The Third Choice 2

This is the second part of my review of Rev. Dr. Mark Durie’s The Third Choice: Islam, Dhimmitude and Freedom, a book on treatment of non-Muslims in Islam. The Rev. Dr Durie is a former academic (linguistics) and Anglican (Episcopalian) preacher. The review started in my previous post and concludes in my next post.


Grading people
Having set out the basics of Islam (more thoroughly and clearly than I have seen done elsewhere), Durie moves on to the main part of the book, an examination of what Islam means for non-Muslims. Part of how Islam defines itself is against other faiths and their followers: particularly Christians and Christianity and Jews and Judaism. People are graded according to their submission to Islam. In Durie's words:

Islamic legal terminology makes reference to four different religious categories:
1. First and foremost there are genuine Muslims.
2. Then there is another category called hypocrites, who are renegade Muslims.
3. Idolators were the dominant category among Arabs before Muhammad appeared. The word for ‘idolator’ is mushrik, which literally means ‘associater’. These are people who commit shirk ‘association’ (from which the word mushrik is derived), which means saying that anyone or anything is like Allah.
4. The ‘People of the Book’ are a subcategory of mushrik. This category includes Christians and Jews. They must be considered mushrik, because the Quran names both Christians and Jews as being guilty of shirk ‘association’ for claiming that Allah has a son:

The Jews say, ‘Ezra is the Son of Allah’;
the Christians say ‘The Messiah is the Son of Allah.’(Q9:30) (Pp44-5).

So Muslims are committed to the idea that the perfect Qur’an is being truthful when it makes a claim that is not true, since Judaism claims no such thing about Ezra.

Islam is regarded as the original and eternally true revelation. One that was given to Jews and Christians as well, but they distorted it and have strayed from the path. Muhammad was Allah’s gift to Christians and Jews to correct their misunderstandings. Hence, according to the Qur’an, genuine Jews and Christians will become Muslims (Q3:199). While both Jews and Christians are treated negatively in the Qur’an, the Jews fare worse. Either way, Durie writes:

Condemnation is manifested in key theological claims, and incorporated into the daily prayers of every observant Muslim (p.45)

As Islamic commentary makes quite clear (Pp46-7).

Durie summarises the Qur’anic theology of non-Muslims in a series of propositions:

1. Christian and Jews who cling to their errors and fail to submit to Islam will go to hell (Q98:6).
2. Muslims are superior to other people and have the role of instructing them (Q3:110).
3. Islam’s destiny is to rule over all other religions (Q48:28).
4. To achieve this ascendancy, Muslims have to fight against Jews and Christians until they are defeated and humbled (Q9:29).
5. In the end-times, Christianity and Judaism will be destroyed (hadith).
6. There are also a range of (highly negative) theological claims about Jews (Pp47-9).

What this means for the attitudes and behaviour of individual Muslims will vary widely yet treatment of non-Muslims keeps returning to these Islamic foundations. In particular, Shar’ia requires an Islamized society: the consensus of Muslim scholars for centuries (p.49).

This flows from the nature of Muhammad as exemplar:

The simple theological explanation is that in his person Muhammad combined religious, political, juridical and military authority for the early Islamic community, and since Muhammad’s example is the best example, making no distinction between religion and politics has become normative for all Muslims (p.50).

Hence orthodox Islam has always taught that Shar’ia should be the basis of the state: something most Muslims still believe:

From this perspective, Islam is not just a religion, but a total way of life for a nation (p.50)

Which means that Islam does not conform to the standard Western notion of a religion, given that the religions Westerners have most experience with (Christianity, Judaism, Buddhism, Sikhism) do not make such claims. Islam needs to be seen in its own terms, not as we might complacently project onto it.

Of course, the mullahocracy of Iran, Afghanistan under the Taliban, Sudan and Saudi Arabia—the most emphatic modern examples of trying to make Shar’ia the basis of society—are hardly model societies. Yet there is a strong strain of contemporary Islamic thought which argues that Islam—and specifically Shar’ia rule—will solve the problems of modernity. The salafi claim that what is needed is to get back to the original forms of Islam, rejecting “human accretions” in the traditional schools of Islamic jurisprudence, Durie is deeply sceptical of as a practical project, arguing it will either fail or create more of the same “human accretions” (Pp50-51).

One of the profound differences between Christianity and Islam is that the Gospels are a “public truth”, able to be read in an afternoon. The exemplary life of Muhammad, by contrast, is much more scattered in sources and usually requires literacy in classical Arabic. Which means that Muslims are highly dependant on religious scholars for basic details of their religion. Durie points out that there is a tendency to sanitize aspects of Muhammad’s life in the derivative sources. Often, Muslims themselves are ignorant of details and react with shock and denial when they are publicised: this without direct spreading of disinformation, such as highly selective presentations of Muhammad’s relations with non-believers (Pp52ff).
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Durie spends considerable effort detailing how Islam has (to use my term) an instrumental morality. That is, advancing submission to Allah is the overriding goal, so actions that facilitate that—including deception—are lawful. Durie makes it clear that deceptive behaviour towards non-Muslims is a recurring pattern and sanctioned by Islam (Pp56ff). As he points out, such a “utilitarian” ethic about truth-telling and lying is ethically damaging in its consequences (Pp8-9). A concern for truth not only connects one to how reality is, it creates a basis for common criteria of judgement. If truth as a norm is systematically sacrificed to some “higher goal”, there is no arbiter but power.

When Aristotelianism defeated its opponents in Latin Christendom and Judaism, the principle that truth is a criteria not properly sacrificed to the precepts of religion was also established. This has all sorts of consequences, not least of which is that the world can be investigated in its own terms: a necessary notion for science. But in Islam, Aristotelianism was defeated: so Islam acknowledges no basis for judgement outside itself—a reflection of both its whole-of-life nature and submission as its fundamental mode. This makes Islam’s interaction with others profoundly problematic since, even though Muslims may in practice (or even in belief), acknowledge such bases for judgement, it is always, in strict Islamic terms, an act of “bad faith” to do so.

The logic of belief versus that of believers
Durie wrestles with the distinction between Islam as a religion and what particular Muslims believes. Islam is a whole-of-life religion with a complex set of sources, hence the prolific nature of fatwa and the popularity of Islamic information websites. There are also Islamic teachings that are problematic in modern Western societies or otherwise awkward or embarrassing. Given the overriding need to present a positive image of Islam to promote submission to Allah, patterns of selective dissemination, or even active dissembling, develop aided by historical myths (such as the “golden age of Al-Andalus) and justified by the doctrine of lawful deception: processes that also affect Muslims leading to complex and uncertain patterns of belief and denial (Pp70ff).

Durie uses the case of female “circumcision” (i.e. female genital mutilation) and debates within Islam over it to examine the complex patterns involved. The Shafi’i school holds female genital mutilation to be obligatory, the other schools merely permitted: i.e. meritorious but not required. Durie notes the four responses typical of such debate: canonical support, canonical reform, simple denial, appeal to external criteria. These complexities mean that non-Muslims need to pay careful attention if they are to understand rather than being either credulously positive (“of course female genital mutilation has nothing to do with Islam”) or negative (“all Muslims support it”). Openness and careful attention to the truth is what Durie holds to be required (Pp74-7).

About non-Muslims
Having spent four chapters setting up the analytical structure, Durie then spends the next four chapters on the issue of Islam’s attitude and schema to non-Muslims. Starting, as one must, with the canonical example of Muhammad, whose interaction with non-believers Durie categorises as beginning and ending with rejection: the rejection Muhammad received and the rejection he ended up imposing on others (p.81). Durie notes the scholarly debate over the historical Muhammad but passes over it since his concern is with the theological construct of Islam: that is, the canonical teachings about the Prophet’s life which are the basis for Islamic doctrine and belief, not whether they are accurate renditions of the original events (p.82).

Durie takes the reader quickly through Muhammad’s family history, which had various painful elements (being orphaned, becoming a dependant poor relation, suffering hostility from more wealthier family members, having all his sons die young). At the age of 40, Muhammad began to have visions from the angel Jibril (Gabriel) that caused him great distress, but his older (and wealthy) wife Khadijah comforted him while her Christian cousin Waraqa declared him a prophet. Khadijah, followed by his young cousin Ali (who had been raised in Muhammad household) became his first converts.

After three years of secrecy, Muhammad began to preach openly. His tribe listened until he began to disparage their gods. Still, his preaching spread: mainly among the poor and dispossessed. At this stage, Muslims were a despised minority with only a few powerful defenders. Various travails followed which Muhammad turned into marks of authenticity, including the notion that God had chosen (in order) his people (the Arabs), his tribe (the Quraysh), his clan (the Banu Hashim) and him (p.88).

Deprived of protectors within the tribal system, Muhammad sought them elsewhere, eventually finding them when people from Medina asked him to lead their community, promising to accept his message of monotheism. Muhammad only accepted when they agreed a year later to fight on his behalf (Pp89-90). Durie points out that, even during the “peaceful” 10 years in Mecca, Muhammad used virulent rhetoric against those who rejected his message and foreshadowed his later “turn to the sword” (Pp91ff). This makes his holding out for military pledges more consistent. It is at this point the Islamic rhetoric about winners and losers begins to emerge (Pp95-6). As well as what Durie calls the ‘fitna worldview’ where Muslims are to fight until there is no persecution or slander (fitna) of Islam: it is at this point the theology of jihad is established with the aim of making submission to God, and so Islam and the Muslim community, universally dominant and so ultimately successful (Pp96ff).

