coons_c_weber_m_eds_paternalism_theory_and_practice

Consider this not too implausible scenario. Abel is a poor man in a ThirdWorld country. He gets by – barely – by acting as an all-purpose guide for rich Westerners on vacation. Baker – a very rich American – hires Abel as a guide and is very impressed with the multitude of skills Abel displays over the several days of their relationship. One day, during a casual chat, Abel, who is a widower, tells Baker that he is very worried about his daughter, his only child. Apparently, as a doctor has informed Abel, she desperately needs a medical procedure which is only available in America and is extremely expensive. Abel does not have the means even to send her to America, much less to pay for the operation.

Baker is moved by Abel’s plight. He tells Abel that he will pay for bringing Abel and his daughter to America and pay for his daughter’s medical needs if, in return, Abel will agree to be Baker’s personal servant for a ten-year period. Abel and his daughter will be given, in addition to the cost of the travel and medical procedure, a servant’s quarter to live in and meals and necessary clothing.

Abel immediately and gratefully accepts Baker’s o er. But Baker wants to make sure Abel can legally bind himself to a ten-year period of servitude; so he contacts his American lawyer, who tells him that such a long-term contract for personal service would probably be unenforceable beyond recouping costs. When Baker tells the lawyer that Abel has no assets from which to recoup costs, the lawyer tells him that the deal seems far too risky. For it is only worthwhile for Baker if Abel serves the full ten years of the contract; and if Baker has no viable form of legal recourse against Abel in the event Abel quits before the ten-year term has run, then Baker will be taking a huge risk if he pays for Abel’s and his daughter’s expenses up front.

Baker relates to Abel what Baker’s lawyer has advised and tells Abel that he has decided against financing the daughter’s medical procedures. Abel is crushed. He tells Baker that he, Abel, is honorable and will carry out the terms of the deal even if it is not legally enforceable. Indeed, he says, he will even consent to Baker’s using self-help – threatening him with a gun – if he tries to renege on the deal.

Baker contacts his lawyer again and asks if Abel’s consent to Baker’s use of force to e ect compliance would be legally valid. In other words, were Baker to wound Abel to prevent Abel’s reneging, would Abel’s prior consent immunize Baker from civil and criminal liability? The lawyer answers in the negative, and Baker again informs Abel that regrettably, the deal is still o .

My Abel–Baker scenario raises the issue of contracting into slavery. No matter how enthusiastically liberals endorse freedom of contract, and no matter how strongly they decry paternalism, they withhold endorsement of

contracts wherein one party agrees to become another’s slave. What usually goes unsaid, however, is just exactly what is slavery such that one cannot validly contract into it, or why the criteria that define slavery mark the boundary of valid contractual obligation. It is my purpose here to see whether any criteria that might define slavery are capable of bearing the normative weight that such a boundary would carry.

Although one might argue that contracts like the proposed Abel–Baker one – a contract that resembles those that created indentured servitudes in early American history – are really not in the self-interest of the Abels of the world, no matter that the Abels think otherwise, and must be prohibited for paternalistic reasons, that argument seems unsatisfactory. It is not only admittedly paternalistic and thus of a type that liberals should be loath to countenance. It is also dubious empirically. As Anthony Kronman argues:

Even the basic prohibition against self-enslavement is suspect from a purely economic point of view. If Spartacus agrees to become the slave of Claudius in return for a guarantee of food, shelter, and education for his children, there is no a priori basis for thinking the exchange ine cient. The welfare of both parties may be increased by an arrangement that gives one irrevocable control over the labor of the other (subject only to a few broad restrictions designed to insure the slave’s safety and physical health) in return for certain contractually specified benefits. If the slave lacks the managerial skills needed to exploit his own labor most productively, it is especially likely that an arrangement of this sort will be e cient.5

Kronman assimilates voluntary enslavement to all contracts that call for the performance of personal services as opposed to the delivery of goods or money. In American law, personal service contracts, including but not limited to slavery contracts, cannot be specifically enforced. That is, neither the law nor the other contracting party may use the threat of force or punishment to compel the performance of the promised personal service. Kronman believes the ban on compelling specific performance of personal service is justified as a means of protecting the one who promised

5Kronman, “Paternalism and the Law of Contracts,” 777 (footnote omitted). This argument is also endorsed by Christopher Wonnell in what is possibly the best extant treatment of the arguments for and against compelling employees to perform as promised: Wonnell, “The Contractual Disempowerment of Employees.” Wonnell points out that the practice of indentured servitude, as it existed in pre-nineteenth-century America, and to which the Abel–Baker contract is analogous, was probably quite advantageous for most of the indentured servants, who faced dire conditions in their European homelands and had opportunities in America that but for their servitudes would have been unavailable. Ibid., 120–126. See also Galenson, “The Rise and Fall of Indentured Servitude in the Americas.”

do personal service contracts create

duties and rights?

