The earlier intimations of the de facto theory of inalienability have not descended to modern times as a coherent theory. We must try, as a task of intellectual archeology, to reassemble the scattered remains of earlier insights. In searching the rubble of intellectual history for the notion of inalienable rights, we are looking for intimations of theory, not declarations. Often political and legal theorists will declare that certain rights are or should be inalienable without offering any theory to justify the declaration. Often the phrase "inalienable rights" is used simply to mean rights which are considered very important or fundamental. Such assertions are, by themselves, of little interest in an intellectual history of inalienable rights theory.

Ethical arguments are not just expressions of subjective taste such as whether or not one likes anchovies. There are factual components which can often be the heart of the controversy. For instance, an ethical condemnation of a person for doing X involves both the normative judgment that X is wrong as well as the factual judgment that the person in fact did X.

The de facto inalienability argument sketched above has an important factual component. A right based on one's personhood (the status of being a person) is inalienable even with consent because the fact of personhood is not thereby changed. We search for the intrusion of this factual element in our historical survey of inalienable rights theory.

Our history begins with a watershed in the development of political and ethical thought, the break of the Stoic School away from the world-view of Aristotle. As always, the matter can be best illustrated by considering the question of slavery. For Aristotle, slavery was based on "fact"; some people were "talking instruments" —marked for slavery "from the hour of their birth." Treating them as slaves was no more inappropriate for Aristotle than treating a donkey as an animal. The Stoics held the radically different view that no one was a slave by their nature; slavery was an external condition juxtaposed to the internal freedom of the soul. Instead of the inequality between the citizens of the city-state and the barbarians outside, the Stoics saw a fundamental equality of all men in the City of the World. All men were equal because all participated in Reason.

It would be a mistake to read the full doctrine of inalienable rights back into Stoic thought; only some antecedents can be found. A principal ingredient in the analysis of inalienability presented here is the substantive contradiction between a slave's legal status as a non-person and the slave's factual status as a person.

An appreciation of this contradiction can be found in various forms in the thought of the Stoics.

Chrysippus challenged Aristotle's notion that some people were slaves by nature. By virtue of their rational and social nature, Cicero saw all men as equal under the jus naturale. Sabine found in the Stoics an anticipation of the Kantian theme to treat all humans as persons rather than as things.

Seneca further developed the idea of external bondage and internal freedom of the soul.

In spite of the legal role of the slave as an instrument employed by another person, the mind of the slave is sui juris.

One of the golden threads running through the history of inalienable rights theory is the de facto inalienability argument applied to the freedom of thought and judgment or, in the religious context, to the freedom of conscience. In the spirit of the example of the criminous employee, an individual's powers of judgment cannot in fact be short-circuited and alienated so that his or her decisions and beliefs are determined by an external authority. At best (or rather, at worst), a person can only make his or her own decisions by always accepting the judgments of another.

An early anticipation of this version of the de facto inalienability argument can be found in the Stoic doctrine that while the body of the slave was in chains, the slave's mind or soul was sui juris., e.g., Seneca's doctrine that only the body is enslaved and that the "inner part cannot be delivered into bondage" [quoted in Davis 1966, 77]. This theme was emphasized by Martin Luther and became a basic tenet of the Reformation. Secular authorities who try to compel belief can only secure external conformity.

Luther was explicit about the de facto element; it was "impossible" to "constrain people to believe from the heart."

Spinoza captured the inalienability aspects of the argument. In modern times, inalienability has often been interpreted to mean simply that a right was basic or could not be alienated without consent. But Spinoza interpreted inalienability to mean "even with consent." Consent cannot transfer away the mind's sui juris capacity.

Some people are willing to take the opinion of an authority as sufficient evidence to make their decision—but that is still their decision.

This argument would later be developed [see below] by Francis Hutcheson of the Scottish Enlightenment—who in turn influenced Thomas Jefferson and the inalienable rights doctrine expressed in the American Declaration of Independence.

