|Basic Jurisdictional Principles|
|A Theological Inventory of American Jurisprudence|
|Memorandum of Law:
Contract Enforcement, Involuntary Servitude, & the Social Contract
In the investigation we find that the Bible clearly indicates that human beings are created party to at least two Covenants.[note] In other words, being party to at least two Covenants is built in to being human, and transcends human choice. The most obvious Covenant to which all humans are party is the covenant of works, also known as the Edenic Covenant. Like all Covenants and contracts, the covenant of works has terms, and the terms are laws to those party to the Covenant or contract. In the case of the covenant of works, the terms that pertain to human parties are natural laws. The natural law is the moral law that applies to all human beings, which human beings are not able to adequately keep, evidenced by the fact that all humans sin and die.[note] When humans violated the covenant of works in the garden of Eden, God divinely imposed another Covenant, the covenant of grace, also known as the Adamic Covenant. The Adamic Covenant allowed for the continued existence of the human race, even though in a fallen condition. All subsequent Biblical Covenants, all subsequent human existence, and all subsequent human activities –– including the making of contracts as part of everyday human life –– all exist within the context established by these two global Covenants, the covenant of works and the covenant of grace. These two Covenants are divinely imposed. They apply to the entire human race, and that's why we call them global. Although they certainly contain moral law, they contain no biblically prescribed human law. In the biblical chronology, after these two Covenants appear, there is only one subsequent Covenant to which all subsequent human beings are party, the Noachian Covenant. After the Noachian Covenant, the Bible's historical narrative tells of three other major Covenants, the Abrahamic, Mosaic, and Messianic Covenants. These latter three Covenants certainly have profound implications for humanity as a whole, but all people are not automatically party to these latter three Covenants. In contrast, all people are automatically party to the Noachian Covenant, just as they are to the covenant of works and the covenant of grace. This arrangement has huge implications, because the Noachian Covenant has the only prescription of human law in Scripture that exists as a term of a Covenant that has global in personam jurisdiction, i.e., to which all people are automatically and inevitably party. The term in the Noachian Covenant that prescribes human law is the Genesis 9:6 mandate against bloodshed. In the investigation we find that the Genesis 9:6 bloodshed is metaphorical, and should be understood to be a mandate against delicts. Since delicts are defined as perpetration of death, damage, or injury to primary or secondary property, the Bible's only global prescription of human law is the negative mandate against humans perpetrating death, damage, or injury against the persons or property of other humans, and the positive mandate to prosecute those who do. Even though the Bible exposes numerous other moral laws (i.e., natural laws) that have a global in personam jurisdiction, this positive-negative mandate against delicts is the only human law that the Bible prescribes for the entire human race. So according to the hermeneutics used in the investigation, no biblical authority is given for the enforcement of non-delictual moral law by human against human, because such enforcement converts such moral law into human law without biblical authorization, unless the parties are party to a Covenant that has local in personam jurisdiction, or unless the parties have given prior consent for such enforcement.[note]
Only with this context established is it possible to operate as a reliable apologist in the examination of claims by people who don't work within this framework. Because this framework posits that all human beings are inevitably party to certain Covenants, it shows that covenant-participation is built in to human nature. It follows that the social contract theory of government is a crucial ingredient in any political philosophy or jurisprudence that is consistent with this framework. It also follows that natural law, also known as universal moral law, is also a necessary ingredient in such philosophy and jurisprudence. Since natural rights are a rationally necessary subset of natural law, it follows that natural rights are also a necessary ingredient in such philosophy and jurisprudence.
This Bible-based framework continues besieged by numerous other schools and religions. It's imperative to fight for the truth. Even though this nation has been built with many admitted flaws, we believe that it was built with this framework at its foundation. So our need to confront these other schools and systems is compelling, because the deterioration of this nation profoundly impacts the visible Church.
One school of Christian theology, theonomic reconstructionism (also known as Christian reconstructionism), posits a political philosophy and jurisprudence that rejects both social contract theory and natural law.[note] We believe that rejection of both the social contract and the natural law is equivalent to rejection of the framework just sketched. We believe that rejection of both of these is essentially laying the foundation for fiat law, fascism, collectivism, socialism, and even totalitarianism. —— We believe that the prevailing schools in the legal profession –– legal positivism, legal realism, etc. –– show so little regard for social contract, natural law, and natural rights, that they are essentially doing the same thing, laying the foundations for fiat law, fascism, collectivism, socialism, and even totalitarianism. Since the investigation and the attached inventory combine to answer the rejection of both social contract and natural law, we'll not say anything more here about either this Christian theology or these prevailing secular legal schools. But another important ideological system rejects the social contract while holding fervently to natural law and natural rights. It's important for us to examine this school.
While Christian reconstructionism, legal positivism, legal realism, etc., tend to replace our historic foundation in social contract theory, natural law, and natural rights, with fiat law, etc., anarcho-capitalism tends to replace it with anarchy. This school does this by rejecting the social contract theory of government while simultaneously adhering to natural law and natural rights. By rejecting the social contract, this system rejects the principle in the framework just outlined, that human beings are inherently and inevitably participants in certain Covenants. A social contract theory of government grows out of the above framework, and is inherently related to the human need to satisfy the global mandate against bloodshed, i.e., against damaging primary and secondary property. Social contract theories developed by humanistic philosophers may deviate significantly from the framework discovered by the investigation, but they and this framework all have in common the belief that governments are based upon contracts. Anarcho-capitalism rejects this belief.
The primary exponent of the anarcho-capitalist school is Murray Rothbard (1926-1995). Rothbard rejects the social contract based primarily on his theory of contracts, which he calls the "title-transfer" theory of contracts. Because this is an axe laid to the root of Bible-based jurisprudence, we need to give the title-transfer model of contracts special attention. So we will spend some time here examining Rothbard's book, The Ethics of Liberty, and Williamson Evers's two articles, "Toward a Reformulation of the Law of Contracts" and "Social Contract: A Critique".[note] To whatever extent the title-transfer model is true, it will have a bearing on the existence of lawful government, and the existence of lawful taxing, taking, and spending.