From his Medinan power base, Muhammad waged war to establish submission to Allah, with verses extending the ambit of jihad until Muhammad eventually confronted all pagan Arabs with the choice of submission or the sword. In doing so, he abandoned various customary limitations on war (Pp100-1), becoming the first ruler to unite Arabia. Muhammad had former enemies killed when captured—particularly those who had mocked him personally or had left Islam—and mocked the bodies of those slain in battle against him (Pp101ff).

Durie points out the breadth of the doctrine of fitna such that anyone who opposes, criticises or contradicts Islam can be deemed guilty of fitna and so be targets of jihad (p.103). Muhammad also claimed the warrant of Allah to break a treaty he signed with Mecca, a city he proceeded to conquer on the grounds that they had breached the treaty (Pp103ff). The instrumental morality of Islam, where submission to Allah is the goal that justifies any action that advances it, is clearly in evidence.

The Medinan suras include description of non-believers as those who would seduce Muslims from their faith hence the injunction of enmity to unbelievers (Q60), thereby breaking the treaty they had signed with Mecca. Later, Muhammad attacked and conquered Mecca on the grounds they had broken the treaty: this established the canonical view that non-Muslims are inherently pact-breakers but Muslims can break any treaty if it advances Islam (Pp104-5).

The Meccan suras contain few references to Jews, mainly presenting Muhammad’s message as a blessing to them given he held himself to be completing their line of prophets. The original arrangement in Medina was one of mutual protection between Jews and Muslims. The Medinan rabbis are reported by the Qur’an to have pestered Muhammad with questions, who produced new revelations (i.e. Qur’anic verses) in response: one of his standard claims being they were deceivers who had distorted (or even falsified) the original message. One of the original biographers of Muhammad treats this questioning as fitna, an attempt to undermine Islam (Pp106-7).

Muhammad’s response to this questioning rejection was increasingly hostile. The Qur’anic verses against Jews become more and more severe and abusive of the Jews as deceiving, non-believers losers who had forsaken true guidance. Islam was both the first and final religion, Muhammad’s coming had not only abrogated Judaism, his message was what had always the true religion of Allah, the religion of Abraham. As Durie points out, Muhammad’s self-validation against Jewish questioning was total (Pp107ff).

Muhammad besieged the Jewish Qaynuqa for rejecting Islam, who surrendered unconditionally. A Muslim who was friendly with them interceded for them: a Quranic verse against being friends with Jews followed shortly thereafter (p.110).

There followed targeted assassinations against various Medinan Jews, then an injunction to kill Jews who fell into the hands of Muslims:

A profound shift had taken place in Muhammad’s understanding. Non-Muslims had rights to their property and lives only if they supported and honoured Islam and Muslims. Anything else was fitna, and a pretext for fighting (p.111).

Muhammad declared that the Earth belonged to Allah and his Apostle (and, by subsequent extension, to the people of Allah and his Prophet), it was by accepting Islam that you could be safe. The caliph ‘Umar, for example, was reported to have declared the conquered lands of Syria and Palestine as property that God had restored to the Muslims (p.111).

Muhammad then turned on the remaining Jewish tribes in turn. The Banu Nadir were attacked and driven out of Medina, their property being confiscated. The Qurayza were besieged and, after they surrendered unconditionally, the men were beheaded (600-900 according to varying accounts, except a few who converted) and their women and children distributed to the Muslims. Muhammad then attacked the Jews of Khaybar, who were given a choice of convert or die. After their defeat, they were provided with a third choice: conditional surrender thereby becoming the first dhimmis. Since Jews and Christians were both “people of the Book”, this treatment of Jews became the model for treating Christians also (Pp112-3).

Durie argues that the theology of fitna has created an enduring pattern of Muslims insisting on their greater victimhood (Pp113-4). Since criticising or rejecting Islam is worse than killing unbelievers, this is a game Muslims can always win: the point is the pattern of continually playing it.

Durie analyses Muhammad’s career as one of him responding to rejection by imposing even greater rejection on others. This theology of rejection (and of dominance) became the basis of the Islamic theology towards unbelievers: one that insisted on imposing on non-believers silence (no criticism of Islam), guilt (for rejecting the Prophet and his message) and gratitude (for being exposed to the message of, and able to live under, the rule of the people of Allah) (Pp114-6). All of this:

… can be grounded in the evolution of Muhammad’s own responses to rejection, and his violent and ideologically comprehensive imposition of failure and rejection upon all who refused to confess, ‘I believe there is no god but Allah and Muhammad is his prophet’ (p.116).

This review will be concluded in my next post.

The Third Choice

The Rev. Dr. Mark Durie is a former academic (linguistics) and Anglican preacher who has written The Third Choice: Islam, Dhimmitude and Freedom, a book on treatment of non-Muslims in Islam.

Durie starts, in his Preface, with a discussion of rejection. He sees the dhimma pact—the non-negotiable state of submission of non-believers to believers in Islam—as flowing from rejection; the responses of Christ and Muhammad to rejection as being very different (Pp ix-x). The books was written with three purposes, to:
• explain the nature of the dhimma pact;
• help non-Muslims withstand the dhimma pact and find freedom from it; and
• explain the nature of Islamic politics and the implications it has for non-Muslims (p.xi).

Durie is dealing with highly contentious matters: he is challenging people’s worldviews, which he defines rather nicely as:

… cognitive frameworks which provide a grid for finding the truth in the world around us (p.3).

He uses the example of Islam’s apostasy law as an example of how the same thing can be seen quite differently: is Islam’s ban on apostasy a sign of weakness (a fear that Islam cannot bear open competition with other belief systems) or a sign of strength (of Islam’s perfection)?

How willing people are to give up aspects of their worldviews varies greatly depending on how important a particular matter is to them. It can lead to odd claims, such as a January 2002 Sydney Morning Herald article on interfaith marriage that includes the case of a man who converted to Islam to marry his wife: which is, of course, not an interfaith marriage at all (p.5).

Durie’s declared aim is “truth empowerment”, hence his reliance on primary sources of Islam (p.10). He acknowledges that people do not necessarily conform to the beliefs of their faith but that, nevertheless, the basic principles of a faith are an enduring feature in the world (p.11). He sees stereotyping of Islam (or any religion) as being the result of faulty thinking about belief and behaviour: either a simpleminded focus on specific scriptures or an equally simpleminded relativism that pays no account to the content of a religion (Pp12-14).

The human problem
He starts with the question: what is the human problem? Secular humanists might say social conditions that limit people to achieve their potential, Marxists class and unequal control over the means of production and Christians sin.

In Islam, the central human problem is jahiliyyah, ignorance, ignorance of what Allah requires of us. The solution is huda, guidance. Allah has taken pity on us and given us a book (the Qur’an) and an example (Muhammad) as a guide to what He wants from us.

Muhammad had been preceded by other prophets, all with the same message (Islam, submission to Allah) but the message had been diluted or lost, hence Allah sent Muhammad as the seal of the prophets, to provide the correct guidance forever.

What are those who a rightly guided called to? Falah, success in this life and the next. Those who fail to head the call are al-khasirin, the losers. So, Durie argues, at the heart of Islam is:
ignorance → guidance → success.
(Which makes the success of non-believers something of a cosmic insult, of course. Israel is truly infuriating, to this mindset.)

Durie contrasts this with the Christian vision of:
sin → forgiveness → salvation.
As Durie points out, this leads to very different mindsets and values. The Muslim writer al-Faruqi expresses the difference well:

Islam holds man to be not in need of any salvation. Instead of assuming him to be religiously and ethically fallen, Islamic da’wah [proclamation] acclaims him as the khalifah [representative] of Allah, perfect in form, and endowed with all that is necessary to fulfil the divine will indeed, even loaded with the grace of revelation! ‘Salvation’ is hence not in the vocabulary of Islam. Falah (success), or the positive achievement in space and time of the divine will, is the Islamic counterpart of Christian ‘deliverance’ and ‘redemption’ (p.20).

The sovereignty of Allah is the central reality and the central human question is whether you are maintaining and spreading the sovereignty of Allah or not.

Falah is not merely success in the next world. On the contrary, the military success of Islam under the Prophet is taken as evidence of his prophetic mission. One of the manifestations of the ideology of success, Durie argues, is the dhimma system.

The basics
But first, Durie sets out the basics of Islam. Islam is a system of submission to Allah. A Muslim is someone who submits to Allah. Assent to, and recite, the formula of submission:

I confess there is no god but Allah,
and I confess that Muhammad is Allah’s messenger.

and one becomes a Muslim. The answer to the question of how to submit to Allah is given by the Qur’an, the book of revelations to the Prophet, and the sunna, the example of the Prophet, his life (sira) and sayings (hadith). All aspects of life are part of the process of submission to Allah, hence the all-encompassing nature of religious authority in Islam.
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The Qur’an repeatedly says that the Prophet is the guide for believers, to be obeyed in what he says and as an exemplar in how he acts, with the fires of hell waiting for those that disobey his words and example (Pp23-4). A true Muslim is thus committed to the sunna, the words and example of the Prophet. A lot of what is basic to Islam is not in the Qur’an but in the sunna (such as praying five times a day).

If the sayings and example of the Prophet are such a crucial form of guidance, then transmission of what he said and did then become vital. Hence the collections of the hadith: there are hundreds of thousands of hadith of varying degrees of reliability. There are six canonical collections of which two are regarded as of most reliability: they were not compiled until the C9th, or two centuries after Muhammad. Given this vast array of hadith, and the issue of reliability, the role of religious scholars in interpreting this corpus is central. The structure Durie describes is a little like the common law in that regard, except that the capacity for evolution is obviously hugely limited, since the peak of moral understanding is held to have been achieved in C7th Arabia—a peak that is the source of all legitimacy—and that Shar’ia is enormously more encompassing than the common law has ever been—there are hadith on yawning and sneezing (Pp26-7), for example.

