coons_c_weber_m_eds_paternalism_theory_and_practice

they had those children “accidentally” or through coercion, at least until such time as the children are transferred to the legal custody of others.18

There are several types of voluntarily acquired legally enforceable a rmative duties to perform services. I have already mentioned enlistment in the military, which may turn out to be much more onerous, not to mention dangerous, than many instances of peonage. And those who contract to be lifeguards, police o cers, or firefighters, although they may quit their jobs, may not decide to do so at the moment someone needs rescuing or assistance and there is no one else of their expertise present and obligated to render that service.19 The same is true of seamen who sign up for a cruise but who then wish to quit before the cruise is over, or lawyers who seek to terminate their representation in the middle of a trial.20 Likewise, those who imperil others by their acts have a rmative duties, enforced by the criminal law, to render assistance.21

So there are legally enforceable duties to perform services and not merely either to perform or pay damages. Some of those legally enforceable duties are voluntarily acquired. Others, like those entailed by the military draft, jury duty, and involuntary parenthood, are involuntarily acquired. But it is just not true that the law will not compel performance of services.

is abel’s agreement with baker a peonage contract, and

are peonage contracts morally enforceable?

There is little doubt that Abel’s contract with Baker bears the principal earmarks of a peonage contract. It is true that the usual peonage contract was a contract to work o a prior debt at some stipulated rate of pay, whereas Abel’s agreement to labor indefinitely for Baker is the specific quid pro quo for Baker’s agreement to advance medical, travel, and living expenses. (In that respect it is like an indentured servitude.) But this distinction seems immaterial to any legal or moral distinction between the Abel–Baker contract and peonage contracts.

18See, e.g., Jones v. United States, 308 F. 2d 307 (D.C. Cir. 1962); State v. Williquette, 385 N.W. 2d 145 (Wis. 1986).

19See, e.g., Commonwealth v. Pestinikas, 617 A. 2d 1339 (Pa. Supreme Ct. 1992); Davis v.

Commonwealth, 335 S.E. 2d 375 (Va. 1985).

20See, e.g., Robertson v. Baldwin, 165 US 275 (1897) (refusing to allow seamen to quit in the middle of a voyage); LoCicero v. Hartford Ins. Grp., 25 Mass. App. Ct. 339, 518 N.E. 2d 530 (1988) (refusing to allow lawyer to withdraw from lawsuit); Rosenfeld, “Mandatory Pro Bono,” 290–294 (arguing that mandatory pro bono service for lawyers does not violate the Thirteenth Amendment).

21See, e.g., Jones v. State, 43 N.E. 2d 1017 (Ind. 1942); Commonwealth v. Cali, 141 N.E. 510 (Mass. 1923); People v. Oliver, 210 Cal. App. 3d 138 (Ct. App. 1989).

the Supreme Court held to be within Congress’s power to enforce the Thirteenth Amendment, Baker could not enforce the contract against Abel in a court of law, at least in the United States. However, the answer to the question does not settle the moral question. Does Abel owe Baker a moral duty to perform as promised? Or does Abel lack the normative power to place himself in peonage and give Baker the right to demand that Abel perform?

To see why the legal unenforceability of the contract says nothing about whether it creates moral rights and duties, consider the quotidian personal service contract again. If Abel had agreed to sing in Baker’s opera and then reneged, and if Abel were also judgment proof, we would have no doubt that Abel was morally obligated to perform. But if that is the case with ordinary personal service contracts, it would seem to be the case with peonage contracts as well. Their legal unenforceability in the United States is an artifact of the nation’s particular positive laws, laws that were a product of both its experience with chattel slavery and the abuses attached to peonage in connection with the newly emancipated slaves.

The legal treatment of peonage contracts in the United States, then, does nothing to cast doubt on the proposition that peonage contracts can create moral obligations (to perform) and moral rights (to the promised performance). Even if Abel’s contract with Baker is currently unenforceable in the American legal system, it still might morally obligate Abel to perform and create a correlative moral right in Baker to that performance.22

but what about regret?

I have ignored to this point Kronman’s argument against enforcement of personal service contracts. As I said, that argument seems to be addressed to the question of legal enforceability. Yet, the argument itself appears equally applicable to the moral enforceability question – that is, to the question of whether the Abels of the world can morally obligate themselves to the Bakers of the world and convey moral rights to the latter to compel the discharging of those obligations.

