The Philosophical Quarterly Advance Access published June 30, 2015

The Philosophical Quarterly Vol. 00, No. 0

ISSN 0031-8094 doi: 10.1093/pq/pqv052

THE POSSIBILITY OF CONTRACTUAL SLAVERY

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†
By Danny Frederick

In contrast to eminent historical philosophers, almost all contemporary philosophers maintain that
slavery is impermissible. In the enthusiasm of the Enlightenment, a number of arguments gained
currency which were intended to show that contractual slavery is not merely impermissible but
impossible. Those arguments are influential today in moral, legal and political philosophy, even in
discussions that go beyond the issue of contractual slavery. I explain what slavery is, giving historical and
other illustrations. I examine the arguments for the impossibility of contractual slavery propounded in
the Enlightenment and their offspring expounded in recent writings, including those by Barnett, Cassirer,
Ellerman, Rawls, Roberts-Thomson, Satz and Steiner. I show that they involve confusions between
abilities and rights, free will and freedom, directing and doing, what may be true sequentially and what
may be true simultaneously, default rights and universal rights, impermissibility and impossibility, and
metaphorical and literal uses of language.

Keywords: abilities, contractual slavery, directing, freedom, free will, rights.

I. INTRODUCTION

A slave is a person who is held as the property of another person, a slaveholder.

The slave is directed and used by the slaveholder. The slave may be punished,
or perhaps even killed, by the slaveholder for failing to do as the slaveholder
says. The slave may also be sold by one slaveholder and bought by another.
Slavery has existed in various forms in human history and still exists in some
forms today. Slavery is most commonly imposed on one person by another;
but slavery may also be voluntary. There may be different forms of voluntary
slavery. The one that is the topic of this paper is contractual slavery, whereby
one person enters a contract to become the slave of another.
Many historical theorists argued that slavery is sometimes permissible. For
example, Aristotle (2007: I, ii, iv, v, xiii; 2006: VIII, x) thought that a natural
slaveholder is entitled to enslave a natural slave against his will, whereupon it is

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2 DANNY FREDERICK

the duty of the slave to execute the directions of the slaveholder. Aquinas (1920:
IIa IIae, q. 47 a. 12, q. 57 a. 3, q. 106 a. 3) seemed to agree. Augustine (1913:
XIX, 15), Aquinas (1920: Ia q. 92 a. 1; IIa IIae q. 189 a. 6), Locke (1690: II,
section 23) and Kant (1797, 6: 329–30) thought that slavery is permissible where
it is imposed as a punishment for crime. Pufendorf endorsed the enslavement
of captives in war (1673: II, iv, paras 1 and 4) and thought it permissible for
people with ‘Want of Understanding’ to enter a contract for permanent slavery
(1673: II, iv, paras 1 and 3). Grotius (1625: I, iii, section 8; II, xxii, section 11; III,

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vii) and Pufendorf (1673: II, iv, paras 1, 3 and 6) held that the offspring of slaves
are slaves of their mother’s slaveholder and that a contract for permanent
slavery is permissible where it allows escape from want.
In contrast, contemporary philosophers and social theorists are almost
unanimous that slavery is never permissible. However, a few think slavery
permissible provided that it is voluntary. The permissibility of a contract for
permanent slavery is defended by Block (2003) where it allows escape from
adversity, for example, where a parent sells himself into slavery in exchange for
resources paid to his needy family that will enable them to buy food or medical
treatment; by Kershnar (2003) where a criminal chooses it in preference to life
imprisonment or execution; by Nozick (1974: 331) where a person’s ends are
achieved by becoming a slave; and by Thomson (1990: 283–4) because she sees
no good argument against it (though she does not discuss the arguments against
it). I defend the permissibility of renewable fixed-term slavery contracts as
opportunities for people to discover whether they are natural slaves (Frederick
2014). Steiner (1994: 232–3, footnote 5) defends a form of non-contractual
voluntary slavery where a person’s ends are best achieved by becoming a slave.
The concern of this paper is not to debate the arguments for the permissibility
of some form of contractual slavery under some circumstances. It is instead
to consider and evaluate a number of arguments that have been propounded
in attempts to show that contractual slavery is impossible. That is a worthwhile
task because the arguments involve some common and pernicious confusions
which can vitiate moral, legal and political debate, for example, concerning
contracts of employment and of military service, as illustrated by the discussion
at the end of Section III; and because it is impossible to think clearly about
slavery if one is subject to those confusions, as illustrated by the discussion of
historical and contemporary theorists in the bulk of Section III.
In Section II, I give an explanation of what slavery is, I illustrate it with
some actual and possible examples and some historical facts, and I distinguish
carefully issues concerning the existence of slavery from those concerning
its legitimacy. In Section III, I dissect the arguments intended to show that
contractual slavery is impossible because it involves some incoherence, absur-
dity or inconsistency. I expose the confusions upon which those arguments
 THE POSSIBILITY OF CONTRACTUAL SLAVERY 3

rest, and I give examples of the deleterious influences of those confusions on

contemporary thought. In Section IV, I conclude.

II. WHAT SLAVERY IS

The term ‘slavery’ is applied to a diverse range of relationships. It seems that

the best way to understand it is by means of paradigm and resemblance. I

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suggest that the paradigm of slavery has the following features.