The six beliefs (belief in Allah, angels, scriptures, apostles, day of judgment, predestination) and five pillars (no God but Allah and Muhammad is His Prophet, compulsory prayer, pay the zakat, perform the hajj, keep the Ramadan fast) of Islam both come from hadiths (Pp28-9).

The hadith collections are arranged by subject matter, so the thread of Muhammad’s life cannot be easily followed through them. For that, there are the sira, the biographies. The first was by Ibn Ishaq (d.767/AH 145), but his original is lost. A revised version by Ibn Hisham, put together 50 years later, survives but Ibn Hisham says he cut out certain parts that contained matters “disgraceful to discuss” or which would “distress certain people” (p.30). This view that reflecting well on the Prophet was a criteria of selection extended also to the judgments about which hadith was authoritative (p.31). We can see here that the success of Islam is deemed more important than truth: all part of Islam having an instrumental morality.

Needless to say, it is easy to find parts of Muhammad’s life that are shocking to modern sensibilities (some were clearly shocking to C9th sensibilities within Islam). Starting with some of his most central claims:

Abu Huraira reported that:
the Messenger of Allah said: ‘I have been given superiority over the other prophets in six respects: I have been given words that are concise but comprehensive in meaning; I have been helped by terror (in the hearts of enemies); spoils have been made lawful to me; the earth has been made for me clean and a place of worship; I have been sent to all mankind and the line of the prophets is closed with me (p.32).

These claims are canonical and binding on all Muslims, while criticism of the Prophet is strictly forbidden (p.32). Obviously, the denial of criticism and selection of the details of what the Prophet said and did by what helps Islam has unfortunate implications for truth and reason in Islam.

The Qur’an—held to be a letter perfect version of direct revelation from Allah in a single language—is a very different document than the Bible, as assembly of different types of documents originally composed in a range of languages. As Durie writes:

The main thing to grasp about the manner of the Quran’s production, is that Muhammad and the Quran are as intimately connected as a body is to its backbone. The Sunna is like the body and the Quran the backbone. Neither can stand without the other, and you cannot comprehend one without the other (p.33).

Given that the Quran is not arranged in any chronological or logical order but from longest suras to the shortest, and individual suras themselves may relate to various, unconnected, topics, this makes Qur’anic interpretation difficult. The hadith and the sira are used to give context and thus meaning to the verses of the Qur’an (Pp32-4).

On the other hand, particular hadith and sira incidents may be based on traditions regarded as unsound, while the Qur’an is held to be perfect in all its details and beyond criticism which means that:

… the Quran plays a controlling role for interpreting hadith traditions, even though it is the hadith which supply the occasion of revelation for the Qur’an (p.34).

Contradictions within the Qur’an are dealt with by the principle that later verses overrule earlier verses, the principle of naskh or abrogation which itself has Qur’anic justification (Pp34-5). The principle of naskh applies at various levels. That the Qur’an trumps all previous revelations, that some verses have been removed from the Qur’an and that some verses which remain are superseded by other verses are all applications of naskh. But that a verse has been removed does not mean it does not still apply: the verse requiring the stoning of adulterers has been removed but still applies in Shar’ia (Pp35-6).

The principle of naskh is particularly important for the doctrine of jihad since the peaceful Meccan verses are superseded by the militant Medinan verses. Shorter suras tend to be from the Meccan period, longer suras tend to be from the Medinan period, though some suras are held to contain passages from both (Pp36-7).

The literature of tafsir, commentary, has grown up connecting the verses of the Qur’an with the sunna. Durie uses the commentary particularly of Ibn Kathir (d.1373) as his work is both highly respected, and very popular in contemporary Islam. Durie takes the reader through some illustrative examples to show how the process of interpretation operates (Pp37-40).

To provide ordinary Muslims with a workable set of rules to guide their submission to Allah, Islamic scholars and jurists have devised the Shar’ia, the ‘path’ or ‘way’ to live as a Muslim:

… the Sharia is intended to be simply what it says: the pathway for a Muslim to walk upon, an authoritative application of Muhammad’s example in a comprehensive and consistent way, using rigorous principles of reasoning and Islamic case-law. This is much more inclusive in concept than any penal code (p.41).

Or law code generally. To call Shar’ia “Islamic law” does not really capture its scope and authority. It emanates by direct path from Allah and encompasses far more than any Western legal code, with far more elevated claims to legitimacy and authority. Canon law, for example, is not analogous because there is no claim that it is other than a human creation, however much it may seek to manifest God’s purposes. Hence canon law can change, in a way Shar’ia cannot.

Durie warns against simply asking a Muslim what Islam teaches, as it can lead to serious misunderstanding (p.44). Quite: even without the issue of taqiyya, or permitted deceit, and simple ignorance (how many Christians or Jews know all the details of their religions?) basic concepts and presumptions are simply not the same.

This review will be continued in my next two posts.

Employment contracts as trade-offs

An employment contract is one of variable (usually indeterminate) length, able to be terminated by either party, where the employee agrees to accept direction of their labour during work hours and, in return:
• accepts no legal liability for following lawful directions;
• foregoes any claim on the residual income of the firm (including no liability to cover losses by the firm); and
• will be paid at least the agreed amount
on the understanding that the financial return to the employer from the labour provided at least covers the total cost of employing the employee.

In a small business, the employer can assess the value of an employee to the firm fairly directly. The larger and more complex the business is, the harder that is to do. A solution is to pay employees a “hostage premium”: more than they might otherwise earn, so they have more to lose and so are more likely to police their own productivity. Hence large businesses tend to pay better than small businesses. In the public sector, the premium is typically paid in security of tenure and generous retirement benefits to discourage misuse of government employees’ official discretions. (There are obvious productivity issues from that, of course.)

At the core of the employment contract is a right to control (pdf). If there is no right to control, the courts do not recognise it as an employment contract.

That employees are often under the control of people who are also employees raises principal-agent issues (famously in the matter of corporate governance but, even more so, in the public sector), but does not change the essence of the employment contract. Delegated control is still control.

Despite the right to control being at its core, and that it derives from common law master-servant notions (though the modern employment contract has far fewer implied items), the employment contract is profoundly different from slavery, serfdom, debt bondage or any other form of bondage because neither the employee’s person, nor their labour services, is alienated as property.

Similarly, it is profoundly different from coverture marriage because no part of the employee’s property is covered and the employee retains their full legal personality, able to sue for breach of contract and to terminate the contract at will. That an employee retains their legal personality, can sue for breach of contract and is able to terminate the contract at will, with nothing to "buy out", is a marker that nothing is permanently alienated.

Similarly, it is not a pactum subjectionis, such as in a Hobbesian surrender of sovereignty or the dhimma pact of permanent and pervasive subordination, because nothing is permanently alienated: neither as some sort of bondage, nor giving up of personal sovereignty. In particular, there is no obligation to provide payments or services without direct recompense (such as taxes or tithes) involved, unlike the Hobbesian sovereignty bargain and dhimma pacts. The acceptance of direction and provision of services under the employment contract is strictly for an agreed-payment basis and, again unlike such arrangements, one can sue for breach of contract.

The employment contract differs from a commercial contract in that:
• a contractor has legal liability for their actions; and
• a contractor accepts financial liability for their own efforts
because a commercial contractor is directed but not controlled. That is, they provide agreed, specified services; not a generalised promise of labour services-as-directed. “Other duties as directed”—a classic part of an employee duty statement—cannot be properly part of a commercial contract, because it would involve unclear and unbounded legal and financial liabilities.
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From this, we can see how much the denial of legal and financial liability in the employment contract is a necessary part of the acceptance of control: that is, of generalised, indefinite direction. It is not some alienation of the employee’s personhood, but a necessary trade-off for acceptance of the generalised, not-pre-specified direction that is the essence of control: trade-offs that arise precisely because the employment contract is a contract between free parties.

The state in particular needs the employment contract: it would obviously be unreasonable to make public sector workers financially liable for any budgetary shortfalls or to hold them legally liable for actions which flow from lawful direction. Conversely, it is disastrous if politicians become delegates of public sector workers, as can be seen from the travails of California, where that is very close to being the case.

Firms and trade-offs
Whether we accept the Coasian notion of a firm as being the range of “in-house” non-market transactions or the Barzellian notion of the firm extending as far as the equity-capital guarantee to cover any losses, an employee is part of the firm, an independent contractor is not. The transactions with the independent contractor are market transactions (so external to the firm) while those with an employee are internal to the firm.

Similarly, any shortfall between payment for the contracted service and cost to the contractor of providing it is the contractor’s liability (so external to the equity capital’s guarantee to cover losses). Any shortfall between the payment to the contractor and the financial benefit to the firm from the services provided is part of the equity capital guarantee, but that is true of any purchase. Including the purchase of the services of employees. What makes the latter internal to the firm is that the costs involved in the direct provision of their labour services are typically internalised by the firm, so that the issue of expenses in providing the labour services, beyond those involved in arranging their private affairs (going to work, providing childcare, etc.), does not arise for employees (and even those are sometimes taken over by the firm directly).

An independent contractor is typically responsible for the creation, maintenance and improvement in their own human capital—their skills and knowledge. The firm has no claim on their continuing services and so, beyond specific elements that might be involved in providing services for the firm, no incentive to invest in their human capital.

Firms do have continuing—though indeterminate in length—claims on the services of their employees. Therefore, they have incentives to invest in the human capital of their employees, ameliorated by the fact that employees can still terminate the employment contract and use those skills elsewhere. This leads to various arrangements—such as benefits for longevity of service, partial employee-payment and partial firm-subsidy of skills acquisition, preference for short courses, and so on—to maximise the chance that investment in the human capital of employees will earn a return to the firm.

