18 February 2014

Holmes on agency and contract 1891 5

The Hobbes/Holmes issues remain at the center of my thinking about contractual obligation. The Leviathan passage (chapter 16) is surprisingly complicating: while the master-family relation is surely natural, if anything is, and the agent negotiating the contract on the author's behalf is surely conventional, if anything is, the question arises whether the master-slave relation is natural or conventional. 

It is theoretically unstable at best, given the children-madmen-fools reasoning, since no slave is by that fact incapacitated, not even transiently so. Children pass through developmental phases, madmen are presumably seized from time to time by their madness, and fools are prone to folly qua fools (whatever that means). But it is not obvious what to infer from the slave condition as such vis-a-vis the master relation. 


Some slaves are fathered by their masters; some slaves are raised as children (in some sense) in the household with members of the master's family; many, most perhaps, will have given their labor to help make and sustain those intimate living arrangements that constitute the life of the master's family. Though there is theft, rape, and enslavement at the basis of all of this---all unconscionable and terrible, to be sure---it is still a kind of natural relation (in the sense of being extra-institutional). 

So the question for the Hobbesian account: is the slave a pre-condition for the institutional arrangement that is then codified? Or is the slave a consequence of the domestic arrangement that is then codified?

No comments: