Professor David Ellerman wrote some things that really, really impressed me and I want to summarize some of what he's saying that is relative to me. Starting with the Following Table, which expresses the truth table of what constitutes justice and injustice:
The Law is only just when the person who is held responsible is actually in fact responsible. That ought to be tautological, but in our corrupted times, both type one and type two injustice are common, sometimes due to failures in the discovery process for seeking the truth, but also because modern governments employ oppressive and/or Fruadulent legal theories. David explains the table as:
“analogous to Type I and Type II error in statistics”
Those advocating Inequality claimed it was Consensual
And notes that:
"Historically, the sophisticated arguments for slavery and autocratic government were consent-based in terms of implicit or explicit contracts. And the legalized oppression of married women was based on the coverture marriage contract."
Modern Liberalism fought:
“sophisticated arguments for slavery and for non-democratic forms of government based on consent. The advances in anti-slavery arguments and democratic arguments based on the inalienable rights arguments of the Reformation and Enlightenment were made against those liberal defenses of slavery and autocracy based on consent.”
Historians misrepresent the difficulty of advancing rights for all people when they downplay this.
Inalienable Rights Versus Oppressive Consent
David explains that:
“the critiques developed in the abolitionist, democratic, and feminist movements were not simply arguments for consent as opposed to coercion, but arguments against certain voluntary contracts, e.g., in the form of inalienable rights arguments.”
These inalienable rights arguments focused on the fact that labor cannot be divorced from either personhood or capital. The abolitionists argued successfully that labor cannot be alienated from personhood but is inseparable from it. Thus Alienating a persons labor from his personhood degrades the person and is oppression, infringing on the very basic rights of the persons enslaved. Moreover, this is true even if the person agreed to the sale.
Legal Fiction of Consent = Fraud
“under the intellectual hegemony of classical liberalism, the historical arguments tend to be simplified”
The doctrine of the inalienability of a person and his labor was replaced with the “legal fiction” of selling (or renting) labor, replacing the rights argument with the patently fraudulent argument that a voluntary sale of a persons labor to the master, is a voluntary "sale" with "consent. Reducing the rights argument to an argument about:
“consent versus coercion.”
This argument, being slippery justifies alienating labor from capital and labor from personhood. Just so long as a contract exist and the infringing party ("the employer") has a contract that presumably is voluntary. The result is that:
“The older arguments against certain contracts, even if perfectly voluntary, have been largely overlooked, ignored, or lost—perhaps for an obvious reason. When these older arguments are recovered and restated in terms of the underlying norms of ordinary jurisprudence, then the arguments clearly apply against the human rental or employment contract that is the basis for our present economic system.”
The history of abolition and post abolition forms of wage slavery, company store oppression, share-cropping and virtual slavery of wage laborers illustrates that the "legal fiction" of renting labor is a fraud.
He also explains how Marxism contributed to the demise of labor by ignoring this rights case and thus setting it up so that later Marxists gave workers a choice between being wage slaves to private persons or wage slaves to the Government. Which is no choice at all.
Marx disparaged natural rights theory, lumped pretty much all wealth into "capital", didn't differentiate between natures bounty (land) from capital or see the link between man's labor and his property. If a person has a right to property in the product of his labor, he has a right to capital even when someone else owns the property he is working within. When a right is inalienable, that means it cannot be separated from who a person is. Alienating labor from capital is destructive to both the function of the workplace and health and well being of workers. That is why Henry George referred to Marx as "muddle headed." (and Marx reciprocated).
By denying the rights argument, socialists ended up stripping the rationale for forcing employers to treat workers as part of the enterprise they all were mutually involved in.
There is a lot more to this argument. I think I'll put it in a different post and link it to this one. But in essence it converges with Post-Georgist arguments about the importance of taxing rent and protecting labor and actual capital ("working capital").
To Read Professor David Ellerman's draft paper: