In "Property Rights and the Theory of Contracts", Rothbard says,
Another important point: in our title-transfer model, a person should be able to sell not only the full title of ownership to property, but also part of that property, retaining the rest for himself or others to whom he grants or sells that part of the title. Thus, . . . valid and enforceable would be restrictive covenants to property in which, for example, a developer sells all the rights to a house and land to a purchaser, except for the right to build a house over a certain height or of other than a certain design. The only proviso is that there must, at every time, be some existing owner or owners of all the rights to any given property. . . . If the reserved right has been abandoned, and no existing person possesses it, then the owner of the house may be considered to have "homesteaded" this right, and can then go ahead and build the tall building. Covenants and other restrictions, in short, cannot simply "run with the property" forever, thereby overriding the wishes of all living owners of that property.
This proviso rules out entail as an enforceable right. Under entail, a property owner could bequeath this land to his sons and grandsons, with the proviso that no future owner could sell the land outside the family (a deed typical of feudalism). But this would mean that the living owners could not sell the property; they would be governed by the dead hand of the past. But all rights to any property must be in the hands of living, existing persons. It might be considered a moral requirement for the descendants to keep the land in the family, but it cannot properly be considered a legal obligation. Property rights must only be accorded to and can only be enjoyed by the living.
Rothbard makes two important points in this excerpt. The first and more obvious is that property can be the object of multiple interests that are divided among multiple parties. The second point is that he marks a serious problem in existing real estate law that is owned or encumbered by multiple parties, specifically, that such real property can sometimes be "governed by the dead hand of the past". Rothbard is right to criticize encumbrances and restrictions that "run with the property". "Covenants and other restrictions . . . [that] ‘run with the property’ forever, thereby overriding the wishes of all living owners of that property", are a remnant of feudalism that deserves immediate abandonment. Allowing "the dead hand of the past" to encumber property is insane.
This passage from Rothbard’s Ethics also shows that restrictive covenants can be compatible with his title-transfer theory. As long as they don’t contain terms that are promises about future behavior that are unenforceable because they alienate the will, and as long as they run with the owners and not with the property, they should be allowable within secular ecclesiastical courts.
Geographical Jurisdictions of Ecclesiastical Courts
In a religious social compact this "dead hand" problem could be easily avoided, even though the compact would be designed to have a perpetual existence. The reason it could be avoided is because the religious social compact would presume certain things about the nature of land ownership. First, the religious social compact would presume that no lawful government was capable of having dominion over land. Secular social compacts, being lawful governments, would claim geographical jurisdiction over all their territory, but their subject-matter jurisdiction would be limited primarily to enforcement against delicts because it would be limited primarily to jural subject matter. Furthermore, the religious social compact would presume that no lawful secular social compact would have original jurisdiction over delicts perpetrated within the religious social compact’s geographical jurisdiction, because the religious social compact’s jural society would have such original jurisdiction. So there would be no inherent restrictions imposed on a religious social compact’s land from outside the compact. Restrictions on land use imposed from within the religious community would be imposed based on consent, by way of whatever consensual mechanisms were built into the compact. In short, religious social compacts might be considered to be restrictive covenants, but the restrictions would run with such compact, not with the land. The restrictions would be part of the subject-matter jurisdiction of the religious social compact, and would apply to the land only so long as the religious social compact or one of its individual human parties owned the land. All the land rights associated with absolute ownership of the land would be distributed within the religious social compact in whatever way the compact chose, by whatever decision-making mechanisms were built into the compact’s organizational structure. If all the people in a religious social compact died or abandoned the social compact, excepting one person, then the land rights associated with absolute ownership of whatever land was left would default to being the property of this one person. If this one person sold whatever land was left, then, since this person had absolute ownership, the restrictions on the use of the land would be defined in the new conveyance, and would not be dictated by "the dead hand of the past".
When religious social compacts own real property, and if they put restrictions into the covenant that governs that property, it’s reasonable to assume that there would be conditions built into the social compact for the compact to be amended, and thereby the restrictions in the covenant to be amended. — The living owners of real property who happen to live on property that is governed by the covenant of such a religious social compact would be assumed to be party to the compact, or tenants of parties to the compact. But if the owners have absolute title short by whatever encumbrances the social compact imposes, then the transferability of that property would be limited by that religious social compact. The "living owner" would not be "governed by the dead hand of the past". He would be governed by the living hand of the present, namely, the religious government of the religious social compact, where such government is defined by whatever rules have been set up to rule those party to the compact, where such rules are the practical implementation of that community’s religion and moral code.
So, when Rothbard says, "all rights to any property must be in the hands of living, existing persons", he is right. But when he says, "It might be considered a moral requirement for descendants to keep the land in the family [(or in the religious social compact)], but it cannot properly be considered a legal obligation", he’s right, and he’s wrong. He’s right in this: It’s certainly true that it "might be considered a moral requirement". Mere moral obligations are outside the lawful subject matter jurisdiction of secular social compacts; so Rothbard is right in saying that keeping "the land in the family [(or the religious social compact)] . . . cannot properly be considered a legal obligation", when he has secular laws in mind. He’s wrong in this: Rothbard is wrong to claim that a moral obligation that pertains to land ownership "cannot properly be considered a legal obligation" when he applies his claim to religious social compacts. All parties to the religious social compact have a property interest in the land under consideration. They have property rights that cannot be ignored. So under such circumstances, "a moral requirement" can certainly and "properly be considered a legal obligation". — In acknowledging that Rothbard has a legitimate grievance, it’s evident that he is rightly pointing out how inappropriate feudal land concepts (like entail) are these days. Even if he’s wrong in saying that keeping "the land in the [religious social compact] . . . cannot properly be considered a legal obligation", he’s right in pointing out how backward existing land laws are.
The relationship between religious social compacts and secular social compacts is comparable to the relationship defined by the 10th Amendment. Powers not explicitly given to secular social compacts are reserved to religious social compacts and to individual people. This especially includes land ownership. Lawful secular social compacts can never impose zoning, building permit requirements, property taxes, or any other kind of encumbrance on land without immediately becoming unlawful. Encumbrances run with lawful land owners. Land ownership by secular social compacts is severely restricted by the subject matter of such compacts. So encumbrances and land ownership are generally "reserved to . . . the people", and to the religious social compacts and subsidiary secular social compacts (not States) they construct.