It is legally possible for people to form firms where the managers are the delegates of the workers. That typically that only happens in partnerships—where the capital is embedded in the suppliers of labour. In other words, the capital is both inseparable and the decision-makers are risking their own capital (their reputation). There would be a significantly greater risk premium in providing capital to a firm where the capital was only hired and poor incentives when the decision-makers did not gain from increasing the capital value of the firm.

In other words, such “labour-cratic” firms would have the typical incentive problems of the public sector. Which is presumably why we do not see them. Instead, the application of capital to labour is handled by employment contracts or commercial contracts.

The characteristics of employment contracts make sense if one examines them. In particular, they make sense in terms of trade-offs between the contracting parties. (Hence the tendency within common law towards fewer implied elements.) Modern discomfort with the notion of one citizen having a right of control over another in a private arrangement—and that incumbent employees (and those dependant on their income) are a large segment of the electorate—has, conversely, encouraged burgeoning regulation of the employment contract: typically to reduce or restrict the right of control (such as over termination via “unfair dismissal” regulation). But, precisely because the employment contract is based on a series of trade-offs, such regulation can have unfortunate effects.

For example, the high minimum wages, and grave difficulties in sacking people, of French law do much to explain the social disasters of the banlieues, the French housing estates. The harder it is to sever an employment relationship, the riskier it becomes to begin it. The more productive someone has to be to make starting an employment relationship worthwhile, the less such relationships will be engaged in. Instead, people retreat to ways of reducing the risk: they insist on more certification; they use networks so people they know can, in effect, vouch for any new person; they minimise risks in communication by hiring people most like themselves, and so on. Consequently, if you are a young Muslim male from those French housing estates, your chances of getting a job are greatly reduced. Living lives of idle resentment, burning a few cars provides cathartic excitement.

In other words, if regulators change the trade-offs within employment contracts, various commercial responses to “re-balance” them will occur that may impose significant social costs—such as the reduction in employment opportunities for marginal workers that come from making employing people more expensive and riskier.

Adding to expense and increasing complexity “locks up” potential resources. This encourages movement to other ways of applying labour to capital in order to unlock those resources. Such as, for example, agency contracting.

This then feeds into wider trends. With rising household incomes—particularly with marriages where both partners work becoming more common—the particular trade-offs of employment contracts (with their implicit income guarantees) have become relatively less appealing compared to various forms of self-employment and commercial contracting (with their greater flexibility). Using regulation to make mutually beneficial trade-offs harder to achieve via employment contracts—due to increased expense and greater restrictions—clearly tends to further discourage the use of employment contracts.

Complexity games
Encouraging complexity in the structuring of employment has been a prime union tactic, because complexity in employment contracts provides more:
• “services” they can provide members in administering that complexity;
• deals they can to with employers to lessen the cost of said complexity; and
• “bits” of income they can trumpet having “won”.
Hence, there is clearly a tension between the interests of unions and the interests of providers of labour that does much to explain shrinking union coverage.

Alas, regulatory complexity has powerful friends beyond unions:
• employer associations like it, because it also allows them to provide “services” to their members managing the complexity—the simpler the regulatory structure, the less there is for employer associations to “do”;
• bureaucrats like it, because it provides them with careers and expertise in managing it; and
• politicians like it, because it provides various benefits they can trumpet to particular groups of constituents.
The only people who do not like the regulatory complexity is everyone else who is trying to get income from productively matching capital to labour. But they are consumers of public policy, not producers of it.

It would be useful if the elements of employment contracts were more explicitly delineated: perhaps through a requirement to state the “cash equivalent” of various benefits—the greater transparency would make what are currently implicit (even hidden) trade-offs more explicit, making it easier for participants to see what they are actually getting, and what it is actually costing.

It is important to distinguish between the effects of regulation on commerce—the ability to transact to mutual benefit—from its effects on business—assets used to derive income. If you are in the business of providing services to “manage” regulatory complexity—as both unions and employer associations typically are—then regulatory complexity increases your business and the value of your “assets”. The naïve notion that employer associations automatically have the same interests as their members is as silly as the naïve notion that unions automatically have the same interests as their members. (Or that the interests of unions and employer associations are automatically opposed.)

Similarly, plenty of businesses like regulations that reduce their competition. What private enterprise likes is not necessarily what encourages free enterprise. Or vice versa.

For such complexity is a barrier to commerce because it gets in the way of people transacting for mutual benefit. The people who are most hurt by that are not the people with the most assets—the most money, skills, property—but the people with the fewest assets because they are the people who barriers to transact cut out first.

For example, the people who suffer from “unfair dismissal” laws raising the risks of employing people are small businesses and marginal workers. But they are, of course, precisely the people that have the least entrée into the arenas where public policy is produced and implemented.

But because people (particularly journalists) generally do not understand these complexities, employer association officials can be particularly effective opponents of regulatory simplification. They, after all, speak for “business” and cannot possibly be in the same game as the unions. Even though, in fact, they typically are.

In Australia they even share career paths—angling to be Commissioners. They may be on opposite sides in the “game” yet they have a deep, shared interest in the “game” continuing. But it is that “game” which is the central problem.

A game that is irredeemably of the negative kind of regulation; that which gets in the way of people transacting for mutual benefit, rather than facilitating it.

Patterns of priestly abuse

This extends comments I made here and here. There is also a useful discussion of the “threat” to attempt to arrest Pope Benedict here.


The Catholic priesthood has likely always been disproportionately same-sex oriented. St Peter Damien complained about a "sodomite" Church-within-the-Church in the C11th. Emmanuel Le Roy Ladurie's classic study Montaillou found evidence from the C14th of homosexual networks which were urban and clerical. Since Church teaching gave them no legitimate social space or erotic life other than celibacy, of course same-sex oriented men went into the priesthood: it gave their celibacy "more value" and was a way of "proving" that God did not hate them, of being "the best little boy in the world". It was well understood for generations that that "that sort of boy" would be steered into the Church.

What happened in the postwar period was that the social space for homosexuality expanded, so that those who went into the priesthood to escape their sexuality were paying an ever higher price in what they were giving up. It is not surprising that abuse increased. (I am referring here not to paedophilia as such, but primarily the inappropriate sexual relations with teenage boys.)

But, and here's the big "but", the same general patterns of social change were operating for all the Churches. It is the Catholic Church specifically which had an abuse problem of particular intensity and extent, both because it had so many priests who were refugees from their own sexuality and because the hierarchy—as celibates themselves—were far too solicitous of erring priests and far too dismissive of the pain and suffering of the abused. Being celibates, they did not have the visceral "it might be MY child" response one would get in the Protestant churches. Being priests, they held protecting priestly authority to be the most important issue, and, following Catholic teaching on sex, they judged sex in terms of its form, not in terms of its human experience. It is all very well to talk about "the Sexual Revolution of the 60s" but one needs to also focus on the very specifically Catholic nature of the extent of the problem.
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Note also that I am talking of the internal procedures of the Church, not their interaction with the civil authorities. Laying down Church policy for a global institution means covering a vast array of different polities and regimes, with the Church having often have very fraught interactions with various regimes. The Nazis, for example, used accusations of paedophile priests in an orchestrated attack on the Church in response to Pope Pius XI’s attack on Nazism. As a knowledgeable interlocutor has said in an email to me:

… it's impossible to understand the Church's "cover-up" policy, as we'd now call it, without understanding its relationship to civil governments going back to the Investiture controversy, Garibaldi, the Masonic French Third Republic, etc etc. The Nazis were just one instance (though one much in mind since the Nazis were still in Rome in 1944.)

A “one size fits all” policy has inherent problems. A city of Boston that is democratically run, has a Catholic majority—particularly among judges and priests—and operates in a democratic federal Republic where overt Christianity is entirely respectable is not quite the same as dealing with Nazi Germany. Indeed, one can argue that, precisely because the civil authorities were so friendly (and known to be so) that the Church hierarchy was particularly inadequate in its response within the Boston archdiocese. (Something similar may also apply in Ireland.)

But, the issue of making policy for the globe and such a range in Church-state interactions conceded, the internal failures of the Church loom large. Made worse by senior Vatican figures giving every appearance of being lost in their own moral universe, as the Pope’s preacher compares attacks on the Church over child abuse to anti-Semitism, the Vatican Secretary of State claims paedophilia is linked to homosexuality (not true and the Vatican is now trying to back away from) while Vatican radio blames an “anti-Catholic hate campaign”. They come across as morally tone deaf in a profound way, that just makes everything worse.

Some of the criticism is unfair: but mostly the Church has made a rod for its own back and is continuing to do so.

Bigotry as an expression of reason (and claims about reality)

Bigotry is an expression of reason. Indeed, bigotry has a logic to it that flows from, and manifests, the reasoned nature of bigotry.

Maverick philosopher shows exactly what is wrong with the term ‘homophobia’ while also being quite mistaken about the nature of bigotry when he writes:

The neologisms 'homophobic' and Islamophobic' -- I hesitate to call them words -- ought to be offensive to people who value clarity of thought and speech. A phobia is an irrational fear. One who argues against the morality of homosexual practices, or gives reasons for opposing same sex 'marriage' is precisely -- presenting arguments, and not expressing any fear, let alone any phobia. The arguments may or may not be cogent. And even if cogent, one is free to dissent from their conclusions. But they are expressive of reason, and are intended to appeal to the reason of one's interlocutor. To dismiss them as an expression of a phobia shows a lack of respect for reason and for the persons who proffer the arguments. But that is the modus operandi of the Left. When they can no longer ignore their opponents, they shout then down, vilify them, engage in childish name-calling, disrupt their presentations, invent question-begging epithets such as 'homophobe.'