(1) Slavery is a relationship between one person, a slaveholder, and another

person, a slave, in which the former affirms ownership of the latter and
enforces that affirmed ownership, if necessary, with threats or violence.
(2) Ownership, as the lawyers say, is a bundle of rights (Gaus 2012). The rights
affirmed by the slaveholder over the slave include:
(a) the primary right to direct all the actions of the slave,
(b) the secondary right to use force to secure the primary right against
anyone (including the slave) who would violate it,
(c) the authority to transfer the primary and the secondary right to others,
either gratis or in exchange for some other property right.
(3) The primary right includes the right to use or abuse the slave’s body in any
way that does not violate the rights of third parties, and thus it includes the
right to kill the slave. As a consequence, the force which the slaveholder
affirms she is entitled to use against the slave as part of the secondary right
is unlimited.
(4) The slaveholder has command of the physical power necessary to enforce
the rights that she affirms she has over the slave, at least for much of the
time. That physical power may reside in the slaveholder herself or in others
acting on her behalf, such as employees or contractors or personal helpers.

The primary and secondary rights mentioned in (2) are ‘claim-rights’ (Ho-
hfeld 1919: 36–8; Thomson 1990: 37–43). A claim-right is correlative with a
duty. If ‘ϕ’ stands in for a description of a type of action or omission, then, for
any persons, x and y,
x has a claim-right against y that y does not ϕ if and only if y has a duty to x not to ϕ.

The primary right affirmed by the slaveholder is actually a bundle of claim-

rights against other persons whom the slaveholder thereby affirms to have the
correlative duties. Thus, the primary right to direct all the actions of the slave
is a claim-right against each third party which implies that that third party has
the duty not to interfere with the slaveholder’s direction of the actions of the
slave. It is also a claim-right against the slave that implies that the slave has
the duty to comply with the slaveholder’s directions. It further implies that the
4 DANNY FREDERICK

slave has no claim-rights against the slaveholder, since they would imply duties
on the slaveholder that would encroach on the slaveholder’s direction of the
slave’s actions. Similarly, the secondary right affirmed by the slaveholder, to
enforce her primary right, implies that others (third parties and the slave) have
a duty not to interfere with her enforcement of her primary right.
Three distinctions are worth noting. First, it is not the case that all pri-
mary claim-rights have accompanying secondary claim-rights to enforce them:
promises, for example, generate claim-rights which are not enforceable. Sec-

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ondly, claim-rights are to be distinguished from liberty-rights (Hohfeld 1919:
38–50; Thomson 1990: 43–56):
a person, x, has, with respect to another person, y, a liberty-right to ϕ if and only if x has
no duty to y not to ϕ.

The primary right, affirmed by the slaveholder, to direct all the actions of the
slave implies that, in general, the only liberty-rights that the slave has against
the slaveholder are those that are granted by, and that may be rescinded at any
time by, the slaveholder (the qualification ‘in general,’ permits as exceptions
liberty-rights of the slave to disobey illegitimate directions of the slaveholder, as
explained below). However, the slave has many liberty-rights with regard to
third parties, since there are innumerable actions which the slave is under no
duty to third parties not to perform. Thirdly, claim-rights and liberty-rights
are different to authority-rights, like that mentioned in (2)(c), which are rights
to alter claim-rights, liberty-rights or duties (Hohfeld 1919: 50–63; Thomson
1990: 56–60; both of whom refer to authority-rights as legal or moral ‘powers’).
The authority-right mentioned in (2)(c) entitles the slaveholder to give to the
slave the primary and secondary rights mentioned in (2)(a) and (2)(b), in which
case the slave is freed.
As the term is used here, a person has a right legitimately if and only if she has
that right as a matter of moral fact. A slaveholder may, or may not, legitimately
have the rights that she affirms that she has with regard to the slave. If she
does have such rights legitimately, then she is a legitimate slaveholder and her
slave is a legitimate slave: the slave is her property in the ‘classical liberal’ sense
of the term ‘property’ in which an owner has ‘sole and despotic dominion’
over her property (see Gaus 2012: section 1). If the slaveholder does not have
those rights legitimately, then she is not a legitimate slaveholder and the slave
is only treated as her property. The notion of ‘affirming rights’, as employed
in (1)–(4) above, is intended to cover not only cases of verbal declaration but
also cases in which a person simply acts as if she has the rights in question. In
either case, the person who makes the affirmation might, or might not, believe
that it is true. Indeed, in many cases of slavery, the slaveholder may know that
she does not possess the rights in question; that is, she may know that she is
 THE POSSIBILITY OF CONTRACTUAL SLAVERY 5

not a legitimate slaveholder, and that the persons she has enslaved are not her
property, though she treats them as if they are.
Relationships which have only some of the features of paradigmatic slavery,
or attenuated versions of them, may count as non-paradigmatic slavery. For
example:

(i) the slaveholder might affirm a weaker set of rights than those listed in (2)
and (3), such as the right to direct the most important of the slave’s actions

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(perhaps excluding her own sexual use of the slave’s body), or the right to
use only such force as stops short of killing the slave, or the right to free the
slave but not to sell or give the slave to another slaveholder; and
(ii) the slaveholder may be able to rely on the slave’s compliance even though
she lacks the physical power to enforce the rights she affirms.