Alienation in General
Even though interests in land shared by multiple owners may be complex in implementation, conceptually it’s fairly simple. In contrast, multiple interests in a single human being’s labor is not so simple. This is because unlike land, labor is directly connected to the human’s body and will, i.e., with natural rights, primary property, and the ability to choose.
In general, natural rights cannot be alienated. But the fact that people can surrender their natural rights by perpetrating delicts shows that the claim in the Declaration of Independence might not be as absolute as some people assume it to be. It says, "all men . . . are endowed by their Creator with certain unalienable Rights". But the framers, along with most natural rights theorists, acknowledge that murderers generally surrender their right to stay alive and free by committing murder. This clearly demands an understanding about how natural rights can be alienated, if, indeed, it’s even right to claim that they can be alienated.
In general, secondary property is alienable while primary property is not. As it’s defined in Porter’s hermeneutical prologue, primary property is essentially ownership of one’s body. It thereby certainly includes ownership of one’s ability to choose. This claim about the inalienability of primary property is obvious because, if one completely alienated his body, then he would surrender not only title and ownership, but also possession. If one ceased to possess one’s body, then one would cease to be alive. It’s clear that there are degrees of alienation. A slave who is compliant and who acquiesces to his slavery is a human being who has abandoned his claim to self-title and self-ownership, even though it’s impossible for him to utterly abandon self-possession, except by death. — This situation demands explanations of the parameters and subtlety of alienability of primary property before either accepting or rejecting the title-transfer model’s claims about the limits on the alienability of promised labor.
In "Interpersonal Relations: Voluntary Exchange", Rothbard says the following:
In the free society . . . all ownership reduces ultimately back to each man’s naturally given ownership over himself, and of the land resources that man transforms and brings into production. The free market is a society of voluntary and consequently mutually beneficial exchanges of ownership titles between specialized producers. It has often been charged that this market economy rests on the wicked doctrine that labor "is treated as a commodity." But the natural fact is that labor service is indeed a commodity, for as in the case of tangible property, one’s own labor service can be alienated and exchanged for other goods and services. A person’s labor service is alienable, but his will is not. . . . The distinction between a man’s alienable labor service and his inalienable will may be further explained: a man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced–for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement. The concept of "voluntary slavery" is indeed a contradictory one, for so long as a laborer remains totally subservient to his master’s will voluntarily, he is not yet a slave since his submission is voluntary; whereas, if he later changed his mind and the master enforced his slavery by violence, the slavery would not then be voluntary.
Even though Rothbard admits that labor is alienable, it’s his opinion that "a man . . . cannot sell the capitalized future value of that service". By taking this position, the title-transfer model essentially makes all contracts for future labor unenforceable. As Rothbard said, "[T]here can be no property in someone’s promises or expectations; these are only subjective states of mind which do not involve transfer of title". — It’s necessary to agree that expectations are merely subjective states of mind. But it’s also necessary to claim that promises may at times be immediately attached to property interests, where such property interests constitute lawful claims of ownership, and are therefore as objective as encumbrances on land. The presumption in secular ecclesiastical courts is necessarily that property interests do not cohabit promises. The presumption in religious ecclesiastical courts must be that property interests do cohabit promises. Even though these are preliminary findings, it’s necessary to explore more thoroughly the possibilities that, (i)a strictly written secular contract might constrain property interests to cohabitation of promises, and (ii) property interests might not cohabit promises in a religious ecclesiastical court, given a strictly written contract. — It’s absolutely critical to understand the connection between promises of future labor and property interests.
As a preliminary to proceeding to examine such issues relative to status, it should help to examine more thoroughly the subtle limits on the inalienability of primary property. — If it’s claimed that the human body and will are inalienable in title, ownership, and possession, then what happens when a man goes into a barbershop and has part of his inalienable body cut off to be left on the floor as refuse? Here’s a more interesting case: Suppose a laboratory offers a man a million dollars if the man will surrender his left hand to the laboratory. Or here’s a similar case: Suppose person A, a kidney dialysis patient, contracts with person B to allow doctor C to extract one of B’s kidneys so that it can replace one of A’s failed kidneys. — In each of these three cases, part of the human body is alienated. Rothbard and company claim that the human body is inalienable.
[T]here are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, ‘stuck’ with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will.
It’s clear that there are three components to the human being that Rothbard is addressing here: (i)the body, (ii)the mind, and (iii)the will. The context also makes it clear that by "person", Rothbard means the combination of mind and body, in juxtaposition to the will. In spite of his fervent speech regarding the will, he never really gives a rigorous definition of it. The hermeneutical prologue and this memorandum do. The human will is nothing more and nothing less than the ability to choose. Under some circumstances, the human capacity to choose is naturally limited, and to the extent that it’s limited, it can be said to be alienated. For example, infants have extremely limited capacities to choose. The same is true of people with mental and physical disabilities. These can be said to be natural disabilities to the extent that they arise without any intervention or aggression on the part of any other human being. But they are nonetheless disabling, and implicit in such natural disabilities is some degree of alienation of the will, because disabilities diminish the given person’s range of choices. So when Rothbard and company claim that "Each man has control over his own mind and body . . . [and] over his own will and person", such "control" is far more limited than these secular libertarians may admit. Every adult person certainly has responsibility and accountability "over his own will and person", but these are not equivalent to control. No human has complete control over his/her will and body, evidenced by the fact that all people are vulnerable to disease and death. Although Rothbard’s zeal for protecting human liberty is admirable, the limitations on the human mind, body, and will are not as negligible as he makes it seem. In fact, even the fittest of what the hermeneutical prologue calls "miniature sovereigns" have natural disabilities, evidenced by the fact that all humans are finite in time and space, even if they live eternally into the future. All these things are manifestly true without even entertaining the possibility that mind, body, and will can be wholly or partially destroyed by other humans. When this latter possibility is entertained, it’s necessary to ask the question: How, when, where, under what circumstances, is alienability of the human mind and body lawful, and how does one draw the line between lawful alienation of the human mind and body, and unlawful alienation? Furthermore: How, when, where, under what circumstances, is alienability of the human will lawful, if it is, and if it is, how does one draw the line between lawful alienability of the human will and unlawful?