Inalienable rights theory developed in opposition to the non-democratic alienist liberal tradition that founded slavery on some form of contract and erected autocracy on a real or implied pactum subjectionis. Modern antislavery thought had its roots in Montesquieu who cited and argued against the three justifications of slavery in Roman law: (1) voluntary self-enslavement, (2) prisoners of war, and (3) slave parentage. While proslavery writers found traces of contract in the rationale based on war captives and slave parentage, the first rationale of a voluntary contract is most relevant to the development of inalienable rights theory. Montesquieu tried to develop an argument that such a contract was invalid.

The important point is that Montesquieu argued for the invalidity of the self-sale contract so that the right to freedom would be inalienable. Philmore notes that Blackstone uses a similar argument and then shows the inadequacies in the argument.

In The Social Contract, Rousseau repeats Montesquieu's argument. "For him who renounces everything no indemnity is possible." [1950, 9] This is fine rhetoric, but Rousseau admits that "a man who becomes the slave of another does not give himself; he sells himself, at the least for his subsistence…" [1950, 8]

In the earlier Discourse on the Origin of Inequality, Rousseau hints at the de facto inalienability argument and even appeals to the example of the criminous slave.

This form of the de facto inalienability argument is echoed in The Social Contract.

Garry Wills notes that Burlamaqui [1747] develops a similar argument that "one can never alien one's power to act morally, since that would give one's master the ability to deny response to humane duty" [Wills 1979, 216].

Denis Diderot's Encyclopedia (published between 1751 and 1772) was the summa of the French Enlightenment. The article entitled "Esclavage" appeared in an early volume, and it restated the superficial antislavery arguments of Montesquieu. However, in 1765 in the article "Traite des Negres" signed by Chevalier de Jaucourt, there appeared what David Brion Davis has termed

De Jaucourt makes the far-reaching statement that: "Men and their liberty are not objects of commerce; they can be neither bought nor sold nor paid for at any price." He then continues:

After the publication of The Problem of Slavery in Western Culture, Davis discovered "that de Jaucourt had merely copied someone else's words" [1971, 583]. The author was a Scotsman so Davis concludes; "It is clearly a mistake to attribute this radical antislavery position to the rationalism or secular humanitarianism of the French Enlightenment" [Ibid., 586].

The author of the radical antislavery doctrine used by de Jaucourt was an obscure Scottish jurist, George Wallace (or Wallis). Wallace asserted that: "Men and their liberty are not in commercio; they are not either saleable or purchaseable." He then continues:

Wallace's statement illustrates the interplay between de facto and de jure elements, an interplay that is central to understanding the de facto inalienability argument. When he declares that the slave has "never lost his liberty; he could not lose it," that refers to the slave's de facto retention of his free will and decision-making capacity (as recognized, for example, in the example of the criminous slave). Yet the law can declare a slave purchase contract as valid, and take a slave's obedience as fulfilling the contract to be a chattel. Since the slaves remain a de facto human agents in the de jure role of a thing, they are only "pretended to be slaves" by the legal authorities (at least until the slaves commit crimes).

Rousseau also caught some of the same interplay between the de facto and de jure aspects of the institution of slavery.

Wallace's inalienability argument has been echoed by the modern Kantian philosopher, George Schrader. Other people by their existence make a demand on us to acknowledge and treat them as persons rather than as things.

As Wallace noted, there is an element of pretense in the relationship since the slaves remain de facto persons.

It is the analogous pretense, deception, bad faith, and fraud that is involved in the modern contract to rent rather than own other human beings.

The full recognition of the inalienable right to liberty of conscience was the result of the Reformation. Luther and Calvin were hardly democrats themselves; they supported the suppression of the anabaptist movements and the peasants' revolts of their day. "Modern Democracy is the child of the Reformation, not of the Reformers." [Gooch 1959, 7] The democratic promise of the Reformation was slowly revealed as it developed in political opposition (unlike Luther and Calvin) as by John Knox and George Buchanan in Scotland or in France by Languet or whoever was the author of the Huguenot tract Vindiciae contra tyrannos.

A multitude of religious and secular groups including the Puritans, Independents or Congregationalists, Levellers, and Quakers developed the democratic impulse in England during the 17th century. In the Putney Debates, the Levellers foreshadowed many of the principles of modern democratic theory and even the current debates about worker ownership—such as the issue of whether the franchise in a state or in a firm should be based on property rights or on personal rights.

