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Thoughts on Walter Block on Voluntary Slavery, Alienability vs. Inalienability, Property and Contract, Rothbard and Evers

by on January 9, 2022

I’ve long argued that you can’t sell yourself into slavery by contract. See KOL004 | Interview with Walter Block on Voluntary Slavery.

Also: Some of my writing relevant to this topic and our discussion include:

Walter’s articles on this topic include:

I intend to write a response to Walter in the future, but I took the time to articulate some related thoughts in a private email discussion. Since I took the time to do this and these comments are restricted to just a few people, I’ll post an edited version of them here. I have summarized or anonymized the comments of others where appropriate, for context.

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In the thread, one of my friends, M, said (in effect) that breach of contract is a violation of libertarian principles—of rights, of the non-aggression principle (NAP), or similar versions of core libertarian principles.

I responded:

One minor dissent:

I don’t think a breach of contract is a violation of the NAP. In fact it is impossible to breach a contract, if you understand it as Rothbard and Evers (and I) do—see A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. Also various talks: KOL338 | Human Action Podcast Ep. 308 with Jeff Deist: Rothbard on Punishment, Property, and Contract , KOL146 | Interview of Williamson Evers on the Title-Transfer Theory of Contract, KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract.

The positive law does view contracts as promises that create binding obligations, so that if you fail to perform you have violated rights. But we are libertarians, and not bound to slavishly follow statist positive-law concepts. Rothbard and Evers have formulated a different conception of contract, one more in line with Austrian and radical libertarian thinking, namely, that contracts are not binding promises, but simply implications of ownership or property rights: contracts are simply consensual title transfers (either complete or partial/limited; permanent or temporary; conditional or unconditional) by the owner of a resource.

The contract simply specifies who the owner (rightful user) of a resource is at any moment in time, by the manifested (communicated) consent of the previous/original/default owner. Thus it’s impossible to “breach” a contract since it’s not an obligation. Instead of viewing it as a contract between A and B that is based on “promises” they make to each other that result in “binding obligations,” where if A fails to live up to his obligation, he has violated B’s rights and breached the contract and has to pay (monetary) damages to B; instead, we should look at the contract as a web of reciprocal conditional title transfers between A and B. For example B agrees to conditionally transfer $1000 to A, IF A sings at B’s party; A agrees to transfer $500 in “damages” to B IF A fails to sing at B’s party; and so on. If A doesn’t show up for the party then he has not “breached” anything, he’s simply triggered one of the specified title transfers in the contract.

The aggression would happen when, after a contractual title transfer, the person now in possession of property he formerly owned, but that is now actually owned by the other party (due to the contractual condition being fulfilled)—refuses to turn it over. that would be conversion or theft. But it’s not because it’s a contract breach.

Anyway, that’s my two cents.

In response, my friend M asked me “What’s the difference in application?”

My response:

One difference is this. If you think of contracts as binding obligations (in which case the concept of “breach” makes conceptual sense) then at first glance, it would appear that you can also sell yourself into slavery—since if you have a contract to do this, it’s a binding obligation to obey the master’s orders, and if you don’t, you are breaching the contract and violating the master’s rights. So then, you have to come up with a contorted theory to worm your way out of body-alienability (or you accept body alienability, a type of slavery).

In my conception of contract law, there is no such thing as “breach,” and there are no binding “obligations.” Then you understand contracts are merely transfers of title to things that a human actor owns. But if you then understand the basis of your ownership rights in your body is different from your rights in things you acquire (that were previously unowned) [as I discuss in How We Come To Own Ourselves], you’ll realize you cannot, via contract, “sell” your body (it’s inalienable), but you can sell things you acquired (since you can abandon or un-acquire these things). I.e., a cleaner conceptual basis for contracts avoids the voluntary slavery problem. (See also on this confusion: The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies.)

M responded that my approach seems more about semantics than an actual difference. He contends that it would suffice to simply say libertarian legal principles are violated when a contract is breached regardless of how libertarians interpret the NAP.

My response:

Libertarian principles recognize both property rights in one’s body, and in scarce resources. Aggression as a concept implies ownership in one’s body. With the basic property rights that are compatible with libertarian principles, the Rothbardian title-transfer theory flows out of it. It’s the most natural understanding of property rights and the way it works.