If someone sneaks up on someone else and clips a lock of hair off the target’s head, that would be assault, theft, and a delict. But if the same target goes to the barbershop to get a trim, the target enters into an implied contract with the barber. The barber does something similar to what the thief did. But instead of filing criminal charges against the barber, the target pays and tips him. Clearly self-ownership of the human body is not inalienable in any absolute sense. In fact, death is the ultimate act of alienation of the target’s body. — If someone sneaks up on someone else and sticks a knife in the target’s heart, that would be the ultimate delict against the target. The target is hereby involuntarily alienated from his body. If the same target goes into some specialized shop and says, "I’ll pay you to kill me.", that person would be proposing an unconscionable contract, because contracts never excuse delicts. The target would be asking the shop to perpetrate a delict. The target would be trying to "put out a contract" on himself. No one can lawfully have license to perpetrate a delict or enter a contract to damage someone else. If the target goes into the same shop and says, "sell me some of that stuff so I can go kill myself", and if the shop owner sells the stuff to the target and the target uses it to commit suicide, neither the target nor the shop owner has committed a delict or entered an unconscionable contract. This is because suicide is not a delict. Suicide is certainly hideously immoral, and should be treated that way by whatever religious social compact agrees that it’s hideously immoral. But it’s not the duty of secular government to enforce morality, per se, but rather to enforce that subset of morality that constitutes laws against violations against primary and secondary property, i.e., to enforce the secular religion. In the name of self-ownership, the target gets to kill himself, i.e., to utterly alienate and dis-possess himself from his body. The shop owner might refuse to sell the stuff on moral grounds, and he would certainly be within his rights to do so. But if he sells the target the stuff, even with the knowledge that the target intends to permanently alienate his body from himself, this is not a delict, and is not the business of any secular social compact.
Clearly, within the secular arena, the degree to which a person alienates himself from his body is no one else’s business. If a man cuts his own hair, that’s no reason for secular law enforcement to get involved. If a man cuts his hand off to sell it to a laboratory, ditto. If a man gives or sells a kidney, ditto. If a man kills himself, ditto. These are all instances of self-alienation. Some are harmless. Some are not. In no case of self-alienation is such self-alienation a lawful cause for any action ex delicto. But the degree to which and manner in which other people get involved in the target’s alienation of his body determines the extent to which other people become party to unconscionable contracts and/or perpetrators of delicts.
Actions ex delicto are relatively simple. One party damages another and there is no private agreement governing the damage. But damage arising out of a contract is different. The parties exchange promises for their mutual benefit. The promises create mutual obligations. When one party fails to perform his obligations, the other party is damaged by this failure. Now the question becomes this: Should the court treat this damage as nothing more than part of the risk of doing business, or part of the risk of being alive in an imperfect world? Or should the court treat this damage as penalizable under the terms of the contract? Rothbard says that if the non-performing party has not gained a property interest ("title") in the damaged party’s property, the damaged party has no case because the damage is merely a function of living in a risky and imperfect world. But he says that if the non-performing party has gained such a property interest ("title"), then the non-performer is a hyperbolic "thief". How does this formula apply to these various cases of alienation?
Rothbard claims that neither body nor will is alienable. In contrast to this claim, this memorandum’s claims above make it obvious that the body is alienable. Therefore, it’s necessary to conclude that Rothbard must be speaking, in the same way the framers of the Declaration must have been speaking, of some ideal concept of alienability that somehow transcends these facts about haircuts, dismemberment, and death. It’s probable that Rothbard and company were building their system with borrowed capital, where that capital was largely from the framers. It’s also probable that the framers were also building their system with borrowed capital, where that capital came from the combination of 17th and 18th century natural law theorists and the Bible. Even if these system builders don’t recognize it or acknowledge it, the ultimate source for all this borrowed capital is the Bible. But the framers have been much more conscious of, and respectful towards, the contents of the Bible than any of these other builders have been. That’s probably one reason why the American system has been more successful than any of the others.
Under natural law, before the fall, it stands to reason that the human body was inalienable. Before the "law of sin and death" was activated (Romans 8:2; Genesis 2:16-17; James 1:15; etc.), alienation of the soul from the body was not a function of human existence. In that condition, the human body was inalienable, and natural rights were inalienable. Then that antelapsarian status of the human race was different from the race’s modern status. Clearly, Scripture teaches about the degree of alienability of natural rights, of the human body, of the human will, etc. This memorandum therefore needs to recall what the hermeneutical prologue discovered about status.
The Hermeneutical Prologue’s View of Status
Status is defined herein as one’s legal relationship to God. Status is defined by natural rights, privileges, and disabilities.
All humans are created with the same set of natural rights, and these rights come from being created in the image of God. Natural rights are a subset of the natural law, where the natural law, in this context, is primarily the moral law that defines the behavioral boundaries of the imago Dei, i.e., of the image of God in every human being. God gave the natural law and natural rights as terms of the covenant of works, the Edenic Covenant. Because all people continue to be created in the image of God, all people continue to have the same set of natural rights.
This behavioral boundary around the imago Dei, the natural law, also contains natural disabilities. These natural disabilities that derive directly from the natural law (more precisely, that are part of it) are limitations built into being human, limitations like these:
Such globally common natural disabilities are inherent in the covenant of works / Edenic Covenant. With the advent of the covenant of grace / Adamic Covenant, all humans received other globally common natural disabilities. When humanity entered a compact with Satan, God divinely imposed the covenant of grace as a set of appendments to the natural law that would allow humanity and the natural law to continue to exist even though humanity had acquired a new set of disabilities. Some of the natural disabilities that were new with the covenant of grace were these:
All humans die, i.e., suffer alienation
from their body.
All humans are vulnerable to delicts
perpetrated by other humans.