This is perhaps the easiest of the three questions to answer. We surely do believe that just as we have the normative power to convey ownership of things, we have the normative power to place ourselves under duties to perform specific actions and to create correlative rights in others to our performance of those actions. If I promise to help you rearrange your furniture, then I have a duty to do so (barring certain exigencies that are implicit limits on the duty), and you have a right that I do so. And although one cannot establish the existence of a normative power solely by its desirability, it is nonetheless quite desirable that we do possess such a normative power, just as it is desirable that we possess the normative power to convey ownership of things. If I could not place myself under a duty to treat you as owner of Blackacre, which I now own, we would all be forever stuck with whatever goods we initially possess and could never realize gains from trade or the benefits of gift-giving. Similarly, if I cannot place myself under a duty to perform services, then the huge benefits of labor contracting and friendship-buttressing promises of service would be unrealizable.

One might reply by arguing that the benefits of labor contracting would not be lost so long as a promise to perform services created a duty either to perform those services or pay damages to the promisee. Would not this duty, which is equivalent to a right in the promisee to either the service or its monetary value, be as valuable to the promisee as an unqualified duty to perform?

The answer is that although sometimes such a duty in the alternative would be as valuable as an unqualified duty to perform, often it will not be. It will not be when the promisor can give no assurance that he can give the promisee any goods or money that will equal the value to the promisee of his performance. Abel could not credibly promise Baker money damages as the alternative to his labor. And for some performances, there may be no way to convert its value to the promisee into some other currency, such as money: Consider the promise by a famous artist to paint the promisee’s portrait, or a promise by a spouse of marital fidelity.

So the normative power to place oneself under an unqualified duty to perform and to create the correlative right in the promisee to that performance is surely valuable. And although its value does not establish its existence, there is no reason to doubt its existence so long as we believe in the normative power of promising. I can promise a friend a book I possess and thereby place myself under a duty to give it to him and create in him a right that I do so. The promise to help him rearrange his furniture looks no di erent and thus should be assumed to be dutyand right-creating.

Moreover, the promise to help rearrange furniture – a promise of a performance – appears to be dutyand right-creating even if the promisor regrets the promise at the time for performance. Perhaps I regarded you as a friend when I promised to help but now feel less friendly towards you. Or perhaps I endorsed your furniture rearrangement because I assumed you were trying to please your wife. I now realize that you are doing it to spite her. Still, I promised to help and did not do so on the condition your goals were as I imagined.

I will take it as established then that promises to perform can create duties in the promisors to perform and rights in the promisees to those performances. I now turn specifically to the rights the promisee possesses as a result of a promise to perform and ask what that right entails for enforcement.

may promisees use coercive self-help measures to

enforce promises to perform?

I have argued that a promise to perform can create a right to that performance. In the absence of state enforcement – that is, in the proverbial “state of nature” – what is it permissible for the rightholder to do in order to get a balking promisor to perform?

Well, it would seem to be relatively uncontroversial that if we are in the state of nature, and you own Blackacre, then if I trespass on Blackacre, you may use force or the threat of force to get me to stop. Similarly, if you own your computer, and I attempt to take it, you may use force or the threat of force to prevent me from doing so. I elide here any attempt to spell out what it means to “own” things in the state of nature. For my purposes, it is su cient that you, not I, have a right to the exclusive possession and control of Blackacre and the computer, a right that entails my duty not to trespass on Blackacre or take the computer.

Are things di erent if I own Blackacre and the computer and then give them to you? If I have the normative power to transfer the rights of ownership I possess to others, then I can make you the owner of items that I now own. So it should not matter how you have come to own Blackacre and the computer – whether because I gave them to you or because you acquired them some other way. And therefore, if you may use force or its threat to prevent my violations of your property rights, you may do so even if your property came to you from me.

Are things di erent with promised performances? If I give you, not the rights associated with the ownership of Blackacre (rights that I currently possess), but the right to a performance (which I currently have a right to

give or withhold), may you use force or its threat to elicit the performance to which you now have a right and I a duty to deliver?

I can see no reason to deny your right to use force or its threat to get me to give the promised performance. In the case of the performance, just as in the cases of Blackacre and the computer that I gave you, you now have the right that I perform, and I am violating that right by not performing. To make the case even stronger, consider the fact that the right to the performance is not easily distinguished from the rights over property. If I walk away with your computer, you may demand that I bring it back to you and back up the demand with force. That demand is a demand for a performance (my walking back to you with the computer). Likewise, if I am standing on Blackacre, and you order me to get o and threaten force if I do not, you are demanding a performance from me (walking whatever distance is required for me to exit the property).

So I fail to see any case for denying that promisees may use self-help measures to get promisors to perform. If the promise of a performance creates a right to that performance in the promisee, then, prima facie, the promisee may enforce that right the same way he may enforce other rights.

may the state coerce performances to which

rightholders are entitled because promised?

I should lay some cards on the table here. I am one who does not believe invoking “the state” changes the moral picture in any material way, whatever the context. The state enforcing a rightholder’s rights is, for me, just the rightholder and his friends doing so. There are no emergent moral properties that come with “states,” whatever states are. States have no greater moral rights than their citizens, nor do they face greater moral constraints than their citizens. From a moral standpoint, a state is just a lot of us acting in an organized form.

For me, then, whatever measures rightholders may permissibly take to enforce their rights in the “state of nature,” states may take the same measures to enforce those rights. And if those rights include rights to performances by promisors, then those too may be enforced by states.

the positive law: are duties to perform

legally enforceable?

To this point I have sought to establish that (1) one can convey a right to his performance of services to another; (2) the duty to perform services that is the corollary of that right may be enforced by the

rightholder, and by force or the threat of force if necessary; and (3) a state may enforce that duty on behalf of the rightholder. So was Baker’s lawyer incorrect in advising Baker that his agreement with Abel was legally unenforceable, or is American positive law inconsistent with morality on this point?

The answer to that is complicated. It is true that as a general rule, promises of personal service are not specifically enforceable in the American legal system.8 You may typically get an award of damages from the courts if the famous opera singer, who has contracted to sing for eight weeks in your opera, reneges. And the courts may occasionally forbid her from singing elsewhere. They will not, however, order her to sing in your opera.

Two reasons are usually given for this refusal to order specific performance of a personal service, one practical, the other moral. The practical reason that is cited is that it is di cult for a court to monitor whether the personal service is being performed as promised.9 (Is the opera singer singing her best, or is she giving a halfhearted performance?)

The moral reason is that compelled specific performance seems to many people to be tantamount to slavery – and slavery is, of course, immoral. Moreover, the Thirteenth Amendment to the United States Constitution prohibits slavery.10 QED.

This moral argument, however, has lots of holes. To begin with, the Thirteenth Amendment abolished “involuntary servitude.” Southern chattel slavery was, of course, involuntary. Africans never consented to their being enslaved. But the question we need to answer here is whether voluntary agreements to perform services – voluntary enslavement – is on the same footing as involuntary chattel slavery. The constitutional ban on involuntary servitude is inapposite.

More to the point was the Supreme Court’s acceptance of Congress’s power under the Thirteenth Amendment to outlaw “peonage” as well as chattel slavery.11 Peonage, like chattel slavery, was a legal relationship enforced by the state. It consisted of legally requiring debtors to pay o their debts by working

8See, e.g., Shaw v. Fisher, 113 S.C. 287, 102 S.E. 325, 327 (1920); Reier Broad Co. v. Kramer, 316 Mont.

301, 72 P. 3d 944 (2003); Masetta v. National Bronze & Aluminum Foundry Co., 159 Ohio St. 306,

311, 112 N.E. 2d 15, 18–19 (1953).

9See, e.g., Farnsworth, Contracts, 755. But see, Kronman, “Specific Performance,” 373–374.

10“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall

have been duly convicted, shall exist within the United States.” US Const., amend. xiii, § 1.

11See Clyatt v. United States, 197 US 207 (1905); Bailey v. Alabama, 219 US 219 (1911); United States v. Reynolds, 235 US 133 (1914); Taylor v. Georgia, 315 US 25 (1942); Pollock v. Williams, 322 US 4 (1944).