Libertarians often say “we oppose aggression….” and then they tack on a list of things they view as equivalents or extensions, “…and fraud. … and threats. .. and contract breach.” I think work is needed to explain why each of these is in fact a type of aggression. I have done so, for fraud, threats, and trespass against external property (How We Come To Own Ourselves; A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability; Fraud, Restitution, and Retaliation: The Libertarian Approach; The Limits of Armchair Theorizing: The case of Threats; The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression). I think you can in fact do this for fraud, and threats, but not for contract. So I would disagree that “the libertarian legal principle can also be violated by a breach of contract or a tort.” When you “breach” a contract, it simply means that one party has performed an action contemplated by the contract, which results in a certain transfer of title. I don’t think it’s a semantic difference, and I don’t think that the NAP encompasses contract-breach as a type of legally-cognizable wrong; but you may be right, that it makes little difference except in some rare theoretical cases.

M then responded: “It’s simply a matter of damages to me.  If you deny specific performance In the slavery contract, same result right?”

My response:

I think so. I would still be leery of saying that breach of contract is a breach of libertarian legal principles. The way I think about it is: since damages are always paid in money (specific performance is never awarded, except for transfers of unique property like a painting or land, which still can be viewed as title transfers not as forcing someone to do something (I discuss this explicitly and specifically in A Libertarian Theory of Contract), you can think of every contract, even under conventional legal systems, as simply having an implicit (or explicit) liquidated damages clause: if A performs, B pays A $X; if A doesn’t perform, A pays $D in damages to A.

So—and I am just throwing this out there, and trying not to derail this thread for what might be in some sense semantic, or irrelevant legal-theoretical concerns (or for something where the results are the same): maybe a way of wording it that I would agree with, and maybe you would to, would be to recognize that under libertarian law, (a) property rights, according to self-ownership, homesteading, and contractual transfer, are to be respected; and (b) contracts, meaning transfers of ownership to owned things, are to be enforced and also respected. Thus, your statement, said this: “libertarian legal principles can also be violated by a breach of contract or a tort”—perhaps, instead of saying contract breach is a breach of libertarian law, you could say something like this: “libertarian rights can be violated by crimes/torts, namely: aggression against a person’s body, or by nonconsensual use of (trespass against) his justly-acquired property (determined in accordance with homesteading and contractual title transfer).”

This is kind of unwieldy and not elegant but instead of saying breach of contract is a breach of the law, you instead say the law will respect property rights that are determined in accordance with homesteading or re-allocated by contract. So you make the contract a positive thing that re-allocates property titles, rather than failure to abide by it being a breach (a negative). But then this perhaps makes it more obviously it is kind of semantic, as you are sensing—or a way of emphasizing or framing it.

As for Walter’s disagreement [expressed elsewhere in the thread], this is a long-standing debate he and I have on this topic. I agree, contra Walter, with Rothbard’s argument for inalienability of body-rights, though I think Rothbard’s own case for this would have been cleaner and easier if he had hewed more closely to his own pathbreaking reformulation of contract law [see also here KOL146 | Interview of Williamson Evers on the Title-Transfer Theory of Contract]. I think he strayed a bit from his own path simply because it was such a bold new theory, and he was not really a lawyer, so he lost sight of a few implications of his own genius here. He did something similar when he opposed patents but tried to cobble together some argument for “contractual copyright” again, by straying from his own property and contract theories. (On this, see Against Intellectual Property, the section on “Contract vs. Reserved Rights” et pass.)

For more on my and Walter’s disagreement, see KOL004 | Interview with Walter Block on Voluntary Slavery. And now I’ll try to drop this to avoid derailing your thread further with a microscopic issue that really doesn’t separate us.

