University of San Diego School of Law
October, 19 2010
San Diego Legal Studies Paper No. 10-042
In this paper I examine fully voluntary and mutually advantageous agreements in which one party promises to serve for a lengthy period of time as another’s servant. In my master example, the consideration offered in return for this promise is an offer to pay for a family member’s medical treatment and to provide for the family’s living expenses and passage to America. I ask whether such an agreement morally obligates the promisor, and whether, if so, it creates a moral right in the promisee to coerce the promisor’s performance. I argue that the promisor possesses the normative power to obligate himself to serve as promised, and that this normative power also extends to creating a right of enforcement in the promise.
I then turn to the legal enforceability of such agreements and in so doing discuss the Thirteenth Amendment of the U.S. Constitution, the anti-peonage statutes passed by Congress to enforce the Thirteenth Amendment, and the general rule against legal enforcement of personal service contracts. I contrast these bases of legal unenforceability with a variety of examples where personal service is legally enforced - such as military service, jury duty, duties to rescue, etc.
I then ask whether the principal arguments that have been advanced against the legal enforceability of long-term agreements - arguments that are based on the possibility of regret or degradation - are sufficiently weighty to offset the moral and prudential reasons for enforceability, and I conclude that they are not. Acting as another’s servant is not inherently degrading. And all contracts and conveyances carry with them the possibility of the same kind of regret that is supposed to support the unenforceability of promises of personal service. Because the current regime of the legal unenforceability of personal service contracts is an obstacle to mutually advantageous contracts, I suggest that we may want to reevaluate that regime in light of the weakness of some of its supporting arguments.
Number of Pages in PDF File: 17
Keywords: slavery, peonage, undentured servitude, specific performance, paternalism
JEL Classification: K10Accepted Paper Series
Date posted: October 28, 2010
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