The characterization of slavery focuses on the bundle of rights affirmed by

the slaveholder. The slaveholder’s society might also in some way affirm that the
slaveholder has that bundle of rights. In some cases in which that is so, the
slaveholder may be able to call upon agents of her society to wield the power
necessary to enforce the rights she affirms over her slave. However, relationships
of paradigmatic or near-paradigmatic slavery may exist even where the wider
society denies that anyone has the bundle of rights that the slaveholder affirms
herself to have over the slave. For example, in Austria, Joseph Fritzl was
condemned by his society and imprisoned in 2009 for confining his daughter,
raping her repeatedly and murdering one of her children whom he fathered;
and in 2012, a US court awarded damages of $3.3 million to an Ethiopian
woman against a US diplomat and her husband (Linda and Russell Howard)
who, while living in Tokyo, confined the woman and subjected her to forced
labour, repeated rape and other sexual abuse.
Further, the slave might or might not affirm that the slaveholder has the
bundle of rights in question. Perhaps in most cases a slave will not affirm that
the slaveholder has that bundle of rights over her, even though she concedes
that the slaveholder affirms that she has them. However, slavery often arose
out of wars in which the victors enslaved those of their adversaries whom they
did not kill, or as a punishment for serious crimes (Patterson 1982: 39–45,
106–15, 126–9). Having grown up in societies with such norms, it seems that at
least some such slaves might have affirmed that their new slaveholder had the
bundle of rights over them which are characteristic of paradigmatic slavery (or
some slightly weaker kind), and thus that they had the duty to execute their new
slaveholder’s directions (for apparent examples of dutiful slaves see Patterson
1982: 36, 81, 184, 311–2). Further, in various societies it has been common for
people to become non-paradigmatic slaves voluntarily as a way of escaping
dire or precarious circumstances (Patterson 1982: 130–1). Contractual slavery
is brought about by the slave and the slaveholder agreeing that the slaveholder
6 DANNY FREDERICK

has the requisite bundle of rights, so the slave may be expected to affirm that
her slaveholder has those rights and, thus, that she (the slave) has the duty to
execute the slaveholder’s directions.
It is important, then, to distinguish the following possibilities concerning
the bundle of rights that constitute ownership of a slave:
(i) the slaveholder affirms that she has them;
(ii) the slaveholder’s society affirms that the slaveholder has them;

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(iii) the slave affirms that the slaveholder has them;
(iv) the slaveholder legitimately has them.
It may be the case that the slaveholder, her society and her slave all affirm that
the slaveholder has the bundle of rights over the slave that are paradigmatic
of slavery while, in fact, the slaveholder does not legitimately have that bundle
of rights. That would be the case even where the slave has agreed to be the
slave of the slaveholder, and even where such agreements are enforced by the
legal institutions of the society to which the slave and slaveholder belong, if
contractual slavery were never permissible, as most contemporary theorists
hold. It would also be the case even if contractual slavery is permissible,
provided that the particular slavery contract in question has features which
make it illegitimate. It is worth considering briefly one kind of case.1
Suppose a society with laws inspired in part by Aristotle, in which there
is an institution of slavery such that any Greek may be a slaveholder, any
Barbarian may be enslaved and any Greeks who have a diminished capacity
for complex moral reasoning can contract to be slaves, such contracts being
legally enforced. Suppose that one such Greek contracts to be a slave. After a
while, the slaveholder directs the slave to rob other citizens. Those directions
are illegitimate because, if they are carried out, legitimate claim-rights of some
citizens will be violated. The slave is therefore under no duty to execute those
directions; indeed, the slave has a duty not to execute those directions. A slave
is a person and is thus a moral agent who is under the general duties that
any person has to respect the legitimate claim-rights of others (Thomson 1990:
215). That was recognized in all societies which had an institution of slavery:
slaves were held responsible for their actions and punished for committing
crimes (Patterson 1982: 22–3, 195–7). When the slave and the slaveholder
agreed that the slaveholder has the claim-right to direct all the slave’s actions,
their agreement implied that the slave acquired the duty to follow only the
slaveholder’s legitimate directions, and that the slaveholder acquired the claim-
right to direct the slave only in legitimate ways. A person cannot, by becoming
a slave, or by becoming a slaveholder, acquire a new authority-right to alter the
claim-rights of third parties. Therefore, even if slavery contracts are legitimate,

1
I thank Mark D. Friedman for pressing me to comment on this kind of example, which is a
variation of one discussed by Barnett (1986: 186–8).
 THE POSSIBILITY OF CONTRACTUAL SLAVERY 7

by issuing directions to rob other citizens the slaveholder is acting outside of

her legitimate authority.
Suppose now that the nefarious activities of this slave and slaveholder are
discovered, that the case comes to trial and that the pair are justly held to be
complicit in criminal activity. The judge sentences the slave to a whipping and
the slaveholder to a fine, also ordering the slaveholder to pay full compensation
to all of the victims. Has justice been done? I think not. One reason is that,
by acting outside of her legitimate authority in her directions to her slave or,

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at least, by doing so in such an egregious manner, the slaveholder revealed
herself to be ineligible to be a slaveholder.2 Thus, not only the specific directions
given by the slaveholder but the slavery contract itself is in this case illegitimate.
Therefore, even though the slaveholder, the slave and the slaveholder’s society
affirm that the slaveholder has the rights over the slave that constitute slave
ownership, the slaveholder does not legitimately have those rights.
However, the question of the legitimacy of contractual slavery is posterior to
the question of its possibility. A number of theorists have propounded arguments
intended to show that contractual slavery is not possible. It is those arguments
that are discussed next.