Ernst Cassirer has nicely summarized the democratic heritage of 17th century thought using a general form of the de facto inalienability argument.

For a clearcut statement of the de facto inalienability argument, e.g,, as applied to liberty of conscience, and for the background to Wallace's radical antislavery doctrine, we turn to the Scottish Enlightenment in the early 18th century.

Who was the proximate source of the de facto inalienability argument in the Scottish Enlightenment? Much evidence points to Francis Hutcheson, a teacher of Adam Smith and one of the leading moral philosophers of the Scottish Enlightenment.

Hutcheson is important for another reason. The Declaration of Independence is one of the highpoints in the praxis of the inalienable rights tradition.

The conventional scholarly view has been that "Jefferson copied Locke" [Becker 1958, 79]. But as we have seen, Locke had no serious theory of inalienability, and he in fact condoned a limited voluntary contract for slavery which he nicely called "Drudgery."

In Garry Wills' important study, Inventing America, he reinvented Jeffersonian scholarship concerning the intellectual roots of the Declaration of Independence. Wills convincingly argued that the Lockean influence was more indirect and even to some extent resisted by Jefferson, while Hutcheson's influence was central and pervasive. Of direct interest here, "Jefferson took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important" [Wills 1979, 213]. Despite some ambiguity, Hutcheson was "one of the prime sources of antislavery thought" [Davis 1975, 263] and he used a version of the de facto inalienability argument so he may well have contributed to the radical doctrine developed by Wallace.

In Hutcheson's An Inquiry into the Original of Our Ideas of Beauty and Virtue [1725], he first distinguished between alienable and inalienable rights. The de facto inalienability argument is developed in Hutcheson's influential A System of Moral Philosophy (1755).

Hutcheson appeals to the de facto inalienability argument in addition to utility. He contrasts de facto alienable goods where "the translation of them to others can be made effectually" with factually inalienable faculties where "the translation cannot be made with any effect."

Hutcheson goes on to show how the "right of private judgment" or "liberty of conscience" is inalienable.

Hutcheson pinpoints the factual nontransferability of private decision-making power. In the case of the criminous employee, we saw how the employee ultimately makes the decisions himself in spite of what is commanded by the employer. Short of coercion, an individual's faculty of judgment cannot in fact be short circuited by a secular or religious authority.

Echoing Spinoza, Hutcheson notes that accepting the judgment of an authority claiming "infallibility" is only another way for a "weak mind" to make a judgment. A religious vow of obedience by a layperson, priest, monk, or nun can no more short-circuit an individual's facility of judgment and decision-making than can a slavery contract, an employment contract, or a military oath (be it German, Japanese, or American).

As a linguistic sidelight, the final draft of the Declaration of Independence used the word "unalienable" while Jefferson's draft used "inalienable" which has become the modern usage.

In this survey of inalienable rights theory, we are searching for the factual element of the de facto inalienability argument. Staughton Lynd in his excellent study Intellectual Origins of American Radicalism has highlighted precisely this feature in Hutcheson's thought and in the work of the Dissenters such as Richard Price.

Richard Price (1723-1791), a dissenting Presbyterian minister from Wales, was a well-rounded thinker with contributions in moral philosophy, political theory, economics, and mathematics in addition to more religious endeavors. With the outbreak of the American Revolution, Price courageously published a work, Observations on the Nature of Civil Liberty, which sided with the Americans' claim

This and later works by Price earned him the respect and admiration of the American revolutionaries. Tom Paine in The Rights of Man launched his famous attack on Burke's Reflections on the Revolution in France by noting that "a great part of [Burke's] work is taken up with abusing Dr. Price (one of the best-hearted men that lives)…" [reprinted in Dishman 1971, 167].

Price build his political theory on

Price divides liberty into its physical, moral, religious, and civil components but "there is one general idea that runs through them all, I mean the idea of self-direction, or self-government" [in Peach 1979, 68]. Any contract pretending to transfer the right of a people's self-determination to another state would be non-binding.

