Inalienable rights (1): a history and critique

An essay by David Ellerman, Translatio versus Concessio: Retrieving the Debate about Contracts of Alienation with an Application to Today’s Employment Contract (pdf), provides an excellent and revealing intellectual history on the concept of inalienable rights. He uses it to critique the master-and-servant employment contract and argue for corporate democracy, based on a labour theory of property. These conclusions are far more drastic in their implications he appears to realise, but the discussion of the history of the concept of inalienable rights is most instructive in its own right.

Ellerman starts by pointing out that the coercion-versus-consent dichotomy of modern liberal theory ignores a strain of contractarian theory that held that political and economic subordination could be justified on a contractarian basis. In response, a theory of inalienable rights, rights that could not be traded away by any contract, implicit or explicit, was developed.

As part of drawing implications for modern corporations and the employment contracts, Ellerman notes that rulers were regarded as owners of their lands, but that ownership has become separated from rulership. (At least in most states: under Leninism ownership and rulership were re-conjoined. As they are whenever the state engages in direct economic activity.) Without wanting to deny the exploitive side of medieval rulership, it was also a way of providing public goods in a period of limited trade and very limited administrative capacity.

Ellerman notes that:

The only people who are under the authority of the owners and their agents are the ones who work their property, the employees of the corporation.

So ownership does currently entail governance. Which we take for granted:

But the “very idea” that the employees qua workers (i.e., as those who are governed or managed) would have any standing in that governance seems an outlandish perversion of the very idea of “ownership.”

As outlandish as serfs voting on matters pertaining to medieval lordship would have appeared back then.

Ellerman asks:

If political governance was previously thought to be based on land ownership and now isn’t, then what about the connection between corporate ownership and workplace governance? What is the legal basis for the rights of government or management not over the land, buildings, or machinery of the corporation but over all the people who work in a corporation?

and notes that modern responses to that question are somewhat confused.

Ellerman wants to develop an alternative view:

… that the conflict is not between democracy and private property but between democracy and the contract to alienate the right of self-governance in the workplace, the employment contract.

He defines an employment contract as being:

… contracts for a person of full capacity to voluntarily take on or accept the legal role of a person of diminished capacity or of a non-person.

To sustain this antipathy, Ellerman seeks to retrieve the history of inalienable rights, in particular:

Today, we see slavery simply as a coercive involuntary relationship. That may largely suffice as a matter of historical fact but that is not what the intellectual debate was about. Since Antiquity, there were rather sophisticated defenses of slavery as being based on contract, an implicit or explicit self-enslavement contract. The history of anti-slavery thought was not just fussing about the reality of any alleged consent; it is the history of theorizing about how a voluntary self-sale contract would be inherently invalid.

For this shifted the debate from arguing over the facts of the level of consent involved to a straight coercion-versus-consent issue since certain basic liberties were not alienable: they were instead inalienable rights.

As Ellerman notes, after taking us through the various streams of contractarian thought justifying subjection:

If modern contractarian liberals had recognized the past contractarian arguments for slavery (and autocracy), then they might be in the uncomfortable position of disagreeing with those proslavery thinkers only in matters of fact. They might be reduced to arguing on empirical grounds that the implied contract for society has “genuine” tacit consent, but that the implied slavery contract did not. It is no surprise that modern liberalism has just avoided this quandary by promulgating the consent-or-coercion version of the slavery debates.

Since the problem the doctrine of inalienable rights was developed to deal with has “gone away”, modern liberal theory puts the dichotomy as being between consent and coercion, losing the notion of inalienable rights, with the difficulty that that would appear to allow voluntary sale of oneself—i.e. slavery. An implication that Robert Nozick, for example, was prepared to embrace and which, as Ellerman points out, is implicit in neoclassical economic theory since the bar on capitalizing labour is a barrier to full allocative efficiency.

But consent-versus-coercion was not the dividing line for notions of popular sovereignty and the illegitimacy of slavery. Instead:

… this question of translatio or concessio—alienation or delegation of the right of government in the contract—that is the key question, not consent versus coercion. Consent is on both sides of that alienation (translatio) versus delegation (concessio) question. The alienation version of the contract became a sophisticated tacit contract defense of non-democratic government wherever the latter existed as a settled condition. And the delegation version of the contract became the foundation for democratic theory.

If one could not alienate personal sovereignty, then all legitimate political power was only delegated.

The alienation approach of sovereignty being based on a pactum subjectionis has some major thinkers behind it: such as Thomas Aquinas, Hugo Grotius and Thomas Hobbes (a famous example of an advocate) while Robert Nozick updated it.

An example Ellerman does not use, but which has continuing power, is the Islamic theory of the dhimmi, which is very much a pactum subjectionis. The dhimmi gets the protection of the designated subordinate status but forfeits that protection if they fail to keep their pact of subordination.

Delegation theory
While the alienation of sovereignty theory dated back to classical Antiquity, the delegation theory seems to arise in the later medieval period with thinkers such as Marsilius of Padua and Bartolus of Saxoferrato. The line of argument developed was essentially that an alienation contract turned a person into a thing, and this was inherently invalid:

Applying this argument requires prior analysis to tell when a contract puts a person in the legal role of a non-person. Having the role of a non-person is not necessarily explicit in the contract and is has nothing to do with the payment in the contract, the incompleteness of the contract, or the like. Persons and things can be distinguished on the basis of decision making and responsibility.

To put it another way, it was illegitimate to alienate one’s personhood.
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Contracts that do such are “institutionalised frauds” that:

… always has one revealing moment when even the most slavishly conforming observers can see the legal fiction behind the system. That is when the legalized thing would commit a crime. Then the “thing” would be suddenly metamorphosed—in the eyes of the law—back into being a person to be held legally responsible for the crime.