Although … I think the majority view among libertarians (I’m assuming) that contracts to sell yourself into slavery are not enforceable, versus Walter’s minority (almost singular) view of such, is an interesting test of the gray area/hard cases thing we’ve been talking about. What if 99% of communities would not enforce slavery contracts—that is, if A agrees to be B’s slave, and later on A changes his mind, when B tries to use force to punish A for disobeying, this force is viewed as aggression and is itself punished; and then Walter’s enclave does enforce such contracts: meaning, that in Blocktopia, when B uses force against his “slave” A, and A complains and sues B, the legal system doesn’t hear A’s complaint, and doesn’t regard or treat B as the aggressor that the outsiders think he is. My personal two cents would be: a given outside rescue vigilante agency would be justified in sneaking into Blocktopia to liberate A from bondage; but war by outside communities against Blocktopia would not be justified. One reason being: even if we disagree with the enforceability of slavery contracts, still, there is an easy way out of them—A shouldn’t sign one. If Blocktopia doesn’t permit people to be coerced into bondage, if someone freely signs on the dotted line, knowing that in Blocktopia this will result in their enslavement, then… although I view it as unjust and tragic, it would be very low on my list of injustices to combat, since the dumbass did it to himself.

In response to all this, one of my friends, Alessandro Fusillo, an Italian attorney and legal scholar familiar with the Roman and civil law as well as libertarian theory, and a regular attendee and speaker at PFS meetings,1 wrote:

As usual I’m with Stephan. Rothbard’s contract theory is very elegant, especially given the fact that he wasn’t a lawyer and he came up with such a brilliant idea. In fact the idea of a transfer of titles is not entirely new to the study of law but I sincerely doubt if Rothbard was familiar with these technicalities.

The problem regarding what a contract is or whence obligations come from was present already to the Roman lawyers and you can distinguish two solutions, both of whom may be found in Roman textbooks. One is the classical solution—which is still applied, for example, in Germany—where you have on the one hand a contract (exchange of promises) and on the other hand a transfer of titles. The transfer of title is abstract, it is valid even if the contract is invalid or some of the promises haven’t been fulfilled (so you have the typical Roman institutions of mancipatio, in iure cessio and the like).

If you buy real estate in Germany you will sign a contract with a notary where the seller promises to transfer the title to the apartment or plot of land and the buyer promises to pay the price. The actual transfer of the title to the property happens only afterwards with a second deed, called the “Auflassung” which is of pure Roman derivation: after the price is paid, usually in escrow on the notary’s account, the latter transfers the title to the property on behalf of the seller by means of a declaration that is received by the real estate registrar. Only after the “Auflassung” is there a transfer of the title.

The other solution, which is actually used in Italy (deriving from the Napoleonic civil code) and that is more in line with Rothbard’s idea, is the consensual transfer of title. In an Italian sale contract the property passes once seller and buyer agree on the basic points of the contract (object of the contract and price). The registration with the public registrar has the aim to make the agreement knowable for third parties but the contract is perfect and binding once the parties agree. The Romans knew this solution as well (Institutions of Gaius, 139: “A sale contract is made once the parties agree on the price, even if it still must be paid.”)

The easier solution that is used in Italy makes the theory regarding “breach of contract” much simpler. The owner of the title has the right to recover the object of the agreement if this is possible or he has a title to a certain amount of damages. In Germany the two deeds (actual contract and transfer of title) make the whole theory about breach of contract way more complicated and uselessly so.

As far as the “slavery contract” is concerned I don’t think that such a contract would be valid in a utopian world based on the NAP. Rothbard’s idea that one’s free will is inalienable is obviously correct but maybe it can be reformulated according to the following lines.

The NAP and the principle upon which it rests, namely the self-ownership, are a description, in terms of philosophy of law, of the human condition. If you want they are simply a direct derivation from Mises’ main idea of human action, the basic tenet of praxeology. Self-ownership, action and free will are axioms. Their denial would entail a performative contradiction.

Man is such because he acts, because his relationship with the external world is based on the relationship between subject (acting man) and object (the outer world or “land”). Action is only possible if you assume free will and self-ownership. Lacking those axioms there wouldn’t be any action and in fact there wouldn’t be any meaningful discussion about any argument.

Can you validly waive your right to be a human being as the result of a contract?

In my opinion this is impossible because you would imply the possibility to stipulate a contract that ends up without the two parties that were there at the beginning, two acting self-owners. In other words a voluntary slavery contract would mean the denial of the very principle that justifies even the contract itself. A transfer of title is valid only if the parties hereto are acting self-owners. So, if I sign a contract under the influence of a drug the contract is not valid because I wasn’t a competent self-owner when I did it. The NAP can function if and only if the basic human condition (that of having free will and being a self-owner) is always respected.

