only the dangerously poor who might enter into one of these slavery contracts. Those with very highly remunerated talents, which talents have limited half lives, might do so as well. The basketball player or operatic soprano might conceivably sign such a contract for a huge upfront payment, one purpose of which would be to raise immediately and dramatically the living standard of family members. The prudent athlete or diva would also squirrel away a large nest egg for later purposes as will emerge.

The master during the life of the contract, of course, collects all of what the star would otherwise have earned. The contracted-out slave was not so uncommon before the Civil War, especially in Virginia. Neither the basketball player nor soprano would have to worry about being sent out to dig ditches. To keep their market value up their masters will have to be careful of their training, health, and psychic wellbeing. When the Achilles tendon ruptures or the voice fails, the slave might well just buy out the contract. This should be possible at a reasonable figure as the income stream that was the master’s motivation in contracting will have all but dried up. Even under US chattel slavery some few slaves were able to buy themselves out of slavery. Unless and until they are able to buy out their contracts, however, contract-based slaves remain slaves.

Our basketball player and soprano might be able to achieve all their goals in entering into a slavery contract through such alternatives as loans, insurance, more exotic financial instruments, or some combination thereof. Perhaps. Still the occasional soprano or ball player might choose the slavery contract for reasons well or poorly thought out. The libertarian should have no objection, and that, I think, is a sign that their values and understanding of liberty are askew.

Any voluntary choice that does no impermissible harm to others has moral weight. But when a choice, however voluntary, would alienate a great part of the person’s universe of future choices, ending their autonomy, a society really concerned with liberty would hold it void. Slavery by contract would be slavery, and unacceptable to real libertarians, whatever those who usually call themselves "libertarians" might think or, without thinking, be committed to by their fundamental doctrines.