The central point of Kronman’s argument against enforceability is that when the promisor’s values and goals have changed since the time he made

22The fact that Baker cannot enforce his agreement with Abel through the legal system entails as a legal matter that he is also legally prohibited from using self-help to enforce it, not withstanding his moral right to do so. The law rarely leaves a legal vacuum that can be filled by private enforcement but not enforcement by the state.

the promise to perform, he will, if forced to perform, experience regret and not just disappointment. Disappointment can occur whenever performance of a contract fails to achieve what the contractors believed would be achieved. The possibility of disappointment is surely no bar to the enforcement of promises, for that possibility attends all promissory obligations.

According to Kronman, however, regret is di erent from disappointment. It occurs when the promisor’s goals and values have changed to such an extent that he no longer can understand why he made the promise in question. If he cannot “depersonalize” his relationship with the promisee by substituting monetary damages for performance, his alienation from the goals and values that induced his promise will intensify and endanger his moral health. Or so Kronman argues.

This argument surely seems applicable to the moral as well as legal status of promises of personal service. But is it sound?

Let us accept Kronman’s psychological speculations as correct and ask whether they undermine the putative moral obligations and rights created by promises of personal service. Let us consider some other contractual obligations that are not in dispute but that can lead to the same kind of regret that Kronman imagines.

Suppose Alex owns some land that he farms. He makes a living doing so, but he dreams of working for a “white shoe” law firm in a fancy, airconditioned o ce and wearing stylish suits to work rather than the dungarees he wears in the hot sun as he plows, plants, and harvests. So Alex sells the farm to Bob, uses the money to finance his legal education, and eventually lands a job as an associate in a fancy law firm. He works the long hours as an associate doing meticulous document work, and ultimately he becomes disenchanted with what he is doing and longs to return to farming. Unfortunately, despite the proceeds from selling the farm, he still had to borrow money to finance his legal education, and his law firm salary is not what he had imagined it would be. So his financial situation will not allow him to buy a farm for many years, if ever. And given that his principal earning skill is practicing law, it appears that he has little choice but to continue performing a service from which he now is alienated.

If Kronman is correct, Alex is likely to feel regret over his selling the farm to Bob. But surely his moral as well as legal duties, and Bob’s moral and legal rights, were altered by that sale. Alex may not treat the farm as though he rather than Bob owns it, and this is true morally as well as legally.

The point about Alex’s sale of the farm generalizes. Most of us have to labor, if not to survive, at least to live at all decently. And many of us will

have to labor in ways that we wish we could avoid. Indeed, even the most self-fulfilling forms of work contain large chunks of routine, mindnumbing, and surely not self-fulfilling tasks.

Given, then, that most of us will have to perform lots of tasks that we wish we did not have to perform, there are lots of opportunities for Kronman’s form of regret. Like Alex, we have all made choices that we regret having made. But those choices changed the moral situation in ways that we cannot now undo. If the possibility of regret undermines the obligatoriness of personal service contracts, as Kronman argues it does, it would seem to undermine the obligation and right-creating normative power of all promising and indeed all choices that alter one’s moral situation. A promise to help a friend move furniture can cause regret when the friendship cools between the time of the promise and the time of performance. And just as Abel may come to regret his promise to be Baker’s servant, Alex has come to regret selling the farm to Bob, going to law school, and so on.23

It is doubtful, then, that Kronman’s argument from the possibility of regret casts any doubt on the moral obligatoriness of personal service contracts.24 And if those contracts create moral obligations and rights, it is di cult to see that there is any moral argument against their legal enforceability. There may be good practical reasons that counsel against a legal regime that makes the remedy of specific performance available for personal service contracts – the di culty courts would have in monitoring that performance to see that it fulfilled the obligation (did Agnes do her best in singing Beth’s opera?). But those practical reasons do not rise to the level of moral objections.

the argument from degradation

There is one moral argument that Kronman does not make but that might be raised as an objection to enforcement (by means of ordering specific performance) of personal service contracts like Abel’s. Would it not be

23Ironically, one ground for denying that the possibility of regret undermines the moral and legal enforceability of personal service contracts can be found in the Thirteenth Amendment itself. Recall that it excepts punishment for crimes from its ban of involuntary servitude. So convicts can be forced to labor because they deserve such treatment for their criminal acts. And when they are so forced to labor, it is no doubt with the hope that they will regret their prior criminal choices. Now enforcing personal service contracts is not, unlike punishment, done for the purpose of inducing regret in the promisor. But the promisor, like the convict, by virtue of having promised, can be said to deserve being forced to perform.

24See Wonnell, “The Contractual Disempowerment of Employees,” 141 n. 331 (making the same point).

degrading to be forced to work at another’s direction and thereby be rendered non-autonomous? And should not a promise to place oneself in a degraded condition be considered normatively impotent?

There is something to such an argument, but not enough to undermine the moral validity of Abel’s contract with Baker. If Abel had promised to obey Baker’s every command (so long as obedience did not wrong others), even if Baker’s commands were whimsical, arbitrary, and humiliating, then one might well have a case that Abel’s promise failed to create an obligation to do as promised.25

But voluntary enslavement need not be subjugation to the arbitrary will of another. Even under involuntary chattel slavery, slave owners were subject to various rules regarding how their slaves were to be treated. And Abel’s contract with Baker does not give Baker the right to issue whimsical, arbitrary, and humiliating orders. It is likely that most of us would not care to be another’s personal servant, but those who do choose that occupation are not in a degraded condition merely as a result of that choice.

To see this last point more clearly, assume that despite the Abel–Baker contract’s non-enforceability, Baker had agreed to pay Abel’s daughter’s medical expenses and the costs of bringing Abel and his daughter to America, and that he did so. And assume that Abel did as he had agreed, and worked as Baker’s personal servant for ten years. During that ten-year period, Abel received many attractive o ers of employment – employment in high-status jobs for lots of money. Nevertheless, Abel turned these o ers down on the ground that he was obligated to continue working as Baker’s personal assistant for room, board, and necessary medical care. Would we consider Abel to be degraded for forswearing these opportunities? Or would we instead consider him, not in the least degraded, but rather quite honorable?

I conclude that the case against voluntary enslavement has yet to be successfully made. We have the moral power to place ourselves under obligations to others to render personal services even for a very long time. And given that the legal unenforceability of such contracts undermines the ability of those like Abel to enter into arrangements such as contracts of indentured servitude from which they might benefit greatly, it is perhaps

25Locke would surely agree; see note 1 above. And although it is less clear, Mill probably would as well; see note 2 above. Valdman, “The Deep Problem with Voluntaristic Theories of Political Obligation,” argues that consent to content-neutral obligations cannot obligate unless there is a reasonableness constraint on the content of those obligations.

time to re-examine the regime of legal unenforceability of personal service contracts and its supporting arguments. If paternalism is ever to be a justifi- able basis for refusing to enforce an agreement entered into voluntarily, it must be the case that the vast majority of those agreements are contrary to the interests of the party the law seeks to protect, and that there is no administrable basis for distinguishing those agreements from the agreements that are mutually advantageous.26 The Abel–Baker agreement fails that test for paternalistic non-enforcement. “Enslavement” has a deservedly nasty connotation. But “voluntary enslavement” may be oxymoronic.27

26I have used the Abel–Baker contract, with its perhaps distracting feature of Abel’s dire straits, to emphasize the point that legal non-enforceability of personal service contracts has its most negative e ects on those who are in the worst pre-contractual conditions. This point would have been obvious in the era of indentured servitudes, when those who agreed to indenture themselves desperately wanted passage to America but could not a ord it.

27For an argument that accepts the similarity of employment contracts and voluntary enslavement, but then concludes that the former, which the author calls “self-rental contracts,” should be

abolished in favor of a regime of employee ownership, see Ellerman, “Inalienable Rights.” I obviously agree with the author’s premises, but I reject his conclusion. It would not only lead to economic disaster; in rendering all promises to perform services – in the military, in the police, as lifeguards, and so on – unenforceable, it would also radically undermine the organization of modern societies.

democratic policies to espouse some form of “libertarian paternalism.”2 Along with the latter I maintain that paternalism is an aspect of social relations and of democratic policy-making that is often inevitable and regularly indispensable. It is inevitable because we make choices in the context of a social environment that is structured for us and over which we have little control as individuals. The alternative to paternalist interventions by the state is commonly not plain freedom but rather a di erent set of choices, often less coherent and less conducive to both individual and social goals. Subsequently, some form of paternalism may be indispensable for the continued adherence of the social and institutional environment, including regulatory policies, with democratic social preferences as well as with individual ones.