Before proceeding, in order to make sure that we keep context, we need to remind ourselves of several other features of the biblical framework expounded in the investigation: A contract that people form specifically for the purpose of prosecuting perpetrators of delicts we call a jural compact. A contract that people form specifically for the purpose of adjudicating (i.e., rendering equity in) contract disputes, we call an ecclesiastical compact. A contract that incorporates and encompasses both the jural compact and the ecclesiastical compact, and also encompasses the customs, usages, rules, and all the other contracts by which people live from day-to-day, we call a social compact. A contract that is intended to encompass a plurality of religions we call a secular social compact. A contract that is intended to encompass only a single religion we call a religious social compact. —— Each of these various kinds of compacts has a very specific in personam jurisdiction and a very specific subject matter jurisdiction. If such a compact is fully functional, then it will also have a very specific geographical jurisdiction. —— In the process of examining the title-transfer model of contracts, we believe it's safe to assume that whatever is valid about it will fit rationally into the Bible-based framework that we've been sketching.
In the inventory we assumed that contracts should always be enforced as written, as long as they conform to the jurisdictional boundaries just outlined and unless there is something unconscionable about them.[note] What is always unconscionable in every geographical jurisdiction is the intentional or unintentional perpetration of a delict. This is because the mandate against delicts is global, and no one can escape it by entering into a contract. So under a secular social compact, if a contract invokes the perpetration of a delict, the contract is unenforceable and is automatically void. So all contracts that invoke delicts are unconscionable. But on the other hand, some contracts are unconscionable even if they do not invoke delicts. Under a religious social compact, a contract might be unconscionable, void, and unenforceable even if it does not invoke the perpetration of a delict if the contract violates the religion's moral code. Under the jurisdiction of a religious social compact that prohibits fornication, a contract to fornicate would be unconscionable, void ab initio, and unenforceable, even though fornication is not a delict under strict construction of the bloodshed mandate. So the issue of what is conscionable and what is unconscionable within a given jurisdiction is crucial to determining whether a contract can be enforced within that jurisdiction.
Apparently, people who advocate the title-transfer theory of contracts do not take jurisdiction as being absolutely crucial to the enforcement of positive law. We therefore believe they've made a huge mistake from the very beginning. Nevertheless, in essence, the title-transfer model tries to draw a clear distinction between what is an enforceable contract and what is not, and it does so by differentiating what is conscionable and what is not. Its authors deserve our thanks for that. While insuring that the investigation's jurisdictional framework is maintained, the essential issue that we need to determine in this memorandum is this: Do Rothbard and company draw the line between conscionability and unconscionability in the right place?[note] If a court does not correctly draw the line between a conscionable contract and an unconscionable contract, then the court will inevitably err on one of two sides: (i)If the court enforces what is in fact an unconscionable contract because it construes the contract to not be unconscionable, then the court is lending its power to inflict undeserved harm on the contract's vulnerable party. (ii)If the court refuses to enforce a contract because the court believes the contract is unconscionable, when in fact it is not unconscionable, then the court fails to do its job, and fails to render equity where equity is demanded and needed. —— In the final analysis, we find that the title-transfer model fails not because it fails in regard to conscionability, but because it fails in regard to jurisdiction, and that failure leads it to reject the social contract. Even so, we recognize the title-transfer model as a worthy effort at protecting the individual's natural rights against government that has in many respects gone absolutely out of control.
Rothbard begins Chapter 19 of The Ethics of Liberty by saying, "The right of property implies the right to make contracts about that property: to give it away or to exchange titles of ownership for the property of another person." We agree with this statement entirely. He goes on to speak of "libertarians" who ostensibly believe in this initial statement, but who fail to properly construe it. Then he says, "[T]he only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party." We can agree with this latter statement only by using definitions of "property" and "theft" that he would probably not accept. We believe that Rothbard is attempting to solve a legitimate problem. But we believe his solution is deficient. In fact, the logic associated with this latter premise leads Rothbard to reject the social contract entirely.
Based on the fact that the title-transfer model uses definitions of "property" and "theft" that are appropriate within the scope of jural societies and secular social compacts, we'll start by giving the benefit of the doubt, assuming that their model may be perfectly valid within this jural and secular context. We'll spend the remainder of this memorandum (i)describing the problem that Rothbard and his colleagues are trying to solve; (ii)describing Rothbard and company's solution; and (iii)presenting our alternative solution.
Promise-Expectation vs. Contract-Enforcement
All men are born free; liberty is a gift which they receive from God himself; nor can they alienate the same by consent, though possibly they may forfeit it by crimes. No man. . . can . . . give away the lives and liberties, religion or acquired property of his posterity, who will be born as free as he himself was born, and can never be bound by his wicked and ridiculous bargain."[note]
The current law of contracts is an inchoate mixture of the title-transfer and the promise-expectations approaches, with the expectations model predominating under the influence of nineteenth- and twentieth-century legal positivism and pragmatism. A libertarian, natural-rights, property-rights theory must therefore reconstitute contract law on the proper title-transfer basis.[note]
Unfortunately, many libertarians, devoted to the right to make contracts, hold the contract itself to be an absolute, and therefore maintain that any voluntary contract whatever must be legally enforceable in the free society. Their error is a failure to realize that the right to contract is strictly derivable from the right of private property.[note]
We believe that every contract, by definition, contains promises. Promises are necessary ingredients in the creation of every contract. If there are no promises, then there is no contract, because where there is no promise, there is no promise to perform; and where there is no promise to perform, no obligations are placed on any of the parties; and where there are no obligations, there are no benefits accruing to the other party by way of the obligations; and where there are no benefits, there is no consideration; and where there is no consideration, there is no incentive to enter the contract in the first place. Where there is no promise, there is no contract. Implicitly, Rothbard admits this by using the verb "agree" as a euphemism for "promise" in the illustrative cases he presents in Chapter 19. But he never admits explicitly in The Ethics of Liberty that a promise is an inevitable component of every contract. Both he and Evers choose instead to maintain an assault on the "promise-expectations" model of contracts.