Price's tract naturally raised a furor of opposition so in 1777, he wrote Additional Observations on the Nature and Value of Civil Liberty to clarify his positions and answer his critics. Again the different types of liberty were squarely grounded on

In earlier chapters, we noted that there are two opposing natural rights traditions, the alienist and the inalienist traditions. Lynd points out that Price contributed directly and indirectly to the American debates over slavery in the late eighteenth and nineteenth centuries.

Lynd precisely summarized Price's statement of the de facto inalienability argument as the heart of the inalienist tradition of natural rights theory.

Immanuel Kant acknowledged that "every man has inalienable rights which he cannot give up even if he would..." [1974, 72].

But why? The explanation might be based on Kant's notion of proprietary right derived from intentional possession by one's will.

This theme was even more central to Hegel's treatment of property and inalienability.

According to some modern Hegel scholarship, principally the work of David MacGregor [1984], Hegel developed a version of the labor theory of property, and it was central to his social philosophy. It is appropriate that Hegel should develop treatments of both the labor theory of property and the de facto inalienability argument since both theories are part of the same conceptual whole. Hegel's integrated development will be sketched here.

The entire theory presented in this book is based on the differentiation between persons and things. For instance, a voluntary contract is inherently invalid if it puts a person, temporarily or permanently, in the legal role of a thing. In the employment contract, the legal machinery for hiring or renting a thing is applied to persons. The actions of persons are legally treated as transferable commodities like the services of things. This mentality has become part of the fabric of our economic civilization, although it is most obvious to our dulled sensitivities in such fashionable fields as "human capital theory" or "human resource management."

How are human actions relevantly and fundamentally different from the services of things? The answer can be expressed in different vocabularies depending on the purpose at hand. To differentiate mental activity and machine computation, the notions of intentionality and semantics (as opposed to syntax) are appropriate [see Searle 1983]. In law and in economics, the notion of responsibility differentiates human actions or labor from the services of things.

For Hegel, the differentiating characteristic of human action was ideality.

Intentional human action intervenes in a natural causal chain to create a certain difference, and the action is responsible for the difference it makes. The action initiated the causal sequence that leads to the contemplated result.

The embodying of one's will in things through purposive human activity or labor is the basis of appropriation.

Property is actualized will.

In spite of what strikes modern ears as abstruse metaphysical jargon, Hegel is developing a version of the labor theory of property.

If property originates as the embodiment of will (i.e., the fruits of labor), then certain things are not eligible for appropriation since they already embody another human will.

In becoming a person, an individual in effect takes possession of himself or herself, and thus becomes ineligible for appropriation by others.

Although Hegel waivered in applying the argument to all people, it provided the fundamental argument against slavery.

This anti-slavery argument provides more than just a critique of involuntary slavery. To voluntarily alienate something, we must be able to withdraw our will from it—to in fact vacate it and turn it over to the use of another person (like the services of a van).

But alienation clearly cannot be applied to one's own person-ality.

An individual cannot in fact vacate and transfer that responsible agency which makes one a person.

This is, to our knowledge, one of the clearest statement of the de facto inalienability argument in the history of Western philosophy.

In the application of the de facto inalienability argument, Hegel showed himself to be a man of his time. The divergence between a philosopher's personal convictions and his arguments is perhaps too little studied. Convictions can diverge from arguments in both directions. Rational arguments can fall far short of strongly held convictions [e.g.,Marx], and philosophers of timid conviction can fail to trace out the full implications of their own arguments.

Hegel's theory went much farther than his convictions (or social mileau) would allow; he had to downplay the implications. Having taken possession of one's responsible capabilities and thus taken away "that externality which alone made them capable of passing into the possession of someone else," a person cannot alienate them for eight hours a day any more than for a lifetime. The de facto inalienability argument applies as well to the employment contract as to the lifetime labor contract. Yet Hegel hardly wanted to present a structural critique the institution of wage labor (far deeper than Marx's later exploitation theory) so Hegel quickly added some metaphysical doubletalk in an attempt to defuse the argument.