This is why a voluntary slavery contract would be invalid in my utopian society.

And finally, my response, which is the purpose of this post (I had to repeat all the above for context):

Alessandro: this is brilliant. Not many lawyers have an in depth, intertwined knowledge, of legal theory, Roman law, practical actual law, and radical libertarian political theory.

One addition I would make to this. Ultimately the reason slavery contracts are not valid, is because people have the right to change their mind. This stems from the fact that (a) property owners (including people’s ownership of their body) have the right to grant consent, or to deny consent, to others to use (invade the boundaries of) the resources they own. The concept of ownership (including self-ownership of body-ownership) implies this directly. But what consent means, is the most recent consent.

For example, if a man and woman have dated for some time and he has regularly engaged in the habit of giving her a nice kiss after a date, then on date number 50, when he kisses her, it’s based on implied consent—the reasonable assumption that her last explicitly granted consent is a “standing order” that he can rely on—until she expresses otherwise. It’s just the nature of language and communication itself2 —which is bound up with the notion of consent (which has to be communicated somehow) and also with the idea of local custom, default presumptions (so-called gap-filler, suppletive, or default rules), and so on.

But of course the nature of ownership, which means the owner can consent—it means that consent is determined by the “best evidence,” so to speak. If the owner has not explicitly expressed consent lately, you have to infer their intentions and consent, from things like customs, habit, previously-stated wishes, and so on. But when the owner expresses a different desire later on, that is now the “best evidence” for what their actual intentions and consent are. That is, the very nature of ownership necessarily means that the owner can change his mind—or, put another way—that the most recent expressed or communicated consent is the applicable one. This is a crucially important, and a very simple, but overlooked insight.

So if your girlfriend tells you “no” on date 50, you can’t just kiss her anyway claiming that she consented on date 49. The communication around date 49 is earlier in time and might have served as a “standing order” in the absence of a new communication, but if she makes a new one, then the most recent one takes precedence. This is all obvious and undeniable. Nothing in libertarianism says you can’t change your mind from time to time.

This is precisely why a slavery contract is unenforceable: because you have a would-be “master” trying to use the “slave”‘s body even though they [currently] object. The fact that they previously consented is irrelevant since people can change their minds—precisely because the way we determine consent is to look at what communications have been made.

The people who argue for body-alienability try to side-step this with what is in effect circular reasoning or question-begging (I’m looking at you, Walter). They say the contract is enforceable because… because .. you can’t change your mind. But why can’t you? “Well you can’t change your mind, because you made a contract.” But that is circular reasoning. You can’t argue body-contracts are enforceable because they are enforceable! Which is, in effect,

And one other additional point. Even though you cannot be bound by a previous statement of intent (a “promise”) since you can simply revise your consent with a later declaration—you have the right to change your mind—this is not so for an aggressor. If you commit aggression you have laid down the law that “it is okay to use force against someone who objects to it”, which is analogous to saying “I consent to force being used against my body, by the victim”. In this case, you, as an aggressor, do not have the right to revoke this consent, when the victim later seeks to punish you, because you cannot undo the act of aggression. That is, this is another way of saying that; when the victim “enslaves” the aggressor, he has a right to, since the aggressor is an aggressor. (For more on this, see my articles “A Libertarian Theory of Punishment and Rights,” 30 Loy. L.A. L. Rev. 607-45 (1997) and “Dialogical Arguments for Libertarian Rights,” in The Dialectics of Liberty (Lexington Books.)

But note that this does not apply to a person who merely promised to be a slave. He can change his mind, precisely because making a promise is not an act of aggression—nor is changing your mind an act of aggression. Walter would counter that the promise “is binding”—but this is merely an assertion; it’s question-begging since that is what needs to be shown. Walter would say you cannot change your mind, since you previously mouthed some words (e.g., “I promise to be your slave”). But mouthing words is not an act of aggression, so cannot justify the use of force by the promisee.