Wherever a promise exists, whoever believes in the promise is expecting that it will be fulfilled. If A promises B that A will do X, why would B ever enter the contract if B did not have some reasonable expectation that A would deliver on A's promise? Without B's expectation, B would never enter the contract. —— This line of reasoning shows that both promise and expectation are necessary, inevitable, and defining components to the creation of every contract. But the fact that Rothbard, Evers, and company appear to completely overlook this fact is not sufficient reason to dismiss their arguments with incredulity. This is because they have a legitimate grievance.
Many of the problem areas in the law of contracts stem from the historical fact that the law of contracts has been fashioned out of material that does not fit together logically. Some jurists view contracts as conventions serving to secure people's expectations. … On the other hand, other jurists, particularly those who base their legal theory upon the natural rights philosophical tradition, view contracts as instruments by which rights to things (both present and future alienable goods) are assigned, delineated, transferred or exchanged.[note]
Suppose that a celebrated movie actor agrees to appear at a certain theater at a certain date. For whatever reason, he fails to appear. Should he be forced to appear at that or at some future date? Certainly not, for that would be compulsory slavery. Should he be forced, at least, to recompense the theater owners for the publicity and other expenses incurred by the theater owners in anticipation of his appearance? No again, for his agreement was a mere promise concerning his inalienable will, which he has the right to change at any time. Put another way, since the movie actor has not yet received any of the theater owners' property, he has committed no theft against the owners (or against anyone else), and therefore he cannot be forced to pay damages.[note]
This case displays the basic assumptions of the title-transfer model: (i)Rothbard presumes the non-existence or irrelevance of religious ecclesiastical courts. (ii)Rothbard presumes that both promises and expectations "are only subjective states of mind, which do not involve transfer of title". (iii)Rothbard assumes that even if penalties for non-performance were written into the contract, the contract is unenforceable if there is no title transfer. (iv)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.
Importance of Penalties
Based on the idea that penalty should be proportional to offense, we agree that the actor should not be forced to appear. After all, how does anyone force anyone else to do anything? In the words of the godfather, by giving them an offer they can't refuse. In other words, with threats. By giving them a choice between something bad and something absolutely horrible. Use of such force to persuade must always be measured against the original offense. The actor's failure to appear certainly didn't deserve threats of having his children wiped out, or his legs broken, or his home looted. In fact, in a secular jurisdiction that is concerned only with the protection of property, it's very difficult to determine what threat is deserved. Since Rothbard mentions no penalties or remedies written into the original contract, we assume that there are none in the original contract. So even if there is real ex contractu damage to the owners for which the actor is responsible, the lack of pre-defined penalties for non-performance make it difficult to conclude that the actor should be forced to appear.
Rothbard also asks, "Should he be forced … to recompense … for … expenses incurred …?". The issue again is this: How can the theater owners force the actor to recompense? If we assume that they will use a secular ecclesiastical court, rather than seeking to find equity through a vigilance committee or through mafiosi, then the same question goes to the court: How, Judge, are you going to force the actor to recompense? The judge's methods are the same as the mafiosi's: by giving the actor an offer he can't refuse. The only difference between the judge and the mafia is that the judge has the backing of a monolithic police force, and the judge is backed by the awesome mythology of statism. Force and myth are hardly substitutes for equity. So we conclude again that if there is no penalty for non-appearance written into the original contract, then in a secular jurisdiction, the actor should not be forced to recompense.
Even though we agree with his conclusions, our reasons for eschewing forced appearance and forced compensation are different from Rothbard's. Rothbard says that the actor's "agreement was a mere promise concerning his inalienable will, which he has the right to change at any time". According to this view, the human will, i.e., the human ability to choose, is so exalted that no human being can ever burden another human being's choices. The exception to this that Rothbard and company acknowledge, is indicated by the above quote of Cato's Letters: "All men are born free; liberty is a gift which … possibly they may forfeit … by crimes." If this criminal forfeiture of liberty is lawful, it is necessarily ex delicto. In addition to this ex delicto class of justifiably alienated wills, we also acknowledge another class of exceptions that arise ex contractu, relations like these: parent-child, guardian-ward, and mentor-dependent contracts. Even if Rothbard doesn't acknowledge these latter exceptions to his will-inalienability rule, the fact that he acknowledges the ex delicto breed of will alienation proves that the will is not inalienable in an absolute sense.
Regarding ex delicto alienation of the will, if A damages B's primary property, then A's liberty is forfeit proportional to the damage to B's primary property. Such damage to primary property generally deserves an action ex delicto and not an action ex contractu. Evidence shows that Rothbard and Evers agree that such a public or private delict deserves retribution or recompense or some penalty or remedy ex delicto.[note] But damages that arise ex contractu arise by way of non-performance of contractual obligations. Damages that happen in any way other than through a contract are damages that may give rise to an action ex delicto (assuming human culpability), but not to an action ex contractu. Clearly Rothbard is not acknowledging that an action ex contractu is justified in this case. The damage in this contract between the actor and the theater-owners, brought on by the possibility that the theater owners spent a lot of money for advertising and preparing for the event, according to Rothbard, is simply part of the risk of doing business. The issue that is crucial to Rothbard is that the actor "committed no theft against the owners". "Theft" is crucial to the title-transfer model. As indicated above, the first paragraph of Chapter 19 says, "[T]he only enforceable contracts … should be those where the failure of one party to abide by the contract implies the theft of property from the other.". To Rothbard and company, since "the actor has not received any of the theater owners' property", the actor could not possibly have stolen anything from the theater owners. Therefore the contract is unenforceable. Or so the analysis goes thus far.