III. THE POSSIBILITY OF CONTRACTUAL SLAVERY

Arguments intended to show that contractual slavery is impossible were popu-

lar amid the exuberance of the Enlightenment. The confusions given currency
by those arguments bedevil contemporary philosophy. I expound and criticize
those arguments and confusions in this section. An attempt to place them
within the context of the broader thought of the theorists who propounded
them would be an interesting exercise in the history of ideas, but there is no
space for that here, and it is in any case unnecessary for our purpose, which is
to evaluate arguments against the possibility of contractual slavery. If such an
argument has a false premise or a transition that depends upon confusion or
is otherwise invalid, then the argument is unsound, no matter what else is said
by the author of the argument. Throughout this section the slavery in question
is assumed to be paradigmatic, since that is the assumption of the arguments.
It might be thought that arguments for the impossibility of contractual
slavery can be given short shrift. From our explanation of paradigmatic slavery,
it follows that a contractual slave relationship exists if there are two people, x
and y, who agree that x has the rights against y which are specified in (1)–(3)
in Section II and if x has the physical power to enforce those rights. That is
certainly possible and there may even be actual instances of it. However, the
arguments for the impossibility of contractual slavery are intended to show
2
Impermissible slaveholders are discussed by Vallentyne (2000: 3, 4) and by Frederick (2014:
129–33).
8 DANNY FREDERICK

that the relationship that the slaveholder and slave affirm to hold between
themselves involves an absurdity, an impossibility or even a self-contradiction,
so that the actual relationship between them cannot be the one that they
affirm it to be. An analogous claim would be that, although there are same-
sex couples who appear to be married and the relationship is recognized as
marriage in their societies, the relationship is not really marriage because it is
impossible for two people of the same sex to perform the complementary roles
involved in marriage. Thus, in rebutting the arguments for the impossibility of

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contractual slavery my aim is to show that the conceptual difficulties alleged
to infect the notion of contractual slavery are spurious.
Spinoza offers two arguments against the possibility of despotic govern-
ment (‘political slavery’) which, if sound, would also show the impossibility of
contractual slavery. The first runs as follows:
No one can ever so utterly transfer to another his power and, consequently, his rights,
as to cease to be a man. . . for men have never so far ceded their power as to cease to be
an object of fear to the rulers who received such power and right; and dominions have
always been in as much danger from their own subjects as from external enemies. . . We
must, therefore, grant that every man retains some part of his right, in dependence on
his own decision, and no one else’s. (1670: ch. 17, 214–5)
The second is that
. . . no man’s mind can possibly lie wholly at the disposition of another, for no one can
willingly transfer his natural right of free reason and judgment, or be compelled so to
do . . . All these questions [namely, what opinions should be accepted as true, rejected
as false, or acted upon] fall within a man’s natural right, which he cannot abdicate even
with his own consent. (1670: ch. 20, 257)

Spinoza’s first argument conflates power and right, as his juxtaposition of those
terms indicates. What is required for the possibility of contractual slavery is
that the slave gives to the slaveholder the claim-right to direct all the slave’s
actions, thereby undertaking the duty to do as the slaveholder directs and thus
losing all liberty-rights to act in ways contrary to the slaveholder’s (legitimate)
directions. The slave would obviously retain his physical power to act on the
slaveholder’s instructions; and he would thus retain his ability not to act on
them and even to attempt to resist the slaveholder’s enforcement of the claim-
right to direct the slave’s actions. However, none of that shows that the slave
retains part of the claim-right to direct his own actions or a liberty-right to act
contrary to the slaveholder’s directions, any more than the fact that a burglar
can break into someone’s house and resist arrest shows that he has a claim-
right or a liberty-right to do so. The same conflation of ability and right is
in play in Spinoza’s second argument. Each person has the ability to make
independent judgements, so Spinoza says that each person has the right to do
so; and from the alleged fact that one cannot give up the ability, he infers that
 THE POSSIBILITY OF CONTRACTUAL SLAVERY 9

one cannot give up the right. However, while a person may, or may not, have
a right (claim or liberty) to express or act on his independent judgement on some
matter, it sounds odd to describe the ability to make an independent judgement
as a ‘right’. In any case, contractual slavery involves a slaveholder having the
claim-right to direct all the slave’s actions, not the slave’s thoughts, so the alleged
inability of relinquishing independent judgement is not an argument against
contractual slavery.
Montesquieu offers the following argument, not against contractual slavery

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as such, but only against the possibility of someone selling himself into slavery.
Neither is it true that a freeman can sell himself. Sale implies a price; now when a
person sells himself, his whole substance immediately devolves to his master; the master,
therefore, in that case, gives nothing, and the slave receives nothing. (1748: book XV,
section 2, 262)

That argument was repeated by Rousseau in the tangle of arguments for the
impossibility of contractual slavery set forth in the following passage. I identify
the different arguments by preceding numerals in square brackets which show
the order in which I discuss them.
[v] To say that a man gives himself gratuitously, is to say what is absurd and inconceivable;
such an act is null and illegitimate, from the mere fact that he who does it is out of his
mind. . .
[iv] To renounce liberty is to renounce being a man, to surrender the rights of humanity
[iii] and even its duties. [ii] For him who renounces everything no indemnity is possible.
[iv] Such a renunciation is incompatible with man’s nature; [iii] to remove all liberty
from his will is to remove all morality from his acts. [i] Finally, it is an empty and
contradictory convention that sets up, on the one side, absolute authority, and, on the
other, unlimited obedience. Is it not clear that we can be under no obligation to a person
from whom we have the right to exact everything? Does not this condition alone, in the
absence of equivalence or exchange, in itself involve the nullity of the act? For what right
can my slave have against me, when all that he has belongs to me, and, his right being
mine, this right of mine against myself is a phrase devoid of meaning? (1762: book I, ch.
iv, 10)
We can expound those arguments as follows:

