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Kant, Libertarianism, and the Limits of Contract Right

By 'libertarianism' here (and in my tagline) I mean the family of broadly Lockean political theories, mostly articulated in the 20th century, which take private property to be the most fundamental concept for political theory. (Locke himself writes, "'Where there is no property, there is no injustice,' is a proposition as certain as any demonstration in Euclid: For the idea of property being a right to any thing, and the idea to which the name injustice is given, being the invasion or violation of that right; it is evident, that these ideas, being thus established, and these names annexed to them, I can as certainly know this proposition to be true, as that a triangle has three angles equal to two right ones" (EHU 4.3.18), so a theory of this sort is properly said to be at least broadly Lockean.) These theories generally seek to derive from the concept of property an account of individual rights as absolute deontological constraints on individual and government action, and suggest that some form of government can and should be formed within these boundaries. As the above may suggest, I take the paradigm of a libertarian political theory to be Robert Nozick's Anarchy, State, and Utopia.

Now, one of the common (and controversial) characteristics of libertarian political theory has typically been a belief in absolute freedom of contract (AFOC). We can state this as follows:

(AFOC) For any legal persons S1 ... Sn and actions A1 ... An such that S1 has the right to perform A1 ... Sn has the right to perform An, S1 ... Sn have the right, if all agree, to form a contract connecting the performances of actions A1 through An.

Any of the actions may be null, that is, there may be a party to the contract who is not bound to perform any action in order to comply with it. Actions may also be negative in nature: that is, one may contract not to do something. Finally, actions may be complex - that is, one may contract to perform (or not perform) any combination of actions. A contract can be defined as follows:

(Contract) Actions A1 ... An of legal persons S1 ... Sn are connected by contract just in case any person Sk may, directly or indirectly, coerce the others to perform the relevant actions, provided he or she has performed Ak.

The most common engine of indirect coercion, on the libertarian picture, is government. Thus Sk may authorize the government to coerce the other parties on his or her behalf.

As I have noted above, (AFOC) is quite controversial (in fact, it would not be unfair to say that it is a fringe view). In ordinary cases, however, libertarians seem to be in a position to argue that (AFOC) is essential to individual liberty, as the libertarian conceives of it.

In the United States today, I have a right to tell you to take aspirin for your headache, and you have a right to give me money. But if we attempt to form a contract connecting your giving me money to my telling you to take aspirin, I can be prosecuted for practicing medicine without a license. This implies that I don't really have an absolute right of free speech, and you don't really have an absolute property right in your money. Furthermore, our behavior would seem to be a sort of "thought-crime:" it is only because of our intention that the transfer of wealth be connected with the medical advice that our behavior is criminal. Libertarians will of course agree that it should be a crime for me to represent myself to be a trained physician, and so deceive you into paying me and/or following my advice, but if I were simply to say "I don't know anything about medicine, but if you give me $20 I'll tell you what I do when I have a headache," (and you give me the $20 and I tell you the truth), it is hard to see how that can reasonably be held to be a crime (but in the US I'm pretty sure it is).

Things get complicated when we have to deal with implicit representations (if I said "give me $20 and I'll tell you what to do about your headache" would I be representing myself to be a trained physician?) and the question of what constitutes genuine consent (is it always sufficient to simply sign a written contract? What if the wording of the contract is intentionally misleading? What if I don't read the language? Should there be higher standards of consent for agreements more dangerous to me? - on these difficulties, see here), but this is supposed to be the general libertarian picture, and the aspirin case is supposed to be the sort of behavior that is protected.

Now, there is an important distinction to be made here with respect to the government's response. The argument is often framed (as the thought-crime objection shows) as between whether the government should (1) recognize and enforce the contract as valid, or (2) criminalize attempts to form such a contract. However, there is a third option: the government could (3) simply treat the contract as invalid. (You might call this decriminalization as opposed to legalization.) In the last case, neither party is punished for attempting to form such a contract, but the government refuses to enforce it, and does not permit either party to coerce the other pursuant to it. In the aspirin case, this would mean that, despite our mutual intention to form a contract, the $20 you give me is treated by the government as a gift and after you give me the money the government will not permit you to coerce me to tell you to take aspirin (or to give your money back).

Libertarians will, of course, object to (3) as well, primarily on the grounds that this sort of invalidation of contracts by the government severely undermines my ability to exercise my rights in any kind of society. If I was simply on my own, (3) would be fine, but if I wish to interact with others in the exercise of my rights, I need the ability to form binding contracts. By prohibiting me from enforcing these contracts (and not enforcing them for me), the government violates my rights.

However, the consequences of (AFOC) are among the most problematic results of libertarian political theory. Consider the following case

(Slavery) S1 contracts with S2 to perform any action ordered by S2

Now, it is clear that this contract is not valid, even under (AFOC), because S1 does not have the right to perform just any action: S1 may not, for instance, commit murder. So this should be modified:

(Slavery') S1 contracts with S2 to perform any action order by S2 which S1 has the right to perform

Even if the contract added that S1 had the right to unilaterally dissolve the contract at will, S1 could never exercise this right without S2's permission, since S1 has contracted to obey S2 absolutely. Thus S2 now has absolute unilateral coercive power over S1, and may use whatever force is necessary to make S1 behave as he or she chooses (within S1's 'rights').