In case the purpose of Hegel's remarks was not clear, one of the original editors added an explanation culled from Hegel's lectures: "The distinction here explained is that between a slave and a modern domestic servant or day-labourer." [Hegel 1967, 241]

We traced, in an earlier chapter, the intellectual history of the non-democratic alienist wing of liberal thought. In modern times, that wing has re-emerged dressed in the garb of neoclassical economics as the new field of "Law-and-Economics" (L&E). The mathematical formalism and intellectual prestige of modern economics has given L&E tremendous momentum. It takes a theory to kill a theory, and legal scholars have had no comparable theory to stem the invasion of efficiency-based economic arguments into jurisprudence. Like "syphilis in Hawaii," L&E has sweep through the law schools of America—creating much resentment but meeting no antidote.

There is an antidote—democratic theory, the labor theory of property, and the de facto theory of inalienability—to name some of the ingredients in the cure. But the cure is worse that the disease for those legal scholars who see no fraud in the contract to rent human beings, who see no theft in the employer's appropriation of the whole product, and who see no flaw in the alienation of the "private" right of self-determination in the employment contract. Thus the battle staggers on—the one side pressing forward to conquer new territory, the other side holding back unable or unwilling to take the measures necessary to halt the invasion.

Our purpose in this section is to record some of the thrusts and parries concerning "inalienability" in this controversy surrounding Law-and-Economics.

It is useful to distinguish between L&E as an insightful analysis of some legal phenomena, and L&E as a comprehensive efficiency-based approach to jurisprudence. The former more modest approach could be called "soft L&E" while the latter (represented by Judge Richard Posner) is "hard-L&E." The issue of inalienability, better than any other issue, reveals the intellectual hubris in "hard Law-and-Economics," i.e., L&E taken as a complete approach to jurisprudence. Efficiency arguments (applied to institutionally-defined acts) and inalienability arguments are like oil and water; they do not mix [see "Voluntary Acts between Knowledgable Consenting Adults" in the next chapter for a deeper analysis]. If there are two or more willing parties for an institutional transaction without externalities, then efficiency demands that the transaction be permitted.

There are, however, certain voluntary transactions between consenting adults which are outlawed. These prohibitions are an intellectual embarrassment to anyone who takes Law-and-Economics as a new jurisprudence—rather than an informative analysis of a limited range of legal transactions. Leaving aside Posner's market for babies [Landes and Posner 1978] since it directly involves third parties (the babies), standard examples are voluntary self-enslavement contracts or contracts to sell personal or political rights such as voting rights.

Efficiency seems to require that future-dated labor be just as alienable as current labor. A contract to sell all one's future labor "rump and stump" (up to retirement) would be modern civilized form of the old self-enslavement contract. Yet that is currently outlawed. Thus the crown jewel of neoclassical economics (including Law-and-Economics), the (first) Fundamental Theorem of Welfare Economics ("A competitive equilibrium is allocatively efficient"), must assume that the legal system has been "modified to permit individuals to sell or mortgage their persons" [Christ 1975, 334].

Efficiency similarly requires that personal and political rights be alienable.

What is an advocate of hard-L&E to do? Intellectual consistency would require arguing for permitting voluntary self-enslavement contracts or contracts to alienate political rights—following the admirable example of Harvard's Professor Robert Nozick. But discretion seems to be the better part of intellectual valor. L&E enthusiasts are willing to accept the flimsiest arguments against vote-selling or slavery contracts in order to push these skeletons back into the closet.

The modern L&E literature on inalienability begins with Calabresi and Melamed's seminal article "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral" [1983 (orig. 1972)]. Representing an only "semi-hard-L&E" position, Calabresi and Melamed want to argue against contracts to sell oneself into slavery. Yet the best argument they can find is that moralistic third parties will be unhappy at the knowledge of such transactions.

The state could leave Marshall free to bribe Taney not to do it, but there might be other similar "Marshalls" who would freeload (i.e., not come forward with their share of the bribe) so that market solution would be suboptimal. Or the state could require Taney and his master to compensate the Marshalls for their unhappiness but, as with any subjective externalities, it is difficult to find an "acceptable objective measurement." In addition, pseudo-Marshall freeloaders could feign moralistic adversion to slavery to share in the compensation.