‘Phobia’ is indeed a silly suffix when the issue is hatred not fear. Yet, by focusing on the particular misuse of the language—as this passage does—the substantive issue can be evaded: another reason ‘homophobia’ fails as a term.

It is similar to people holding that Arabs cannot be anti-Semitic because they are also Semites. First, that assumes there is a Semitic identity that Arabs and Jews generally conceive themselves as sharing, which there is not. Secondly, the substantive issue is Jew-hatred and of course Arabs can be Jew-haters: indeed, the Arab world is precisely where Jew-hatred is most intense nowadays.

So ‘homophobia’ is, indeed, a silly term. But queer-hatred is a genuine phenomena, every bit as real as Jew-hatred.

The nature of bigotry
The other error maverick philosopher makes is to entirely mistake the nature of bigotry (given that is the substantive accusation being made with the term 'homophobia' however unfortunate a neologism it may be for that). The notion that bigotry can never be an appeal to, or an expression of, reason is, at best, incredibly naïve. Bigotry is rife with expression of, and appeals to, reason. Indeed, bigotry typically involves appeals to moral reason. Bigotry is all about ruling particular categories of people either entirely out of the moral community, or massively devaluing their membership of it, based on reasoned claims about them (which is not the same as being reasonable claims). The history of Jew-hatred is full of arguments, of appeals to reason, of the expression of reason. As is the history of racism, misogyny, and so on.

What is distinctive about bigotry is not that it is unreasoned, nor even that it is not a moral claim. What is distinctive about bigotry is that it attacks people’s membership of the moral community by category unrelated to their specific actions against others and typically does so by attacking their nature. When Martin Luther King eloquently expressed a dream of someone being judged by the content of their character not the colour of their skin, he was going against the notion that the colour of someone’s skin tells you something crucial about the actual or likely content of someone’s character, due to the nature of being black: a claim that dates back to at least medieval Arab-Muslim discourses, notably in that supreme example of the reasoning intellectual, Ibn Khaldun.

Similarly, Christian Jew-hatred judged the character of Jews negatively because they had failed to accept Jesus as Messiah: a failure of belief that was taken to be a failure of moral character that made them guilty of Deicide and rejection of God unless they became Christians and accepted Jesus. Just as Muslim Jew-hatred judges the character of Jews negatively unless they accept Muhammad as Prophet.

In both Christian and Muslim forms of Jew-hatred, believers are validating their own beliefs at the expense of those whose existence either confronts or contradicts the same. Just as Christian, Muslims and Jews judge the same-sex oriented negatively, for to accept them as a legitimate manifestation of humanity calls into question parts of their scriptures.

But that is what oppression by secular and religious ideologies have in common: theory trumps people. In each case, the view is “we have a theory of how people should be which you do not fit” thereby claiming the right to constrict, limit, repress or eliminate people’s lives. Hence such belief systems end up operating in grossly immoral ways, since they contradict the first principle of morality, which is that people are prior: that morality is about how we treat people-as-people. The function of morality is to allow us to get along in an organised society, above the level of small protection gang. Our existence as sentient beings is the base from which morality is built. As soon as one adopts a theory where some people count and others do not, some people are properly human and some are not, you are attacking the web of morality: grossly immoral behaviour will naturally flow from that. As, of course, it has.
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One way to disguise that is what you are doing is to attack the character of those who are being denied the full protection of the web of morality, thereby making them “responsible” for their own fate. So, just as the moral character of blacks, or Jews, or non-believers or whatever are attacked, exactly the same applies to same-sex attraction and orientation. That one has and expresses such attraction is taken to show that one’s moral character, one’s nature, is deformed.

Now, of course, there are reasoned arguments for such claims, as there were and are reasoned arguments against Jews, against blacks, against women, against Catholics, against Protestants, against Chinese, against whatever. But that there are reasoned arguments, expressions of reason, uses of reason, tells us nothing about whether what is going on is bigotry or not. (Or whether said uses are reasonable.) What is a sure-fire sign of bigotry is to attack the nature of people by some general category not defined by some specific action against others. We can see that ‘murderer’, ‘thief’, ‘liar’, ‘fraudster’ etc are different types of categories in a moral vital sense than ‘Jew’, ‘homosexual’, ‘black’, ‘woman’, ‘Catholic’. By contrast, it is precisely the claim of bigotry that such categories are not different in some vital moral sense; that the designated group are morally deficient as a group.

The logic of bigotry
Bigotry comes in two basic levels: the claim that some group is lesser and the claim that some group should not exist. So—as instances of the latter—Jews should accept Christ, Jews and Christians should accept Muhammad, everyone should be heterosexual and so on, just as no-one should be a murderer or a thief. And one frames patterns and events very differently if one’s base assumption is that some group should not exist than if their existence is taken as legitimate. For example, if one believes homosexuals should not exist, one is going to see the Catholic Church’s child abuse problems quite differently (as one sees in recent statements by prominent Vatican officials that criticism of the Church over the issue is like anti-Semitism, that paedophilia is connected to homosexuality and so forth) than if one takes human sexual diversity as a given, and then asks what incentives Catholic practice and dogma creates given the reality of human sexual diversity. Bigotry has logic to it precisely because it is an expression of reason: just one based on particular premises.

We can see this in the example maverick philosopheruses in the passage quoted above. For the notion that there are moral arguments against “homosexual practice” is, irredeemably, a belittling term used to attack people’s nature. As is the cognate phrase ‘practising homosexual’.

To turn the issue into particular sexual practices is belittling in itself, since sexual acts are just a manifestation of something much deeper: one’s erotic nature. One’s aspirations to joy, intimate companionship and love. One’s sexual orientation is shown most profoundly, not by who one has sex with, but who one falls in love with.

This is one of the problems with the term ‘homosexual’: it provides comfort to the notion that the issue is certain sexual practices rather than erotic attraction and orientation. It then provides comfort to the notion that it is about particular, dispensable, acts.

Now, sexual acts are of course chosen acts. But the demand to give up such acts is also a demand to give up entirely the aspiration to live a life of erotic intimacy with someone you love, even if they are an adult who wishes the same with you. That all such aspirations must be abandoned forever. This is a monstrous demand.

By focusing on the notion of ‘homosexual practice’, the monstrousness of the demand is hidden while implying that all homosexuals care about is sex: that, somehow, they cannot have the “real love” of “real people”. It is intrinsically belittling.

But it is also an attack on their nature beyond this belittling way because, if the practice is morally wrong, then the inclination that drives it must be a moral deformation. The practice cannot be held to be wrong without the inclination of seeking to engage erotically with members of one’s own sex being a sign of a deformed nature. Making the acts problematic must belittle the same-sex oriented. It must be to see then as less rather than as full people.

Which, historically, is exactly how it has worked. And still does: that the inclination is a deformity is the Vatican’s position, for example.

If the acts are morally wrong then the same-sex attracted and oriented are offered no way to view their own erotic inclinations other than in terms of perversity and evil: an immense, indeed often suicidal, psychic burden. The possibly apocryphal offhand royal comment:

I thought men like that killed themselves

has all too often been true.

Much of the burbling on about the alleged tensions between “religious freedom” and equal protection of the law for homosexuals is about defending the “right” to emotionally and spiritually brutalise the same-sex oriented—particularly same-sex oriented adolescents raised in religious milieus. About “their God-fearing right” to attack those who are same-sex oriented membership of the moral community. As Anglican minister Rev. Dr Mark Durie notes in his examination of Muslim teaching and practice against Jews and Christians and their treatment under Muslim rule:

It is a crushing psychological and spiritual burden to live from generation to generation under a culture of curses and withholding of blessings (p.153).

Generations of queer folk cannot but agree. The point encapsulates, and extends beyond, philosopher Richard Mohr’s comment that:

… sodomy laws are the chief systematic way that society as a whole tells gays they are scum.

But if one should not exist, then the question of the burden imposed does not even arise. No more than it did for Christians repressing Jews (or killing heretics) or for Muslims repressing Jews and Christians: also cases of treatment of categories of people who should not exist.

Either way, the same-sex oriented are held to be morally deformed by category unconnected to specific acts against others: so it is a manifestation of bigotry regardless of what “expressions of reason” are advanced to support it.

Denying equal protection of the law
The same belittling operates in the arguments against same-sex marriage. These are arguments to deny a set of one’s fellow citizens equal protection of the law. They can be dressed up anyway one likes, but that is what they are. They work off the same belittling of the nature of the same-sex oriented as making the sexual acts morally problematic does, and are a product of it.

Historically, human societies have tended to cluster at the ends of the spectrum in dealing with the erotic diversity of the human. At one end of that spectrum are the monotheist societie that have held the position “same-sex activity is wrong so punishable by death”. (Plus a few polytheist societies—notably the Aztecs and the Norse, though there is some scholarly dispute about what is being condemned in the relevant texts and both cases are complicated by the existence of “third gender” priests.) At the other end are most animist and polytheist societies, who have taken same-sex attraction and orientation to be just a manifestation of human sexual diversity, of how (some) people are: many such societies having acknowledged various forms of same-sex marriage.

That the outlooks cluster by religious frameworks connects to how the accusations and arguments against homosexuals and homosexuality replicate the accusations and arguments against Jews (that they have betrayed their human role, that they are against God’s purposes, that they corrupt and pervert, that they prey on children …): both Jew-hatred and queer-hatred are processes of exclusion of a small minority on religious grounds which then transmuted into alleged moral grounds. But without the religious distinction in the first place, the moral critique would have never developed to anywhere the same intensity. “The homosexual problem” is as entirely a creation of hostile framing as “the Jewish problem” was (or is).