If the owners lost a lot of money via the actor's non-appearance, it's obvious that they are damaged by way of the actor's non-performance. The damage is obviously ex contractu. Theft is usually assumed to be a crime, and therefore assumed to give rise to actions ex delicto. But the kind of theft that Rothbard is talking about in his theory of contracts is theft that happens by way of non-performance. His use of the word, "theft" is essentially a hyperbolic reference to transfer of title, ownership, possession, etc., in violation of a contract's performance requirements. He says that even if the owners were damaged by the actor's non-performance, there was never any transfer of title, ownership, possession, etc., and therefore no grounds for executing contractual penalties against the actor, even if such penalties were written into the original contract. Under such circumstances, Rothbard claims the contract is unenforceable.
We agree that it's unenforceable, but we're suspicious of Rothbard's claim that there is no theft, and we're also suspicious of his analysis of this case on other grounds. We believe that in the agreement between the actor and the theater owners, when the two parties made promises to each other, it's possible that they surrendered property-interests to one-another. The actor may have given the theater owners an interest in his labor as an actor. Likewise, the theater-owners may have given the actor an interest in their land and labor as sponsors of the event. When the actor failed to show, and the theater owners wanted compensation and therefore took the case to a secular ecclesiastical court, and the theater owners submitted their copy of the contract to the court as exhibit A, then the three issues to the court were these: (i)Does the contract give the court in personam jurisdiction over the parties to the contract? (ii)Does the court have subject-matter jurisdiction over the contract? (iii)Does the court have geographical jurisdiction over the contract? If the court determined that it probably had jurisdiction on all three counts, it would proceed to hear evidence. The core issue the court would then need to decide is to what degree the contract is enforceable. Is the contract unenforceable because it's unconscionable? In this case, there's nothing unconscionable about this contract. On the other hand, is the contract unenforceable because it offers no remedies or penalties for non-performance on either side? Rothbard mentions no remedies or penalties written into the contract, so we'll assume none exist. So the court finds itself needing to create remedies and penalties for these parties who neglected to insert such remedies and penalties into the original contract. Is the court obligated to modify the contract by creating such terms out of nothing?
If parties to a secular contract fail to write penalties into their contract, then the court should consider something essential about human law. A moral proscription that is not accompanied by a prescribed penalty does not suffice as human law. If the court wants to avoid putting itself into the position of being a perpetrator of a delict against one of the litigants, then it's important for the court to assume that the parties did not intend for the contract to be enforced as positive law, because human law by definition demands the existence of human-executed penalties. If the parties did not intend for the terms of the contract to be positive law, then it would be gross presumption for the court to find otherwise. If the parties intend for it to be positive law, then they should provide evidence of that intent by showing the penalties in the original contract.
This is where we find agreement with Rothbard. We believe that Rothbard may be wrong in saying that there is no "theft". In fact, it's possible that the actor has stolen (in Rothbard's hyperbolic sense) the theater owners' interest in his labor, an interest that he offered to the owners at the initiation of the contract. If the court could reliably put a monetary value on the property-interest that the actor gave, then perhaps the court could resolve the dispute in the owners' favor by giving the actor an offer he could not refuse, namely, compensate the owners or else. But given that this is a secular ecclesiastical court, and given that the property-interest that the actor gave is difficult to monetize, it would be more appropriate for the court to treat the case like this: "If you, Actor, and you, Owners, care so little about your property that you enter contracts that have no penalties or remedies for non-performance, then you can suffer the consequences. I, the judge, recognize that this is a conscionable contract, but I am offered insufficient evidence to render a conscionable decision. I find this contract outside my limited subject-matter jurisdiction because you have offered insufficient evidence that you were serious about transferring title to your respective property-interests. I therefore lack evidence for conscionable enforcement."
Even though Rothbard believes that there is no transfer of property while we believe that there may be, the property-interest is so difficult to define in rigorous monetary terms that we believe it would be imprudent for the judge to demand compensation from the actor. Because of insufficient evidence, such a demand would probably create a delict perpetrated by the court. So we agree with Rothbard's final solution to this case, but we reach this conclusion by a different means. The theater owners should have gotten a performance bond, or they should have written penalties and remedies into the contract with sufficient specificity to allow lawful enforcement.
Summary of this case: Since this is a secular contract, and since there is no evidence to the contrary, we conclude that the actor's agreement with the theater owner was unenforceable. The actor's will is probably inalienable in law, but whether it's inalienable in fact is a different issue. His labor is not inalienable because labor is necessarily alienable in a free market because such alienation is inherent in earning wages. But the actor's promise of future labor may be inalienable, but perhaps it's not. Even though the actor may have surrendered a property-interest in his labor to the theater owners, there is insufficient evidence to enforce the contract in any way. The court essentially lacks subject-matter jurisdiction.
Title-Transfer & Promise
A man may make as many naked promises to pay money, as he pleases, and they are of no obligation in law. On the other hand, if a man have received value from another, with the understanding that it is not a gift, or that an equivalent is to be paid for it, the debt is obligatory - that is, the obligation to deliver the equivalent is binding -whether there be any formal promise to pay or not.[note]
Because of different priorities in secular versus religious ecclesiastical courts, they inevitably have different default remedies and penalties. As we saw in the actor-owners case, secular ecclesiastical courts that follow the property-interest model might presume that property-interest does not automatically transfer the instant a promise regarding such property is made. This allowance has to be made because the primary function of a secular social compact is to protect primary and secondary property rights, where protection of such rights is a function of the global covenant. This means that the primary function of a secular ecclesiastical court is to resolve contract disputes with minimal damage to just claims to such primary and secondary property.
In a religious social compact, the presumption of the religious ecclesiastical court may be that property-interest transfers simultaneously with the making of the promises. If such an assumption is not made, the promises that create the religious social compact may carry no weight. For example, suppose a new member joins a religious community, and at the time of joining enters into a contract with the rest of the community. The new member promises to abide by the community's moral code, which he knows includes a high regard for sexual purity. He knows that no penalties have been established by this religious social compact for fornication. But he also knows that the maximum penalty for non-delictual violation of the moral code is expulsion from the community and forfeiture of land in the community that's owned by the violator. He also knows at the time of joining that violations of the moral code are tried by the religious social compact's ecclesiastical court, which consists of a board of elders. After promising to abide by the moral code, this new member fornicates with his sheep while, unbeknownst to him, his neighbor watches. He goes before the board of elders and the case is treated as a non-performance claim under a bilateral contract, the plaintiff being the people of this religious community and the defendant being this new member. The court finds in favor of the plaintiff and determines that the penalty is the maximum under their social compact.