(i) the slave has no claim-rights against the slaveholder, so he has no con-
tractual claim-rights against the slaveholder, so the slaveholder has no
contractual duties towards the slave, so there is no contract between them;
(ii) the payment to the slave, along with the rest of his belongings, would de-
volve to the slaveholder, who would therefore pay nothing, thus nullifying
the transaction;
(iii) the removal of all freedom from a human’s will would deprive him of
moral responsibility, thereby rendering him ineligible to bear any duties,
including the duty to obey his slaveholder;
10 DANNY FREDERICK

(iv) freedom, the claim-right to direct one’s own actions, is essential to human
nature, so a human slave would not be human, which is contradictory;
(v) given the evident impossibility of contractual slavery, only a mad per-
son would consent to it, but his madness would render the contract
invalid.

Argument (i) correctly maintains that the slave can have no contractual
claim-rights against the slaveholder and thus that the slaveholder can have

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no contractual duties towards the slave. However, that does not show that
contractual slavery is impossible. It simply implies that any contractual duties
of the party who becomes the slaveholder must be completed before the other
party becomes a slave. A contract for slavery is made at a time when the two
parties to it are free persons who are able to acquire contractual duties to each
other; but the contract stipulates a later time at which one of the parties ceases
to be free and becomes a slave, and the other party ceases to have any duties,
contractual or otherwise, to the slave, though the slave continues to have a
contractual duty to the slaveholder. It is analogous to a familiar type of case:
a plumber retains the contractual duty to fix my leak even if I pay him in
advance, so that I no longer have a contractual duty to him.
It might be objected that my contract with the plumber remains valid, that
the contract is sustained, only because both parties retain the capacity to enter
contracts. However, while it is true that a valid contract can be made at a
particular time only between people who have the authority-right to enter into
contracts at that time, that does not by itself exclude the possibility of a contract
being made, at one time, as part of which one of the parties gives up the
authority to make contracts at a later time. Simply to assume or stipulate that
exclusion would beg the question against the possibility of contractual slavery.
It might be pleaded that, if a woman agrees to get so drunk that she will
not be able later to consent to sex, her earlier agreement is not tantamount
to her consenting to sex later, because she is then incapable of such consent.
However, the case is not analogous to contractual slavery. The woman does
not undertake an obligation to have sex later; she consents to lose, temporarily,
her ability to consent. In contrast, the slave undertakes the obligation to obey
the slaveholder, and thereby gives up all claim-rights against, the slaveholder.
The plea seems to involve Spinoza’s confusion between ability and right.
It might be urged that, even if the woman had undertaken an obligation to
have sex later, in return for money paid to her earlier, she could later avoid that
obligation by returning the money. Again, though, the case is not analogous
to contractual slavery, for the slave undertakes the obligation to follow the
slaveholder’s directions with regard to all actions which do not violate the
claim-rights of third parties, so the slave is not entitled to act so as to avoid his
obligations to the slaveholder without the slaveholder’s permission. It might
be remonstrated that no civilized persons would recognize such an ineluctable
 THE POSSIBILITY OF CONTRACTUAL SLAVERY 11

contract as valid; but that is a claim that slavery contracts are impermissible
rather than impossible.
Argument (ii) is the one that comes from Montesquieu. It is against the
possibility of someone selling himself into slavery. Even if it were sound, it
would not show the impossibility of contractual slavery, so long as a person
could give, rather than sell, himself into slavery. However, the argument is not
sound. Its assumption that all of the slave’s property would devolve to the
slaveholder is true, since the slaveholder can direct the slave to transfer his

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property. But the argument overlooks the possibility that there may be a lapse
between the time of the payment and the time at which the slavery commences.
That will permit one of the following to occur before the slavery begins:

(a) the prospective slave consumes the payment,

(b) the prospective slave transfers the payment to a third party,
(c) the prospective slaveholder makes the payment to a third party.

The time lapse also occurs in cases, which were historically quite common
(Patterson 1982: 124–5), where a person sells himself as a slave to a person to
whom he owes a debt that he cannot otherwise repay.
Argument (iii) involves the same sort of conflation of ability and right that
was exhibited in Spinoza’s two arguments. It confuses an agent’s free will, his
ability to perform free actions, with his freedom, his claim-right to direct his own
actions. What the contractual slave gives up is his freedom, because he gives
the slaveholder the claim-right to direct all of his (the slave’s) actions and
thereby accepts the duty to act as his slaveholder directs. He also retains the
general duties to respect the claim-rights of other people that he had before
he entered the slave contract (he does not somehow become free of the duties
not to rob or kill third parties, for instance). If he defaults on his duties, he is
normally blameworthy and may be punished. The slave therefore retains his
moral responsibility and thus his free will: it is up to him whether he performs
his duties or defaults on them.
Argument (iv) is surely correct in its assumption that the moral status of
human beings depends upon non-moral facts about human nature. However,
the contention that every human necessarily has the claim-right to direct his
own actions is question-begging; and it also seems false. The contention is
question-begging because it assumes what is to be proved, namely, that it is
impossible to relinquish the claim-right to direct one’s own actions. It also
seems false because we think that children, and some adults with serious
mental disabilities, do not have the claim-right to direct their own actions;
rather, we think that the claim-right, and even the duty, to direct the actions
of these humans, at least in broad outline, belongs to people who are normal
adults. There are even many normal adults who do not seem to have that
claim-right completely. For example, it is commonly thought that people who
12 DANNY FREDERICK

violate the claim-rights of others may legitimately be imprisoned, and thus lose
a significant part of the claim-right to direct their own actions. Further, normal
adults generally strive to make things better, for themselves and for others; and
they sometimes do this by waiving their claim-rights, or giving them up, or
transferring them to someone else, either as a gift or in exchange (Gaus 2012,
subsection 3.1). For example, someone who enters a contract of employment
gives up the claim-right to direct his own actions within working hours, to
the extent that he accepts the duty to follow the directions of his employer.