With the advent of the Noachian Covenant, all humans received the last of their globally common natural disabilities, such as:
All humans are morally obligated to avoid perpetrating delicts
All humans are morally obligated to participate in the prosecution of behavior that destroys, to some extent, another person’s life, regardless of whether such destruction happens ex delicto
or ex contractu
There are many natural rights, but the natural rights most relevant to human law are these:
the capacity to make contractual
agreements with other people.
Before the fall, people were not vulnerable to having these just claims violated. After the fall, all people are generally vulnerable. Such vulnerability entails that all of the Rothbardian libertarian’s seemingly absolute claims about the inalienability of body, mind, and will, are also vulnerable. In a perfect state of affairs, involuntary alienation of these would never exist. But in humanity’s far-from-perfect circumstances, the extent to which one of these can be alienated is nowhere near as important as the extent to which any given society or person will tolerate involuntary alienation of body, mind, or will. Rothbard makes plausible claims about the inalienability of the will, based on pure logic. But the fact is that human choices can be manipulated by electromagnetic fields without the targeted person even knowing that it’s happening. So the will certainly can be alienated. The big question is, should it be?
The hermeneutical prologue distinguishes natural rights from natural privileges like this: Natural rights are capacities, just claims, or abilities that are given equally to all people. All people are equal in such rights. Natural privileges are capacities, just claims, or abilities that God gives to each person so that such things contribute to that person’s uniqueness, thereby uniquely defining each person. Natural rights are inalienable in the sense that any effort at alienating such rights is inherently an effort at making a human being less than a miniature sovereign. It’s rational to believe that such rights are in fact inalienable in people who are able to keep the natural law perfectly. But people who aspire to keep the natural law – even though they know they are sinners who can keep it perfectly only through the imputed righteousness of Christ and never through their flesh-borne efforts – must necessarily acknowledge that such rights are in fact alienable in humanity’s fallen condition. They must acknowledge that such rights must be protected by extraordinary means. In accordance with the chronological exegesis proposed and executed through the hermeneutical prologue’s slightly modified Reformed hermeneutic, such extraordinary means are constituted by jural societies, ecclesiastical societies, secular social compacts, and religious social compacts.
All people are equal in the natural right to own property and the natural right to form consensual agreements with other people. These two rights manifest differently in different human beings. For example, ownership of one’s body is a natural right that must be recognized and honored by all human beings, but this ownership of one’s body manifests as a natural privilege, a gift of God, that makes each human unique, because every body is unique.
The hermeneutical prologue recognizes two different kinds of natural disabilities: those that are common to all people, and in which all people are equal, and those that God gives uniquely to each person, thereby contributing to that person’s uniqueness, and uniquely defining each person. All human beings have these natural disabilities: the inability to be omniscient, the inability to be omnipotent, and the inability to be omnipresent. God disabled all humans from having these capacities when He created the human race. These disabilities are therefore built into the human race, are innate, and are attributes of human nature. In contrast, He did not make all people male, or all people female. No one is completely enabled as both at the same time. Being male or female is an attribute that contributes to each person’s uniqueness, and when one is male, one is disabled from being female, and vice versa. Likewise, when a person is localized in a specific space and time, no one else occupies that specific space and time, and other people are disabled from occupying that specific space and time, and that particular space and time therefore contributes to that person’s uniqueness.
The natural rights, natural privileges, and natural disabilities that God gave to each human in the covenant of works / Edenic Covenant, i.e., at creation, are the core of every human being’s status. Such core status relates directly to the covenant of works and natural law. The covenant of grace / Adamic Covenant also impacts every human being’s status, but this impact cannot be properly understood without a proper understanding of the fall.
When the people ate the forbidden fruit, it was clearly an act of violating the natural law. The fact that the fruit was of the "tree of knowledge of good and evil" hints at what kind of violation it was. Human beings are disabled from being omniscient as part of the covenant of works. Even so, in order to live in obedience to the natural law, it’s necessary for humans to know what they need to know when they need to know it, and to do what they need to do when they need to do it, so that they naturally avoid acting against natural law (sinning) in thought, word, and deed. Deciding what actions are good and what actions are bad is a necessary prerequisite to being able to do what one needs to do when one needs to do it. Having knowledge about good and bad is a necessary prerequisite to making such decisions. So the act of choosing the forbidden fruit was either an act of trying to be omniscient when they were disabled from being omniscient, or it was an act of trying to procure knowledge that was irrelevant to the need to know what they needed to know and do what they needed to do to stay in harmony with the natural law. Either way, the people in the garden violated the natural law, which is sin, and received the necessary penalty, death. But rather than receiving immediate death, God divinely imposed appendments to the Edenic Covenant that would allow the people to propagate the race before dying (Genesis 2:16-17; 3:15-19). This set of appendments was the Adamic Covenant, also known as the covenant of grace. The covenant of grace allowed people to live short, toilsome lives, to propagate the race, and then to die. It’s called the covenant of grace because it carries the promise of redemption from the law of sin and death for God’s elect (Genesis 3:14-15; Romans 5-8). In the meantime, all people became disabled from being able to completely obey the natural law, and the entire race now exists in a state of relative depravity. The fact that all people die is proof that all people sin. The fact that all people sin is proof that all people exist in a state of being disabled from complete obedience to the natural law. It is a natural disability that is part of every human being’s status.
In addition to the disability of being innately and inherently sinful – which is the same as the disability of not being able to keep the natural law completely, meaning that all humans live under the natural law’s penalty for violating the natural law, the penalty being the law of sin and death (Genesis 2:16-17; Romans 8:2; James 1:15; etc.) – the human race also has the natural privilege of existing within God’s plan of redemption. This natural privilege is also an aspect of every human being’s status.
The historical narrative in Genesis 1-9 makes it clear that murder was a violation of natural law all along. This is obvious because, among other things, murder is alienation of something that should never be alienated (unless it’s alienated as a sovereign act of God as opposed to alienation through a criminal act by human). But by way of the Noachian Covenant, God divinely imposed the need to translate this moral law against murder into human law. He puts this need to implement this moral law as human law into the fundamental makeup of every human being. He does this by establishing a human-imposed penalty for bloodshed as a term of this global Covenant. Since Genesis 9:6 bloodshed is metaphorical, and since a common-sense understanding of this metaphor is that it refers to any kind of destruction of another’s life ex delicto or ex contractu, the subject matter of this divinely prescribed human law is such destruction. Human beings hereby become explicitly disabled from the possible option of being careless and reckless about delictual behavior and solemn contractual obligations. This disability regarding punishment of delicts and contract violations becomes part of every human being’s status. It’s clear that when a community of human beings conscientiously observes this disability with the intention of remedying it, the resulting privilege is life in a peaceful community.