The fundamental error in Walter’s approach is that it’s circular, question-begging. He doesn’t see this because he is so used to thinking of contracts with alienable resources as being “binding promises” that “are enforceable.” But this is because he is trapped in the conventional legal positivist understanding of contract as “binding promises.” Which is surprising since he presumably agrees with core argument of the title-transfer theory of contract advanced by Evers and Rothbard, which explicitly says that contracts don’t result from “promising” but instead from a consensual title transfer.

Walter fails to see that ownership by a human actor of a previously-unowned scarce resource is different than your ownership of your body. Ownership of your body is primary, and different than ownership of external objects,3 for several reasons. First, the owned resource was once unowned and cannot be a self-owner (it is not a person, an actor, an agent). If it’s unowned at first and then comes to be owned, this necessarily means that an actor acquires it. If you can acquire it, you can “un-acquire” it—that is, abandon or sell it. It is possible to conceive of a human actor who is an actor that does, or does not, own (have a property right in) external object X. However, the person himself as an actor is necessarily a person-having-a-body. That is why you can homestead unowned things: because you are a person-with-a-body, that can roam around the earth and grapple with and control and use these resources; you can homestead them. Homesteading any unowned thing presupposes an actor who already owns his body. Therefore the concept of homesteading of your body makes no sense. That is why property acquisition, and disposition, rules for bodies, and other resources, are different. There can be no actor who can homestead an unowned body since bodies are never unowned (until death) and you can’t have a body-less actor who homesteads it. Thus, you never “acquire” your body like you acquire unowned resources, so there is no way to “un-acquire” (abandon) your body. So there is no way to “sell” it, since “selling” (in a juristic, not economic, sense) requires the capacity and power to abandon it by a communicated, manifested consent.

My two cents. But I love you Walter!

Update: An intelligent Rothbardian lawyer friend asked:

Is one’s body a category of “property”? If not, what makes a body subject to the non-aggression axiom?

My response:

See this quote from Yiannopoulos:

“Property is a word with high emotional overtones and so many meanings that it has defied attempts at accurate all-inclusive definition. The English word property derives from the Latin proprietas, a noun form of proprius, which means one’s own. In the United States, the word property is frequently used to denote indiscriminately either the objects of rights … or the rights that persons have with respect to things. Thus, lands, automobiles, and jewels are said to be property; and rights, such as ownership, servitudes, and leases, are likewise said to be property. This latent confusion between rights and their objects has its roots in texts of Roman law and is also encountered in other legal systems of the western world. Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.” A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2 [quoted here: Libertarian Answer Man: Self-ownership for slaves and Crusoe; and Yiannopoulos on Accurate Analysis and the term “Property”]

I.e., we should never say that thing is “my property”; we should say, I have a property right in the thing; I own the thing. We use the word property because the owner has a proprietary interest in the thing; it is “proper” that he be the one to control or have the say-so about use of this thing. You can think of the word property as similar to feature or characteristic—when I use a means (a tool) to do something, it becomes an extension of my will, and over time, a “property of” myself; like a characteristic of myself. If I always have at hand clothes, a watch, a knife, they are extensions of my will; properties of myself. But you would not call your watch your “characteristic” or your “feature”; you would say it’s an object you have property rights in—that you own.

So. The question is never are bodies a category of property. Likewise, people say “are ideas property”? That is not the question. The question is: what things are ownable? Obviously, since force can only be used to apply to material things, and law and rights are enforceable, only material things can be objects of property rights. And any material thing—any scarce, rivalrous resource—any thing over which there can be conflict—can be assigned an owner by a property system. So we say: when you identify scarce resource (a conflictable [my term], rivalrous thing), the only question is, when there is a dispute over the use of this thing—who has the say-so? Who is the owner of this thing? Who has a property right in this thing?