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Possession of the claim-right to direct one’s own actions may be the default
case for persons; but there are numerous circumstances which make the default
case not so common, and certainly not universal. It could be that Rousseau
is again confusing freedom with free will, in which case the objections to his
argument (iii) apply.
Argument (v) depends upon contractual slavery being evidently impossible,
which it is the burden of the other four arguments to show. As those other
arguments fail, the fifth argument also fails.
Kant allows that a person may become a slave, or tool, of another by
forfeiting his rights through a criminal act (1797: 6: 329–30), but he thinks that
it is impossible for a person to become a slave by contract:
No one can bind himself to this kind of dependence, by which he ceases to be a person,
by a contract, since it is only as a person that he can make a contract. (1797: 6: 330)

It is not clear which of two confusions is present in this passage. If Kant is

using the term ‘person’ in his usual sense, to mean a being with free will and
an appreciation of right and wrong (1797: 6: 223, 434–45), then he is saying
that someone who becomes a slave ceases to have free will or an appreciation
of right and wrong. That would exhibit the confusion of rights and abilities, of
freedom and free will, that is found in Spinoza’s arguments and in Rousseau’s
argument (iii). It seems more charitable to assume that in this passage Kant
is using ‘person’ in a legal sense to mean someone who can (legally) make a
contract. In that case, his argument involves the conflation of different time
periods present in Rousseau’s argument (i). A person may, at one time, be
free to make a contract which renders him, at a later time, unfree to make a
contract.
The Enlightenment confusions we have surveyed have been inherited by
contemporary philosophers. Cassirer says:
If a man could give up his personality he would cease being a moral being. He would
become a lifeless thing – and how could such a thing obligate itself – how could it make
a promise or enter into a social contract? [An amalgam of Rousseau’s arguments (iii)
and (iv)] . . . There is. . . no act of submission by which man can give up the state of a
free agent and enslave himself. For by such an act of renunciation he would give up that
 THE POSSIBILITY OF CONTRACTUAL SLAVERY 13

very character which constitutes his nature and essence: he would lose his humanity
[Rousseau’s argument (iv)]. (1946: 175)

Evers (1977: 7) and Rothbard (1982: 40–1, 135–6) argue for the impossibility of
contractual slavery on the basis of the confusion, found in Rousseau’s argument
(iii), between freedom, on the one hand, and free will and moral responsibility,
on the other. Rawls, also echoing Rousseau’s argument (iii), makes the false
claim that ‘slaves are not counted as having duties or obligations. . . they are not

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recognised as persons at all’ (1993: 33). Ironically, a footnote to this passage cites
Patterson’s book, in which Rawls’ claim is shown to be false (Patterson 1982:
22–3, 195, 196–7). However, in the passages of the book to which Rawls refers
(1982: 5–9, 38–45, 337), Patterson does say that, in historical forms of slavery, the
family obligations of slaves were typically not recognized by slaveholders (1982:
5–10), and also that the slave is a ‘social nonperson’ (1982: 5) and ‘socially
dead’ (1982: 5, 8, 38, 337), where the qualifying prefixes (‘social’, ‘socially’) are
intended to indicate a non-literal use of the term that follows them. Rawls
misunderstands what Patterson says by confusing family obligations with all
obligations, and by confusing literal and metaphorical uses of language.
Parenthetically, we can notice that the refusal to recognize a slave’s family
obligations that was typical in historical forms of slavery impugns the legit-
imacy of those forms. For, as was noted in Section II, a person cannot, by
becoming a slaveholder, acquire a new authority-right to alter the claim-rights
of third parties. That problem would be overcome if the slave’s family members
released the slave from the obligations in question, perhaps for a price paid
prior to slavery either by the slave or by the slaveholder. Even so, there are other
reasons for questioning the legitimacy of many historical forms of slavery; but
our topic here is contractual slavery and its possibility, not its permissibility.
Barnett argues that contractual slavery would involve the transfer of an
‘inalienable right’, the latter being a right such that ‘the consent of the right-
holder is insufficient to extinguish the right or to transfer it to another’ (1986:
185). Barnett offers four reasons why a right may be inalienable. Three of them
concern impermissibility; we will consider only Barnett’s second reason, which
is that some rights are such that it is impossible to alienate them. He offers two
arguments. The first concerns the slaveholder’s primary claim-right against
the slave.
If rights are enforceable claims to control resources in the world and contracts are
enforceable transfers of these rights, it is reasonable to conclude that a right to control
a resource cannot be transferred where the control of the resource itself cannot in fact
be transferred. Suppose that A consented to transfer partial or complete control of his
body to B. Absent some physiological change in A (caused, perhaps, by voluntarily and
knowingly ingesting some special drug or undergoing psychosurgery) there is no way for
such a commitment to be carried out. . . [For, while] A could conform his conduct to the
orders of B,. . . he would still possess control over his actions and would have to willfully
14 DANNY FREDERICK

act so as to conform to B’s order. Because A could not in fact transfer the control of his
body to B, B would in fact be forced to rely on A’s actual control of his body to carry
out B’s orders, notwithstanding A’s agreement. B’s ‘control’ of A’s body would, then, be
metaphorical rather than actual. (1986: 188, footnotes suppressed)
However, all that the argument shows is that we must separate the claim-
right to direct a person’s actions, which may be held by the person himself or
transferred to someone else, and the person’s ability to perform his actions. In