This case begs the question: Under the title-transfer model, how could this community ever enforce their moral code when the title-transfer model requires more than a mere promise, and requires instead an actual transfer of title? The most obvious answer to this question is that the new member would transfer absolute title to his land to the religious community at the same time he promises to abide by the community's moral code. The most obvious objection to this arrangement is that it sounds a lot like Jim Jones/Jonestown-style communism –– people handing over everything they own to the proletariat's dictator for the sake of participating in the community.
The title-transfer model may work fine in a secular ecclesiastical court. But it is deeply flawed in a religious ecclesiastical court. Here's a reasonable solution to this problem: Secular ecclesiastical courts exist to resolve contract disputes with minimal damage to just claims to property, under the global covenant's definition of property. Because of this, the presumption in secular ecclesiastical courts must be that property-interests are transferred only when it's clear and obvious that they are transferred. In contrast to this, religious ecclesiastical courts exist primarily to enforce the religious community's moral code on parties to the religious social compact. The parties are people who by definition have promised to abide by such moral code. Because of this totally different orientation under the religious social compact, the presumption in religious ecclesiastical courts must be that property-interests transfer simultaneously with promises, and are limited by the substance of the promise. —— In the case of this fornicator, the property-interest that he would transfer to the religious community at the time of his initial promise would look like this: "The land that I'm hereby purchasing in this community will remain mine as long as I choose to remain a member in good standing of this community, and as long as I do not violate this community's moral code so extremely that I am expelled from the community. I acknowledge that under the latter condition, I forfeit all claim to ownership of the land, and the land will be sold to other members of the community."
Clearly promises must carry radically different weight under religious versus secular social compacts.
Focusing again on secular contracts: We assume that the contract between the actor and the theater owners was secular, meaning that by default under such contract, non-performance disputes are meant to be settled in a secular ecclesiastical court. We may assume further that when the actor and the theater owners signed their contract, each party may have given property-interests to the other party in exchange for the other's property-interest. More specifically, the actor may have given the owners an interest in his labor as an actor. Likewise, the owners may have given the actor an interest in their land and labor. When the actor didn't show up to perform, and the owners filed suit against him in a secular court to recover damages caused by the actor's non-performance, the court was presented with a problem: Does the court recognize the exchange of property-interests or not? It may be difficult for a court to translate either of these property-interests into a reliable pecuniary value, but that doesn't negate the possibility that the property-interests have real, physical, economic value, unlike a promise of something intangible. The actor's promise to perform was not a promise of something intangible because such a performance carries real economic value. Because of this, the actor's reneging on his obligation is in fact "theft", in Rothbard's hyperbolic sense of the word. It's theft of the interest that the owners had in the actor's labor. But the actor simultaneously surrendered his interest in the owners' land and labor, but did so in violation of the agreement. The court's duty is not merely enforcement of a moral code, because there is physical damage involved caused by the "theft". But the parties didn't even bother to put penalty clauses into the contract. They also didn't stipulate when these interests would be legally transferred. All these issues combine to make the original intent of the parties too murky for a reliable secular court. Any secular court that ventures to pass judgment is a court cavalier about perpetrating delicts against litigants. Added to all these indeterminate variables is Rothbard's claim that in a presumed secular arena, "a man can alienate his labor service, but he cannot sell the capitalized future value of that service".[note] This shows still further that a contract like this is unenforceable in a secular court.
Rothbard: "mere promises or expectations cannot be enforceable, but only contracts that transfer property titles".[note] —— The way we look at it, the proper expression here is, … only contracts that transfer [property interests].
Rothbard: "For the important question is always at stake: has title to alienable property been transferred, or has a mere promise been granted?"[note]
Evers: "Why should the law enforce promises? Keeping one's promises may well be part of leading a good, morally correct life. But being considerate toward one's spouse is also morally excellent yet it is not a concern of the police. Keeping promises may enhance one's reputation. But that should be incentive enough to keep promises normally, without judicial involvement. If law enforcement is to take on the task of enhancing people's reputations, irrespective of their wishes, let this task be argued for directly. Many aspects of social life may well be facilitated, as Pound argues, by stability and predictability. But the marketplace can meet consumer demand in these areas. In some cases, insurance schemes may be used to pool risks. In other cases, performance bonds may be used to make erratic conduct costly. Both these marketplace remedies require only a legal approach treating contracts as transfers of title. Thus, despite Pound's eloquence, it is not immediately clear that courts and law enforcement agencies should hold people to their promises per se."[note]
Evers: "It is not promising which is essential, Spooner noted, but rather the transfer of title to an alienable good. Such a title-transfer model for the law of contracts is an alternative to the expectations-oriented approach. Both the title-transfer model and the promised expectations model are more logically defensible and consistent than the present mixed content of the law of contracts."[note]
Evers: "People cannot really have a property right to their expectations, which are mere subjective mental states. Neither should the law attempt to give them any such rights."[note]
Suppose that A promises to marry B; B proceeds to make wedding plans, incurring costs of preparing for the wedding. At the last minute, A changes his or her mind, thereby violating this alleged "contract." … Logically, the strict believer in the "promise" theory of contracts would have to reason as follows: A voluntarily promised B that he or she would marry the other, this set up the expectation of marriage in the other's mind; therefore this contract must be enforced. A must be forced to marry B.[note]
As far as we know, no one has pushed the promise theory this far. Compulsory marriage is such a clear and evident form of involuntary slavery that no theorist, let alone any libertarian, has pushed the logic to this point. Clearly, liberty and compulsory slavery are totally incompatible, indeed are diametric opposites. But why not, if all promises must be enforceable contracts?[note]
The old "breach of promise" suit forced the violator of his promise to pay damages to the promisee, to pay the expenses undergone because of the expectations incurred. But while this does not go as far as compulsory slavery, it is equally invalid. For there can be no property in someone's promises or expectations; these are only subjective states of mind, which do not involve transfer of title, and therefore do not involve implicit theft. They therefore should not be enforceable, and, in recent years, "breach of promise" suits, at least, have ceased to be upheld by the courts. The important point is that while enforcement of damages is scarcely as horrendous to the libertarian as compulsory enforcement of the promised service, it stems from the same invalid principle.[note]
In a secular court, a promise is purely and only an expression of intent. It is merely a subjective mental state because intent is merely a subjective mental state. In a religious court, a promise is more than merely an expression of intent, and more than merely a subjective mental state. In all courts, an expectation is merely a subjective mental state. Mental states are necessary prerequisites to the formation of any contract, but mere subjective states of mind are absolutely inadequate to reliable contract-enforcement.
