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Sunday, June 10, 2012

Contracts with soul

I obviously am not a contracts person, nor could I possibly play one on TV. Still, I've had contracts on the brain today. Dave Hoffman posts an exchange of letters between photographer Annie Leibovitz and Jan Wenner, editor and publisher of Rolling Stone, and asks whether they create a valid contract. Then, I was listening to a Freakonomics podcast called Soul Possession, which told of a man who sold his soul to another for $ 50. And while I usually don't think about things in contract terms, I immediately started thinking about whether that agreement was enforceable.

So, is it?

Posted by Howard Wasserman on June 10, 2012 at 10:31 AM in Howard Wasserman | Permalink


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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 _just_ a soul, 'related to a physical body like pilot to ship,' or composed of soul _and_ body), to be 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 in which it has been proffered.)

Posted by: Patrick S. O'Donnell | Jun 12, 2012 11:14:07 AM

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 you soul an infinite number of times since the 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.

Posted by: Jesse | Jun 12, 2012 8:35:54 AM

Wasn't there a Simpsons' Halloween episode where Homer sold his soul to Satan for a donut? When Satan tried to claim Homer's soul, Lionel Hutz "defends" Homer (lamely). Homer ultimately wins because he had already given his soul to Marge, so it wasn't his to give to Satan.

Posted by: Tung Yin | Jun 10, 2012 6:50:20 PM

Let the Beelzebub beware.

Posted by: Jeff Lipshaw | Jun 10, 2012 6:46:29 PM

Paul: I was thinking of that (although I don't like to call it abstention). But it would require a finding of a fundamentally religious "fact," so maybe the claim fails for that reason.

Jeff: In this case, that self-help seems unavailable to the guy from Nebraska who bought the soul.

Posted by: Howard Wasserman | Jun 10, 2012 6:12:29 PM

I had to look up a movie along these lines I enjoyed because I couldn't remember the title (it seems they changed it in any case): The Devil and Daniel Webster (1941). (by way of the Faust tale and Stephen Vincent Benét)

Posted by: Patrick S. O'Donnell | Jun 10, 2012 4:10:07 PM

As to soul selling, I think there's a lot of precedent (see Faustus, Damn Yankees!, a Twilight Zone episode) that the usual buyers resort to non-judicial self-help.

Posted by: Jeff Lipshaw | Jun 10, 2012 3:35:05 PM

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 (with yet another assumption: judges not subscribing to the tenets of the 'new atheism') 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)?

Posted by: Patrick S. O'Donnell | Jun 10, 2012 3:17:43 PM

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?

Might even be more interesting to cook up some kind of establishment clause abstention doctrine...

Posted by: Paul Gowder | Jun 10, 2012 12:58:25 PM

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

It does bring to mind, however, Nikolai Gogol's novel "Dead Souls," in which the main character, Chichikov, travels the countryside buying the ownership rights to serfs ("souls") who have already died, but who have not yet been counted as dead in the official census, so that he could mortgage them; when the next census occurred, they would be officially recognized as dead and thus Chichikov would not be required to repay the loans. I think there's a fun exam question in here somewhere, but I'm not sure if it would be better for Contracts, Criminal Law, or maybe an advanced property course.

Posted by: Charles Paul Hoffman | Jun 10, 2012 11:24:48 AM

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