However, are you sure that you understand just how radical the above statement is? The libertarian theory of contracts—that you should have full freedom to enter any voluntary contract as far as your own property and rights are concerned—sounds appealing in the abstract. (Robin Hanson would probably say “in far mode.”) Yet on closer consideration, it implies all sorts of possible (and plausible) arrangements that would make most people scream with horror.
In any realistic human society, there are huge limitations on what sorts of contracts you are allowed to enter, much narrower than what any simple quasi-libertarian theory would imply. Except for a handful of real honest libertarians, who are inevitably marginal and without influence, whenever you see someone make a libertarian argument that some arrangement should be permitted, it is nearly always part of an underhanded rhetorical ploy in which the underlying libertarian principle is switched on and off depending on whether its application is some particular case produces a conclusion favorable to the speaker’s ideology.
What sort of examples can you bring up of custom marital contracts that would make people scream in horror? My guess is that people would generally feel queasy about allowing legal enforcement of what looks like slavish or abusive relationships. I think this would be a genuine cause for concern, not because I don’t think that people should be able to enter whatever relationships please them in principle, but because in practice I’m concerned about people being coerced into signing contracts harmful to themselves. Not sure where I’d draw the line exactly; this is probably a Hard Problem.
I simply want more freedom to do things in ways that suit me and the other person as long as it doesn’t harm anyone else. There may be gotchas and necessary qualifications once you get into the details, but the basic idea I think is hardly outrageous; surely there is at least room to move from the current stale state of affairs in that direction.
So I guess I don’t believe the statement I quoted earlier entirely without qualification. Still, I like it because it recognises the fact that the current situation with marriage is ridiculous and it doesn’t, in principle, have to be that way. That recognition, as opposed to taking existing absurdities for granted without even thinking about them like most people do, is what I was referring to as a rare dose of sanity:
“Yes,” Harry said. “It’s what you do to bad teachers. You fire them. Then you hire a better teacher instead. You don’t have unions or tenure here, right?”
Fred and George were frowning in much the same way that hunter-gatherer tribal elders might frown if you tried to tell them about calculus.
“I don’t know,” said Fred after a while. “I never thought about that.”
“Me neither,” said George.
“Yeah,” said Harry, “I get that a lot.
Your second paragraph serves… I’m not sure what purpose. To tell me that the idea is politically unfeasable? I know that.
I think this would be a genuine cause for concern, not because I don’t think that people should be able to enter whatever relationships please them in principle, but because in practice I’m concerned about people being coerced into signing contracts harmful to themselves. Not sure where I’d draw the line exactly; this is probably a Hard Problem.
Well, there you go. Any restriction on freedom of contract can be rationalized as preventing something “harmful,” one way or another.
And it’s not a hard problem at all. It is in fact very simple: when people like something for ideological reasons, they will use the libertarian argument to support its legality, and when they dislike something ideologically, they will invent rationalizations for why the libertarian argument doesn’t apply in this particular case. The only exceptions are actual libertarians, for whom the libertarian argument itself carries ideological weight, but they are an insignificant fringe minority. For everyone else, the libertarian argument is just a useful rhetorical tool to be employed and recognized only when it produces favorable conclusions.
In particular, when it comes to marriage, outside of the aforementioned libertarian fringe, there is a total and unanimous agreement that marriage is not a contract whose terms can be set freely, but rather an institution that is entered voluntarily, but whose terms are dictated (and can be changed at any subsequent time) by the state. (Even the prenuptial agreements allow only very limited and uncertain flexibility.) Therefore, when I hear a libertarian argument applied to marriage, I conclude that there are only two possibilities:
The speaker is an honest libertarian. However, this means either that he doesn’t realize how wildly radical the implications of the libertarian position are, or that he actually supports these wild radical implications. (Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery. How can one oppose the enforcement of this contract without renouncing the libertarian principle?)
The speaker has an ideological vision of what the society should look like, and in particular, what the government-dictated universal terms of marriage should be (both with regards to the institution of marriage itself and its tremendous implications on all the other social institutions). He uses the libertarian argument because its implications happen to coincide with his ideological position in this particular situation, but he would never accept a libertarian argument in any other situation in which it would imply something disfavored by his ideology.
And it’s not a hard problem at all. It is in fact very simple: when people like something for ideological reasons, they will use the libertarian argument to support its legality, and when they dislike something ideologically, they will invent rationalizations for why the libertarian argument doesn’t apply in this particular case.
I would like to point out that the above reads just as well with both instances of the word “libertarian” removed.
I conclude that there are only two possibilities: 1. The speaker is an honest libertarian. [...] 2. The speaker has an ideological vision of what the society should look like [...] He uses the libertarian argument because its implications happen to coincide with his ideological position in this particular situation, but he would never accept a libertarian argument in any other situation in which it would imply something disfavored by his ideology.
While I agree that strict adherence to libertarian principles is rare, it does not therefore follow that most appeals to libertarian principles are merely opportunistic argumentative ploys. Libertarianism is a continuum, not a boolean; it seems to me that people can simultaneously have both an ideological attachment to some particular vision of what they want society to look like, and also an ideological attachment to libertarianism, and that these conflicting desires get traded off against each other in some proportion. The end result is that people end up saying, “People should be free to do whatever they like, except x_1, x_2, … x_n, which are obviously harmful.” I agree with you that the x_i are not chosen on any sort of neutral, principled basis, but that only means that libertarian arguments have limited force, not no force. There are some things I disapprove of so strongly that I want them to be illegal, but that doesn’t mean I want everything I disapprove of to be illegal.
Libertarianism is a continuum, not a boolean; it seems to me that people can simultaneously have both an ideological attachment to some particular vision of what they want society to look like, and also an ideological attachment to libertarianism, and that these conflicting desires get traded off against each other in some proportion.
I agree that this is possible in principle, but from what I observe in practice, libertarian arguments have extremely low weight in such trade-offs, except for the tiny minority of principled libertarians, who form a small and reasonably well-delineated cluster. When it comes to issues that are otherwise neutral and uncontroversial, people will normally default to the libertarian position. However, as soon as an issue has any bearing on ideology, tradition, religion, ethnic identity, political power, economic interests, status hierarchy, etc., etc., people normally assign near-zero weight to libertarian arguments, except insofar as they provide useful material for unprincipled rhetorical ploys.
This is especially true for the whole enormous cluster of controversial topics that involve sex, reproduction, marriage, and family. This is in part because these topics involve many questions of grave importance on which libertarian theory completely breaks down and can’t provide any sensible answers. (For example, what should be the mutual rights and obligations between parents and children? What should be the legal age of consent? What constitutes valid adoption? What’s the legal boundary between abortion/infanticide and murder? And so on—you can squeeze out only tortured answers from libertarian principles, and yet some answers must be agreed upon, and it matters a great deal what they will be.)
However, even more importantly, the social norms on these topics in all human societies are especially heavy on what Jonathan Haidt identifies as the moral foundation of “sacredness.” Again excepting the small fringe of libertarians, on these topics, none of the contemporary ideological groups takes seriously arguments based on libertarian principles, or even on cost-benefit analysis—except insofar as such arguments may provide useful rhetorical ammunition for promoting their sacredness-based norms. (And when such arguments give answers contrary to people’s sacredness intuitions, they tend to perceive them as shockingly vile or insane.)
I agree that this is possible in principle, but from what I observe in practice, libertarian arguments have extremely low weight in such trade-offs, except for the tiny minority of principled libertarians, who form a small and reasonably well-delineated cluster. When it comes to issues that are otherwise neutral and uncontroversial, people will normally default to the libertarian position. However, as soon as an issue has any bearing on ideology, tradition, religion, ethnic identity, political power, economic interests, status hierarchy, etc., etc., people normally assign near-zero weight to libertarian arguments, except insofar as they provide useful material for unprincipled rhetorical ploys.
This seems exaggerated to me (although I agree that the tendencies you mention exist and are significant). Consider, for example, the famous incident in which the American Civil Liberties Union defended a Nazi group’s right to demonstrate. The ACLU was and is a non-fringe organization, and likewise, the position that “Nazism is despicable, but freedom of speech and assembly is more important than silencing Nazis” is reasonably mainstream in the United States. Similarly, the idea that “Drug use is bad, but marijuana should be legal” seems not-uncontroversial but also non-fringey.
Fair enough—I agree that’s a valid counterexample to my thesis. (I do think, however, that you overestimate the amount of principled support for free speech in the contemporary U.S. For many of its defenders, it’s a matter of strategic expediency, since they are not confident that, if speech-restricting precedents were established, their side would win the subsequent political battles over whose favored speech restrictions would get instituted. In particular, many prominent ACLU-affiliated people don’t seem to have any problem with the existing speech restrictions in places where their co-ideologues are firmly entrenched in power, even though they wouldn’t want to establish a legal basis for such restrictions in the U.S., at least for now. But I do agree that this is one issue where there is some serious weight given to libertarian principles in the mainstream discourse.)
(I should maybe also add that I don’t live in the U.S., which is a pretty extravagant outlier when it comes to the attitudes and legal norms regarding free speech, so the example didn’t occur to me readily.)
That said, I still think my comments are valid when it comes to the issues of sexuality, marriage, etc. Here I really see an ideological clash fundamentally motivated by incompatible sacredness norms, with all other considerations, including libertarian principles, entering the debate only insofar as they provide useful rhetorical ammunition.
This seems exaggerated to me (although I agree that the tendencies you mention exist and are significant). Consider, for example, the famous incident in which the American Civil Liberties Union defended a Nazi group’s right to demonstrate. The ACLU was and is a non-fringe organization, and likewise, the position that “Nazism is despicable, but freedom of speech and assembly is more important than silencing Nazis” is reasonably mainstream in the United States.
There’s not much danger of the Nazis convincing non-negligible numbers of people, so this is a cheap way to signal one’s support for freedom of speech. Call me when the ACLU is interested in protecting the right of pro-life groups to demonstrate outside abortion clinics.
Similarly, the idea that “Drug use is bad, but marijuana should be legal” seems not-uncontroversial but also non-fringey.
My understanding is that most of these people actually hold the position that “use of certain drugs is bad, but marijuana isn’t one of those drugs”.
And it’s not a hard problem at all. It is in fact very simple: when people like something for ideological reasons, they will use the libertarian argument to support its legality, and when they dislike something ideologically, they will invent rationalizations for why the libertarian argument doesn’t apply in this particular case.
I don’t think you’re solving the same problem that I am.
You seem to think (and based on your upvotes, people seem to agree for some reason) that a cynical summary of the ideological landscape is somehow an answer to anything. And sure, that is not a hard problem. I’m more interested in actual solutions and their consequences than in why people argue for them: what happens if we increase freedom thus and thus, how will this affect society and what harm will come from it as side effects?
Also I find it grating when everything gets summed up as ideology and politics. Do people only ever claim to want more freedom because they happen to be pushing some particular ideological agenda? I don’t know, but personally I dislike limitations for which there isn’t a good enough reason. I first started thinking about this when I was considering getting married, not when I was thinking about politics.
Likewise, are all objections to increase in freedom rationalisations? Again, I find this offensive cynicism. Maybe someone’s done the math or seen how it works in another country, and sees real negative consequences?
I’m more interested in actual solutions and their consequences than in why people argue for them: what happens if we increase freedom thus and thus, how will this affect society and what harm will come from it as side effects?
If I am reading you correctly, you now seem to be saying something very different from your original comment that prompted this exchange. Yes, I certainly agree that it’s a fascinating intellectual exercise to speculate on what would happen if various restrictions on freedom of contract were relaxed, in this context as well as others. However, your original comment went far beyond that—it expressed enthusiastic support for a sweeping and blanket elimination of such restrictions, going so far as to equate such support with “sanity.” Yet as I pointed out, such sweeping relaxation would, in turn, have straightforward implications that the entire mainstream public opinion nowadays would consider insane—which position may be wrong, to be sure, but that would still make it odd to oppose it as if you were asserting something obvious and uncontroversial. I thought it would be interesting to seek some clarification on this point.
I clarified these things in my first response to you. I conceded that I don’t support that statement without qualification, and clarified what exactly I found so sane about it despite that.
(Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery. How can one oppose the enforcement of this contract without renouncing the libertarian principle?)
Personally I’d be okay with the flogging version. Some people are into that sort of thing. As for death… legitimate governments generally consider murder a fairly serious crime, and refuse to enforce contracts which would require illegal activity of the signatories. I’m comfortable with having the libertarian principle superceded by criminal law. The interesting part of the question is: is there any choice a person should be allowed to make about their self or property, where they should not have the option of committing to a specific choice in advance as part of a contract?
[L]egitimate governments generally consider murder a fairly serious crime, and refuse to enforce contracts which would require illegal activity of the signatories. I’m comfortable with having the libertarian principle superceded by criminal law.
Read literally, this means that you’re OK with any violation of the libertarian principle, as long as this violation happens to be formally codified as part of the criminal law. Is that really your position?
In short, yes. I also think that the range of activities covered by criminal law should be greatly reduced, e.g. possession of potentially dangerous pharmaceuticals should not be something people are imprisoned for.
The interesting part of the question is: is there any choice a person should be allowed to make about their self or property, where they should not have the option of committing to a specific choice in advance as part of a contract?
A person can work for the benefit of another at the other’s direction without receiving remuneration, but he can’t contract into becoming the other’s slave—that is, despite being free to act the part. Would you repeal the 13th Amendment, which outlawed slavery?
I was asking, not answering. Trying to point out a more interesting gray area, rather than standing back and accusing each other of unreasonable extremes. Where would you draw the line between “acting the part” and actual slavery?
Personally I’d be okay with the flogging version. Some people are into that sort of thing.
I don’t know of anyone who’s into serious, blood-down-the-back flogging, although I’m not confident there aren’t any, but supposing they are, doesn’t that render it meaningless as a disincentive?
Even someone who regards the process itself as pleasurable or spiritually satisfying could logically recognize it as inconvenient, or prefer it in certain quantities at certain times. Compare, say, two people making a bet wherein the loser has to eat half a gallon of icecream in one sitting.
Or, perhaps they expect to engage in adultery and feel guilty about it, but want the relationship to continue in such circumstances, so the flogging is a way to discharge those guilty feelings and get on with things.
Off-hand, I’d say not. What makes that the interesting part of the question, though? I don’t know anyone who objects to the existence of voluntarily entered-into contracts, merely to the idea that they supersede or obviate the need for other social/legal/governmental mechanisms.
The interesting part of the question is: is there any choice a person should be allowed to make about their self or property, where they should not have the option of committing to a specific choice in advance as part of a contract?
Off-hand, I’d say not.
Really? How about these examples (given in the context of the contemporary common law jurisdictions):
You’re allowed to commit suicide. (Assisting another person’s suicide is still illegal, but legal penalties for one’s own suicide attempt have been repealed for a long time.)
You’re allowed to mutilate yourself.
You’re allowed to act voluntarily as someone’s slave or serf.
You’re allowed to make yourself permanently available to someone for sexual acts.
You’re allowed to remain permanently an adherent of a specific religion.
You’re allowed to stay permanently confined to a small area, or even inside a single house.
All these are perfectly legal choices, and some of them aren’t even very unusual. Do you believe that people should therefore be able to bind themselves contractually to make them?
Sort of, yeah. What I actually believe is that if the activity is problematic enough that I should not permit people to bind themselves contractually to perform it, it’s not clear to me that I should allow people to perform it at all.
I don’t necessarily endorse allowing all of those options in the first place, though.
First, let me clarify that my point was simply that if contracts are being relegated to the role of managing agreements among individuals to perform acceptable activities, and something else maintains the responsibility for managing what activities are acceptable, then I have no problem with relying on contracts to perform that role. But it doesn’t follow from this that individual contracts can substitute for that “something else.”
With respect to your articulation of “the” problem, though: I agree that there are activities that it’s problematic to declare unacceptable, whether we do that by governments formally passing laws or by local communities enforcing more informal social norms.
I agree that for some of the items on Vladimir’s list, allowing people to be forced not to do them, or to be forced to do them, is scary in some contexts. But whether they are being forced by their government, by a foreign government, by their neighbors, or by an independent commercial norm-enforcement agency, doesn’t play a significant role in how scary I find it. If they are being forced by virtue of an arrangement they willingly entered into, I am somewhat more sanguine about it, but not infinitely so.
because in practice I’m concerned about people being coerced into signing contracts harmful to themselves. Not sure where I’d draw the line exactly; this is probably a Hard Problem.
Agreed.
Speaking personally, I’m also concerned about people willingly signing contracts harmful to themselves without coercion (since I don’t believe that people are always correct, or even definitive, about what harms them). I’m also concerned about people willingly signing contracts that benefit them but are harmful to third parties far out of proportion to that benefit. In some cases I’m even concerned about people willingly signing contracts that benefit them proportionally to the harm they cause third parties.
As you say, it’s a Hard Problem.
But, sure, within the context of a framework that avoids the more egregious harms, I’m all in favor of allowing people to do things in ways that suit them, including agreeing to binding contracts if that’s what they want to do.
What sort of examples can you bring up of custom marital contracts that would make people scream in horror? My guess is that people would generally feel queasy about allowing legal enforcement of what looks like slavish or abusive relationships. I think this would be a genuine cause for concern, not because I don’t think that people should be able to enter whatever relationships please them in principle, but because in practice I’m concerned about people being coerced into signing contracts harmful to themselves. Not sure where I’d draw the line exactly; this is probably a Hard Problem.
Remember that “enforcing contracts” could mean two things. It could mean that the government steps in and makes the parties do what they said they would—it keeps whipping them until they follow through. It could also mean punishing the parties for damage done on the other end when they breach the contract. For example, in a world in which prostitution is legal, X proposes to pay Y for sex. Y accepts. X hands over the money. Y refuses to have sex with X. The horrific version of this is the government comes in and “enforces” the contract… by holding down Y and, well, yeah. The alternative is the government comes in, sees that Y has taken money from X by fraud, and punishes Y the same way it would punish any other thief. The second option is, I think, both more intuitive and less massively disturbing.
The libertarian theory of contracts—that you should have full freedom to enter any voluntary contract as far as your own property and rights are concerned—sounds appealing in the abstract.
There is a certain tension between that theory and some other libertarian theories that also sound appealing in the abstract. The idea of a minimal state sounds appealing in the abstract, as does the idea that a contract transfers rights, a transfer which it is one of the few jobs of the minimal state to enforce.
“In the abstract” merely means “without having actually thought about it”. When one does, one finds certain conflicts between these ideas. The larger the transfer of rights, the more it demands of the state to enforce it. You cannot have maximal contracts maximally enforced by a minimal state.
That a contract literally transfers the rights stated in the contract from one person to another is in fact not what a contract is, at least in Western society. If you read a contract, that might be what it looks like, but if you look at what happens as a result of signing a contract, it is not. Contracts are very rarely enforced, in the literal sense of forcing the parties to carry out their promises. (Joining the army is the only common exception.) The courts usually go no farther than imposing monetary penalties for breach of contract. In ordinary, non-libertarian states, all you risk by failing to perform on a contract is your assets and reputation. Your rights in your person are generally not transferable by any contract. That they should be seems a strange thing for a libertarian to be arguing for.
The larger the transfer of rights, the more it demands of the state to enforce it. You cannot have maximal contracts maximally enforced by a minimal state.
I disagree about this. There is a stable equilibrium in which the state is known to be fast, effective, reliable, and uncompromising in enforcing the rules, and in which transgressions are consequently extremely rare (and swiftly punished when they occur), so that the resources devoted to judiciary and law enforcement can be very small. Such an equilibrium in which little enforcement effort is necessary in practice is possible with contracts too, not just with criminal law.
(In fact, large resources devoted to law enforcement are usually a sign of the state’s weakness, not strength. They indicate widespread law-breaking, which in turn indicates that a lot of people are in a position where it seems like they can get away with it—and the state is, for whatever reason, incapable of making law enforcement more effective and pushing things towards the above described equilibrium, and instead responds by throwing more resources into the existing ineffective system.)
Contracts are very rarely enforced, in the literal sense of forcing the parties to carry out their promises. (Joining the army is the only common exception.)
That’s not completely true. Specific performance orders are given by courts in other kinds of cases too, typically when the contract is about something unique, i.e. when the exact same thing can’t be obtained elsewhere, like a piece of land or an artwork. (In other cases, such an order wouldn’t be in the plaintiff’s interest anyway, since the defendant would presumably provide the worst quality work/goods he could get away with.)
To some degree, you can even stipulate specific performance in case of breach, although I have no idea to what degree this is enforceable in different jurisdictions.
On the other hand, regarding this:
That a contract literally transfers the rights stated in the contract from one person to another is in fact not what a contract is, at least in Western society. [...] In ordinary, non-libertarian states, all you risk by failing to perform on a contract is your assets and reputation. Your rights in your person are generally not transferable by any contract. That they should be seems a strange thing for a libertarian to be arguing for.
This is basically a question of definition. If you insist on using the name “contract” only for those contracts that are enforceable in today’s Western societies, fair enough. However, the following must be taken into account:
The limitation that your rights in your person are not transferable by contract is just one example of the limitations I was mentioning. This limitation didn’t exist (or was far weaker) even historically in Western societies, let alone in others.
This limitation, while seemingly reducing to a simple statement, is by no means straightforward when you consider its implications in practice. For example, what exact types of marriage contracts would be implicitly disallowed by it? Trying to answer that question leads immediately to deep ideological clashes.
This limitation, even under the broadest interpretation, is by no means the only one that exists in modern Western societies, both with regards to marriage and all other voluntary arrangements.
Finally, however you turn it, this limitation is ultimately a limitation on freedom. If I’m forbidden to sell my car, this diminishes my rights in my car; similarly, if I’m forbidden to sell myself into slavery, this diminishes my rights in my person. This conclusion is very unpleasant for libertarians, but the fact is that a libertarian must make some sort of unprincipled exception to libertarian principles to disallow slavery contracts. (There is a very well written article titled “The Libertarian Case for Slavery,” which was intended as satire, but there’s absolutely nothing in it, save for the sneer in its last sentence, that is not perfectly logical and valid reasoning from libertarian principles.)
(Of course, it may be that for game-theoretic reasons, such limitations on freedom ultimately increase total freedom by some reasonable measure—“freedom may be freedom to capitulate,” as Schelling says. But once you admit exceptions to libertarian principles on these grounds, the slope is very slippery and steep.)
I didn’t mean it to be. I was just pointing out that the rules written on a contract and the rules which the state applies in case of dispute are two different things. They are drastically different in Western societies, where breach of contract is a civil matter, usually incurring only damages, but the distinction applies everywhere. On the one hand is what the parties to a contract promise, and on the other, what the state does if the promises are broken. There is no a priori reason that these two things should be brought into coincidence. I don’t even see it as a reasonable place for discussion to start.
There is a very well written article titled “The Libertarian Case for Slavery,” which was intended as satire, but there’s absolutely nothing in it, save for the sneer in its last sentence, that is not perfectly logical and valid reasoning from libertarian principles.
Are you being as satirical as Philmore? If so, I’m wasting my breath here, but on the supposition that you aren’t:
Whether well-written, I think Philmore’s article is not well argued (reading it straight, not as satire). “Slavery” in the article ranges from an absolute property right in someone’s whole person, which he does not defend (nor, for that matter, condemn, or it would undermine his satire), to the mere sale of one’s lifetime labour, which he regards as equivalent to the daily or monthly sale of labour that constitutes typical modern employment.
I am paid monthly. However, I am free to just walk, at any time. No-one will drag me back to my employer and chain me to a desk. My former employer merely ceases to pay me. If my departure is sufficiently abrupt, I will forgo my last month’s pay, but that is all. All employment contracts in the UK are of that form.
Under Philmore’s concept of slavery, having sold my lifetime’s labour, I would similarly be free to depart at any time, subject only to the return of what I was paid, pro rata, whch he calls self-manumission.
Why does he call this slavery? It gives him a catchy title, and he gets to satirically claim that libertarians should approve of “slavery”. However he has only done this by diluting the word so far as to deprive it of most of its ordinary meaning: people as property, having no right and little real possibility to change that state without the agreement of their owner. That is how slavery was practiced in the American South. There are variations on the concept, and other names, but that is what is meant, in everyday discourse, when any situation is likened to slavery: being prevented from leaving the coercive control of one’s “owner”.
Of course, it may be that for game-theoretic reasons, such limitations on freedom ultimately increase total freedom by some reasonable measure—“freedom may be freedom to capitulate,” as Schelling says. But once you admit exceptions to libertarian principles on these grounds, the slope is very slippery and steep.
I don’t see such a slope. The freedom to become a slave in the ordinary meaning of the word is the freedom to deprive your later selves in perpetuity of their freedom. There may be room for a discussion about the extent to which, in effect, your future selves should be the property of your present self, but merely waving “libertarian principles” is not that discussion.
No, I’m not being satirical. Your effort in explaining is not wasted, and in fact, I think I’ve located the root of our disagreement.
In your argument, you assume the legal framework of the modern liberal states. In these states, there is a sharp distinction between criminal and civil law, the former enforced with fines, imprisonment, and loss of citizen privileges (in some places also the death penalty), and the latter enforced by awarding monetary damages. Moreover, in these states the government has a complete monopoly on violence in law enforcement—aside from a few narrow exceptions like self-defence or citizen’s arrest, and some very mild uses of force like e.g. throwing out a trespasser, if violence is necessary to enforce a law or a court decision, you must call the police to do it. As you note, in this system, contracts fall under civil law, and the worst that can befall you for breaking a contract is losing money and perhaps bankruptcy. (Where even in the latter case, you are allowed to keep some assets and thus protected from falling into complete indigence.)
You are right that a slavery contract within this system, even if it were enforceable, wouldn’t be deserving of the name. The master wouldn’t be able to punish and coerce the slave using private force, but only by suing him. And the slave, even if penniless, would always have the option to walk away and simply declare bankruptcy when sued. You are also right that Philmore fails to discuss this point clearly, and this is indeed a significant problem with the essay. (I can see this myself now that I have re-read it after several years.)
Now, where we disagree is our view of the relationship between the above-described modern liberal legal framework and libertarian principles. You seem to take this framework as given, and understand libertarian principles only as implying freedom of contract within this framework. However, I consider the rules of this framework as themselves highly un-libertarian, and significantly limiting the freedom of contract. It has always seemed to me that the principles of self-ownership and freedom of contract—if one accepts them axiomatically; I’m not saying I do—imply that one should be able to enter a contract where one gives the other party the permission to use private force to enforce its terms, and where one may take up liabilities and obligations without the safety net of comfortable bankruptcy. (Such contracts, at least in some forms, used to be legal and widespread in the Western world. Notably, North America was settled to a large degree by indentured servants, whose contracts allowed the masters to use private force to prevent them from escaping and coerce them into obedience.)
Therefore, I see the prohibition of such contracts as just one of the many historical steps towards the modern institutions of paternalistic regulatory state and welfare state that libertarians otherwise decry. I really don’t see any principled difference between eliminating people’s freedom to take up obligations that can’t be evaded with a comfortable bankruptcy and any other paternalistic regulation. (When libertarians yearn for some golden age of classical liberalism, which they imagine roughly as freedom of contract within the limits of the above described modern liberal legal framework, they are at best yearning for a brief and transient phase of the historical descent down this slippery slope.)
I really don’t see any principled difference between eliminating people’s freedom to take up obligations that can’t be evaded with a comfortable bankruptcy and any other paternalistic regulation.
I do. What is a contractual obligation? It is not a magic spell that creates a reality that it would require some positive action to depart from. It describes a promised reality that takes positive actions to attain. If the parties to a contract disagree over its attainment, then in the first place they must try to resolve the matter themselves. If they fail to agree, and neither party can impose a solution by force, then nothing further can happen, without some third party entering on the matter.
That third party might be the wisdom of the tribal elders, or a magistrate who on local matters combines in one person the power to make, judge, and enforce the law, or a Western-style framework of laws and courts, or many other possible institutions. But in all cases, the dispute is resolved by that institution using its resources to impose a verdict. (I include in that the case where the institution does not enforce it directly, but by proclaiming a verdict that gives one party a right to use force against the other which it would not otherwise have had.)
If the institution looks at the terms of the contract and declines to have anything to do with the matter (as was once the case in England regarding gambling debts—unenforceable at law), that is not a limitation on anyone’s freedom to enter into such a contract. They can still write that contract. They merely do not have a claim on anyone else’s assistance in enforcing it against the will of the other party. I think this is entirely in accordance with libertarian principles. Nobody is being coerced when the state declines to coerce someone on your behalf just because they have broken a promise to you. And it is surely the opposite of paternalism for the state to limit its involvement.
I am also sure that if Robin Hanson has not yet argued for making breaking a promise a criminal act, he will.
What are these libertarian principles, anyway? You refer to them but distance yourself from them, suggesting that you are arguing a point of view you do not hold, a situation vulnerable to letting a finger nudge the scales. Indeed, what is satire but a bottom-line-driven argument from your opponent’s position to an unwelcome conclusion, the cloak of satire giving deniability to refutations of the argument? (ETA: I’m not accusing you of bad faith. It’s just that you seem to be saying, “this is what libertarian principles imply”, without necessarily subscribing to those principles yourself. It’s very easy to go wrong in arguing someone else’s point of view for them, especially if in fact you disagree with them.)
If the institution looks at the terms of the contract and declines to have anything to do with the matter […] that is not a limitation on anyone’s freedom to enter into such a contract. They can still write that contract. They merely do not have a claim on anyone else’s assistance in enforcing it against the will of the other party.
The problem with this argument is that in the modern liberal order (and again ignoring some marginal exceptions), the state has a monopoly of violence, including violence that may be necessary to enforce a contract. Therefore, the state not only refuses to apply violence to enforce your claim based on such a contract, but will also intervene violently to stop you if you try to enforce it with private force. It is a criminal offence to breach the peace even in the course of privately enforcing a valid contractual claim, let alone one that is legally declared void.
So however you turn it, this is a limitation on people’s right to enter such contracts, as well as their other rights that depend on this. If the state told you that from now on it would refuse to enforce car-selling contracts to which you are a party, your freedom to own a car would be gone, regardless of whether you’d be allowed to perform the legally void act of signing such a contract. You wouldn’t be able to buy a car, since if the seller failed to deliver it, you couldn’t use private force to take possession of it. You wouldn’t be able to own one, since the previous owner or manufacturer could just steal it back as soon as you turned away from it. And as the most pertinent analogy, you couldn’t even sell a car you already have, since the buyer would have no guarantee that you wouldn’t fail to deliver it upon payment. (Admittedly, for relatively minor dealings, perhaps even including cars, the situation would be remedied somewhat by private reputational mechanisms.)
All this is by no means idle theorizing, even with respect to the normal everyday business. For example, where I live, the government has declared various provisions of tenancy agreements unenforceable, like for example no-pets rules. You are still allowed to put such provisions in the contract, and many landlords do, probably counting on the tenants’ ignorance of the law, or perhaps appealing to their consciences. However, there is no way to enforce them against a tenant, and as a result, it’s hard to find very nice places for rent, except at a high price that includes implicit insurance against such tenant misbehaviors. (It’s fairly easy to screen away people who will fail to pay the rent or who will behave downright destructively, but even very nice, affluent, and accomplished people may end up getting a cat whose hair the subsequent occupants will be finding in their dinner for years, or a dog that will ruin the wood floors in a way that they could excuse as normal wear and tear if you sued them over it.) As someone who is in the market for nice rentals, and would gladly assent to no-pets and other presently unenforceable provisions for keeping the place tidy and undamaged, I really don’t see how this is not a very real and costly limitation on my (and the landlords’) freedom of contract.
What are these libertarian principles, anyway? You refer to them but distance yourself from them, suggesting that you are arguing a point of view you do not hold, a situation vulnerable to letting a finger nudge the scales.
I’ll clarify how I see the libertarian position, and please tell me if you think I’m distorting it.
Regardless of the issue of the legitimacy of private versus state violence, where there is much disagreement among them, libertarians agree that there is a certain set of property rights that a person can legitimately claim, and that people should be free to enter voluntary contracts by which they exchange these rights (i.e. alienate some and acquire others) and thus incur mutual obligations. There is of course a lot of further disagreement over the exact criteria for what makes a property right valid, but if there is any meaningful agreed-upon content to the notion of libertarianism, it is that once a property right has been established, one should be free either to keep and enjoy it unmolested or to exchange it or give it away—including the rights transferred by a voluntary contract from someone else.
Now, what about the state? As per the above, both anarchist and minimal-government libertarians agree that the state should not limit the people’s right to enter voluntary agreements concerned purely with their own rights and obligations. Such limitations may be in the form of outlawing the contract itself (for example, in many places you can go to jail for trying to negotiate a prostitution deal). However, as I explained above, they can also have the form of the state wielding its monopoly of force in contract enforcement selectively, so as to eliminate the freedom of particular kinds of contracts in practice, in order to further some other goals. Whether a libertarian is an anarchist who believes the state should get out of the enforcement business altogether and let people enforce contracts with private force, or a minimal-statist who believes it should limit itself to enforcing valid rights claims, I don’t see how this selective enforcement can be reconciled with any coherent statement of the above-described libertarian principles.
This of course runs into the already mentioned problem: if I own my person and my labor, why can’t I sell them in some sort of slavery contract? If I sell my car and then refuse to deliver it, Rothbardian anarchists would say that the buyer is entitled to come and subdue me and seize it by force, and non-anarchist libertarians would say that the buyer should be able to call the cops who will then subdue me and seize it for him. Similarly, why shouldn’t I be able to sell my person too, so that if I try to escape, either my owner himself or the cops acting on his complaint would seize me and haul me back to his service?
This is where I see what looks, from the above described perspective, like a paternalistic slippery slope. The state won’t enforce a slavery contract just like it won’t enforce a no-pets clause of a rental contract where I live, even though in both cases the contract is about an exchange of what both parties otherwise uncontroversially claim as their property rights. And I don’t see any potential stable Schelling points except either allowing both kinds of contracts or recognizing that the state can allow or disallow contracts at its pleasure in order to further paternalistic, ideological, or whatever other aims.
Finally, what about my own disagreement with the libertarian principles? I don’t consider them workable in any general and absolute formulation, for a multitude of reasons, one of which is that all realistic human societies will consider many (though possibly different) things implied by them as impermissible. But insofar as these principles exist in a coherent and agreed-upon form, I think I am presenting them fairly.
The problem with this argument is that in the modern liberal order (and again ignoring some marginal exceptions), the state has a monopoly of violence, including violence that may be necessary to enforce a contract. Therefore, the state not only refuses to apply violence to enforce your claim based on such a contract, but will also intervene violently to stop you if you try to enforce it with private force. It is a criminal offence to breach the peace even in the course of privately enforcing a valid contractual claim, let alone one that is legally declared void.
“Illegal contracts” is a misleading term here. These are not contracts that are illegal because they stipulate some action that is ipso facto criminal (like e.g. an illegal drug sale contract) or because they stipulate a transfer of rights that is inherently unenforceable in the existing law (like e.g. an indentured servitude contract). Rather, the issue is about perfectly normal and ordinary transactions that just happen to run afoul of the law in some relatively minor way, as in the given examples of ordering a meal in a restaurant that stays open beyond its licensed hours, or hiring a gardener who doesn’t report this income for his taxes.
The relevant questions here are how severe such violations have to be to void the contract altogether, and how eager the government will be to prosecute the violators if this information comes out when a breach of contract is adjudicated in court. Obviously, in any legal system, both issues are a matter of degree, and clearly different countries will have different systems, with Germany apparently being unusually lenient on both counts. With this in mind, I fail to see any relevance of this fact for my above cited argument.
Irrelevant. The question isn’t whether the state refuses to enforce all illegal contracts but rather if it refuses to enforce some; no state enforces all illegal contracts.
Most jurisdictions in the U.S. enforce some illegal contracts. It depends mostly on the comparative culpability of the parties and the importance of the public policy making the contracts illegal.
The ‘modern liberal order’ does have a monopoly on violence, or at least something very close to one. That’s a fairly central point of having a civil court system.
The linked article doesn’t seem to relate to that, anyway. The German government isn’t permitting people to hire private enforcement for their illegal contracts.
Though presumably only ‘grey market’ contracts are being enforced.
I imagine any attempt to enforce, for example, a slavery contract while maintaining illegality would lead to international and continuous outrage (among other things). The degree of social proscription is too strong.
With any general philosophy or morality, one can tie it in a knot by asking how it applies to itself. What is the empirical evidence for empiricism? Does positivism satisfy its own verifiability criterion? What is the utility of utilitarianism? What is the inductive evidence for induction?
Libertarianism places a high, even paramount value on freedom, and a correspondingly negative value on coercion. So, playing the circularity game, we can ask: does freedom include the freedom to give up one’s freedom? Is coercion allowed if it was previously agreed to but is against one’s current will? Whatever institution is set up to provide resistance to coercion for those unable to resist it themselves, should it not merely ignore, but join in with such coercion? Either way, it will be applying coercion against one party or the other. I don’t see a slippery slope when the state decides to cut off the entire tangle without going even one turn around the loop, and decides that such contracts are void.
Finally, what about my own disagreement with the libertarian principles? I don’t consider them workable in any general and absolute formulation, for a multitude of reasons, one of which is that all realistic human societies will consider many (though possibly different) things implied by them as impermissible.
This is true of all principles. None of them are workable in any general and absolute formulation.
(In fact, large resources devoted to law enforcement are usually a sign of the state’s weakness, not strength. They indicate widespread law-breaking, which in turn indicates that a lot of people are in a position where it seems like they can get away with it—and the state is, for whatever reason, incapable of making law enforcement more effective and pushing things towards the above described equilibrium, and instead responds by throwing more resources into the existing ineffective system.)
Are you aware of any research done on this question? Granted, Russia and Mexico have cops everywhere, but so does Singapore and Monaco.
On theoretical grounds, I would expect there to be little correlation between resources devoted to law enforcement and amount of law-breaking, whether across or within societies, with such lack of correlation having little implication for causal connections between the two. Someone must have studied this question, but not being a sociologist I don’t know. Is there anyone here who can point us to actual data and inference from such data?
Thank you for my daily dose of exposure to sanity. I needed that.
However, are you sure that you understand just how radical the above statement is? The libertarian theory of contracts—that you should have full freedom to enter any voluntary contract as far as your own property and rights are concerned—sounds appealing in the abstract. (Robin Hanson would probably say “in far mode.”) Yet on closer consideration, it implies all sorts of possible (and plausible) arrangements that would make most people scream with horror.
In any realistic human society, there are huge limitations on what sorts of contracts you are allowed to enter, much narrower than what any simple quasi-libertarian theory would imply. Except for a handful of real honest libertarians, who are inevitably marginal and without influence, whenever you see someone make a libertarian argument that some arrangement should be permitted, it is nearly always part of an underhanded rhetorical ploy in which the underlying libertarian principle is switched on and off depending on whether its application is some particular case produces a conclusion favorable to the speaker’s ideology.
What sort of examples can you bring up of custom marital contracts that would make people scream in horror? My guess is that people would generally feel queasy about allowing legal enforcement of what looks like slavish or abusive relationships. I think this would be a genuine cause for concern, not because I don’t think that people should be able to enter whatever relationships please them in principle, but because in practice I’m concerned about people being coerced into signing contracts harmful to themselves. Not sure where I’d draw the line exactly; this is probably a Hard Problem.
I simply want more freedom to do things in ways that suit me and the other person as long as it doesn’t harm anyone else. There may be gotchas and necessary qualifications once you get into the details, but the basic idea I think is hardly outrageous; surely there is at least room to move from the current stale state of affairs in that direction.
So I guess I don’t believe the statement I quoted earlier entirely without qualification. Still, I like it because it recognises the fact that the current situation with marriage is ridiculous and it doesn’t, in principle, have to be that way. That recognition, as opposed to taking existing absurdities for granted without even thinking about them like most people do, is what I was referring to as a rare dose of sanity:
Your second paragraph serves… I’m not sure what purpose. To tell me that the idea is politically unfeasable? I know that.
Well, there you go. Any restriction on freedom of contract can be rationalized as preventing something “harmful,” one way or another.
And it’s not a hard problem at all. It is in fact very simple: when people like something for ideological reasons, they will use the libertarian argument to support its legality, and when they dislike something ideologically, they will invent rationalizations for why the libertarian argument doesn’t apply in this particular case. The only exceptions are actual libertarians, for whom the libertarian argument itself carries ideological weight, but they are an insignificant fringe minority. For everyone else, the libertarian argument is just a useful rhetorical tool to be employed and recognized only when it produces favorable conclusions.
In particular, when it comes to marriage, outside of the aforementioned libertarian fringe, there is a total and unanimous agreement that marriage is not a contract whose terms can be set freely, but rather an institution that is entered voluntarily, but whose terms are dictated (and can be changed at any subsequent time) by the state. (Even the prenuptial agreements allow only very limited and uncertain flexibility.) Therefore, when I hear a libertarian argument applied to marriage, I conclude that there are only two possibilities:
The speaker is an honest libertarian. However, this means either that he doesn’t realize how wildly radical the implications of the libertarian position are, or that he actually supports these wild radical implications. (Suppose for example that a couple voluntarily sign a marriage contract stipulating death penalty, or even just flogging, for adultery. How can one oppose the enforcement of this contract without renouncing the libertarian principle?)
The speaker has an ideological vision of what the society should look like, and in particular, what the government-dictated universal terms of marriage should be (both with regards to the institution of marriage itself and its tremendous implications on all the other social institutions). He uses the libertarian argument because its implications happen to coincide with his ideological position in this particular situation, but he would never accept a libertarian argument in any other situation in which it would imply something disfavored by his ideology.
I would like to point out that the above reads just as well with both instances of the word “libertarian” removed.
True. And then it starts to sound like there is no bona fide seeking of solutions going on at all.
Which is, shall we say, suspect.
While I agree that strict adherence to libertarian principles is rare, it does not therefore follow that most appeals to libertarian principles are merely opportunistic argumentative ploys. Libertarianism is a continuum, not a boolean; it seems to me that people can simultaneously have both an ideological attachment to some particular vision of what they want society to look like, and also an ideological attachment to libertarianism, and that these conflicting desires get traded off against each other in some proportion. The end result is that people end up saying, “People should be free to do whatever they like, except x_1, x_2, … x_n, which are obviously harmful.” I agree with you that the x_i are not chosen on any sort of neutral, principled basis, but that only means that libertarian arguments have limited force, not no force. There are some things I disapprove of so strongly that I want them to be illegal, but that doesn’t mean I want everything I disapprove of to be illegal.
I agree that this is possible in principle, but from what I observe in practice, libertarian arguments have extremely low weight in such trade-offs, except for the tiny minority of principled libertarians, who form a small and reasonably well-delineated cluster. When it comes to issues that are otherwise neutral and uncontroversial, people will normally default to the libertarian position. However, as soon as an issue has any bearing on ideology, tradition, religion, ethnic identity, political power, economic interests, status hierarchy, etc., etc., people normally assign near-zero weight to libertarian arguments, except insofar as they provide useful material for unprincipled rhetorical ploys.
This is especially true for the whole enormous cluster of controversial topics that involve sex, reproduction, marriage, and family. This is in part because these topics involve many questions of grave importance on which libertarian theory completely breaks down and can’t provide any sensible answers. (For example, what should be the mutual rights and obligations between parents and children? What should be the legal age of consent? What constitutes valid adoption? What’s the legal boundary between abortion/infanticide and murder? And so on—you can squeeze out only tortured answers from libertarian principles, and yet some answers must be agreed upon, and it matters a great deal what they will be.)
However, even more importantly, the social norms on these topics in all human societies are especially heavy on what Jonathan Haidt identifies as the moral foundation of “sacredness.” Again excepting the small fringe of libertarians, on these topics, none of the contemporary ideological groups takes seriously arguments based on libertarian principles, or even on cost-benefit analysis—except insofar as such arguments may provide useful rhetorical ammunition for promoting their sacredness-based norms. (And when such arguments give answers contrary to people’s sacredness intuitions, they tend to perceive them as shockingly vile or insane.)
This seems exaggerated to me (although I agree that the tendencies you mention exist and are significant). Consider, for example, the famous incident in which the American Civil Liberties Union defended a Nazi group’s right to demonstrate. The ACLU was and is a non-fringe organization, and likewise, the position that “Nazism is despicable, but freedom of speech and assembly is more important than silencing Nazis” is reasonably mainstream in the United States. Similarly, the idea that “Drug use is bad, but marijuana should be legal” seems not-uncontroversial but also non-fringey.
Fair enough—I agree that’s a valid counterexample to my thesis. (I do think, however, that you overestimate the amount of principled support for free speech in the contemporary U.S. For many of its defenders, it’s a matter of strategic expediency, since they are not confident that, if speech-restricting precedents were established, their side would win the subsequent political battles over whose favored speech restrictions would get instituted. In particular, many prominent ACLU-affiliated people don’t seem to have any problem with the existing speech restrictions in places where their co-ideologues are firmly entrenched in power, even though they wouldn’t want to establish a legal basis for such restrictions in the U.S., at least for now. But I do agree that this is one issue where there is some serious weight given to libertarian principles in the mainstream discourse.)
(I should maybe also add that I don’t live in the U.S., which is a pretty extravagant outlier when it comes to the attitudes and legal norms regarding free speech, so the example didn’t occur to me readily.)
That said, I still think my comments are valid when it comes to the issues of sexuality, marriage, etc. Here I really see an ideological clash fundamentally motivated by incompatible sacredness norms, with all other considerations, including libertarian principles, entering the debate only insofar as they provide useful rhetorical ammunition.
There’s not much danger of the Nazis convincing non-negligible numbers of people, so this is a cheap way to signal one’s support for freedom of speech. Call me when the ACLU is interested in protecting the right of pro-life groups to demonstrate outside abortion clinics.
My understanding is that most of these people actually hold the position that “use of certain drugs is bad, but marijuana isn’t one of those drugs”.
I don’t think you’re solving the same problem that I am.
You seem to think (and based on your upvotes, people seem to agree for some reason) that a cynical summary of the ideological landscape is somehow an answer to anything. And sure, that is not a hard problem. I’m more interested in actual solutions and their consequences than in why people argue for them: what happens if we increase freedom thus and thus, how will this affect society and what harm will come from it as side effects?
Also I find it grating when everything gets summed up as ideology and politics. Do people only ever claim to want more freedom because they happen to be pushing some particular ideological agenda? I don’t know, but personally I dislike limitations for which there isn’t a good enough reason. I first started thinking about this when I was considering getting married, not when I was thinking about politics.
Likewise, are all objections to increase in freedom rationalisations? Again, I find this offensive cynicism. Maybe someone’s done the math or seen how it works in another country, and sees real negative consequences?
If I am reading you correctly, you now seem to be saying something very different from your original comment that prompted this exchange. Yes, I certainly agree that it’s a fascinating intellectual exercise to speculate on what would happen if various restrictions on freedom of contract were relaxed, in this context as well as others. However, your original comment went far beyond that—it expressed enthusiastic support for a sweeping and blanket elimination of such restrictions, going so far as to equate such support with “sanity.” Yet as I pointed out, such sweeping relaxation would, in turn, have straightforward implications that the entire mainstream public opinion nowadays would consider insane—which position may be wrong, to be sure, but that would still make it odd to oppose it as if you were asserting something obvious and uncontroversial. I thought it would be interesting to seek some clarification on this point.
I clarified these things in my first response to you. I conceded that I don’t support that statement without qualification, and clarified what exactly I found so sane about it despite that.
Personally I’d be okay with the flogging version. Some people are into that sort of thing. As for death… legitimate governments generally consider murder a fairly serious crime, and refuse to enforce contracts which would require illegal activity of the signatories. I’m comfortable with having the libertarian principle superceded by criminal law. The interesting part of the question is: is there any choice a person should be allowed to make about their self or property, where they should not have the option of committing to a specific choice in advance as part of a contract?
Read literally, this means that you’re OK with any violation of the libertarian principle, as long as this violation happens to be formally codified as part of the criminal law. Is that really your position?
In short, yes. I also think that the range of activities covered by criminal law should be greatly reduced, e.g. possession of potentially dangerous pharmaceuticals should not be something people are imprisoned for.
A person can work for the benefit of another at the other’s direction without receiving remuneration, but he can’t contract into becoming the other’s slave—that is, despite being free to act the part. Would you repeal the 13th Amendment, which outlawed slavery?
I was asking, not answering. Trying to point out a more interesting gray area, rather than standing back and accusing each other of unreasonable extremes. Where would you draw the line between “acting the part” and actual slavery?
I don’t know of anyone who’s into serious, blood-down-the-back flogging, although I’m not confident there aren’t any, but supposing they are, doesn’t that render it meaningless as a disincentive?
Even someone who regards the process itself as pleasurable or spiritually satisfying could logically recognize it as inconvenient, or prefer it in certain quantities at certain times. Compare, say, two people making a bet wherein the loser has to eat half a gallon of icecream in one sitting.
Maybe they want to encourage adultery.
Or, perhaps they expect to engage in adultery and feel guilty about it, but want the relationship to continue in such circumstances, so the flogging is a way to discharge those guilty feelings and get on with things.
Off-hand, I’d say not. What makes that the interesting part of the question, though? I don’t know anyone who objects to the existence of voluntarily entered-into contracts, merely to the idea that they supersede or obviate the need for other social/legal/governmental mechanisms.
Really? How about these examples (given in the context of the contemporary common law jurisdictions):
You’re allowed to commit suicide. (Assisting another person’s suicide is still illegal, but legal penalties for one’s own suicide attempt have been repealed for a long time.)
You’re allowed to mutilate yourself.
You’re allowed to act voluntarily as someone’s slave or serf.
You’re allowed to make yourself permanently available to someone for sexual acts.
You’re allowed to remain permanently an adherent of a specific religion.
You’re allowed to stay permanently confined to a small area, or even inside a single house.
All these are perfectly legal choices, and some of them aren’t even very unusual. Do you believe that people should therefore be able to bind themselves contractually to make them?
Sort of, yeah. What I actually believe is that if the activity is problematic enough that I should not permit people to bind themselves contractually to perform it, it’s not clear to me that I should allow people to perform it at all.
I don’t necessarily endorse allowing all of those options in the first place, though.
The problem is for many of the items on Vladimir’s list (especially the last 4) allowing the government to force people not to do them is also scary.
Well, OK.
First, let me clarify that my point was simply that if contracts are being relegated to the role of managing agreements among individuals to perform acceptable activities, and something else maintains the responsibility for managing what activities are acceptable, then I have no problem with relying on contracts to perform that role. But it doesn’t follow from this that individual contracts can substitute for that “something else.”
With respect to your articulation of “the” problem, though: I agree that there are activities that it’s problematic to declare unacceptable, whether we do that by governments formally passing laws or by local communities enforcing more informal social norms.
I agree that for some of the items on Vladimir’s list, allowing people to be forced not to do them, or to be forced to do them, is scary in some contexts. But whether they are being forced by their government, by a foreign government, by their neighbors, or by an independent commercial norm-enforcement agency, doesn’t play a significant role in how scary I find it. If they are being forced by virtue of an arrangement they willingly entered into, I am somewhat more sanguine about it, but not infinitely so.
The objections I am aware of are to specific subcategories of contracts, such as variant marriage terms or multigenerational commitments.
Agreed.
Speaking personally, I’m also concerned about people willingly signing contracts harmful to themselves without coercion (since I don’t believe that people are always correct, or even definitive, about what harms them). I’m also concerned about people willingly signing contracts that benefit them but are harmful to third parties far out of proportion to that benefit. In some cases I’m even concerned about people willingly signing contracts that benefit them proportionally to the harm they cause third parties.
As you say, it’s a Hard Problem.
But, sure, within the context of a framework that avoids the more egregious harms, I’m all in favor of allowing people to do things in ways that suit them, including agreeing to binding contracts if that’s what they want to do.
Remember that “enforcing contracts” could mean two things. It could mean that the government steps in and makes the parties do what they said they would—it keeps whipping them until they follow through. It could also mean punishing the parties for damage done on the other end when they breach the contract. For example, in a world in which prostitution is legal, X proposes to pay Y for sex. Y accepts. X hands over the money. Y refuses to have sex with X. The horrific version of this is the government comes in and “enforces” the contract… by holding down Y and, well, yeah. The alternative is the government comes in, sees that Y has taken money from X by fraud, and punishes Y the same way it would punish any other thief. The second option is, I think, both more intuitive and less massively disturbing.
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There is a certain tension between that theory and some other libertarian theories that also sound appealing in the abstract. The idea of a minimal state sounds appealing in the abstract, as does the idea that a contract transfers rights, a transfer which it is one of the few jobs of the minimal state to enforce.