Obviously there can be disputes and conflict over human bodies, so the only question is: who has the right to consent, or deny consent, to use the body? The libertarian answer is: the person himself. That means you, the person, the actor, the agent, have a property right in your body; you own your body. This is just another way of saying that you are the one who has the right to grant consent, or deny consent, for someone else to use or touch or invade your body or alter its physical integrity. See on this How We Come To Own Ourselves and Hoppe on Property Rights in Physical Integrity vs Value. This is all perfectly Hoppean-Rothbardian, just made a bit clearer. But yes, it’s aggression to materially alter the physical integrity of another’s body without his effective consent, precisely because when the aggressor does this, he lays down the rule “it’s permissible to invade another’s body over his objections” meaning that retaliation by the victim, against the aggressor, is itself justified. But it’s important to understand something here: contra the way most people think about this, when they bother to try to think about it, the justice of enforcing your bodily rights does not flow from the fact that you own your body. It’s the other way around: because we can demonstrate that a person is justified in using force against an aggressor (for the estoppel/argumentation ethics type reasoning alluded to above), that demonstrates that we are self-owners (more precisely: body-owners). Or, to put it another way, saying you own your body is just another way of saying that invasion of your body’s borders by another is unjust, i.e,. may be outlawed.

The thing is, you come to own your body in a different way (direct connection) than you come to own previously-unowned scarce resources (homesteading or contract). You can sell external objects that you own, because you acquired them. So people start to think that “ability to sell” is an incident of ownership. It’s not. It’s only an incident of ownership of acquired things.

Moreover, the domains of economic and juristic analysis are separate but people conflate them by using the same word, e.g. “sell,” in an equivocational way: in economics, to say you “sell” something—say, your labor—is just a concise way of describing or identifying (characterizing) the motives of your action. When we see A perform labor for B and B hands A an apple, we want to characterize what we observe as actions (teleological) not as mere causal behavior, so we need to consider A and B as human actors who are functionally similar to our selves, and we know from introspection that we have values, and thus ends and goals, and that we choose these goals, and thus we use our understanding and knowledge to choose (select) causal means to achieve those ends. So we attribute a similar praxeological structure to A and B, in order to understand them. This is all wertfrei, purely descriptive economic analysis: so we explain that A performed labor for B, to induce B to give the apple to A. So we assume A’s end was “to get the apple” and the means to achieve it, was to satisfy B by doing what B wanted; B, in turn, his end was “getting A to labor” and the means to achieve it was to give A the apple that he desired. So “sell” just is a way of identifying, economically, the means-ends structure of the actors in an exchange.

Legally, however, sell means to transfer title, and in the case above, there is only one title transfer: that of the apple B gave to A. A didn’t transfer title of labor to B because nobody owns labor, or action. Action is what you do with things you control or possess (and hopefully own),

Just as there has been immense confusion wrought by Locke’s labor theory of property, leading to the confused idea that labor is an ownable substance, and the similarly confused cousin-concept of the labor theory of value of Smith, Ricardo, and then Marx and communism/socialism–so there is confusion by people not carefully distinguishing between the realms of phenomenon under investigation.

If A (economically) “sells” his labor to B to get an apple, economic analysis just tells us the motivations of each actor, to help explain their action’s structure. It aids in understanding. But juristically, there is only one title transfer. (Juristically, you can call the labor sale a sale under conventional positive law, because contracts are considered to be reciprocal, conditional binding promises/obligations. But this is mistaken, per Rothbard and Evers; see my A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, Journal of Libertarian Studies 17, no. 2 (Spring 2003): 11-37.) And this is why it’s not true that owning something (juristically) implies you can (juristically) sell it; and why selling something (economically) does not imply that you own it. See The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies, StephanKinsella.com (June 2, 2018) and “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” The Libertarian Standard (Oct. 25, 2022). Remember, the goal of action is rarely the obtaining of title to an ownable thing. It is usually simply the achievement of a future state-of-affairs that otherwise would not have existed without the actors action (causal intervention) to create a different future, a different universe than otherwise would have occurred; so in a sense, all human actors are little demi-gods creating new universes; and when different actors’ plans conflict, one has to lose—this corresponds to profit and loss, which is permissible on the free market, or, in some cases, to physical conflict, which property rights aim to minimize.

You could have A and B (economically) exchange labor: I fix your sink in exchange for you giving me a massage. You can say economically that I sold you my labor and vice versa, but this is really just a convenient way to explain our motivations, so as to properly characterize the means-ends structure of our actions, to aid in understanding. Again, positive law would call this a legal sale too, but that’s because it views contracts as binding obligations arising from promises, as opposed to title-transfers that stem from manifestations of consent of an owner of an alienable thing. But note that positive law doesn’t really have positive obligations; it simply treats failure to perform the obligation as a “breach” that gives rise to an award of monetary damages—in other words, a title transfer.

