第四章 论奴隶制度

卢梭指出，人与人之间只有用约定作为一切合法性权威的基础。那么人与人之间为什么不能约定转让或放弃自己的自由呢？格劳秀斯和普芬道夫认为这没有什么不妥。

格劳秀斯认为，既然根据希伯来法和罗马法，容许个人卖身为奴，为什么就不能容许所有人将统治权转让给一个人或若干人？卢梭对此批驳道：臣民转让自己的自由没有合理性。他们既不是为了获取生活用品，相反还要向君主提供生活供给，也不能安享安全太平，因为君主的野心和贪婪很可能使他们遭受战争。并且在政治社会中，太平的生活与自由的生活相比较，后者更为重要。在此卢梭列举了西克洛甫吃人洞穴的例子来说明这一点。由此，卢梭得出：转让自由的行为不符合人的理智，是疯狂的行为，不能构成权利来源。

普芬道夫则认为自由和财产一样，是能够放弃的，“人可以根据协议和契约把自己的财产让与别人，同样也可以为了他人的利益而放弃自己的自由。”卢梭认为此种推理很不合理，他在《论人类不平等的起源》中作了反驳：首先，我把财产让与别人之后，这项财产就与我无关了，即使别人滥用，我也不用负什么责任。但是，人们要滥用我的自由则不可能与我无关，我很可能沦为别人犯罪的工具。此外，所有权不过是一种协议和人为的制度，人人能够随意处分他所有的东西。但是上天赋予我们的生命和自由，则不能与此并论。一个人抛弃了自由，便贬低了自己的生命，抛弃了生命，也就丢掉了自己的性命。无论以任何代价抛弃自由和生命，都是违反自然和理性的。

卢梭继续以退为进，他说即使每个人能够转让他自己，也不能转让他的孩子。在《论人类不平等的起源》中他这样论证：子女们的自由是天赋的，父母没有任何权利剥夺他们这种天然禀赋。因此，奴隶制的建立必然违反自然，只有改变自然和天性，奴隶制才能永存下去。法学家们宣布奴隶的孩子生下来就是奴隶，等于在说，人生下来就不是人。

在本章，卢梭还批驳了格劳秀斯等人关于战争和所谓征服权是统治合法性来源的观点。一些理论家认为，战胜者有处死战败者的权利，战败者能转让自己的自由以获得存活，这样战胜者也就取得了统治战败者的理由。卢梭认为，这种理论是荒谬的。首先，在自然状态中和在“一切都处于法律权威之下”的社会状态中都不存在战争状态，因为在前一种状态中人与人之间没有经常性的联系，不会成为仇敌，在后一种状态中，人与人之间的一切关系都有了法律规定，也不可能产生战争状态。战争只能出现在民族、国家之间，而不能出现在任何一方是个人的情况下。真正的战争，不能产生与其目的无关的权利，没有赋予战胜者生杀权，以生杀权为基础的奴役权就更加不存在了。同时，在征服民族与被征服民族之间，除非被征服民族获得完全的自由，选择征服者作为自己的首领，否则，他们就仍然处在战争状态中。即使签订条约，被征服者对条约的服从也只是权宜之计。如此建立的统治基于暴力而非基于人的自由，因而这并不证明征服者拥有政治统治的合法性。

经过以上论证，卢梭得出一个结论：自由不能转让和放弃，奴役根本不可能成为一种合法权力。如果一项契约只约束一方，所有义务由一方负担，而另一方没有任何义务，从而使负担义务的一方完全处于不利的地位，那么这项契约是荒唐无效的。

4. SLAVERY

SINCE no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men.

If an individual, says Grotius, can alienate his liberty and make himself the slave of a master, why could not a whole people do the same and make itself subject to a king? There are in this passage plenty of ambiguous words which would need explaining; but let us confine ourselves to the word alienate. To alienate is to give or to sell. Now, a man who becomes the slave of another does not give himself; he sells himself, at the least for his subsistence: but for what does a people sell itself? A king is so far from furnishing his subjects with their subsistence that he gets his own only from them; and, according to Rabelais, kings do not live on nothing. Do subjects then give their persons on condition that the king takes their goods also? I fail to see what they have left to preserve.

It will be said that the despot assures his subjects civil tranquillity. Granted; but what do they gain, if the wars his ambition brings down upon them, his insatiable avidity, and the vexations conduct of his ministers press harder on them than their own dissensions would have done? What do they gain, if the very tranquillity they enjoy is one of their miseries? Tranquillity is found also in dungeons; but is that enough to make them desirable places to live in? The Greeks imprisoned in the cave of the Cyclops lived there very tranquilly, while they were awaiting their turn to be devoured.