But both Jew-hatred and queer-hatred have been excellent training grounds for ignoring and belittling the humanity of someone else based on a particular characteristic so that what decency, creativity and ordinary humanity they may have becomes denied and devalued because they are member of a group who are deemed to be less: to be outside the bounds of the moral community, to be outside decency.

The religious distinction in the broad patterns of treatment of same-sex attraction occurs because monotheism has an inherently more hostile and restrictive attitude to human sexuality than animism and polytheism. Animist societies, living embedded in nature, are aware that same-sex activity is part of the natural world, and that sex is used for other purposes than reproduction. In both animism and polytheism, sex is part of the divine: to the extent that sex can be a way of connecting us to the divine.

Not so in monotheism: sex is not part of the divine, so sex becomes what separates us from the divine. The only connection between the divine and sex is via the creative act, via procreation. Hence the elevation of procreation and the concern for sharply differentiated gender roles built around that. This also helps to differentiate monotheism from the religious sensuality of polytheism and animism (a concern that is quite clear in the Old Testament and in the New Testament, though not notably the Gospels). It has adverse implications for women, since their sexuality becomes something threatening, something which diverts men from the divine and is without divine sanction except as procreation. (Consider the Adam and Eve story and the implications put upon it: Augustine is particularly illustrative for this with his notion that original sin is carnally transmitted.) That monotheisms have overwhelmingly insisted that only men can have religious authority both reflects and reinforces the misogyny that comes from such a fraught attitude to human sexuality.

Thomism, with its methodology of the conclusion being used to select its premises and the normative essentialism that both manifests and reflects that, is simply a convenient philosophical cover for underlying religious impulses.

The wider historical clusterings in attitudes to same-sex attraction and orientation occurs because the position in the middle between “kill them” and “full members of the community” is not stable, given any strong assumption of a common moral community. If the same-sex attracted and oriented are allowed to operate openly, then their clear wishes are given an implicit legitimacy: they become “just folks”, with the implications of equality that go with that. To see their aspirations as a deformity requires repressing its manifestation, denying any legitimacy even in verbal or other expression, and denying their human agency in a quite profound sense.

The tradition of the anathematisation of same-sex activity (and hence attraction) required brutality to establish and brutality to maintain. With the withdrawal of direct state-brutality, and active proscribing of private brutality, the tradition is collapsing because it cannot be maintained without that brutality, despite the best efforts of clerics and priests to keep it going via spiritual abuse.

Hence, in the Anglosphere, treatment of same-sex acts (and hence attraction) has gone from capital crime to same-sex marriage in less than two centuries. The positions in the middle simply are not socially stable: especially not in societies with notions of moral universality.

Hence also the phenomena that tolerance of homosexuality is directly connected to knowing “out” homosexuals: they become “just folks”. Of their actual humanity trumping theories against their humanity. All of which leads to the growing view that the same-sex oriented are just folk—in the words of philosopher Kwame Anthony Appiah:

over the last 30 years or so, instead of thinking about the private activity of gay sex, many Americans and Europeans started thinking about the public category of gay people.

—versus the view that they are a twisted and perverted lesser form of the human whose experience and aspirations do not count. Archbishop Desmond Tutu was once asked what was wrong with apartheid. He replied:

It makes you doubt that you are a child of God.

That is precisely what making “homosexual practice” morally problematic does.

The focusing on “homosexual practice” is all about resisting and denying that move to seeing the same-sex attracted and oriented as full people, to seeing their erotic aspirations as legitimate manifestation of their humanity but instead as signs of the “deformed nature” of their humanity. To make “homosexual practice” the morally problematic salient issue is profoundly belittling, and inherently so, for it attacks their humanity in a quite direct sense.

Conservatism’s (and everyone else’s) shifting ‘realism’
Not only is bigotry an expression of reason, not only does bigotry claim to be about morality—indeed, to be defending “moral decency”—bigotry also claims to be reality-based. It is an essential element of bigotry that it claims to understand the “real nature” of things: in particular, the “true nature” of those it operates against. Jew-haters, for example, were utterly convinced they understood the “true nature” of the Jews, just as anti-gay activists nowadays are forever making statements about the “true nature” of homosexuals and homosexuality. The Vatican claim that same-sex attracted are “objectively disordered” is, most emphatically, a reality claim.

The claim to engage in “reality-based” politics is something of a fetish of contemporary American political discourse. When engaged in by those left-of-centre, it is usually a rejection of religious-derived claims in politics: specifically, of Judaeo-Christian based religious claims. (Other religious claims often get treated somewhat more leniently.) There are all sorts of ways in which such politics’ claim to be grounded in reality may well be contested (I have a few I could nominate) but the appeal of such a self-characterisation is obvious: we deal with reality, you deal with fantasy and delusion.

So it is less than surprising that conservatives also pass off their politics as ‘reality-based’: typically based on a sense of the limitations of human reason and action’s ability to change how things are. Maverick philosopher, for example, summarises a passage from a 1960 essay by Richard Weaver as:

The conservative is a reality-based thinker, whereas the radical is a utopian.

This is, no doubt, a consoling distinction. It is, alas, nonsense. If utopianism is waging war against people-as-they-are in the name of people-as-they-are-deemed-to-ought-to-be, then there are few clearer manifestations of utopianism than the long war against human sexual diversity. After all, the claim is not that all people are heterosexual: which is clearly false. It is that everyone ought to be heterosexual: that opposite sex attraction is how humans “properly” are. A claim every bit as utopian as any radical policy one is likely to consider. With all the brutality and patterns of repression such utopianism-in-practice means. It is also an impeccably conservative claim in that it has been defended by conservatives (and still is). Indeed, hostility to equality-before-the-law for the same-sex attracted has become something of a fetish of conservative politics in the US.

But bigotry, as previously noted, has always claimed to be “reality based”. It is those who oppose the “necessary” denial of full (or, in extreme, any) membership of the moral community for the targeted group who have been denounced as being ignorant, foolish, destructive, soft-headed, malignant, etc. For, it is claimed, they do not understand the reality of the matter.

A shifting set of claims about human “reality” that shows up the problem for any conservative claim to be engaged in ‘reality-based’ politics. Was conservatism being “reality-based” when conservatives defended coverture marriage, for example? Or denying women the vote? Was it being reality-based when conservatives defended religious tests for voting and office? Was it being reality-based when conservatives defended slavery? And so on. The concept of what it is to be human is itself a work in motion within the wider society and within the conservative tradition specifically.

All political traditions are works in motion, of course. The problem comes with denying this. To claim that one’s particular tradition is “reality-based” sets up patent hostages to fortune since the “sense of reality” of any political tradition changes over time: sometimes quite dramatically.

If one looks at the left, for example, one can see that over the last two centuries, the dominant view on the left about the role of the state, the role of nationhood, sexual identity, gender identity, imperialism, race, etc have all changed dramatically. What has not changed is the self-righteous sense of moral and intellectual superiority with which whatever the current position at the time has been typically defended. What we can see from this is that what the left has really been selling is a self-righteous sense of moral and intellectual superiority: the one true constant (apart from a certain fetish about equality which itself has been a perennial prop to that self-righteous sense of moral and intellectual superiority).

The silly term ‘neo-liberal’ is also a form of the denial of the reality that all political traditions are works in motion. It represents either a claim that the (classical) liberal tradition has been subsumed by the wider left or that its time has passed (since the “proper” tend of history is to ever wider collectivism), so “neo-liberalism” is just a passing fad which will fall by the wayside. The alternative—that the revitalising of economic liberalism is precisely a manifestation of a longer continuing tradition—suggests a contingency and partiality to their own political thinking that many folk on the left find unappealing.

Western conservatism has the inherent problem that Western civilisation (or, what we should perhaps now call Technic civilisation) has long been the most dynamic of all human civilisations. To defend that civilisation is to defend widening processes of change: an inherent difficulty for conservatism. Hence that prudential liberal Edmund Burke becomes an iconic “conservative” thinker.

All Western political traditions are works in motion due to changing circumstances, increasing knowledge and technical capacity and evolving senses of what it is to be human. It is denying this reality—which the claim to be ‘reality-based’ ironically so often does—that causes problems.

For example, Robert George’s claim to be able to derive moral positions “by reason alone” is nonsense. What he derives are positions plausible to contemporary American conservatives. If his audience were conservatives in 1900 rather than 2000, he would reach different conclusions: as he would in 1800, 1700, 1600, 1500, etc.

Similarly, John Finnis would have a different sense of which group(s) “fail” to be worthy of equality before the law if he was writing in 1900, 1800, etc. Just as a 1750 or 1850 equivalent of Ed Feser would be denouncing legal equality for Jews as a reductio ad absurdum of liberal modernity as he now denounces equality before the law for the same-sex attracted as a reductio ad absurdum of liberal modernity. We know this is true because we can examine the historical record and see this is so. The Catholic Church, after all, has never been in favour of equality before the law: it has just been forced to narrow over time which groups it seeks to deny such equality to. And how such lack of equality is to be enforced.

It is a bit of a problem to claim to be based on enduring realities, and enduring reasoned “truths” about that reality, if the conclusions keep changing over time. (It is, in fact, a major indication that there is something deeply flawed in Thomist moral reasoning that its conclusions change over time in ways entirely convenient to whatever is the current Catholic doctrine yet it claims to be using deductive reasoning from enduring metaphysical realities to reach its—shifting—conclusions.)

The problem is the connection between tradition and theory is complicated. Some enduring traditions (the legal degradation of Jews and queers, for example) simply manifest the persistence of particular theories of the human down the centuries. So to cite “tradition” against same-sex marriage is profoundly dishonest unless one looks at what created and maintained that tradition. That something is centuries old may simply reflect that certain power-imbalances persisted for centuries.