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a slavery contract, the slave does not even attempt to give the slaveholder the
ability to act for the slave. Rather, he gives the slaveholder the claim-right to
direct all the slave’s actions and he thus undertakes the duty to execute the
slaveholder’s directions (in fulfilling which duty he utilizes his ability to act). In
short, Barnett’s argument here exhibits the conflation of freedom and free will
that we saw in Rousseau’s argument (iii).
Barnett’s second argument concerns the slaveholder’s secondary claim-right
against the slave.
Suppose, now, that. . . A transfers to B ‘the right to use force against A to compel A to
conform his conduct to B’s commands’ . . . [but] that, after promising to perform services
and granting to B the ‘right’ to use force to compel performance, A thinks better of it
and revokes his consent. When B (or a court) attempts to enforce B’s command, may
A rightfully resist? The agreement that B may rightfully use force against A entails that
A no longer has a right to resist B because this right has somehow been transferred to
B (or lost). Yet A’s agreement notwithstanding, A retains his ability to resist B. Just as A
cannot alienate his right to the future control of his person because his ability to control
his person cannot literally be transferred, A cannot have transferred or lost his right to
resist when he retains his ability to resist. Therefore, if A may rightfully resist B, then B
may not have the right to use force against A, since such a right would also impose on A
a contradictory duty to refrain from resisting. (1986: 189–90, footnotes suppressed)

This argument repeats the confusion between right and ability that we
found in Spinoza’s first argument. In a slavery contract, the slave does not
even attempt to give up his own ability to resist force. Rather, he gives the
slaveholder the secondary claim-right to enforce his primary claim-right, with
violence if necessary; and the slave thus accepts the duty not to resist the
slaveholder’s enforcement of (legitimate) directions, even though he has the
ability to resist. That fact that A retains the ability to resist B’s enforcement of
B’s claim-right to direct A does not show that A has any right (claim or liberty)
to resist, any more than the condemned man’s ability to resist his gaoler gives
him a right to do so.
Steiner displays a confusion, similar to Rawls’ and to Rousseau’s argument
(iv), between ceasing to be free and ceasing to be human, in the following
passage:
. . . self-enslavement. . . cannot be incurred by a self-owner’s transferring (selling or donat-
ing) that right [of self-ownership], since such transfers entail that transferrors thereby
 THE POSSIBILITY OF CONTRACTUAL SLAVERY 15

acquire duties to their transferees, whereas slaves, as things wholly owned by others,
must lack duties as well as rights. (1994: 232, footnote 4)

Steiner is not saying—at least, not explicitly—that by giving up his freedom

the slave gives up his free will, and thus becomes unable to bear any duties. His
point seems rather to be that a slave cannot have duties because he is a (mere)
thing; and he is a (mere) thing because he is wholly owned. Roberts-Thomson
similarly claims that, since a slave can be bought and sold, he is ‘merely an

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object’ (2008: 74–5). However, it is false that a slave is a mere thing. Slavery is
essentially a relationship between persons: a mere thing, or even a living non-
person such as a cat, cannot literally be a slave. A person is a moral agent,
with free will and moral responsibility, and thus with the general duties that
all moral agents have to respect the claim-rights of all other persons. A person
cannot exempt himself from his duties to third parties by making an agreement
with another person to obey that person’s commands. It cannot, therefore, be
the case that a slave must lack duties. Steiner and Roberts-Thomson, like
Rawls, seem to have fallen into the trap of taking a metaphor literally. Slaves
differ from other persons in being wholly owned; and they are in that respect
analogous to those mere things which are wholly owned. However, to be
analogous to a mere thing is not to be a mere thing. If slaves had to lack duties
or to be mere things, not only would contractual slavery be impossible, but all
slavery would be impossible. It is curious that Steiner should make that mistake
given not only that he does not deny the possibility of slavery, but also that he
affirms the possibility, and even permissibility, of voluntary slavery that arises
from abandoning the right of ‘self-ownership’ (1994: 232, including footnotes 4
and 5).
The final argument for the impossibility of contractual slavery that we must
consider is one that has been mistakenly attributed to Mill, whose argument
against the permissibility of contractual slavery contains the following passage:
The principle of freedom cannot require that he should be free not to be free. It is not
freedom to be allowed to alienate his freedom. (1859: ch. 5, 94)
Satz (2010: 230, footnote 8) says that Mill is here claiming that contractual
slavery is self-contradictory, and thus impossible; but she objects that it is not
impossible on Mill’s account of freedom. She is right on the latter point, but not
on the former. Mill is not arguing for the impossibility of contractual slavery;
he is arguing for its impermissibility. He thinks that, given the value of freedom,
it would be wrong to permit people to renounce their freedom (Archard 1990:
457–60). That using one’s freedom to renounce one’s freedom is not impossible
has been shown nicely by Archard (1990: 459). A free choice of slavery is
what he calls a ‘self-abrogating’ exercise of freedom, but it is no more self-
contradictory or impossible than are other self-abrogating behaviours, such
as singing so loud that one irrevocably damages one’s vocal chords, reading
16 DANNY FREDERICK

in such poor light that one’s eyesight is irreparably harmed, voting to abolish
elections, or using a cheque to close one’s bank account. Indeed, such self-
abrogating behaviours are not only possible, they may even be worth doing
under some circumstances (like waging a war to end all wars, if that were
possible).
The confusions about contractual slavery have replicated themselves in
connection with other questions. Gabriel (2012: section 5) endorses Rousseau’s
arguments (i)–(v) when propounding an argument for the impossibility of