Such Law-and-Economics arguments make for amusing intellectual exercises, but one must question whether Calabresi, Melamed, or anyone else really thinks such reasons account for the invalidity of self-enslavement contracts.

The whole argument can be repeated for any subjective external effects. People of impeccable taste (Marshall) take great umbrage at pink plastic flamingos in other people's front yards (Taney's). It is not the plastic flamingos themselves that create the externality, but their unsightliness. Invisible plastic flamingos would be alright. Similarly, it is the knowledge of the slavery contract that spreads outward, like smoke, to cause the externality. Perhaps the optimal solution is to allow the efficiency-enhancing slavery contracts but to outlaw the "indecent exposure" of such contracts to the public.

Moreover, it is hard to believe that plastic flamingos are allowed and slavery contracts are disallowed simply because of the relative magnitude in the two cases of the Marshalls' unhappiness in some subjective utilitarian metric. In a society where people were more tolerate of slavery such as the antebellum American South, should voluntary slavery contracts have been allowed (as they indeed were in antebellum times)?

Our purpose is not to criticize L&E arguments based on social cost and benefit analysis. The criticism is only of such arguments applied to basic inalienable rights involved in slavery contracts or selling political votes. There is a wide range of alienability restrictions with pragmatic rationales based on social cost analysis. For instance, there is no question that game birds or water drawn from a western river are bona fide transferable commodities (unlike human responsibility or decision-making). But the sale of these commodities might well be restricted or prohibited to prevent the over-exploitation of common resource pools.

Susan Rose-Ackerman picked up the inalienability theme from Calabresi-Melamed and applied it to property rights [1985]. She developed a useful taxonomy of various kinds of inalienability and noted that many entitlements are associated with functional roles. We previously noted that if a right is associated with a functional role, then the right would not be alienable. Those who qualify do not have to "buy" the right, and those who "bought" the right might not have the qualifying role. That is not an inalienability argument since it does not determine why the right should be assigned to a functional role in the first place instead of being an alienable property right. An inalienability argument would have to answer that prior question.

Rose-Ackerman presented many of the pragmatic arguments used in L&E (e.g., common pool problems, imperfect information, free rider problems, and prisoner dilemma situations) to support restrictions on the transfer of certain otherwise transferable commodities. However, our focus is only on inalienability arguments applied to "inalienable rights." Here she notes that political vote-selling would be incompatible with the ideals of citizenship in a modern democracy. That is not an effective argument given the long and venerable tradition of non-democratic liberalism that viewed the right of self-determination as being quite alienable and given that our present economic system is based on voluntarily alienating that right in the workplace.

Rose-Ackerman's paper was answered by the Chicago legal theorist, Richard Epstein, who felt she was overly restrictive [1985]. Epstein addresses but ultimately fails to answer one of the embarrassing questions facing hard-L&E. How can L&E plausibly account for the almost complete freedom in buying and selling voting corporate shares and also account for the complete prohibition on buying and selling political votes?

Epstein sets aside the argument that political vote-selling would allow the rich to exploit the poor. He notes that vote-selling was prohibited even when the property franchise prevented the poor from voting at all.

Epstein develops his own somewhat bizarre argument against vote-selling based on a rather strained analogy between an oilman's exploitation of a common oil pool and a political official's access to the public treasury. With vote-selling, takeover artists could heavily leverage their acquisition of votes and then, once in office, supposedly raid the common pool of public monies to pay off the debts.

It is difficult to understand this argument since no one has suggested the hypothetical repeal of the laws against the theft of public monies. Moreover, Epstein is making these arguments not in 1885 but in 1985 when political campaigns without vote-selling are still multi-million dollar extravaganzas. There seems to be little historical basis for the notion that the prohibition of vote-selling will stop politicians from trying to raid the public purse anyway. That's why there are already laws against officials paying their campaign debts with "payments from the public treasury after election."

Here again, it is difficult to believe that L&E enthusiasts take these as serious arguments against political vote-selling or slavery contracts. They seem more like suggestions on the order of "Let's just accept this argument against vote-selling or voluntary slavery so we can move on to less embarrassing topics where L&E reasoning is more plausible."