After all, the opponents of legal equality for Jews could cite centuries of tradition, could claim that such legal equality was a betrayal of Christian tradition and the Christian basis of Western civilisation. And do so completely accurately. That did not make the legal degradation of the Jews anything other than monstrous.

Maverick philosopher himself wrestles with the tensions between conservatism and the reality of change when he writes:

Change is a given, progress is the debate.


The radical thesis must be balanced by the conservative antithesis in order to get the appropriate synthesis and hence progress. The challenge is to go in the right direction at the right speed. It will always be too slow for the radical, and it will always be too fast for the conservative. We might question whether the western adversarial system promotes an efficient synthesis; we might question whether we need swings from right to left and back again before the synthesis is realized: do we need to live through the opposing theses? Is it a utopian ideal to think that we don’t? In any case the radical and the conservative need to learn to love each other’s strengths.

Very ecumenical.


But an ecumenism that needs to not try and claim that there is some inherent tension between bigotry and the operation of reason. Or that there is no utopianism in contemporary conservatism: its attitude to human sexual diversity is profoundly utopian. That is precisely what is wrong with it. That it is a triumph of theory over reality.

What is wrong with (voluntary) slavery? Why no property in people or in their labour?

In a post, David Ellerman asks the question “why was slavery wrong?” and argues that being involuntary is not the crucial problem, since there were and are arguments for slavery being a quasi-contractual (and so consensual) arrangement and for voluntary slavery. The crucial problem was rather that slavery treated people as things, and so alienated what cannot be alienated.

On the essentials, he is surely correct. If the only thing wrong with slavery was that it was involuntary, then voluntary slavery should be entirely fine and banning it is an infringement on people’s liberties to contract.

Some folk have argued that voluntary slavery is fine, notably Robert Nozick. A particularly trenchant argument in favour of voluntary slavery was put by J. Philmore (apparently a pseudonym for David Ellerman) in The Libertarian Case for Slavery (pdf) published in 1982.

In any discussion of human bondage, it is important to be clear about what particular form of bondage one is talking about, because the historical range (especially in what can be broadly called “serfdom”) is very large. It is clear that Philmore is talking about something quite different in his “voluntary slavery” than the historical conceptions of slavery. One historical version of slavery is what might be called “absolute slavery”, where a person is property completely. This was slavery in the Roman form, where a slave had the status of an animal and had no independent legal standing whatsoever. They were not even recognised by the criminal law, since their master was responsible for any criminal act they might perform.

Then there was what John Locke (Second Treatise on Government, section 24) called ‘Drudgery’, which is slavery in the Jewish, Christian (and Islamic) tradition, where slaves were owned but limits were put on what masters could do to them. So much so, that in antebellum Alabama, for example, slaves were recognised as persons for the criminal law (though for nothing else: they were otherwise property, to be bought and sold).

This second form of slavery has a certain level of tension, even contradiction, built into it. But, in either form of slavery, your children were also slaves. Roman law as codified by Justinian recognised three ways of being a slave: capture, birth or self-sale. If you were property, then your body was property and the products of your body were property. Slaves had no family rights, a major reason why slave populations typically had fertility rates well below replacement and had to be “replenished”. The only slave population that apparently did have a replacement rate fertility rate was in the antebellum South and there is reason to think even that has been exaggerated.

If your body was property, so also were the services of your body. Including, of course, sex: slave masters famously enjoyed the sexual services of their slaves. It was something of a standard “perk” of being a slave manager, for example.

To argue that people have a right to choose to be property is a big ask: particularly since it would also involve any children they may have being slaves as well. But that is not what Philmore is supporting: he is supporting voluntary slavery that is really “warranteeism”. That is, people selling their lifetime labour services (but only their labour services) while retaining family rights and, effectively, “pension” rights—support in old age. As Philmore puts it:

The quid pro quo in the warrantee contract is a lifetime guarantee of food, clothing, and shelter (or equivalent money income) in return for the lifetime right to one’s labour services. Moreover, there is no more need for a warrantee to give up his personal property and political rights in the lifetime labor contract than there is for an employee to do the same in the short term labor contract.

Which is actually quite a different thing from historical slavery. It is more like historical serfdom or debt bondage. Which people did sell themselves into, since there was a genuine exchange involved.
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This is distinct from selling yourself into slavery, as turning yourself into property then abolishes your ability to legally own property: not much of an exchange in the ordinary sense there—complicated by the fact that slaves, in practice, often did have effective property rights. Indeed, people typically put themselves into slavery to avoid execution or starvation: the quid quo pro of continuing to live was a benefit that did not require property ownership to enjoy. (Avoiding the the latter was also a reason for people to put themselves into serfdom or debt-bondage.) Parents sometimes sold their children into slavery, but that is clearly also an exchange (however outrageous or desperate).

It is “warranteeism” rather than full slavery that Paul Samuelson is invoking when he writes, as Philmore quotes,:

Since slavery was abolished, human earning power is forbidden by law to be capitalized. A man is not even free to sell himself: he must rent himself at a wage.

This a fairly standard observation in the economics literature. Philmore quotes Carl Christ who wrote, as part of the working assumptions for complete allocative efficiency, that:

The institution of private property and free contract as we know it is modified to permit individuals to sell or mortgage their person in return for present and/or future benefits.

But there is an unremarked shift within what both Samuelson and Christ write where what is being considered talks about (not) being able to capitalise your own labour by self-sale yet invokes a notion of turning yourself into property, which does rather more than merely capitalise your labour. Full slavery capitalises your body—including sexual services and your progeny—while denying yourself legal rights to own property. In other words, capitalising your labour, turning your labour into property, is not the same as genuinely selling yourself, as turning yourself into property.

From this, we can see that there is a problem with the expression “rent yourself”. There is a difference between renting your labour and renting yourself: renting your labour involves only providing labour services of specified type for specified duration. Renting you involves a much more complete offer. The notion of people-as-property has become so foreign that we glide over the distinction. But it is a very real difference.

So, care has to be taken with use of terms. For example, Philmore’s use of the term ‘human capital’ is incorrect. Human capital is not the ability to produce labour, it is the investment in improving the quality of labour through learning skills and gaining experience. As such, it is tied to a particular person, and is not transferable in the way land, labour or fixed capital is. (It can be transmitted, but not transferred.) The production of a person (who may or may not be engaged in economic activity and who has a much broader ambit than their economic role) is not the same as the production of saleable skills. Misusing the term ‘human capital’ in this way is actually a sign of not being alert to this, rather crucial, distinction.

Philmore understands that what he calls “voluntary slavery” is really “warranteeism”, but ‘slavery’ is the more familiar (and more shocking) term, so he uses it. This is unfortunate, because it encourages the confusion between selling your labour and selling yourself: between offering lifetime labour service and becoming property.

Now, we ban both turning yourself into property and turning your labour services into property. That is, you can neither sell yourself into slavery nor enter into any form of serfdom, debt bondage or other manifestation of “warranteeism”.

People barred from being property
By banning slavery, what we are saying is that people cannot be property. For that was the crucial feature of slavery: it made people property. They were owned. Modern law says that people are not the sort of thing that can be property: they cannot be treated as things in that way.

A good question is why? It is not because they are living things: we permit ownership of plants and animals. Indeed, the rise of humans from hunter-gathering has been based on ownership of living things. Such ownership even preceded agriculture, since it is likely dogs were domesticated long before agriculture.

It is because humans are a certain sort of living thing: a living thing that is a moral agent.

Not that all humans are full moral agents. Children and mental incompetents are placed under the care of others. We do this because we hold them not to have developed the full functions of moral agents.

So, in effect, we are saying that moral agents cannot be property. And we are saying that whether or not they are full moral agents, because you are not allowed to own children or mental incompetents either. Guardianship (parental or otherwise) is not ownership.

Why do we have guardianship? Because humans are worthy of moral concern: we have guardianship because, even if children and mental incompetents are not full moral agents, they need someone to be concerned for their welfare, someone able to decide on their behalf.

Slave-masters had some concern for the welfare of their slaves: they wanted them to be productive. People tend to take care of their property: so much so that systems of private property have repeatedly shown themselves to be more productive than command economies. But such concern for one’s property is entirely an instrumental concern. In the case of the slave-master, it is still predicated on the person being a thing: a useful thing, but still a thing, not a person.

So, for example, slavery in the antebellum South was less harsh than in the Caribbean and Brazil for purely instrumental reasons. In the American South, death rates were comparatively low and breeding rates comparatively high, so slaves functioned more as assets: things producing income beyond a particular production cycle. In the Caribbean and Brazil, death rates were high and breeding rates low, so slaves functioned more as intermediate goods used up in the process of production.

Guardianship respects someone’s personhood, slavery negates it: slavery takes people outside the web of morality and legal personality in a way we now find unacceptable regardless of whether they may offer themselves up for it or not.

Not that this was always true. Romans happily regarded slaves as “talking instruments” (instrumentum vocale), legally treated them as animals put to work by their masters, and held their masters responsible for any criminal act by them (under the Lex Aquilia of 286BC) in the same way that we hold animal owners responsible for any criminal damage done by them.

Christians had systems of slavery for centuries. But they had a problem, in that it was incompatible with Christianity to class slaves as animals, so Christian slave law was “polluted” by Christian qualms on this issue, as Jewish law was "polluted" by similar qualms. Hence, for example, the law in the antebellum Alabama held slaves to be criminally liable for their own actions. Hence also the elaboration of contractual arguments for slavery by various theorists within Christendom that Ellerman documents so usefully (pdf).

In the end, the contradiction between demoting humans to the status of animals—and thus things that could be owned—and humans as moral-beings-with-souls “equal in the sight of God” was resolved in the favour of the latter. But it took a long time and a brutal civil war in the US.