And finally, if A and B do a contemporaneous economic and legal “exchange” of two owned objects, say A sells (economically and juristically) a pair of shoes he made, to B, for B’s chicken. In this case, the “sale” concept for both realms—economic and juristic—correspond. But they don’t always; in fact, I would say they usually don’t. It’s relatively rare that they do, since many contracts have one of the parties perform a desired action instead of transferring title to something, just as most actions are aimed at an end that is not the acquisition of ownership of an alienable resource.

Update:

Walter sent me his 1969 paper on Voluntary Slavery and it spurred me to make some further comments, on this Facebook post:

Rothbard somewhat mangled the argument against voluntary slavery (Walter Block’s position) because he didn’t follow his own contract theory to its logical conclusion and because of this error (from MES): ““when a debtor purchases a good in exchange for a promise of future payment, the good cannot be considered his property until the agreed contract has been fulfilled and payment made. Until then, it remains the creditor’s property, and nonpayment would be equivalent to theft of the creditor’s property”.

Suppose it is money that is loaned, by the creditor-lender A to the debtor-borrower B. Why is it given to him? To SPEND on some project. For example B has to pay C for supplies to start his snow-cone stand. B pays C with money he borrowed from A. B has to own the money 100%, unconditionally, to do this. A knows this. That is why Rothbard is wrong that the money remains A’s until B repays it. That would make no sense. The way B repays A the money lent plus interest, is to use it in some business venture, hopefully at a profit. He has to own the money outright to be able to use it.

Rothbard has lost sight here of the standard libertarian principle that property rights must always answer NOW what someone is able to do. The ownership of objects now, can’t depend on a later thing to happen, otherwise no one could ever act. This mistake leads Rothbard to assume that debtor’s prison is in principle justifiable (he says this in Ethics of Liberty, the contract chapter); but then to wriggle out of it he says that would be disproportionate punishment.

Elsewhere Rothbard says voluntary slavery contracts are unenforceable because it is impossible to alienate the will. As he states this, it’s not quite right: it doesn’t matter if you alienate your will; you can be a slave without alienating it. The master could have a legal right to punish and harm you, to coerce you into obeying orders. After all when we jail a criminal-aggressor, we are in effect enslaving him even though he still has his will.

I think though Rothbard dimly glimpsed here the real solution later stumbled across by his student Hoppe and that I found in researching my article “How We Come To Own Ourselves“, where Hoppe pointed out–in a German language passage that he happened to mention to me in a conversation about these matters, that I asked him to translate for me–that the basis for ownership of your body is not homesteading/original appropriation, as with a previously-unowned, external scarce resource, but your *direct control* over it–i.e, your will. And as I argue in “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability“, plus the How We Come To Own Ourselves article–the reason a voluntary slavery contract is unenforceable is that you can change your mind (as Rothbard alludes to in MES:

“It is true that man, being what he is, cannot absolutely guarantee lifelong service to another under a voluntary arrangement. Thus, Jackson, at present, might agree to labor under Crusoe’s direction for life, in return for food, clothing, etc., but he cannot guarantee that he will not change his mind at some point in the future and decide to leave. In this sense, a man’s own person and will is “inalienable,” i.e., cannot be given up to someone else for any future period.”

It is true that an alienation of the will is not needed for slavery be practiced; but I think the best way to construe this passage is that Rothbard sees that the core of self-ownership stems from the fact that you have a will–i.e., Hoppe’s later insight that your direct control over your body–your “will”–is what establishes the link that gives you ownership of your body, a better claim than anyone else. And this is why you have a right to change your mind; when a master seeks to impose force on you, you can say “no”; and the reason you can say no, and change your mind, is that your previous “promise” did not give rise to a binding obligation (as Rothbard also argues in his contract theory in Ethics of Liberty) and it is not an act of aggression. The slave would have to have committed an act of aggression against the master to justify the master using force against the slave.

[Update: Rothbard is even clearer about this in Ethics of Liberty: At first he says:

“The right of property implies the right to make contracts about that property: to give it away or to exchange titles of ownership for the property of another person.”

