Tuesday, June 12, 2012

Selling One’s Soul…(and not just to the devil)

At PrawfsBlawg, a few of us had fun with a post by Howard Wasserman in which he relates a story from a podcast in which a man sells his soul to another man for $50. Howard assures us that he is “not a contracts person,” “nor could [he] possibly play one on TV.” All the same, he asks whether such an agreement might be enforceable. I too am not a contracts person, although I did enjoy, as you’ll learn below, viewing this as a “thought experiment.”

Among the comments, we read:

“I’m going to cheat and say contracts to sell one’s soul are unenforceable because they violate public policy.”

“I’d say no, for pure evidentiary reasons: how would either party, let alone the court, even figure out how to figure out whether the soul was delivered?”

“[It] [m]ight even be more interesting to cook up some kind of establishment clause abstention doctrine.…”

“If there is a soul, and assuming we’ve gotten past the aforementioned evidentiary issue, how does one prove it was one’s own to sell? What if one’s soul is held only in trust, say, belonging rather to (i.e., owned only by) God?

Again, prior assumptions granted, I would think the court might…find this contract to be (substantively) unconscionable (one means whereby to get around the traditional refusal or reluctance to inquire into the adequacy or fairness of consideration), the unconscionability doctrine having all the virtues associated with vagueness and lack of formality, wherein discretionary ethical judgments can fill the void left where rules prove woefully inadequate with regard to equity or justice.

And, having gotten past all that, or setting all that aside, what if the person dies before performance, is death an excuse for nonperformance (the soul being thought to survive the body)?” [This comment is courtesy of yours truly.]

In addition, and not surprisingly, Jeff Lipshaw reminded us of the Faust tale, including later versions incarnate in the musical comedy Damn Yankees and an episode of the Twilight Zone, which prompted me in turn to mention the 1941 film, The Devil and Daniel Webster, which also goes back to Faust, although more immediately, as a short story by Washington Irving: “The Devil and Tom Walker,” only to be reworked yet again by Stephen Vincent Benét in short story form as well with the aforementioned title.

The most recent comment proclaims—or argues—as follows:

“Void for want of consideration. Even assuming there is such a thing as a soul, there is no reason to think it is property. That is thinking back to first principles, property generally consists of the right to exclude, the right to use, and the right to transfer. Neither one, nor two has any application to the soul. It is meaningless to talk about excluding a person from your soul. If it is possible to make use of a soul, it is not possible to transfer that right (or at least I don’t know of a way). Lastly, there is no reason to think the soul is transferable in any meaningful sense since “owning” a soul confers no substantive rights. In theory, you could sell your soul an infinite number of times since it gives no rights to the parties to whom it is transferred, and certainly no rights that conflict with your rights in your soul. Thus, the transferor suffers no legal detriment, thus no consideration.”

To which, I responded:

If the soul is intrinsic to the notion of personal identity, then we might imagine at least some folks, but especially theistic libertarians (as ‘substance dualists,’ in which each person is, after Plato, just a soul, ‘related to a physical body like pilot to ship,’ or, composed of ‘soul and body’), as inclined to think of the soul as “property,” literally or metaphorically, given the libertarian principle of self-ownership, which says that “each person enjoys over herself and her powers, full and exclusive rights of control and use, and therefore owes no service or product to anyone that she has not contracted to supply” (G.A. Cohen). In other words, it is self-ownership that generates the right over our bodies and powers, bodies and powers dependent in the first place upon souls. Cohen elaborates this thesis of self-ownership: “each person possesses over himself, as a matter of moral right, all those rights that a slaveholder has over a complete chattel slave as a matter of legal right, and he is entitled, morally speaking, to dispose over himself in the way such a slaveholder is entitled, legally speaking, to dispose over his slave.”

Again, and therefore, if the soul is intrinsic to the theistic libertarian’s conception of personal identity, the “self” signifies that “what one owns and what is owned are one and the same, namely, the whole person.” In sum, a theistic libertarian expresses a principled and unqualified commitment to freedom of and to contract, perhaps owing to the fact that, historically, the (legal) formalization of the mutual recognition of equally free subjects serves to animate otherwise fairly lifeless or abstract conceptions of self, subject, or soul! In which case, we can imagine our theistic libertarian contracting to sell her soul....”

I trust you’ll take this playful thought experiment in the spirit (of summer?) in which it has been proffered.

Addendum: We might therefore argue that if one is not a capitalist in our society, and thus compelled to sell one’s labor power in a commodified market (the society being organized so as to meet the needs of capital), one is, in effect, selling at least a part of one’s soul, as the working person is not allowed to live as an individual or collectively in a way that denies or ignores or interferes with the fundamental priority accorded the economic structures of capitalism, in other words, the worker is not permitted to transcend or trump the basic mechanisms of the labor market. In a capitalist democracy, the “at-will” employment involves two parties with grossly disparate bargaining power, thereby exemplifying the prima facie legal “adhesion contract.” Even Adam Smith, some time ago, appreciated the fact that employees, qua individuals, lack significant bargaining power relative to employers owing to the latter’s ownership of capital. The only conspicuous constraint on this bargaining power would arise under (idealized) conditions of full employment.

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