Aside from the tellingly weak L&E arguments about inalienable rights, most of the modern literature on the topic has been unremarkable. For instance, the only recent book-length philosophical treatise on inalienable rights [Meyers 1985] shows no awareness of the classical de facto inalienability arguments as in Hutcheson [in spite of Wills 1979], Richard Price [in spite of Lynd 1969], or even Hegel.

The de facto theory of inalienable rights is not hidden. The "intuition pump" of the criminous employee is an example of de facto inalienability that is "intuitively obvious to the most casual observer." It is the full implications for the "employment contract" itself that are rarely understood; the de facto responsible actions of an ordinary employee are just as de facto non-transferable as the actions of the criminal.

The recent work of the legal scholar Randy Barnett on contractual remedies and inalienable rights [1986] provides an excellent modern illustration of the (partial) use of the de facto inalienability argument.

Traditional legal theory affords the remedy of monetary damages for the breach of a contract. Except in very limited circumstances, the courts will not enforce the specific performance of a breached contract. Professor Barnett argues that the restrictions against enforcing specific performance should apply only to labor contracts, and that other breached contracts should be specifically enforced by the courts. The interesting point is that Professor Barnett uses the de facto inalienability argument to exclude specific performance of labor contracts because labor is de facto non-transferable!

One of the roots of the de facto inalienability argument was the Enlightenment critique of the voluntary slavery contract. Barnett quotes Rousseau ("Such a renunciation is incompatible with man's nature") to buttress his assertion that there

It is not clear if Professor Barnett realizes the implications for the employment contract in the employment firm wherein the employees consent to shift legal or de jure responsibility for the results of their actions to the company.

Professor Barnett does clearly see that human actions are not de facto transferable. We can only agree to co-operate with others; we cannot transfer or alienate the de facto control over our voluntary actions.

Professor Barnett also correctly contrasts this de facto inalienability of intentional human actions with the de facto transferability of bona fide commodities.

Professor Barnett's admirable rendition of the classical de facto inalienability arguments is only slightly marred by his apparent inclusion of the independent contractor (IC) as "selling services" like the employee. However in spite of that misleading language about "selling services," the independent contractor does not sell the control of his or her actions. That is precisely the point of the traditional "control test" used to differentiate independent contractors from servants. The IC is a self-employed business-person who produces, appropriates, and sells an intangible product, an effect, a job. The IC retains decision-making control over the execution of the work process and has the legal responsibility for the end result. Since the relationship does not purport to transfer that responsibility or decision-making, the contract between a genuine independent contractor and the customer does not run afoul of the de facto inalienability theory.

Professor Barnett correctly concludes that "the services of the employees cannot be the subject of a valid contract because such services consist of the employees' exercise of their inalienable rights" [199]. But he apparently interprets this to mean only that if the contract is breached, then the employee would only be liable for money damages. The courts should not try to enforce specific performance since labor is non-transferable.

We previously observed how Hegel's use of the de facto inalienability contract against the voluntary slavery contract carried Hegel further than he wanted. Hegel resorted to some transparent doubletalk to avoid applying the critique to the employment contract. Professor Barnett is in a similar quandary. The conclusion to Barnett's argument seems to be stronger than he is willing to draw. If labor is really de facto non-transferable as he has so forcefully argued, then the conclusion is that the contract to legally transfer labor is invalid from the outset—not just that the contract should not be specifically enforced when it is "breached."

The contract to legally transfer labor never is fulfilled by the de facto transfer of labor. An employee can at most co-operate together with a working employer. This de facto responsible cooperation—which earns the criminous employee a trip to jail—is interpreted as "fulfilling" the contract to legally transfer labor (when no crime is involved). It is only the withholding of this responsible cooperation that is interpreted as "breaching" the employment contract.

Professor Barnett has in fact splendidly restated the de facto inalienability analysis which shows the inherently fraudulent and invalid nature of the institution of renting or hiring human beings. The whole machinery of a contract to legally transfer the right to temporarily control the use of a rented entity cannot in fact be applied when the entity is a responsible person. To legally validate such a labor contract and to interpret responsible co-operation as "fulfilling" the contract to transfer labor is only to perpetrate a fraud on an institutional scale.