This seems to imply that ownership implies the right to sell, and since we own our bodies, then voluntary slavery contracts are legitimate. See The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies. But later he backs off this broad claim and says that it is only alienable property that has this feature–that the owner can sell it:

“The basic reason is that 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.”

However, one’s body cannot be alienated because one’s will cannot be alienated; one is “stuck” with it. This implies that having your will–that is, direct control of your body–is the basis for your ownership claim to your body, as Hoppe explicitly argues later, though it is only an implication in Rothbard:

“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.”]

Walter wants to argue that the force is justified because the slave previously consented; but that is not the relevant consent. The relevant consent is the most recent. As I argued [above]

See on some of this an early piece by Walter in 1969. [above] He there erroneously states, “There is much merit in the saying ‘If you can’t sell it, you don’t really own it.'” This is Walter’s mistake — see my post “The ‘If you own something, that implies that you can sell it; if you sell something, that implies you must own it first’ Fallacies“– plus he is misled by Rothbard’s errors noted above.

***

Update: In an email exchange (June 4, 2022), Walter hit me with the hypo he has used many times to argue for voluntary slavery:

We both have sons we love. If the only way to save my son’s life was to sell myself into slavery, I would do so. Would you do so for your son? But under your view, such contracts would be invalid, and my son would die. You’d accept this law prohibiting voluntary slavery even though your son would die (under these weird assumptions) as a result of this ban since no one would then buy you as a slave?

My response (lightly edited here):

Walter, I don’t see that this is an argument that you alienate your rights to your body just because you mouthed words. We both agree that B is justified in using force against A’s body ONLY (a) if A consents, OR (b) if A has committed aggression against B.

If A promises to be B’s slave, that is not an act of aggression, so we can’t rely on (b). Saying words is not aggression.

And if A objects to B’s use of force against him then A is not consenting, so we don’t have (a).

Here is how you could respond to these two arguments.

  1. you could say it is aggression for A to renege on his promise, since he gave B his body. But this is circular and question-begging, as I assume you would agree, since it presupposes body-alienability, which is the issue in question.
  1. You could say that A consented previously to B’s force. But the problem here is you are ignoring the fact that A at the time of the aggression, does not consent. You have to say A can’t change his mind. But that is also circular and question-begging, since it presupposes body-alienability, which is the issue in question.

When we say B’s touching A is not aggression because A consented, we are assuming a few things: A is the owner of his/her body, and A has the right to grant permission, or to deny permission, for B to touch A’s body. And that A has communicated in a sufficiently public and unambiguous manner that A consents or grants permission to B. But the communication issue presupposes that you can have a standing order, or that you can change your mind. If a girl A tells her date B he can kiss her later, when he walks her to the door, and then later on he kisses her, he has her consent because that’s the last thing she communicated and we have no reason to think she changed her mind. But she could change her mind.

You have to argue that once you utter words of permission they somehow bind yourself for the future and you can’t change your mind. But this is also circular and question-begging since it presupposes body-alienability, which is the issue in question.

So I don’t see your hypo as an argument. It’s just positing a scenario where you wished you had the right to bind your future actions. But you don’t have that power or capacity, so… so what?

  1. See, e.g., Alessandro Fusillo, State-Making as War-Making: The Case of Italy (PFS 2021). [↩]
  2. For a related discussion of the possibility of communication absent trademark and IP law, see Reply to Van Dun: Non-Aggression and Title Transfer, pp. 61–63. [↩]
  3. In fact, as Hoppe argues, “One is not used to thinking of one’s own body in terms of a scarce good, but in imagining the most ideal situation one could ever hope for, the Garden of Eden, it becomes possible to realize that one’s body is indeed the prototype of a scarce good for the use of which property rights, i.e., rights of exclusive ownership, somehow have to be established, in order to avoid clashes.” A Theory of Socialism and Capitalism, ch. 2. [↩]
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Kinsella profile-head - 1Stephan Kinsella is a libertarian writer and patent attorney in Houston, Texas. He has spoken, lectured and published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His  publications include Legal Foundations of a Free Society (Papinian Press, 2023) (see below), Against Intellectual Property (Mises Institute, 2008), and International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020).

 

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