So, we now say that people cannot demote themselves to the legal status of animals. They cannot demote themselves to things, to that which can be owned. You cannot choose to be what you are intrinsically are not. And slavers are the enemy of all mankind because they force people into such a degraded state: they attack the web of morality in a quite fundamental way.

But intrinsically only under a certain conception of morality: a conception of everyone as belonging to the moral community, of the web of morality as a universal condition which puts limits on the web of property. Once one has such a universal conception of morality, then slavery is a universal affront. It turns “someone like us” into a thing, into the legal status like that of an animal in flat contradiction to their moral status. Hence, for example, the famous anti-slavery slogan of “Am I not a man and a Brother?”. As such, slavery is an affront regardless of whether anyone chose the state or not for it is about the status of being human, not the particular choices of particular humans.

People barred from being bound to property
Hence serfdom is likewise not acceptable. Serfdom is also a form of bondage but, unlike a slave, a serf could own property and had family rights. They always remained a legal person. Just one under the direction of another who could not leave the land they were bound to without the permission of the landowner. This lack of legal ability to exit meant that their payment could be kept down to subsistence level and a larger surplus extracted. It was a way of funding local provision of public goods (primarily protection and law enforcement) and the provision of military service to the crown.

Serfdom decayed largely for instrumental reasons: as a form of exploitation it relied on free wages being higher than subsistence plus the cost of control (including any loss of productivity) and on enforcement by the crown. As populations rose and free wages fell, landowners in Latin Christendom became more and more willing to allow serfs to purchase their freedom. (Not so much the Church, since canon law forbade alienation of Church property.) But serfdom was so clearly a system of exploitation, that its survival into post- Enlightenment times became more and more problematic and eventually rulers withdrew legal enforcement⎯without which it could not persist (as a mass condition)⎯by abolishing it in law.

While serfs were not property in the full sense that slaves were, control over them was a form of property and it also fell afoul of the notion that the web of morality put limits on the web of property. The last hurrah of serfdom (though it was, of course, never labelled in that way) was in Stalinist Soviet Union, and it was abolished soon after the death of Stalin.

One sign of the degraded status of the serf and the slave is that the power of direction extended beyond the process of production. An employee is only subject to direction during work hours, only on matters pertaining to the supply of labour to the productive process and, even there, there are legal limits on what direction is permitted. The slave and the serf were subject to legal direction extending into the rest of their life: in the case of the slave, to all aspects of their life. This was another way that being property, or being tied to property, diminished them.

To put all this another way, requiring consent is a manifestation of moral agency. We now take the view that a manifestation of moral agency cannot be used to extinguish or seriously diminish moral agency:in particular, not undermine the status of being a moral agent—even that of the person offering to consent to it. Slavery is wrong because it attacks human moral agency in a way we now find unacceptable: an unacceptable diminution of the status of human moral agency. Involuntary slavery does in both the condition itself and how it was entered into, voluntary slavery in the condition itself regardless of how it was entered into.

People are barred from their labour being property
“Warranteeism” and debt-bondage would seem to get around this because only the labour is being sold. They are bound to the owner of their labour services, but otherwise remain legal personalities and get a clear return on their exchange.

Remember how Philmore presented it:

The quid pro quo in the warrantee contract is a lifetime guarantee of food, clothing, and shelter (or equivalent money income) in return for the lifetime right to one’s labour services. Moreover, there is no more need for a warrantee to give up his personal property and political rights in the lifetime labor contract than there is for an employee to do the same in the short term labor contract.

Indeed, such an arrangement is not only economically efficient, it is required for complete allocative efficiency. As economist Carl Christ wrote, in developing the implications of the Arrow-Debreu theorem, to get full efficiency he assumed that:

The institution of private property and free contract as we know it is modified to permit individuals to sell or mortgage their person in return for present and/or future benefits.

Now, as already discussed, it is not their person being sold, but their lifetime labour services but, with that adjustment, the thing goes through. (Philmore’s parallel example of Japanese lifetime employment is not really a case of “warranteeism” as their services are not turned into property.)

Lifetime commitment would seem no more objectionable in itself than it is for marriage. Moreover, one can exit from a “warrantee” contract by “paying out” the contract. Nor is future uncertainty an issue. In a society where capital grows faster than the workforce, labour income will tend to rise but the issue of uncertainty about future income applies equally to any purchase of land or other continuing assets. Moreover, such risk applies in both directions—to the purchaser of the “warrant” as well as the seller.

It is normal with assets that they can be sold at any time. If labour services are turned into a saleable asset, then the ability to on-sell would appear to be a necessary element. Which would, of course, raise the value of the asset and improve the security for the warrantee, as they would not be entirely beholden to the ability of the original purchaser to fulfil their element of the contract.

There is nothing inherently coercive about such warranteeism and it is only labour services that are being sold. The person does not become property, nor are they bound to property, only their labour becomes property.

So, if it is objectionable, it is certainly is not objectionable on grounds of lack of consent, lack of contractual exchange, turning people into property or subordinating people to property.

Or is it? To turn someone’s lifetime services into property—with all the implications (including resale) that being property implies—is subordinating people to property in a quite direct way: property, moreover that cannot be separated from them. Surely, that is the objection: on the grounds that no part, particularly no non-separable party, of a person can be the property of another.

Which is why there is angst about selling kidneys, selling use of the womb even selling blood. We feel that it violates the principle that the web of property does not extend to the human body—as the carrier of our personhood—even in part. So selling blood seems the least objectionable because blood is replenishable. And, while the use of the womb is replenishable, it is too close to “selling babies” for people to be entirely comfortable with it.

If we are uncomfortable with selling separable bits of the body, with turning body parts into property, how much more uncomfortable are we going to be with turning something as irretrievably tied to you as your labour services into property. The point is not whether such an arrangement is consented to, the point are boundary issues:
1. whether consent is the only issue for the preservation of human autonomy;
2. what is required to defend the status of humans as moral agents; and
3. what are the boundaries between people and property.
It is entirely reasonable to say there is more to human autonomy than any act of consent, that respect for people as moral agents also means respect for their status as moral agents, for the moral dignity of being human. It is also entirely reasonable to say the web of property cannot be used to attack the very basis of human autonomy, that people—particularly non-separable aspects of people—cannot be property.

First, because the essence of property is control and we are not prepared to give any individual that level of control over another regardless of whether it is consented to. Second, because property is control of some attribute and we are not prepared to allow people—or integral parts thereof—to be mere attributes in the way animals or things can be.

The problem with the way things are expressed in the economic literature—the failure to distinguish between selling labour services and selling yourself—is not only a problem with a lack of grip on the notion of people-as-property. It is also a sign within the wider tendency of modern economics to overlook the central significance of property rights.

Employment contracts
What is different, therefore, about employment contracts? For we obviously allow people to rent their labour services. To rent them, what’s more, not as a simple commercial exchange, but as an arrangement where someone directs another. In the words of a legal text quoted by Coase and then Philmore:

The master must have the right to control the servant’s work, either personally or by another servant or agent. It is the right of control or interference, of being entitled to tell the servant when to work (within the hours of service) or when not to work, and what work to do and how to do it (within the terms of such service), which is the dominant characteristic in this relation and marks off the servant from an independent contractor, or from one employed merely to give to his employer the fruits or results of his labour.

A warrantee would surely be directed, within the hours and terms of service, like any employee. So, it is not the issue of being directed that is different. Certainly, the direction must be consented to by the warrantee to be effected, but that applies to any employee as well.

Nor is the difference that it happens under contract. In both cases, the ability to direct flows from the contract.

The problem is with the nature of the contract. An employment contract is a contract between people who remain full legal individuals: using the web of property but not part of it. A contract that is transferable only by the supplier of the labour and is transferable without any limit on their part (apart from the normal notice period). Indeed, the purchaser of the labour services often has, or takes on, various obligations of notice and/or payment if they terminate the contract.

A “warrantee” contract places an attribute of a person—their labour services—within the web of property and makes it transferable entirely by the holder of the warrant (as it must be to be the sale of lifetime service). Even if it was made non-transferrable (which would significantly reduce its value), it has still pushed the boundary of property into someone’s personhood, which the employment contract does not.

A revealing comparison is with coverture marriage, where the legal rights of the wife were subsumed into that of the husband. In the Blackstone’s words:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.

Coverture marriage only began to be abolished with the passage of the married women’s property acts, a process that continued for over a century until the recognition of rape within marriage. (A useful comment on coverture marriage is provided by skepticlawyer here: [scroll down] [archived here].)

Coverture marriage was not mere placement of a wife under the husband’s direction, it was the subsuming of the legal personality of the wife within the legal personality of the husband. It was, therefore, a far more complete subordination than that of the employment contract, whose only restriction of the legal personality of the employee is to protect the employee from legal liability for following lawful directions. Such direction does not, otherwise, stop the employee having a legal personality: in particular, being under direction does not stop the employment contract being a contract, breaches of which can be actionable.

People and property
Under modern legal systems, people cannot be slaves because they cannot be property, and people cannot be serfs because they cannot be bound to property, so they cannot be warrantees because non-separable aspects of themselves cannot be turned into property. The rejection of “warranteeism” is not about consent, nor about being under direction. It is about maintaining the boundary between people and property. That property is something that natural persons own: never, in any form, the reverse. Hence there is no legally recognised sense in which one person can own another, in part or in full. To allow that is an affront to the dignity of the human in a way simple service is not.

So, renting your services is fine. Selling your services is fine. Capitalising your services—turning your labour service into property that someone else owns—is not.

ADDENDA This post has been amended to clarify some points and add the link to skepticlawyer's comment on coverture marriage.