A second case is much more limited, but still extremely problematic:

(Prostitution) S1 agrees to transfer a specified portion of S1's wealth to S2 on condition that S2 perform specified sex acts with S1.

Now, suppose that S1 performs his or her contractual obligation: i.e. he or she transfers wealth to S2. S1 would thus acquire a right to coerce S2 to fulfill his or her contractual obligation - that is, S1 literally acquires the right to rape S2. This can't possibly be right. Perhaps some libertarians will be willing to bite the bullet and claim that, by virtue of the contract, S2 has consented, so that whatever S1 does, and whatever is S2's state of mind at the time S1 does it, it still does not constitute rape. But this is seriously absurd: surely sexual consent requires consent at the time of the act, and no past contract can change that.

One might try to claim that S2 may change his or her mind and return S1's money, but no such proviso is included in the contract, and (AFOC) surely permits the formation of a contract without such a proviso.

Can we limit (AFOC) in a way that preserves the core of libertarian theory? I think we might be able to accomplish this by adapting Kant's argument against (contractual) slavery, which Kant himself also applies to (contractual) prostitution and concubinage. (I discussed this argument briefly in my post on Kant's Argument for Monogamy.) The argument goes like this:

a contract by which one party would completely renounce its freedom for the other's advantage would be self-contradictory, that is, null and void, since by it one party would cease to be a person and so would have no duty to keep the contract but would recognize only force. (MM 6:283)

The idea here is that contracts are binding only between legal persons, but a human person who has no rights is ipso facto not a legal person. It follows that any contract by which an individual renounces all of his or her rights is a contract no longer to be a legal person, i.e. no longer to be bound by any contracts, and is thus a contradiction. As such, a slavery contract is unenforceable. (Note: this is case (3), not case (2). Kant does not, at least in The Metaphysics of Morals or the Groundwork claim that attempts to form contracts of this type should be criminalized.)

Now, this sort of argument was already at play in our switch from (Slavery) to (Slavery'): S1 must have the right to do whatever he or she contracts to do. S2 may not acquire from S1 a right which S1 does not possess. But why should S2 not be able to acquire S1's property in his or herself? Locke simply denies that S1's property in him or herself is absolute in the requisite way, but most modern libertarians will not agree with this. Perhaps, instead, we can successfully adapt our libertarianism in a Kantian direction, as follows:

It is, Kant claims, a category mistake to suppose that a (potential or actual) possessor or property could his or herself be (potentially or actually) a piece of property. This, he claims, is simply nonsense. Accordingly, "someone can be his own master (sui iuris) but cannot be the owner of himself (sui dominus)." (MM 6:270) The right that I have over myself is of a different sort than the right that I have over my property. This being the case, we can hold (as some libertarians in fact do hold) that these rights are inalienable - that is, we can hold that, unlike property rights properly so-called the 'property' rights I have in myself (libertarians, following Locke, want to use this language) cannot be transferred to another.

If this is the case, then we can hold, as Kant does, that no contract can permit another to acquire my right; it can only allow him or her to acquire a right against me that I must exercise my right in a particular way. If I lack the right, I cannot be obligated to exercise it - in fact, I am obligated not to exercise it. If I lack all legal rights, I am no longer a legal person, and thus no longer bound by any contracts. On the libertarian picture (as opposed to Kant), this will entail that I have a right to resistance, since I remain a moral person, despite being outside the social contract and treated as a non-person by government.

The question, then, is what rights must I retain in order to remain a legal person, on the libertarian picture? The answer is not totally clear. If the government prohibits me from resisting aggression against my person or property, and does not itself protect me from such aggression, then it fails to treat me as a legal person. However, most libertarians would say that the enforcement of a contract is by definition not an act of aggression, so to call these instances of aggression is to beg the question. Having recourse to claims about inalienable property in my person will likely not fix the problem. If it did fix the problem, it seems that it would prove too much, such that any action against my person (such as, say, incarceration for a crime, or even the use of force in preventing me from committing a crime) would be prohibited. What we want, really, is to somehow come out with something like Locke's own picture, where only property rights in external objects can be voluntarily transferred, but other rights can be forfeited by the commission of a crime. If we could get this picture to fall out, we would escape the above consequences, but it isn't clear (to me) how Locke's argument for this distinction is supposed to go, and whether it is open to modern libertarians.

Whatever the case, it should be again noted that this is an argument for case (3) - that is, for the government ignoring certain contracts, not for criminalizing those who attempt to form them, and even voluntarily perform their alleged obligations under the alleged contracts. If this could be shown, then it would seem that we could avoid the intolerable consequences without undermining our system or creating other intolerable consequences in their place.

Posted by Kenny at May 23, 2009 5:39 PM