On top of these points of agreement with the title-transfer model, we have to add: If the agreement to be married involved an explicit agreement regarding wedding expenses and preparations, then the agreement involved a real property-interest in such land-and-labor. But that doesn't make the contract enforceable in a secular court. If the contract contains explicit penalties and remedies for non-performance, then the contract is much more likely to be enforceable.
Property-interests are no more subjective states of mind than encumbrances on real property. The encumbrance is a genuine property-interest belonging to the encumbering party.
It's a good thing that "'breach of promise' suits … have ceased to be upheld by the courts". Breach of promise in a secular court is a moral issue, and largely in agreement with Rothbard, we claim that moral issues that do not involve physical property should not be enforced in secular courts. However, if the contract involves transfer of a genuine property-interest, i.e., interest in an economically valuable entity, then this definitely falls within the lawful purview of a secular ecclesiastical court.
We need to further modify Rothbard's position like this: "The theory of contract enforcement should have had nothing to do with 'compensation'; its purpose should always be to enforce property rights, and to guard against the implicit theft of breaking contracts which transfer
It's important to remember that regarding contracts, our agreement with Rothbard extends only to secular ecclesiastical courts. Religious ecclesiastical courts have subject-matter jurisdiction over far more than mere physical property. Such physical property is within the scope of the global covenant, and is therefore potential subject matter of lawful action within secular courts, and secular courts are limited to such subject matter.
It must be assumed that when people voluntarily commit themselves to living in community with a group of people, where the purpose of the community is to honor and abide by a morality that is alien to the secular community, they do so because they believe that they have greater freedom in such community and under such morality than they have elsewhere. Therefore, what may appear to be bondage to an outsider may in fact be freedom to an insider. If there is no contract, then the outsider has no business imposing legal sanctions against the insider unless there are clear and obvious gross delicts that are clearly and obviously violations of the global mandate against delicts. Then and only then can secular authorities cross the jurisdictional boundaries of that religious social compact in order to exercise lawful police powers over perpetrators of gross delicts within such religious community.
Even though we don't claim that this exposition of Bible-based human law is anywhere close to perfect or complete, we do claim that this property-interest model of contracts is a non-negotiable starting point for contract adjudication in the same way that the property-interest model of secondary property is a non-negotiable starting point for secondary property in general.[note] Even with such certainty it's necessary to admit that evaluating damage in monetary terms can be difficult, and when a court finds such evaluation too difficult, prudence demands treating the case as outside the court's lawful subject matter. Physically verifiable damage to physical property is a prerequisite to resolution of any broken contract in the secular arena, and Rothbard's "theft" is certainly a form of damage. Even so, people have a right to bind themselves into contracts that have terms that specifically govern morality, as long as they don't expect a secular court to enforce it.
We believe that the property-interest model of contracts is applicable to all contracts. In the case of religious social compacts that are concerned largely with the maintenance of a particular moral code, a violation of that moral code by a party to the social compact would naturally go into their ecclesiastical court, on the grounds that everyone in the religious social compact has a contractual property-interest in every other party's behavior. The religious ecclesiastical court would naturally have original jurisdiction. But it should be possible for a case based on a moral violation that is not overtly delictual to be appealed into a secular ecclesiastical court. The question then becomes: How could the religious social compact ever prove to a secular ecclesiastical court that the religious social compact has a property-interest in non-delictual behavior? The religious social compact could prove this in a secular court by showing that they live under a living restrictive covenant, and that the offending party has violated the restrictive covenant, and that by doing so, the offending party has damaged the value of the community's property in the eyes of said community. Whether the offending party's behavior is right or wrong would never be an issue in the secular court, only whether he did what the community says he did, and whether that's a violation of their restrictive covenant. —— As long as secular courts are dominated by secular humanism, as they are these days, it would be perilous for a religious social compact to grant jurisdiction to a secular ecclesiastical appellate court unless it is certain that the law and the facts are on its side. But when secular social compacts become lawful, they will thus honor the restrictive covenant that religious social compacts impose on their land.
Any claim by Murray Rothbard and company that such religious contracts are inherently unenforceable because each party grants property-interest in future behavior to every other party, is inherently imposition of a secular religion onto people who have opted to live primarily under a religious social compact. Rothbard's theory of contracts certainly has legitimate value in the secular arena, in that it demands clear transfer of title before a contract is enforceable. But people who want to live among people who have a shared moral code have a right to segregate themselves from secular humanists who have no regard for their moral code.
So this property-interest model holds in both secular ecclesiastical courts and religious ecclesiastical courts. But the latter use definitions of property that are custom designed by their social compact. Religious jural courts would have the same definition of property as exists everywhere under the global covenant. If a dispute in a religious ecclesiastical court is somehow appealed into a secular ecclesiastical court, then one should expect that secular court to apply secular principles to resolve the contract dispute.
Conclusion: The "promise-expectations" theory may be fine as a theory of contract formation and definition, but it is absolutely inadequate as a basis for contract enforcement. The title-transfer model offers more equitable contract enforcement, at least in the secular arena. The property-interest model is more likely to satisfy the contract-enforcement needs of both secular and religious social compacts.