So, for example, in antebellum Alabama, a court asserted that slaves were persons for criminal law but things for civil law:

Since there was no legal theory that slaves physically became things in their “civil acts”, the fiction involved in treating slaves as “things” was clear. And this is a question of the facts about human nature, facts that are unchanged by consent or contract.

Which Ellerman holds applies directly to the “self-rental” contract, the modern employment contract:

… I cannot in fact “transfer” my own action for the long or short term. The factual inalienability of responsible human action and decision making is independent of the duration of the contract. The factual inalienability is also independent of the compensation paid in the contract …

And so independent of any theory of exploitation.

The Stoics held, contra Aristotle, that no one was a slave by their nature—slavery was an external condition to the internal freedom of the soul. This notion of inner freedom re-emerged during the Reformation in the notion of liberty of conscience. Francis Hutcheson, Adam Smith’s predecessor in the chair of moral philosophy at Glasgow, developed the inalienabililty theory most explicitly, writing that:

Our rights are either alienable, or unalienable. The former are known by these two characters jointly, that the translation of them to others can be made effectually, and that some interest of society, or individuals consistently with it, may frequently require such translations. Thus our right to our goods and labours is naturally alienable. But where translation cannot be made with, or where no good in human life requires it, the right is unalienable, and cannot be justly claimed by any other but the person originally possessing it.

Hutcheson held the right of private judgment unalienable, for example, since it could not really be changed at the whim of another.

Hutcheson’s theory of unalienable rights was taken by Jefferson and famously placed in the US Declaration of Independence. But:

… the theory behind the notion of inalienable rights was lost in the transition from the Scottish Enlightenment to the slave-holding society of antebellum America.

The phraseology continues when the underlying theory does not.

Hegel also held to a theory of inalienable rights, holding that alienation could not apply to one’s own personality. Hence:

… those goods, or rather substantive characteristics, which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible.

Ellerman has an amusing go at Marx for missing this analysis of alienation in the work of his teacher and for going for a labour theory of value rather than a labour theory of property. Though a labour theory of property makes no more sense than a labour theory of value, as it suffers from the same problems—it elevates source-of over reason-for, on the way through getting the nature of the thing quite mistaken. (Ellerman develops his theory of property more here [pdf].)

Once, however, the question of what can and cannot be legitimately alienated is clearly put, the employment contract does look rather problematic:

Take, for example, the approach to the employment contract as the workplace pactum subjectionis. The key to the intellectual history was to understand the distinction between two opposite types of social contract—a distinction that started to emerge in the late medieval work of Marsilius of Padua and Bartolus of Saxoferrato. On the one side was the social contract wherein a people would alienate and transfer their rights of self-determination to a sovereign. The sovereign was not a delegate, representative, or trustee for the people. The sovereign ruled in the sovereign’s own name; the people were subjects. On the other side was the idea of a social contract as a democratic constitution erected to secure the inalienable rights rather than to alienate them. Those who wield political authority over the citizens do so as their delegates, representatives, or trustees; they govern in the name of the people.

Ellerman’s argument is that workers in a corporation are in the same position as the sovereign people in a polity. He approvingly quotes a 1966 passage by Abram Chayes:

The analogy between state and corporation has been congenial to American lawmakers, legislative and judicial. The shareholders were the electorate, the directors the legislature, enacting general policies and committing them to the officers for execution. . . .
Shareholder democracy, so-called, is misconceived because the shareholders are not the governed of the corporation whose consent must be sought.

The consent of holders of capital definitely has to be sought, but the key word here is ‘governed’. Employees are governed in a way that shareholders are not.

Ellerman asks:

Perhaps the public-private distinction somehow makes a difference? Does anyone think that the persons who have a de facto inalienable capacity for decision making in the public sphere suddenly morph into talking instruments in the private sphere?
Since the answers are so blindingly obvious, the usual response is apparently to not think about it. “Responsible” thinkers just don’t go there.

Ellerman then analyses various patterns of people “just not going there” in their thinking. That employees are effectively non-persons in civil law but suddenly fully responsible in criminal matters, he argues, shows that the employment contract is an unsustainable legal fiction.

Ellerman then looks at the structure of rights in an employment firm, noting that de facto responsibility does not line up with legal responsibility. He considers various other forms (historical and imagined) of alienation contracts before concluding:

All these contracts have the same scheme. An adult person with full capacity voluntarily agrees for whatever reason and in return for whatever consideration to accept a lesser legal role. But they do not in fact alienate their capacity as a person in order to fulfill that diminished legal role. Instead the law accepts their (non-criminous) obedience to the master as “fulfilling” the contract. Then the rights and obligations follow the legal role (e.g., the slave of a master, the subject of a sovereign, the femme covert of her baron, the employee of the employer, and so forth)—as if the person were not in fact a person of full capacity. The whole scheme amounts to a fiction and fraud on an institutional scale that nonetheless parades upon the historical stage as a contractual institution based on consent.

In other words, the employment contract alienates what cannot be legitimately alienated. Hence:

Contrary to the blinkered vision of liberal apologetics, we have seen that the subtle issues lie all within the domain of consent (little subtlety is required to be against coercion). The “consent of the governed” to a Hobbesian pactum subjectionis is not democracy, and the employment contract is the mini–Hobbesian contract for the workplace. Thus once the question is posed as consent to alienation versus consent to delegation, then the daunted affinity of “liberal-capitalism” with democracy is demolished. The historical bedfellows of the employment contract are the pactum subjectionis and the self-sale contract. A true affinity to democracy would entail the abolition of the employment contract in favor of all firms being organized as workplace democracies.

If so, a question that immediately arises is how such firms would begin in the first place. (And why are they not created now?)

[This discussion is concludedcontinued in my next two posts.]