Sunday, April 11, 2010

Inalienable rights (3): alienation, commerce and property

This continues my discussion from my previous two posts of the issues raised by an essay by David Ellerman, Translatio versus Concessio: Retrieving the Debate about Contracts of Alienation with an Application to Today’s Employment Contract (pdf) which provides an excellent and revealing intellectual history on the concept of inalienable rights. He uses the concept of inalienable rights to critique the master-servant employment contract as illegitimate on the grounds that it alienates what cannot be legitimately alienated, one’s personal responsibility and decision making. Or, as he puts it here, labour is non-transferrable.

The commercial option
Easily the weakest part of Ellerman’s analysis is the way he moves directly to workplace democracy as the solution. For there is an alternative: one, moreover, that is increasingly in use in the economy—moving to fully commercial contracts.

It is not providing labour services which creates a “master-servant” employment contract: a lawyer, hairdresser or plumber does that. It is providing labour services as directed which makes it a “master-servant” employment contract. So, one solution to the problems of the “master-servant” employment contract is simply to make all contracts commercial contracts on the pattern of hiring a lawyer, hairdresser, plumber, etc, where the service is sufficiently pre-specified that there is no generalised form of direction. Then the issue of alienation does not arise at all, even in theory.

Of course, if you hire a lawyer, plumber, hairdresser, you do give directions. But it is in the sense of what specific services you want: you do not become their manager in any wider sense. So, under the commercial solution, all workers become contractors, rather than employees. Indeed, there is an increasing use of such arrangements in modern economies (my own business has precisely one employee: everyone else is a contractor). Partly due to the increasing legislative risks and costs that have been loaded onto the employment contract over time but also due to rising income, increased ability of households to cope with income fluctuations, cheaper information technology, increased role of services and human capital, and so on,

Could managers of properties also be contractors in that sense? Of course, a manager is not being directed on a day-to-day basis, though a subordinate manager may well be. But we already see managers on purely commercial contracts. But would a situation where the manager was the only employee—everyone else was a contractor—make the manager the sole authority in the firm?

But, leaving that aside, “they all become contractors” may work for corporations, it is unlikely to work for the key operations of the state. So, unless the master-servant employment contract can be rescued, it appears the apparatus of the state represents, on Ellerman’s analysis, a fundamentally illegitimate alienation of inalienable rights.
Legal personality
Are “servants”—directed employees—legal “things”? Ellerman puts it as:
Thus it is that the employees take on a legally non-responsible role in the employment contract in spite of there being no language to that effect in the labor contract and in spite of their continuing de facto responsibility.
They are legally non-responsible as a result of accepting direction: they are not the decision-maker apart from a failure to refuse direction (and accept the consequences of that). But they can sue their employer, employees remain both a natural and a legal person. Employers can be prosecuted for wrongful behaviour towards their employees. Employees are not “nulls” in civil law. The employment contract is a contract, though of a very particular type.

Ellerman describes the employment contract as:
… the voluntary contract to rent or hire oneself out to an employer for a certain purpose and time period.
Well yes, one accepts direction. But the “hire oneself” is ambiguous. You hire your directed labour services but that hardly encompasses all one’s personhood: unlike slavery, for example.

It is all very well to talk of the employment contract as a “self-rental contract”, but it is, in fact, not a rental-of-self contract even though it is described that way in the economic literature: a literature which is interested in people as suppliers of economic services. It is not a rental contract in the way renting a car or house of boat is a rental contract, for one is not renting property. What is rented are labour services, and labour services for specific durations with specific scope. The person is the other party to the contract, the recipient of the “rent”, and never becomes property. It is ‘self’-rental in the sense that they are offering their own services for rent: they are not offering their selfdom for rent. (Sexual services are not part of the deal, for example.) They are accepting direction of their labour services during working hours, nothing beyond that. Which puts them in quite a different situation from a slave (or even a serf).

Ellerman asks:
Leaving aside the coercive nature of historical slavery, what about a truly voluntary self-sale contract to sell one’s labor by the lifetime instead of by the hour, week, or month?
Well, see the comments in my previous post about the key role of the ability to exit and the above discussion of what is actually being rented. Denial of the ability to exit does look like selling one’s personhood and being property absolutely is.

But is selling one’s labour under direction really profoundly different from selling specific goods or selling specific labour services (such as a hired lawyer)? As different as Ellerman suggests when he writes:
This is where the difference in the factual transferability of persons and things comes into the analysis. The suppliers of things can alienate and transfer their inputs to the employer so those factor suppliers have no de facto responsibility for the employer’s use of the factors.
Direction certainly has legal consequences:
As long as the legal system accepts the employees’ obedience as fulfilling the contract in return for the wages, then the employer (e.g., the employing corporation) bears all the liabilities for the inputs and thus has the legal claim on the produced outputs. That’s the trick.
As it must to be direction: it would be surely somewhat dubious to hold people legally liable for actions of legitimate scope they did under legitimate direction.

Ellerman is having none of it:
the employment contract should be recognized as being jurisprudentially invalid. Human decision making and responsibility are in fact not transferable so the contract for the sale of human actions (labor) is inherently invalid.
Direction is not valid outside the temporary direction of hiring a lawyer, plumber, hairdresser, etc. Or the delegated direction of democratic authority. But if one is not turned into property, if one is still genuinely the party to the contract, if it is labour service—and not one’s selfdom—that is being rented, then what is being alienated is so limited and partial that it is nothing like slavery, or even serfdom.

Which brings us back to no employment contract=no state. Without direction beyond the merely delegated there can be no large-scale non-commercial coordination of action. There can be no high stress/immediate coordination either: so no police, no armed forces. Which is why the state needs employees and the employment contract. Indeed, many government employees have strong property rights in their jobs to make them independent of a range of pressures. This notoriously has its downsides, but protecting people’s employment contracts seems an odd thing to do if it represents an attack on their personhood: particularly as this protection is seen as a benefit of such arrangements. (It can also, of course, weaken the ability to put them under legitimate direction.)

Judges and academics have tenure so, except in extreme circumstances, only they control their exit from their employment contract. This is seen, as it is with public servants, as enhancing their independence: clearly true.

Indeed, there has been a trend in employment law to give employees more protection against an employer terminating the relationship with “unfair dismissal” laws: a curious thing to do indeed, if the relationship is inherently demeaning of the employee. But something that makes sense if control over exit is central to the benefit to incumbent employees. (Raising the risks of hiring someone—by making it more expensive and difficult to fire them if things do not work out—is not in the interests of potential new employees. It is particularly not in the interests of labour market entrants who lack networks and track records: French labour law has a lot to do with the very high unemployment rates among young Muslim men in the banileus, for example.)

So it is not direction by another that is key here: some employment contracts are such as to make such direction even more voluntary than they are in ordinary employment contracts. It is who controls exit and in what circumstances. And what is actually being hired and from whom.

For it would be a very odd concept of personhood which said that you can never agree to direction by another. There is, indeed, a very big difference between agreeing to a subordination that you can then never choose to get out of, and turns you into property or being bound to property, and a subordination that you can leave freely, you are paid for at rate profoundly based on you being able to exit, and that does not make you property or bound to property. The former abrogates profoundly one’s nature as a moral agent: the latter is an always provisional limitation thereon. So is not much limitation at all.

It may also be a revealing lacunae that Ellerman does seem to have consider the cases of police services and armed forces at all. They contain—indeed, are profoundly based on—very strong forms of direction by superiors yet are voluntarily filled in the Anglosphere countries. It is hard to see how their employment contracts can be permitted under Ellerman’s analysis. (And conscription would appear to be completely barred: though it is an interesting question, whether conscription turns the conscripts into the property of the state. That they are still legal persons would seem to be the main argument against them being such.)

The key thing with the pactum subjectionis is that it is a permanent, irrevocable and general alienation that the subordinated person has no legal control over the exit from (leaving aside exiting from the jurisdiction: if that is legal). The degree of subordination also varies: a subject is not normally a slave. The master-servant employment contract is a partial, specific and eminently revocable subordination. This difference makes a great difference, as we saw in the discussion in my previous post about slavery, not least because it does not make one property.

Criminal liability
Regarding the issue of employees, like slaves, always being criminally liable, there are two issues. First, in the case of employees, it acknowledges that their acceptance of direction is always provisional. Secondly, allowing criminal action by slave or employee would obviate the point of the criminal law. That the law is going to put criminal and other limits on what private individuals can contract to do, and what people can be directed to do, is a given.

Consider a hired assassin who portrays himself as just “a trigger man”, an instrument of someone else’s will. The law holds him and the person who hired him legally responsible for any murder committed because it is not legally permissible to contract to do something illegal. That is true of any sort of contract. Now, a hired assassin is an independent contractor, not an employee. Normally, an independent contractor is held liable for their acts, not the person who hired them. But, in the case of the “trigger man”, both the act, and the creation of an arrangement to carry it out, are illegal. We are limited in our ability to contract by the criminal law (and, for that matter, civil law). The imposition of criminal liability on employees no more shows there is something fraudulent about employment contracts than the imposition of criminal liability on someone who hires an assassin shows there is something wrong with the normal law of liability with independent contractors.

Since we are limited in what we can legally contract to do, of course employees cannot use their employment contract to shield themselves from criminal liability. But, since it is a contract of direction, they can use it to shield themselves from liabilities for following legal directions. That limitation in liability is, in fact, part of the virtue of the employment contract for an employee.

That an ostensibly Christian slave society is thus forced to acknowledge the humanity of slaves, as in antebellum Alabama law making slaves liable for criminal acts, is, indeed, revealing. But the analogy does not bear anywhere near the weight Ellerman wishes to put on it since the employee’s subordination is so partial, specific and revocable and thus profoundly unlike the slave’s. The employee has a legal personality even when under direction that a slave does not, given an employee can sue their employer and legally exit the relationship.

It particularly does not work given that Roman law treated slaves as an animal put to work under their master’s direction and made the master responsible for any criminal act by the slave as set out by the Lex Aquilia of 286 BC: just as modern law does with domestic and other owned animals. What Ellerman points to as a “necessary” failure holding the slave to be covered by the criminal law is actually slavery law being “polluted” by Judaeo-Christian assumptions which blocked following through with complete consistency the implications of a slave being property.

Master-servant difficulties
Still, I am very grateful for Ellerman. By assembling together so usefully the arguments over alienability, he has clarified the problems with self-ownership I have previously grappled with.

He has also shed new, and revealing light, on patterns in modern employment law. A lot of statutory employment law seems to treat employers as implicit criminals. A particularly egregious example being the recent Kirk case (see this summary of the decision [pdf]): the High Court has some savage things to say about the prosecution and about the interpretation of the law by the NSW Industrial Court.

I used to take such trends in employment law as being mainly a “counting the votes” issue. That is, employees vastly outnumbered employers and a lot labour regulation (as is typical of so much regulation) is about protecting incumbents: in the case of much labour law, incumbent workers. With the political organisational advantage being—in specific applied resources, mobilisable political support and rhetorical resonance—generally on the side of organised labour.

Having read Ellerman, I now wonder if a general modern discomfort with the issue of control and subordination is not also a factor.

But that is what useful and penetrating historical research does. It throws new light on things and provokes you furiously to think.


  1. Another legal tangle (apart from the Roman Law tangle I spotted the other day) has just occurred to me. Ellerman seems to have a particular issue with contracts of master and servant. That's well and good; so did everyone from 19th Century industrialists to leading lights in the trade union movement.

    A modern employment contract (indeed, any employment contract after about 1940 in the Anglosphere) is notable for the ways in which it does not resemble a traditional contract of master and servant. Contracts of master and servant were constructed around a number of default terms that had to be implied into every employee/employer contract, pursuant to the 1867 Master and Servant Act (this was the UK law, although analogous laws were passed in other jurisdictions). The 1867 law had its origins in medieval ideals of service and loyalty, and tried to 'legislate loyalty' in ways that will be very familiar to you as a medievalist.

    Both industrialists and unionists wanted an end to the system, and one of the demands of the Jarrow Marchers (1936) was for 'freedom of contract' between employers and employees. Although unionists wanted to be be able to organise collectively (which most, but not all, employers opposed), both employers and employees hated the rigid terms they were supposed to import into every single contract and wanted the old system done away with.

    I must admit I've only read your critiques of Ellerman, and not his original material -- so this could be off-base -- but if he is equating modern employment law with traditional contracts of master and servant, then he couldn't be more wrong. One of these things is not like the other.

  2. I was aware that modern employment law came out of "master and servant" relationships, but not that particular legal history. I do not remember Ellerman using the term 'master and servant', but he views employment contracts as a "pact of subjection", so that is the strain of thinking he is referring to.
    Though, to be fair, it is the subordinated direction which he focuses on.

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