“In the abstract” merely means “without having actually thought about it”. When one does, one finds certain conflicts between these ideas. The larger the transfer of rights, the more it demands of the state to enforce it. You cannot have maximal contracts maximally enforced by a minimal state.
That a contract literally transfers the rights stated in the contract from one person to another is in fact not what a contract is, at least in Western society. If you read a contract, that might be what it looks like, but if you look at what happens as a result of signing a contract, it is not. Contracts are very rarely enforced, in the literal sense of forcing the parties to carry out their promises. (Joining the army is the only common exception.) The courts usually go no farther than imposing monetary penalties for breach of contract. In ordinary, non-libertarian states, all you risk by failing to perform on a contract is your assets and reputation. Your rights in your person are generally not transferable by any contract. That they should be seems a strange thing for a libertarian to be arguing for.
I disagree about this. There is a stable equilibrium in which the state is known to be fast, effective, reliable, and uncompromising in enforcing the rules, and in which transgressions are consequently extremely rare (and swiftly punished when they occur), so that the resources devoted to judiciary and law enforcement can be very small. Such an equilibrium in which little enforcement effort is necessary in practice is possible with contracts too, not just with criminal law.
(In fact, large resources devoted to law enforcement are usually a sign of the state’s weakness, not strength. They indicate widespread law-breaking, which in turn indicates that a lot of people are in a position where it seems like they can get away with it—and the state is, for whatever reason, incapable of making law enforcement more effective and pushing things towards the above described equilibrium, and instead responds by throwing more resources into the existing ineffective system.)
That’s not completely true. Specific performance orders are given by courts in other kinds of cases too, typically when the contract is about something unique, i.e. when the exact same thing can’t be obtained elsewhere, like a piece of land or an artwork. (In other cases, such an order wouldn’t be in the plaintiff’s interest anyway, since the defendant would presumably provide the worst quality work/goods he could get away with.)
To some degree, you can even stipulate specific performance in case of breach, although I have no idea to what degree this is enforceable in different jurisdictions.
On the other hand, regarding this:
This is basically a question of definition. If you insist on using the name “contract” only for those contracts that are enforceable in today’s Western societies, fair enough. However, the following must be taken into account:
The limitation that your rights in your person are not transferable by contract is just one example of the limitations I was mentioning. This limitation didn’t exist (or was far weaker) even historically in Western societies, let alone in others.
This limitation, while seemingly reducing to a simple statement, is by no means straightforward when you consider its implications in practice. For example, what exact types of marriage contracts would be implicitly disallowed by it? Trying to answer that question leads immediately to deep ideological clashes.
This limitation, even under the broadest interpretation, is by no means the only one that exists in modern Western societies, both with regards to marriage and all other voluntary arrangements.
Finally, however you turn it, this limitation is ultimately a limitation on freedom. If I’m forbidden to sell my car, this diminishes my rights in my car; similarly, if I’m forbidden to sell myself into slavery, this diminishes my rights in my person. This conclusion is very unpleasant for libertarians, but the fact is that a libertarian must make some sort of unprincipled exception to libertarian principles to disallow slavery contracts. (There is a very well written article titled “The Libertarian Case for Slavery,” which was intended as satire, but there’s absolutely nothing in it, save for the sneer in its last sentence, that is not perfectly logical and valid reasoning from libertarian principles.)
(Of course, it may be that for game-theoretic reasons, such limitations on freedom ultimately increase total freedom by some reasonable measure—“freedom may be freedom to capitulate,” as Schelling says. But once you admit exceptions to libertarian principles on these grounds, the slope is very slippery and steep.)
I didn’t mean it to be. I was just pointing out that the rules written on a contract and the rules which the state applies in case of dispute are two different things. They are drastically different in Western societies, where breach of contract is a civil matter, usually incurring only damages, but the distinction applies everywhere. On the one hand is what the parties to a contract promise, and on the other, what the state does if the promises are broken. There is no a priori reason that these two things should be brought into coincidence. I don’t even see it as a reasonable place for discussion to start.
Are you being as satirical as Philmore? If so, I’m wasting my breath here, but on the supposition that you aren’t:
Whether well-written, I think Philmore’s article is not well argued (reading it straight, not as satire). “Slavery” in the article ranges from an absolute property right in someone’s whole person, which he does not defend (nor, for that matter, condemn, or it would undermine his satire), to the mere sale of one’s lifetime labour, which he regards as equivalent to the daily or monthly sale of labour that constitutes typical modern employment.
I am paid monthly. However, I am free to just walk, at any time. No-one will drag me back to my employer and chain me to a desk. My former employer merely ceases to pay me. If my departure is sufficiently abrupt, I will forgo my last month’s pay, but that is all. All employment contracts in the UK are of that form.
Under Philmore’s concept of slavery, having sold my lifetime’s labour, I would similarly be free to depart at any time, subject only to the return of what I was paid, pro rata, whch he calls self-manumission.
Why does he call this slavery? It gives him a catchy title, and he gets to satirically claim that libertarians should approve of “slavery”. However he has only done this by diluting the word so far as to deprive it of most of its ordinary meaning: people as property, having no right and little real possibility to change that state without the agreement of their owner. That is how slavery was practiced in the American South. There are variations on the concept, and other names, but that is what is meant, in everyday discourse, when any situation is likened to slavery: being prevented from leaving the coercive control of one’s “owner”.
I don’t see such a slope. The freedom to become a slave in the ordinary meaning of the word is the freedom to deprive your later selves in perpetuity of their freedom. There may be room for a discussion about the extent to which, in effect, your future selves should be the property of your present self, but merely waving “libertarian principles” is not that discussion.
No, I’m not being satirical. Your effort in explaining is not wasted, and in fact, I think I’ve located the root of our disagreement.
In your argument, you assume the legal framework of the modern liberal states. In these states, there is a sharp distinction between criminal and civil law, the former enforced with fines, imprisonment, and loss of citizen privileges (in some places also the death penalty), and the latter enforced by awarding monetary damages. Moreover, in these states the government has a complete monopoly on violence in law enforcement—aside from a few narrow exceptions like self-defence or citizen’s arrest, and some very mild uses of force like e.g. throwing out a trespasser, if violence is necessary to enforce a law or a court decision, you must call the police to do it. As you note, in this system, contracts fall under civil law, and the worst that can befall you for breaking a contract is losing money and perhaps bankruptcy. (Where even in the latter case, you are allowed to keep some assets and thus protected from falling into complete indigence.)
You are right that a slavery contract within this system, even if it were enforceable, wouldn’t be deserving of the name. The master wouldn’t be able to punish and coerce the slave using private force, but only by suing him. And the slave, even if penniless, would always have the option to walk away and simply declare bankruptcy when sued. You are also right that Philmore fails to discuss this point clearly, and this is indeed a significant problem with the essay. (I can see this myself now that I have re-read it after several years.)
Now, where we disagree is our view of the relationship between the above-described modern liberal legal framework and libertarian principles. You seem to take this framework as given, and understand libertarian principles only as implying freedom of contract within this framework. However, I consider the rules of this framework as themselves highly un-libertarian, and significantly limiting the freedom of contract. It has always seemed to me that the principles of self-ownership and freedom of contract—if one accepts them axiomatically; I’m not saying I do—imply that one should be able to enter a contract where one gives the other party the permission to use private force to enforce its terms, and where one may take up liabilities and obligations without the safety net of comfortable bankruptcy. (Such contracts, at least in some forms, used to be legal and widespread in the Western world. Notably, North America was settled to a large degree by indentured servants, whose contracts allowed the masters to use private force to prevent them from escaping and coerce them into obedience.)
Therefore, I see the prohibition of such contracts as just one of the many historical steps towards the modern institutions of paternalistic regulatory state and welfare state that libertarians otherwise decry. I really don’t see any principled difference between eliminating people’s freedom to take up obligations that can’t be evaded with a comfortable bankruptcy and any other paternalistic regulation. (When libertarians yearn for some golden age of classical liberalism, which they imagine roughly as freedom of contract within the limits of the above described modern liberal legal framework, they are at best yearning for a brief and transient phase of the historical descent down this slippery slope.)
I do. What is a contractual obligation? It is not a magic spell that creates a reality that it would require some positive action to depart from. It describes a promised reality that takes positive actions to attain. If the parties to a contract disagree over its attainment, then in the first place they must try to resolve the matter themselves. If they fail to agree, and neither party can impose a solution by force, then nothing further can happen, without some third party entering on the matter.
That third party might be the wisdom of the tribal elders, or a magistrate who on local matters combines in one person the power to make, judge, and enforce the law, or a Western-style framework of laws and courts, or many other possible institutions. But in all cases, the dispute is resolved by that institution using its resources to impose a verdict. (I include in that the case where the institution does not enforce it directly, but by proclaiming a verdict that gives one party a right to use force against the other which it would not otherwise have had.)