After the Noachian Covenant there are no other Covenants in the Bible that have global in personam jurisdiction. There are therefore no other globally imposed natural disabilities and natural privileges. All natural disabilities and natural privileges that any given human being has, that do not derive from these three Biblical Covenants, are privileges and disabilities that God gives to some people, but not to all. Saying that some privileges and disabilities are natural, means that God gives them without regard to human choice. For example, if God has given someone the natural privilege of having blue eyes, He has given that person the natural disability of not being endowed with brown eyes. Such a natural disability is not global because other people are endowed with brown eyes, green eyes, etc.
In addition to natural privileges and disabilities, people also have conventional privileges and disabilities. For example, people who have "repetitive motion syndrome" (rms) don’t have this disability because God naturally endowed them with it regardless of their will, their choice. On the contrary, they chose to do the same set of motions iteratively. So they acquired the disability by convention, rather than naturally. It’s certain that God is sovereign; so He is the ultimate cause of everything. In natural rights, natural privileges, and natural disabilities, God does not use human volition as a secondary cause of the given rights, privileges, and disabilities. In conventional privileges and disabilities, God does use human volition as a secondary cause, and that volition carries moral accountability.
Conventional privileges and disabilities exist in two kinds: contractual and non-contractual. If the person with rms had a contract with an employer that stipulated that he/she would not get rms on the job, then the rms would be covered by the contract and would be a contractual conventional disability. But if he/she did not have such a contract, then even if the disability were acquired on the job, it would be a non-contractual conventional disability. Since contracts by definition should have express or implied terms that stipulate methods of enforcement, they are by definition within the realm of human law. Such contracts are thereby attributes of a given person’s status.
Status (as distinguished from status) is one’s legal relationship with the rest of society, in the human-law sense of the word "legal". In the same way that human law is a subset of divine law, which is a subset of natural law, which is a subset of eternal law; status is a subset of status. Status is a set of attributes that contribute to the given person’s status.
Alienability of the Will
It’s obvious that labor is alienable. If it weren’t, it would be impossible for wage earners and hourly workers to trade their labor. The alienation of labor becomes a problem in contract adjudication when a person makes a promise about what he/she is going to do in the future. Rothbard believes that any promise concerning alienable labor is unenforceable because it is a promise with respect to the "inalienable will". In other words, Rothbard assumes that the will, the human ability to choose, is inalienable, and that this inalienability extends to promises about one’s labor. This memorandum has already argued that religious social compacts allow enforcement of promises even though such promises are considered unenforceable "naked promises" under secular social compacts. To support this argument, it’s now necessary to examine the basis of Rothbard’s claim that all promises of future behavior that are not accompanied by a transfer of title to physical property are unenforceable. In short, the question is this: To what degree, and under what circumstances, is a promise of future behavior enforceable? This question sets the scope of the problem. After examining status and how status relates to status, the question should be easier to answer.
Now that it’s recognized that the alienability spoken of by Rothbard and the framers pertains to an ideal standard, a standard established by natural law and, in the case of the framers, a standard based on the fact that all people have the imago Dei, this memorandum will consider alienability of the will. At issue are the boundaries between "a man’s alienable labor service and his inalienable will", which is the basis for Rothbard’s axiom: "[A] man can alienate his labor service, but he cannot sell the capitalized future value of that service".
When Rothbard says,
[A] man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement.
the first thing to ask in response is this: So where’s the damage? When a man pledges himself to future labor, and then changes his mind, and the other party tries to enforce the agreement, then there would be damage by way of the enforcement. But until the master in this "slave contract" attempts to enforce the contract against the will of the slave, and as long as the slave is performing voluntarily, there is no damage. "[V]oluntary slavery" is an oxymoron. There is no such thing because slavery is by definition involuntary. When a slave acquiesces under duress, that acquiescence is not consent, and it’s not voluntary, because it is coerced. But as long as a slave is working without duress, without coercion, without extortion, and without fraud, the slave is not really a slave.
The same basic reasoning applies to a contract for future labor. There is absolutely nothing wrong with a contract for future labor as long as it remains completely voluntary. If there is no duress, coercion, etc., then a jural court has no innate jurisdiction. As long as the labor is completely voluntary, neither jural nor ecclesiastical secular courts have jurisdiction because there is no damage. If the labor becomes involuntary, then a secular ecclesiastical court would treat the contract as an unconscionable contract. As soon as the labor became involuntary, a jural court would have subject-matter jurisdiction because the contract would be nullified by its unconscionability. This means that Rothbard and the title-transfer model are essentially correct under a secular social compact: "[A] man can alienate his labor service, but he cannot sell the capitalized future value of that service." The situation for a jural society under a religious social compact would be essentially the same. But the situation under a religious ecclesiastical society is more complex and demands examination of the parameters of the human will’s inalienability.
If a man simultaneously joins a religious social compact, vows to abide by the compact’s moral code, and buys land within the geographical jurisdiction of that compact, then the man has entered a contract to alienate his will, according to Rothbard, because "his future will over his own person was being surrendered in advance". Under Rothbard’s hyperbolic definition of slavery, a contract to avoid behaving in a certain way in the future is as much attempted alienation of the will ("slavery") as a contract to perform some future labor. According to Rothbard’s line of reasoning, if there is no title-transfer, a promise to not do something in the future is as much "slavery" and "alienation of the will" as a promise to do something. — Again, it’s necessary to ask, where and when did the damage arise?
In the above fornication case, the new member of the religious community made an unconscionable contract under Rothbardian jurisprudence by making a promise regarding his future behavior. Land forfeiture and exile from the community were the penalty for breaking his promise. This was an absolutely rotten contract according to Rothbard, but it was a lawful contract and a lawful decision of a religious ecclesiastical court according to the property-interest model of contracts. That contract was lawful because the linkage between present will and future behavior is not as strong as Rothbard and Evers claim. Also, the religious ecclesiastical court’s decision was equitable because the penalty did not involve anything inalienable in law.