To say that a man gives himself gratuitously, is to say what is absurd and inconceivable; such an act is null and illegitimate, from the mere fact that he who does it is out of his mind. To say the same of a whole people is to suppose a people of madmen; and madness creates no right.

Even if each man could alienate himself, he could not alienate his children: they are born men and free; their liberty belongs to them, and no one but they has the right to dispose of it. Before they come to years of discretion, the father can, in their name, lay down conditions for their preservation and well-being, but he cannot give them irrevocably and without conditions: such a gift is contrary to the ends of nature, and exceeds the rights of paternity.It would therefore be necessary, in order to legitimise an arbitrary government, that in every generation the people should be in a position to accept or reject it; but, were this so, the government would be no longer arbitrary.

To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties. For him who renounces everything no indemnity is possible. Such a renunciation is incompatible with man's nature; to remove all liberty from his will is to remove all morality from his acts. Finally, it is an empty and contradictory convention that sets up, on the one side, absolute authority, and, on the other, unlimited obedience. Is it not clear that we can be under no obligation to a person from whom we have the right to exact everything? Does not this condition alone, in the absence of equivalence or exchange, in itself involve the nullity of the act? For what right can my slave have against me, when all that he has belongs to me, and, his right being mine, this right of mine against myself is a phrase devoid of meaning?

Grotius and the rest find in war another origin for the so-called right of slavery. The victor having, as they hold, the right of killing the vanquished, the latter can buy back his life at the price of his liberty; and this convention is the more legitimate because it is to the advantage of both parties.

But it is clear that this supposed right to kill the conquered is by no means deducible from the state of war. Men, from the mere fact that, while they are living in their primitive independence, they have no mutual relations stable enough to constitute either the state of peace or the state of war, cannot be naturally enemies. War is constituted by a relation between things, and not between persons;and, as the state of war cannot arise out of simple personal relations, but only out of real relations, private war, or war of man with man, can exist neither in the state of nature, where there is no constant property, nor in the social state, where everything is under the authority of the laws.

Individual combats, duels and encounters, are acts which cannot constitute a state; while the private wars, authorised by the Establishments of Louis Ⅸ King of France, and suspended by the Peace of God, are abuses of feudalism, in itself an absurd system if ever there was one, and contrary to the principles of natural right and to all good polity.

War then is a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders. Finally, each State can have for enemies only other States, and not men; for between things disparate in nature there can be no real relation.

Furthermore, this principle is in conformity with the established rules of all times and the constant practice of all civilised peoples. Declarations of war are intimations less to powers than to their subjects. The foreigner, whether king, individual, or people, who robs, kills or detains the subjects, without declaring war on the prince, is not an enemy, but a brigand. Even in real war, a just prince, while laying hands, in the enemy's country, on all that belongs to the public, respects the lives and goods of individuals:he respects rights on which his own are founded. The object of the war being the destruction of the hostile State, the other side has a right to kill its defenders, while they are bearing arms; but as soon as they lay them down and surrender, they cease to be enemies or instruments of the enemy, and become once more merely men, whose life no one has any right to take. Sometimes it is possible to kill the State without killing a single one of its members; and war gives no right which is not necessary to the gaining of its object. These principles are not those of Grotius: they are not based on the authority of poets, but derived from the nature of reality and based on reason.

The right of conquest has no foundation other than the right of the strongest. If war does not give the conqueror the right to massacre the conquered peoples, the right to enslave them cannot be based upon a right which does not exist. No one has a right to kill an enemy except when he cannot make him a slave, and the right to enslave him cannot therefore be derived from the right to kill him. It is accordingly an unfair exchange to make him buy at the price of his liberty his life, over which the victor holds no right. Is it not clear that there is a vicious circle in founding the right of life and death on the right of slavery, and the right of slavery on the right of life and death?

Even if we assume this terrible right to kill everybody, I maintain that a slave made in war, or a conquered people, is under no obligation to a master, except to obey him as far as he is compelled to do so. By taking an equivalent for his life, the victor has not done him a favour; instead of killing him without profit, he has killed him usefully. So far then is he from acquiring over him any authority in addition to that of force, that the state of war continues to subsist between them: their mutual relation is the effect of it, and the usage of the right of war does not imply a treaty of peace. A convention has indeed been made; but this convention, so far from destroying the state of war, presupposes its continuance.

So, from whatever aspect we regard the question, the right of slavery is null and void, not only as being illegitimate, but also because it is absurd and meaningless. The words slave and right contradict each other, and are mutually exclusive. It will always be equally foolish for a man to say to a man or to a people: “I make with you a convention wholly at your expense and wholly to my advantage; I shall keep it as long as I like, and you will keep it as long as I like.”