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professional soldiers, though her discussion seems too obscure and poetical to
be subjected to logical analysis. Ellerman (2010: 585, 587–8) endorses Spinoza’s
second argument and Cassirer’s rehash of Rousseau’s arguments. He notes
that, if the impossibility of a person transferring his ability to make independent
judgements makes contractual slavery impossible, it also makes employment
contracts impossible. Perhaps surprisingly, he swallows that absurd conclusion
instead of re-evaluating the argument that led to it:
. . . in consenting to [a slavery] contract, a person is agreeing to, in effect, take on the
legal role of a non-adult, indeed, a non-person or thing. Yet all the consent in the world
would not in fact turn an adult with capacity into a minor or person of diminished
capacity, not to mention, turn a person into a thing. The most the person could do was
to obey the master. . . and the authorities would ‘count’ that as fulfilling the contract.
Then all the legal rights and obligations would be assigned according to the ‘contract’
(as if the person in fact had diminished or no capacity). But the attributes that make
one a person (e.g., de facto responsible action) cannot in fact be transferred to another
person. Since the person remained a de facto fully capacitated adult person with only
the contractual role of a non-person or diminished person, the contract was impossible
and invalid. A system of positive law that accepted such contracts would only be a
fraud on an institutional scale. . . [The same] applies as well to the self-rental contract—
that is, today’s employment contract—as to the self-sale contract. . . One can certainly
voluntarily agree to a contract to be ‘employed’ by an ‘employer’ on a long or short term
basis, but one cannot in fact ‘transfer’ one’s own actions for the long or short term. The
factual inalienability of responsible human action and decision-making is independent
of the duration of the contract. (2010: 582–3)
However, in employment, as in contractual slavery, the subordinate party
does not transfer, or even attempt to transfer, to another his actions, his re-
sponsibility or his decision-making capacity: he transfers to the other party
the claim-right to direct the subordinate’s actions, and he thus accepts the
duty to execute the directions of the superordinate party. The employer or
the slaveholder becomes responsible for directing appropriately the employee
or the slave; and the employee or the slave becomes responsible for execut-
ing the directions appropriately. Both parties to the agreement are morally
responsible adult persons. In his first sentence, Ellerman appears to concede,
by using the qualification ‘in effect’, the metaphorical nature of his descrip-
tion of the subordinate as ‘a non-adult,. . . a non-person or [mere] thing.’ Yet
 THE POSSIBILITY OF CONTRACTUAL SLAVERY 17

Ellerman’s rejection of contractual slavery and employment as impossible de-

pends upon the impossibility of an adult person being literally a non-adult,
non-person or (mere) thing. Ellerman’s description of slavery and employ-
ment as ‘fraud on an institutional scale’ depends on first describing them
metaphorically, then taking the metaphor literally, and then showing that
the literal statement is false. It exhibits the same confusion of metaphorical
and literal uses of language that we noted in Rawls, Roberts-Thomson and
Steiner.

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IV. CONCLUSION

The prevailing opinion in contemporary philosophy, in contrast with that of

historical philosophers, is that slavery, whether imposed or voluntary, is im-
permissible. A few dissenting contemporary theorists maintain that voluntary
slavery, usually contractual, is permissible. However, many theorists, includ-
ing some contemporary ones, contend that contractual slavery is impossible.
The contention was popular during the Enlightenment, it still survives, and
it has recently been extended in attempts to show the impossibility of em-
ployment and of professional armies. However, the contention is motivated by
confusions:

(i) Spinoza’s and Barnett’s conflation of might and right;

(ii) Montesquieu’s, Rousseau’s and, perhaps, Kant’s failure to distinguish
between sequential and simultaneous negations;
(iii) Rousseau’s, Cassirer’s, Evers’s, Rothbard’s and, perhaps, Kant’s confu-
sion of freedom and free will, which is also reflected in Barnett’s confusion
of controlling by directing with controlling by doing;
(iv) Spinoza’s and Ellerman’s muddling of the ability to judge independently
and the liberty-right or claim-right to act on such judgements;
(v) Rousseau’s and Cassirer’s confusion of default rights with universal rights;
(vi) Rawls’s, Steiner’s, Roberts-Thomson’s and Ellerman’s confusions of
metaphorical with literal uses of language;
(vii) and Satz’s confusion of impermissibility with impossibility.

Wherever these confusions persist, slavery and many other issues cannot
be debated clearly. Once the confusions are dispelled the possibility of con-
tractual slavery is clear and the question of its permissibility can be discussed
soberly.3

3
I thank an anonymous referee for acute observations on an earlier version of this paper
which enabled me to improve my argument in several places.
18 DANNY FREDERICK

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