(i)Linkage between present will and future behavior: Similar to the way the human body is alienable, the human will is alienable. Under obedience to the covenant of works and its natural law, neither body nor will is alienable at all because both are intimately and directly connected to being created in the image of God. But under the "law of sin and death" (Romans 8:2; Genesis 2:16-17; James 1:15; etc.) that is the penalty clause of the covenant of works, both become alienable in fact. Both remain inalienable in law, but both become alienable in fact. They remain inalienable in law because humans remain image-bearers. Humans continue even after the fall and after the deluge to have the imago Dei (Genesis 9:6; James 3:9). The moral law for humans remains the same, i.e., the human body and will remain inalienable under the natural law. In other words, if humans ignore the fact that the human race is under the curse, i.e., that humans exist under the penalty clause of the natural law that was implemented in the covenant of grace, the human body and will are inalienable in both law and fact. But ignoring the curse does nothing to make it go away. All people sin. All people die. All people are vulnerable to God, nature, and mankind, in their bodies, in their minds, and in their wills. Body, mind, and will are alienable in fact, even if not in law. Under the human law prescribed by the Noachian Covenant, body, mind, and will are not involuntarily alienable in law. But the Genesis 9:6 mandate against destruction of life by one against another is a partial and fallible remedy to human alienability-in-fact. The global mandate against destruction of life by one against another essentially mandates conversion of the natural law’s posture of inalienability of body, mind, and will into human law enforcement of such inalienability, and the enforcement goes against alienators-in-fact. — This thus sketches the status of every human being relative to alienability of body, mind, and will.
If someone enters a contract by promising something, thereby expressing present intent, i.e., present will, regarding future behavior, one is essentially linking present will and future body. If there is an implied or express penalty in the contract for non-performance, then one is thereby binding oneself under human law. One is essentially saying that the alienability-in-fact that justly applies to perpetrators of delicts should apply to oneself if one breaks the contract, because through the given contract, one is acknowledging that one’s non-performance will damage the other party to the contract. As already established, if genuine, Rothbardian, hyperbolic theft exists by way of such non-performance, then a secular ecclesiastical court is certainly justified in demanding that the situation be rectified. But if such theft does not exist, such a demand is not justified in the secular arena. On the other hand, if the promise pertains to behavior and only to behavior – where a secular court could not recognize property interest transfer while a religious ecclesiastical court could – the property interest transfer that the court recognizes is binding, i.e., the linkage between one’s will, expressed in the contract, and one’s future behavior, is binding as religious human law.
Given the status that all humans have in common, here’s how alienability-in-fact / inalienability-in-law relate to title, ownership, and possession: All natural rights under the natural law are inalienable-in-law, including self-ownership (primary property), ability to choose (will), the ability to own secondary property, and the right to contract. All people have title to these things, meaning that all people are entitled to them. But ownership and possession are contingent because these things are not inalienable-in-fact. Human beings are conceived with title to these things, but are disabled from immediate ownership and possession of them. People who do not understand the disabilities of the covenant of grace assume that they will naturally grow into complete ownership and possession of these things. But the covenant of grace makes clear that all people under the curse will die before they attain full ownership and possession of all the natural rights to which they are entitled. Under the curse, the entire human race is alienated-in-fact from full self-ownership because the human ability to choose/human will is incapable of choosing in complete harmony with the natural law because, among other things, human perception is inherently corrupted. According to the Bible, these things are universally true, and it’s also universally true that the only way to acquire full ownership and possession of these natural rights is to become fully obedient to the natural law, and the only way to become fully obedient to the natural law is for God to sovereignly extend saving grace by which the righteousness of Christ is forensically imputed so that the saved individual receives such full ownership and possession at the final judgment, i.e., at the resurrection of the dead. According to a reliable reading of the Christian Bible, this is the only means by which full ownership and possession are available. But of course this begs the question: How do such Biblical laws and Biblical facts relate to the status of any given human, and to enforcement of contracts?
Any given human being’s status is necessarily dependent upon two different sets of human laws, secular laws (including private secular contracts) and religious laws. The secular laws that are lawful are based on the Genesis 9:6 negative and positive duties, and pertain strictly to globally recognizable property. The religious laws derive from whatever religious social compact(s) the given person participates in, if any. In a secular ecclesiastical court, a promise of future behavior cannot be counted as enforceable, not because the human will is inalienable, as Rothbard claims, but because the promise is irrelevant to contract enforcement if there is no transfer of globally recognizable property. In a religious ecclesiastical court, a promise of future behavior might be counted as enforceable, and it might not, depending on the nature of the religious social compact.
All people should be cautious about entering into contracts. Anyone who enters a contract that links present will and future behavior should not enter the contract unless there is some kind of escape clause. For example, in the fornication case, the new member should make sure, before entering the contract, that the contract allows him to resign from his contract and recoup his investment before indulging in risky behavior.
(ii)Penalty not involving anything inalienable-in-law: If the penalty in the fornicator case had been death, incarceration, dismemberment, or enslavement, then the penalty would have involved something inalienable in law, i.e., something that violates natural rights even though it might not violate natural fact. A contract like this would be unconscionable because it would entail the perpetration by the community of a gross delict against the fornicator. In other words, with penalties like these, the community would be putting itself at odds with both its own jural society and the jural society of the secular social compact to which it was party. — The fornicator made a promise about his future behavior, and he knew when he made the promise that the maximum penalty for breaking his promise was alienation of secondary property, i.e., the land. Being secondary property, the land was alienable in both law and fact.
A promise is an expression of intent, not a guarantee of certainty. Such expressions of intent are essential to the stability of all communities, even though they are expressions of human wills that are alienable in fact. This new member backed his promise about his alienable behavior with alienable surety, his land.