If the institution looks at the terms of the contract and declines to have anything to do with the matter (as was once the case in England regarding gambling debts—unenforceable at law), that is not a limitation on anyone’s freedom to enter into such a contract. They can still write that contract. They merely do not have a claim on anyone else’s assistance in enforcing it against the will of the other party. I think this is entirely in accordance with libertarian principles. Nobody is being coerced when the state declines to coerce someone on your behalf just because they have broken a promise to you. And it is surely the opposite of paternalism for the state to limit its involvement.
I am also sure that if Robin Hanson has not yet argued for making breaking a promise a criminal act, he will.
What are these libertarian principles, anyway? You refer to them but distance yourself from them, suggesting that you are arguing a point of view you do not hold, a situation vulnerable to letting a finger nudge the scales. Indeed, what is satire but a bottom-line-driven argument from your opponent’s position to an unwelcome conclusion, the cloak of satire giving deniability to refutations of the argument? (ETA: I’m not accusing you of bad faith. It’s just that you seem to be saying, “this is what libertarian principles imply”, without necessarily subscribing to those principles yourself. It’s very easy to go wrong in arguing someone else’s point of view for them, especially if in fact you disagree with them.)
The problem with this argument is that in the modern liberal order (and again ignoring some marginal exceptions), the state has a monopoly of violence, including violence that may be necessary to enforce a contract. Therefore, the state not only refuses to apply violence to enforce your claim based on such a contract, but will also intervene violently to stop you if you try to enforce it with private force. It is a criminal offence to breach the peace even in the course of privately enforcing a valid contractual claim, let alone one that is legally declared void.
So however you turn it, this is a limitation on people’s right to enter such contracts, as well as their other rights that depend on this. If the state told you that from now on it would refuse to enforce car-selling contracts to which you are a party, your freedom to own a car would be gone, regardless of whether you’d be allowed to perform the legally void act of signing such a contract. You wouldn’t be able to buy a car, since if the seller failed to deliver it, you couldn’t use private force to take possession of it. You wouldn’t be able to own one, since the previous owner or manufacturer could just steal it back as soon as you turned away from it. And as the most pertinent analogy, you couldn’t even sell a car you already have, since the buyer would have no guarantee that you wouldn’t fail to deliver it upon payment. (Admittedly, for relatively minor dealings, perhaps even including cars, the situation would be remedied somewhat by private reputational mechanisms.)
All this is by no means idle theorizing, even with respect to the normal everyday business. For example, where I live, the government has declared various provisions of tenancy agreements unenforceable, like for example no-pets rules. You are still allowed to put such provisions in the contract, and many landlords do, probably counting on the tenants’ ignorance of the law, or perhaps appealing to their consciences. However, there is no way to enforce them against a tenant, and as a result, it’s hard to find very nice places for rent, except at a high price that includes implicit insurance against such tenant misbehaviors. (It’s fairly easy to screen away people who will fail to pay the rent or who will behave downright destructively, but even very nice, affluent, and accomplished people may end up getting a cat whose hair the subsequent occupants will be finding in their dinner for years, or a dog that will ruin the wood floors in a way that they could excuse as normal wear and tear if you sued them over it.) As someone who is in the market for nice rentals, and would gladly assent to no-pets and other presently unenforceable provisions for keeping the place tidy and undamaged, I really don’t see how this is not a very real and costly limitation on my (and the landlords’) freedom of contract.
I’ll clarify how I see the libertarian position, and please tell me if you think I’m distorting it.
Regardless of the issue of the legitimacy of private versus state violence, where there is much disagreement among them, libertarians agree that there is a certain set of property rights that a person can legitimately claim, and that people should be free to enter voluntary contracts by which they exchange these rights (i.e. alienate some and acquire others) and thus incur mutual obligations. There is of course a lot of further disagreement over the exact criteria for what makes a property right valid, but if there is any meaningful agreed-upon content to the notion of libertarianism, it is that once a property right has been established, one should be free either to keep and enjoy it unmolested or to exchange it or give it away—including the rights transferred by a voluntary contract from someone else.
Now, what about the state? As per the above, both anarchist and minimal-government libertarians agree that the state should not limit the people’s right to enter voluntary agreements concerned purely with their own rights and obligations. Such limitations may be in the form of outlawing the contract itself (for example, in many places you can go to jail for trying to negotiate a prostitution deal). However, as I explained above, they can also have the form of the state wielding its monopoly of force in contract enforcement selectively, so as to eliminate the freedom of particular kinds of contracts in practice, in order to further some other goals. Whether a libertarian is an anarchist who believes the state should get out of the enforcement business altogether and let people enforce contracts with private force, or a minimal-statist who believes it should limit itself to enforcing valid rights claims, I don’t see how this selective enforcement can be reconciled with any coherent statement of the above-described libertarian principles.
This of course runs into the already mentioned problem: if I own my person and my labor, why can’t I sell them in some sort of slavery contract? If I sell my car and then refuse to deliver it, Rothbardian anarchists would say that the buyer is entitled to come and subdue me and seize it by force, and non-anarchist libertarians would say that the buyer should be able to call the cops who will then subdue me and seize it for him. Similarly, why shouldn’t I be able to sell my person too, so that if I try to escape, either my owner himself or the cops acting on his complaint would seize me and haul me back to his service?
This is where I see what looks, from the above described perspective, like a paternalistic slippery slope. The state won’t enforce a slavery contract just like it won’t enforce a no-pets clause of a rental contract where I live, even though in both cases the contract is about an exchange of what both parties otherwise uncontroversially claim as their property rights. And I don’t see any potential stable Schelling points except either allowing both kinds of contracts or recognizing that the state can allow or disallow contracts at its pleasure in order to further paternalistic, ideological, or whatever other aims.
Finally, what about my own disagreement with the libertarian principles? I don’t consider them workable in any general and absolute formulation, for a multitude of reasons, one of which is that all realistic human societies will consider many (though possibly different) things implied by them as impermissible. But insofar as these principles exist in a coherent and agreed-upon form, I think I am presenting them fairly.
Germany reportedly enforces illegal contracts.
“Illegal contracts” is a misleading term here. These are not contracts that are illegal because they stipulate some action that is ipso facto criminal (like e.g. an illegal drug sale contract) or because they stipulate a transfer of rights that is inherently unenforceable in the existing law (like e.g. an indentured servitude contract). Rather, the issue is about perfectly normal and ordinary transactions that just happen to run afoul of the law in some relatively minor way, as in the given examples of ordering a meal in a restaurant that stays open beyond its licensed hours, or hiring a gardener who doesn’t report this income for his taxes.
The relevant questions here are how severe such violations have to be to void the contract altogether, and how eager the government will be to prosecute the violators if this information comes out when a breach of contract is adjudicated in court. Obviously, in any legal system, both issues are a matter of degree, and clearly different countries will have different systems, with Germany apparently being unusually lenient on both counts. With this in mind, I fail to see any relevance of this fact for my above cited argument.
Irrelevant. The question isn’t whether the state refuses to enforce all illegal contracts but rather if it refuses to enforce some; no state enforces all illegal contracts.
Most jurisdictions in the U.S. enforce some illegal contracts. It depends mostly on the comparative culpability of the parties and the importance of the public policy making the contracts illegal.
I was pointing out a false generalization. “the modern liberal order” indeed.
What illegal contracts are enforced in U.S. jurisdictions?
The ‘modern liberal order’ does have a monopoly on violence, or at least something very close to one. That’s a fairly central point of having a civil court system.
The linked article doesn’t seem to relate to that, anyway. The German government isn’t permitting people to hire private enforcement for their illegal contracts.
Though presumably only ‘grey market’ contracts are being enforced.
I imagine any attempt to enforce, for example, a slavery contract while maintaining illegality would lead to international and continuous outrage (among other things). The degree of social proscription is too strong.
The argument is vanishing up its own fundament.
With any general philosophy or morality, one can tie it in a knot by asking how it applies to itself. What is the empirical evidence for empiricism? Does positivism satisfy its own verifiability criterion? What is the utility of utilitarianism? What is the inductive evidence for induction?
Libertarianism places a high, even paramount value on freedom, and a correspondingly negative value on coercion. So, playing the circularity game, we can ask: does freedom include the freedom to give up one’s freedom? Is coercion allowed if it was previously agreed to but is against one’s current will? Whatever institution is set up to provide resistance to coercion for those unable to resist it themselves, should it not merely ignore, but join in with such coercion? Either way, it will be applying coercion against one party or the other. I don’t see a slippery slope when the state decides to cut off the entire tangle without going even one turn around the loop, and decides that such contracts are void.
This is true of all principles. None of them are workable in any general and absolute formulation.
Are you aware of any research done on this question? Granted, Russia and Mexico have cops everywhere, but so does Singapore and Monaco.
On theoretical grounds, I would expect there to be little correlation between resources devoted to law enforcement and amount of law-breaking, whether across or within societies, with such lack of correlation having little implication for causal connections between the two. Someone must have studied this question, but not being a sociologist I don’t know. Is there anyone here who can point us to actual data and inference from such data?