I part ways with the current libertarian call for paternalist policies where they focus on specific environments (mostly the workplace) which I suggest should be expanded to include social policies in various areas, as well as in advocating more structured policies which focus less on personal freedom as the key feature of justified policies, and instead look for a balance between freedom and equality as justified social goals. This balanced view can frame the context for pursuing both personal and social aims. A more egalitarian (and thus less libertarian) version of justified paternalism would aim not only to advance freedom but also to promote civic equality as a central democratic value.3

While the centrality of civic equality to democracy is widely accepted,4 pursuing it entails challenges to the prevailing rejection of paternalism. This is particularly the case for liberal scholars who reject paternalism on the basis of a strong belief in at least the potentiality of human excellence and a suspicion of state power as a potential form of coercion. However, these liberal concerns may fail to recognize various needs that must be addressed before individuals in contemporary democracies are able to reach a civic minimum that would allow them to participate as equals in democratic processes.5 In addition, paternalist policies pursued through the development of choice sets in the context of the distribution of goods (such as savings, health care, and education) enable individuals to realize

2Thaler and Sunstein, “Libertarian Paternalism”; Sunstein and Thaler, “Libertarian Paternalism Is Not an Oxymoron”; Thaler and Sunstein, Nudge.

3I discuss these issues in more detail in Ben-Porath, Tough Choices.

4Shi rin, “Paternalism, Unconscionability Doctrine, and Accommodation.”

5For a discussion of the challenges to civic equality in education, and in particular the view that “a certain type of equality – civic equality – is actually internal to the idea of educational adequacy for a democratic society,” see Satz, “Equality, Adequacy, and Education for Citizenship,” 623.

them autonomy.8 However, both traditional defenses of paternalism – impaired judgment and protection of liberty or autonomy – miss the point. If paternalism is to advance the twin aims of freedom and equality, if it is to advance both the free pursuit of well-being by individuals and the expansion of opportunities that support civic equality, it must not be designed in a way that would classify a particular group as incapable or limited. If my argument that paternalism is a helpful approach for realizing public policies in an equitable and socially conscious way is correct, then paternalism should be directed towards all individuals in the instances in which it is justified.

In the example I will focus on, if school choice can be used e ectively to advance both freedom and equality, the specifics of the policy should be developed to encompass all individuals or families who are a ected by choice and maintain an ongoing rather than a limited-time or single-instance presence. In what follows I focus on the first of these requirements, namely, on the ways in which school choice succeeds or fails to respond to all individuals a ected by this policy. The second – thinking of choice as ongoing rather than limited in time – requires that choice will be available to children and families not only at the level of deciding which school to attend but also as a structured dimension of the curricular o erings within the school and the educational opportunities a orded across educational institutions (this latter point is not developed here further).

Paternalism thus is not justified merely by the extent to which it is under time constraints, or by the extent to which it develops autonomy or averts immediate, unintended harm. Paternalist policies are justified when they advance the public good of civic equality, as related to the private good of well-being and expanded opportunities. In other words, justified paternalism is one which advances well-being, which in part is the conditions for achieving the threshold of civic equality, by providing opportunities and goods one needs in order to live a minimally decent life and to advance one’s chosen goals, consistent with others’ civic equality.9 From a liberaldemocratic, let alone liberal-egalitarian, perspective, it seems reasonable to

8This is typical of perfectionist discussions. For a key example see Raz, The Morality of Freedom.

9This well-being can be advanced through policies that limit or otherwise regulate one’s choices as well as through policies that expand the set of choices available, taking into account existing knowledge about the ways in which individuals tend to choose, and the forces that a ect these choices both externally and internally. Hence the goal is not necessarily to provide “more choices” (as some policies, and most starkly school-choice policies, tend to proclaim) but rather to organize a productive set of choices and an appropriate context for individuals to choose according to their preferences.