Given fallen conditions, a promise is merely a statement of intent. The promissor essentially says, "This is my choice, my will, and my intent today. My will may be something different tomorrow. In other words, tomorrow I may change my mind, thereby alienating my will one day from my will the next. So my will is alienable in fact, even though it is inalienable under natural law. Because it is alienable in fact, and because my entry into this contract is a function of my fallible choice, my will is alienable under the human law established by this contract, even though it is inalienable under natural law."
This fornicator case shows the distinction between title, ownership, and possession as it pertains to the fallen, global human will, i.e., as viewed from the human law perspective. By making a promise to the community regarding his future behavior, this new member was essentially encumbering his choices, his will. The will, the ability to choose, is no more alienable in fact than possession of the body is alienable. No one can utterly abandon possession of their body without dying. Likewise, no one can abandon making choices without dying. So this encumbrance is not in the nature of an alienation of possession. The man continues to be morally accountable for his choices, so such an encumbrance of the will cannot be in the nature of an alienation of ownership of his will. But it is clearly an alienation of a part of his title to his will. Mr. Fornicator is entitling the religious community to a property interest in his will, his choice. It’s certainly true that the ability to choose cannot be alienated under natural law. But it’s also true that giving someone else influence over one’s will by giving them conditional ownership of some valuable secondary property is a choice that one can make that in no way alienates the ability to choose. That’s what the new member did when he promised not to fornicate. He gave the community conditional ownership of his land, with the original intention of not satisfying the condition. He knew that as long as he kept his word, his land would remain safely in his possession. He exercised his inalienable will (under natural law) by choosing risky behavior. He stepped into a trap of his own devise. There is no alienation of the will involved in this contract. There is only alienation of alienable secondary property.
Secular social compacts have no business enforcing morality in this way, because secular social compacts pertain only to damage to primary or secondary property. As already indicated, if a case like this fornicator case were appealed into a secular ecclesiastical court from a religious ecclesiastical court, the secular court would be right to hear the case using its own definitions of property, damage, etc. Since it’s a secular court, it would not be appropriate to use religious standards in its procedures. This means that it would never have original jurisdiction over a case like the fornicator case, because there would be no presumption of property interest transfer at the time the promise was made. A secular ecclesiastical court does not exist to enforce morality in general, but only to enforce the secular religion as it pertains to contracts. Promises about moral behavior therefore carry no lawful weight in secular ecclesiastical courts. There must be a very deliberate and explicit transfer of property interest to establish cohabitation of property-transfer and promise in secular courts, and the promise should not be merely in regards to obedience to a religious moral code.
Conclusion: Because the human will is not as inalienable as Rothbard claims it is, promises of future behavior are not always as naked as he claims.
Other Acts of Self-Alienation
In addition to alienation-of-the-will-in-fact through contracts for future behavior, there are also situations where people essentially surrender (i.e., alienate-in-fact) at least some of their natural rights by putting them into bailment. For example, children are essentially in bailment contracts with their parents or guardians. Other people who lack capacity, like alzheimer’s patients, the mentally ill, etc., essentially enter bailment contracts with their caretakers. In the secular arena, such contracts need to be explicit and rigorous.
Bible-believing people should readily see that there is a latent need in all people to join themselves to a jural society. Since history supplies ample evidence showing that jural society’s can easily become unlawful, there is ample evidence to show that people should participate in jural societies with extreme caution. Nevertheless, the Bible is clear: All people have an innate covenantal obligation to support the jural society in its primal purpose, but that moral obligation is not inherently human law. It becomes human law only when one voluntarily participates in the jural society.
Participation in the Noachian Covenant is not under duress, even though it is built in to every human being’s status. It is God’s sovereign right and power to do with His creatures whatever He wants. As the Westminster Confession of Faith puts it, "God from all eternity, did . . . ordain whatsoever comes to pass; yet so, as thereby neither is God the author of sin, nor is violence offered to the will of the creatures". Duress is use of violence or threat of violence to persuade. God’s influence on His creatures is far more subtle and thorough. Although God through moral suasion mandates that humans participate in jural compacts, ecclesiastical compacts, and social compacts, He does not use duress to force them to participate. Nor does He mandate in the positive duty clause that humans prosecute others who refuse to participate in such compacts or to pay taxes and takings related thereto.
The claim that citizens are automatically in bailment contracts with the State is basically a claim by statists that people are inept, and are obligated to align themselves with the de facto government more than they are obligated to protect their own and others’ natural rights. Such a claim is a perversion of the Noachian Covenant’s prescription of human law, not a satisfaction of it.
More Sample Cases
According to Williamson Evers,
One can readily see that a suit for breach of promise of marriage or arresting people for desertion from the military are entirely consistent with the promised expectations model. But under the title-transfer model, promises of marriage would be naked promises . . ., employees of the military would be free to quit their jobs as other persons are, and divorce would be no-fault.
It should be obvious by now that given a secular marriage, the basic premises of the title-transfer model would apply. This means that unless there are very explicit mitigating terms, their marriage contract would consist of naked promises. Under this scenario, the property interest that A owes to B, and vice versa, strictly in terms of their mutual promises to be married, is non-existent to any lawful secular court. Therefore the secular marriage contract is essentially unenforceable.
The Rothbard-Evers team makes a mistake when it comes to their claims about the military. The military is essentially a function of the jural society. The military is to external threats what the jural police are to internal threats. Like the jural police, the military of a secular social compact exists to execute justice against perpetrators of delicts. The difference between such jural police and such jural military is that the military focuses on large-scale foreign delicts while such police focus on smaller-scale domestic delicts. Under a lawful jural society, people who join either of these two forces must take an oath of office in the same way that all officers of the jural society must take an oath of office. The oath is essentially a contractual promise. Unlike promises in ordinary secular contracts, the contractual promises of jural society office-holders are essentially religious. The religion that the jural society exists to protect is the secular religion, i.e., the religion that demands the execution of justice against destruction of life ex delicto or ex contractu. As is evident in the motive clause of Genesis 9:6, this secular religion is based on the existence of the imago Dei. The existence of the imago Dei gives great worth to every human being, even to those who are doomed to an eternity in hell. Proof of the existence of such great worth cannot be induced from physical sense data or systems like the theory of evolution. It is a religious presupposition. That’s why the oaths of jural office-holders are essentially religious. As such the secular presumption of separation of promise from property interest does not apply. Instead, courts must necessarily presume that in regard to such jural oaths, property interest cohabits promise. This means that contrary to Evers’ claim, "employees of the military would [not] be free to quit their jobs as other people are". Even so, it’s important to stress in passing that this argument does not apply if the military service is compulsory, i.e., if the military employment contract was entered under duress. Duress is still lawful grounds for voiding such a contract. On the same basic principle, forced taxation and takings are voided.
Here’s another of Rothbard’s interesting cases:
Suppose that Smith makes the following agreement with the Jones Corporation: Smith, for the rest of his life, will obey all orders, under whatever conditions, that the Jones Corporation wishes to lay down. Now, in libertarian theory there is nothing to prevent Smith from making this agreement, and from serving the Jones Corporation and from obeying the latter’s orders indefinitely. The problem comes when, at some later date, Smith changes his mind and decides to leave. Shall he be held to his former voluntary promise? Our contention-and one that is fortunately upheld under present law-is that Smith’s promise was not a valid (i.e., not an enforceable) contract.
Such a contract is rightly understood to be an unconscionable contract. The unconscionability becomes obvious the instant that Smith wants out. Before then, the unconscionability exists in latent form as threatened enforcement. Such contracts are unconscionable when natural rights are violated, i.e., when the will is influenced by duress or coercion, or a threat towards the same. If there are no penalties or threats of penalties, then this is an agreement that is inherently unenforceable. — Here’s another way to look at a contract like this: This is a gift given by Smith to the Jones Corp. As long as Smith chooses to give his labor to the Jones Corp., this is not an unconscionable contract, but a gift. The instant that Smith chooses to not give his labor to the Jones Corp., the gift is terminated. If Jones Corp. refuses to acknowledge the new situation, the gift contract becomes unconscionable, and therefore not a contract in fact, but a delict perpetrated by Jones Corp.
Because this contract has no limits (i.e., "for the rest of his life"), because it stipulates no conditions under which Smith can escape the servitude, and because it is assumed to be a secular contract, it is a mere promise, and not a contract under secular jurisdictions.
According to Evers,
Rousseau argued trenchantly against the validity of a slave contract: When a man renounces his liberty he renounces his essential manhood, his rights, and even his duty as a human being.
Fallen human beings have an innate inclination to enter into contracts whereby they enslave themselves to others. Humans do this for the sake of misperceived benefits and advantages (like largesse from the public coffers). This propensity to voluntary enslavement is what allows tyrants to build empires. The nature of Rousseau’s system makes it clear that he did not have a solution to this problem. When the people tire of their bondage, they tend to go to the opposite extreme and refuse to be obligated to anyone. Unconscionable contracts are not unconscionable because one of the parties volunteers to be victimized. They are unconscionable because one of the parties volunteers to victimize.
Also according to Evers,
An adequate title-transfer model must distinguish between alienable and inalienable goods. . . . Living human beings always are possessed of a will, and any attempt to deprive them of control over it is an attempt at dehumanization. Compelling personal service or compelling specific performance of labor is an illegitimate attempt to alienate another’s will. Likewise a human cannot rightfully alienate his liberty of will and sell himself into slavery.
In the secular arena, it’s necessary to agree with everything that Evers is claiming here. His claim that "a human cannot rightfully . . . sell himself into slavery" deserves further commentary. In a moment of weakness someone might sell oneself into slavery. By itself this is not unlawful even though it may be immoral. It becomes unlawful when someone tries to enforce such a sale or threatens to enforce the sale.
In every theory of contracts, it’s essential to address the issues of (i)how the theory relates to sales, and (ii)how the theory relates to gifts. Sales are fairly simple under this property-interest model. They are ordinary bi-lateral contracts that have a relatively short duration, i.e., that are consummated over a fairly short period of time. When they are not quickly consummated, they involve debt. Here Rothbard shows how the title-transfer model enforces a debt contract:
Suppose that Smith and Jones make a contract, Smith giving $1000 to Jones at the present moment, in exchange for an IOU of Jones, agreeing to pay Smith $1100 one year from now. This is a typical debt contract. . . . Suppose that, when the appointed date arrives one year later, Jones refuses to pay. . . . Existing law . . . largely contends that Jones must pay $1100 because he has ‘promised’ to pay, and that this promise set up in Smith’s mind the ‘expectation’ that he would receive the money. Our contention here is that mere promises are not a transfer of property title . . . Smith’s original transfer of the $1000 was not absolute, but conditional, conditional on Jones paying the $1100 in a year, and that, therefore, the failure to pay is an implicit theft of Smith’s rightful property.
When Smith gives Jones $1000 in exchange for an IOU, Smith retains title to the $1000 even while he surrenders possession to Jones. Another way of saying this is that Jones’s title to the $1000 is encumbered by the conditions of the contract. As Rothbard says, the "title-transfer" is conditional. Promise-expectations theorists may say that it’s conditioned on a promise. Rothbard apparently agrees with that. There is no genuine "title-transfer" ever in a debt transaction like this. There is only exchange of possession. In other words, Smith gives possession of the $1000 to Jones, and retains a property interest in it. That property interest precludes a genuine transfer of title. Even so, assuming that this is a secular contract, Rothbard is right in saying that this is hyperbolic theft.
Here Rothbard shows how the title-transfer model treats gifts:
What of gift-contracts? Should they be legally enforceable? Again, the answer depends on whether a mere promise has been made, or whether an actual transfer of title has taken place in the agreement. Obviously, if A says to B, "I hereby give you $10,000," then title to the money has been transferred, and the gift is enforceable; A, furthermore, cannot later demand the money back as his right. On the other hand, if A says, "I promise to give you $10,000 in one year," then this is a mere promise, what used to be called a nudum pactum in Roman law, and therefore is not properly enforceable. The receiver must take his chances that the donor will keep his promise. But if, on the contrary, A tells B: "I hereby agree to transfer $10,000 to you in one year’s time," then this is a declared transfer of title at the future date, and should be enforceable.
Again, in the secular arena, the title-transfer model and the property-interest model are essentially the same.