Nuanced Ownership, Alienability, & Involuntary Servitude
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.[note]
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 to enforcement against delicts because it would be limited to jural subject matter.[note] 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".[note]
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. (right)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. (wrong)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". —— If we acknowledge that Rothbard has a legitimate grievance, we'll see 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 to point 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.[note] So encumbrances and land ownership are generally "reserved to … the people".
Even though interests in land shared by multiple owners may be complex in implementation, conceptually it's fairly simple. 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 we wish it were. 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. This clearly presents us with a need to understand how natural rights can be alienated, and if it's even right to claim that they can be alienated.
In general, secondary property is alienable while primary property is not. As we've defined it all along, primary property is essentially ownership of one's body, and it 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 that we explore the parameters and subtlety of alienability of primary property before we either accept or reject the title-transfer model's claims about the limits on the alienability of promised labor.
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.[note]
Before we proceed to examine such issues relative to status, we need to examine more thoroughly the subtle limits on the inalienability of primary property. —— If we claim 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.[note] Clearly their claim has serious limits, and it's important for us to understand those limits. The question is this: How, when, where, under what circumstances, is alienability of the human body lawful, and how do we draw the line between lawful alienation of the human body and unlawful? Furthermore: How, when, where, under what circumstances, is alienability of the human will lawful, if it is, and if it is, how do we 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.[note] 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. 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.[note]
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 is damaged by 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. 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.[note] We've clearly seen that the body is alienable. We therefore are led to the conclusion 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. In fact, we believe that this is precisely what the framers were speaking of. We believe that lesser lights like Rothbard and 17th and 18th century natural law theorists were mimicking Scripture (possibly without knowing it), while the framers were much more conscious of and respectful towards the contents of the Bible.
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 the antelapsarian status of the human race was different. Clearly, Scripture teaches about the degree of alienability of natural rights, of the human body, of the human will, etc. We need to recall what the investigation discovered about status.
Status is 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 is the moral law that defines the behavioral boundaries of the imago Dei, i.e., of the image of God in every human being. The natural law and natural rights were given by God 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.
We distinguish 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 because any effort at alienating such rights is inherently an effort at making a human being less than human. 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 a strictly chronological, human-law reading of Scripture, such extraordinary means are constituted by jural societies, ecclesiastical societies, secular social compacts, and religious social compacts.[note]
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.
We recognize 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 woman 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 sinning in thought, word, or deed. Deciding what actions are good and what actions are bad is a necessary prerequisite to being able to do what she needs to do when she 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 she was disabled from being omniscient, or it was an act of trying to procure knowledge that was irrelevant to the need to know what she needed to know and do what she needed to do to stay obedient to 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). 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 delictual behavior, the subject matter of this divinely prescribed human law is delicts. Human beings hereby become explicitly disabled from the possible option of being careless and reckless about delictual behavior. This disability regarding punishment of delicts 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. By saying that some privileges and disabilities are natural, we mean that they are given by God 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" (rmf) 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, i.e., positive law. Such contracts are thereby attributes of a given person's status.
Status is one's legal relationship with the rest of society. In the same way that human law is a subset of divine law,[note] which is a subset of natural law, which is a subset of eternal law; status is a subset of status.[note] 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. We've already argued that religious social compacts allow enforcement of promises even though such promises are considered unenforceable "naked promises"[note] under secular social compacts. To support our argument, we are examining 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. Now that we understand status and how status relates to status, we'll try to answer the question.
Now that we recognize 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, we're in a better position to consider alienability of the will. We're in a better position to examine 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".[note]
[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.[note]
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."[note] 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 that we examine 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".[note] 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, we need 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 us. We believe the contract was lawful because we do not believe the linkage between present will and future behavior is as strong as Rothbard and Evers claim. Also, we believe the 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. We 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 we ignore the fact that the human race is under the curse, i.e., that we 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 other words, both body and will are alienable in fact, even if not in law. Under the human law prescribed by the Noachian Covenant, neither body nor will is alienable in law. The Genesis 9:6 mandate against delicts is a partial and fallible remedy to human alienability-in-fact. The global mandate against delicts mandates conversion of the natural law's posture of inalienability of body and will into human law enforcement of such inalienability, and the enforcement goes against delict-perpetrators, i.e., against alienators-in-fact. —— This thus sketches the status of every human being relative to alienability of body 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. Like we've already said, 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 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 are based on the global covenant and pertain strictly to physical 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 physical 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.
Common sense demands that under the natural law, both will/choices and body/behavior be inalienable in law and fact. Otherwise such perfect humans would not have the self-control that obedience to the natural law demands. This signifies that a non-fallen human must live in a state in which the choice to be obedient to the natural law and the behavior consistent with such choice are in no way bifurcated. The will and the body are not alienated from one another. So under the natural law, both body and will are inalienable in law and fact. But in the fallen condition, the three are at odds: Body is alienable from will and will is alienable from law. So both body and will are alienable in fact, and are therefore vulnerable to delicts. Under such 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 is 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.[note] 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 we've 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 protect morality in general, but only physical property. 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 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.
Under the Noachian Covenant, all people have a built-in need to surrender (i.e., alienate-in-fact) some of their natural rights to a jural society. Since the Noachian Covenant contains a global prescription of human law concerning delicts, 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.
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".[note] Duress is use of violence or threat of violence to persuade. God's influence on His creatures is far more subtle and thorough. By limiting takings to what's lawful under a jural society's limited subject-matter jurisdiction, participation in jural societies should be comparably limited in duress.
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
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.[note]
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 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 a secular, global religion, i.e., the religion that demands the execution of justice against delicts and the avoidance of perpetration of delicts. It's necessary for us to call this secular, global religion a religion because this mandate against delicts 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, not secular. 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.[note]
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.[note]
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.
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.[note]
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.[note]
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.[note]
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.[note]
Lawful Social Contracts
There is one vitally important political implication of our title-transfer theory, as against the promise theory of valid and enforceable contracts. It should be clear that the title-transfer theory immediately tosses out of court all variants of the "social contract" theory as a justification for the State. Setting aside the historical problem of whether such a social contract ever took place, it should be evident that the social contract, whether it be the Hobbesian surrender of all one's rights, the Lockean surrender of the right of self defense, or any other, was a mere promise of future behavior (future will) and in no way surrendered title to alienable property. Certainly no past promise can bind later generations, let alone the actual maker of the promise.[note]
If the title-transfer model were given the absolute authority that Rothbard clearly believes it deserves, he would be right in claiming that it "tosses out … the 'social contract' theory as justification for the State". But Rothbard is hereby assuming that it has more authority than it deserves. We've seen that it has a place in defining evidence necessary for a claimant to satisfy his burden of proof in a secular ecclesiastical court. For Rothbard to presume, without adequate proof, that the title-transfer model eliminates the possibility of forming a social compact, is for him to assume that his religion deserves to replace ours. In fact, the social compact is not "a mere promise of future behavior". It is based on each party's promise, where that promise is directly and intimately linked to the global proscription of delicts and the global need to execute justice against perpetration of delicts. That promise is inextricably connected to property, because the promise, in order to be of any value, must be an immediate surrender of interest in the promissor's property. It's not a surrender of interest in all of the promissor's property by any means. It is surrender of only so much interest in the promissor's property as is necessary for the jural society to fulfill its lawful duties as defined by its extremely limited subject-matter jurisdiction. According to the Bible, this property-interest derives from the bloodshed mandate. This bloodshed mandate applies to all human beings without exception. Formation of a jural society for the sake of ensuring the satisfaction of that mandate is better than trying to satisfy it as a lone ranger. Rothbard is right in claiming that one generation cannot bind another. He is also right in recognizing that State power is abused so much in human history that it needs to be held under constant scrutiny, and corrected by all possible means.
In the end, therefore, social contract theory is incompatible with natural-rights liberal theory since this latter theory derives rights from the factual premise of the inalienability of the will and hence rules out from the start legitimate self-enslavement. Instead, we can recognize that the duty of obedience to the rule of just law can be explained, without any recourse to a social contract, in terms of the duty of non-aggression which is the necessary correlative of human rights.[note]
Most importantly, all the social contract theories appear to entail in practice a contract of at least partial self-enslavement to Socrates' Athenian regime, to Hobbes' sovereign, to Locke's majority, to Rousseau's popular law-making assembly and administrative government, or to Rand's law-enforcement monopoly.[note]
A basic fallacy is endemic to all social-contract theories of the State, namely, that any contract based on a promise is binding and enforceable. If, then, everyone–in itself of course a heroic assumption–in a state of nature surrendered all or some of his rights to a State, the social-contract theorists consider this promise to be binding forevermore.[note]
When Evers says, "we can recognize that the duty of obedience to the rule of just law can be explained, without any recourse to a social contract, in terms of the duty of non-aggression", he makes a presupposition based on his religion. From where does his "duty of non-aggression" come? Can it be induced from natural sense data? No! Is it deduced from some axiomatic system? In the final analysis it's obvious that it's from an axiomatic system, and it's obvious that his system, like all axiomatic systems, is a religion. We claim his axiomatic system is weaker than ours. We believe this because we believe that in the final analysis, all axioms are essentially laws, and we believe all laws are essentially terms of covenants and contracts. We believe our approach recognizes a system of covenants and contracts that establish relationships between their axioms/laws/terms, and these relationships establish jurisdictions. If jurisdictions are not crucial to law enforcement, then laws hang in the ether without sufficient regard to how they should be applied. The title-transfer model is therefore utopian and insufficiently holistic. It's like a fine car with a V-8 engine that's only firing on four cylinders. Even though Rothbard and Evers reject the social contract, it's clear that they are operating in the same philosophical tradition as the social contractarians that they criticize. That is a tradition that mimics Scripture, pretends it's not mimicking Scripture, and does a thoroughly deficient job at such mimicry and pretense.
In a Bible-based social contract, the people do not surrender their sovereignty. They merely designate agents to comprise the jural society. The jural society does not become the sovereign. Sovereignty remains with the people. Because history speaks clearly and loudly that human governments are prone to absolute corruption, it's important for every human being to deal with secular governments through their strawman.[note] If nothing else, doing so keeps people from giving knee-jerk obedience to unlawful governments.
The bloodshed mandate in the Noachian Covenant is two-sided. The negative side says, paraphrasing, Thou shalt not perpetrate delicts against other people. The positive side says, Thou shalt execute justice against anyone guilty of perpetrating a delict. This Covenant transcends human choice. All human beings are subject to this biblical prescription of global human law. The human will, the human ability to choose, is emphatically not so exalted that it transcends alienability on this front. Murderers, even if they choose otherwise, pay with their lives, because their actions have alienated their natural rights. They have surrendered their unalienable Rights. This and only this is the rightful motivation for forming secular social compacts. The statists' vision of imperial glory is a dream from hell that deserves repudiation at every possible opportunity.
The Noachian Covenant is a contract that no one can opt out of. No amount of will exaltation frees anyone from its obligations. The covenant of works establishes that humans are created in the image of God (Genesis 1:26-27). The Noachian Covenant acknowledges this and obligates all humans to submit to the minimal duties of avoiding perpetration of delicts and executing justice against delictual offenders. These obligations should in no way enable Babel-builders.
copyright © 2006, 2013 Charles Raleigh Porter, III
|Sections 1 thru 7|
|Clauses 6 thru 18|
|Clauses 2 & 3|
|Introduction to the Bill of Rights|
|Amendments II thru IV|
|Amendments VI thru IX|
|Amendments XI thru XXVII|
|De Facto Protestant
|De Facto Secular Humanist
|Boerne v. Flores|
"Parade of Horribles"
|Free Market Economics,
Property Acquisition, & the
Settlement of America
|Conclusion —— Takings Now|
|Declaration of Independence|
|A Memorandum of Law & Fact
|Memorandum of Law:
Involuntary Servitude, &
the Social Contract
|Theological & Custom|
|Maxims of the Global Covenant|