I first read Rothbard (For a New Liberty and The Ethics of Liberty) sometime in 2008. I was quickly persuaded by the gist of the arguments offered. At the core was the idea of Self-Ownership (SO), which I found very persuasive and from which I gained considerable intellectual confidence. I knew I could deal with whatever issues of public policy (e.g. drug prohibition) by invoking SO. Of course people could deny SO but such a position appeared to me to be quite implausible.
I have since abandoned those views. I actually stopped believing in SO over a year ago but it has taken me quite some time to articulate why. What follows is my attempt at doing so.
I have three main arguments against SO. The first one is a claim that the concept itself is incoherent. Secondly, libertarian (by that I mean Rothbardian) conclusions do not follow from SO itself, at least two further controversial claims have to be shown. Finally, the main argument in favour of SO is unpersuasive.
The essay is not arranged so as to have the three arguments following each other. I apologise for that. This is because various different discussions make their way into more than one arguments. In the conclusion I draw all the different threads together.
I suggest reading this essay along with a previous essay of mine “The Problem with Property Rights”. Together they form the basis for my rejection of Lockean Natural Rights libertarianism.
II. Referential aspect
A conceptual difficulty with SO is the self referential aspect of it. If I say that I own a slave then the the owner and the object of ownership is different. This is the case for every ownership claim.
However, with SO it seems that there is a self referential aspect. This makes SO at worst incoherent and at best unlike the other ownership claims (and if it is different then why should it not be treated differently).
This can be overcome by appealing to a dualist conception of the self. This would amount to saying that one has a soul which is the owner of the body (and the two are separate).
Now this is a controversial philosophical claim. I do not intend to argue against it here but advocates of SO should be aware of what they are implicitly claiming.
If contrary to what I claim the self referential aspect does not make the concept of SO incoherent then those issues of personal identity can lead to results different than libertarians expect.
As Ed Feser (2005) argued, if Cartesian dualism is true (and it is not incoherent for the self to own itself) then the body is a form of external property. This means that provisios relating to its use such as (on one interpretation) Nozick’s Lockean provisio and Eric Mack’s Self Ownership provisio would also apply to it. This means that there will be constraints on how one can use one’s body. This is a conclusion inconsistent with the traditional implications of SO.
In his article Feser goes through various conceptions of personal identity and considers their implications for SO. He concludes that none of them yield the standard Rothbardian view.
To conclude, there are two possibilities. (1) (If one rejects a dualist conception of the self) SO is incoherent (2) (Assuming the self referential aspect of SO does not make it incoherent) not all conceptions of the self will yield libertarian conclusions; indeed it might be that no conception of the self yields those conclusions. Either way, asserting SO is not enough a libertarian would also have to defend a particular conception of the self.
III. If I do not own myself others own me (partly).
The strong version of that claim is “If I do not own myself I am a slave”. This is plainly false. The alternatives are not (1) I own myself entirely and (2) someone else owns me entirely. There are many others in between.
The weaker version is “If I do not own myself others partly own me”. This argument is quite a common one. It can be attacked on many levels.
A. Granting the claim
For now let us grant that the claim is true. Suppose that we accept SO but say that it is only one of many moral values. It can be outweighed by other values (such as need). The response of the libertarian is then that the needy person (partly) owns me.
This, however, relies on a suppressed premise: (1) that all rights are property rights, (2) that property rights do not clash.
Even if we grant that (2) is true (1) has not been argued.
Perhaps I am putting the cart before the horse. Maybe the argument is that rights should not clash and that property rights are the only type of rights that do not clash.
But again even if rights should not clash it is plainly false that only property rights cannot clash with other rights. Dworkin, for example, defines equality and liberty so that the two values do not clash.
The above argument has of course not established that there are other political values. However it has shown that the “others partly own me” claim fails to establish that SO is the only value (which is what is required to get libertarian conclusions).
B. The fuzziness of ownership
Above, I granted for the sake of argument the claim that property rights do not clash. I suspect that this claim is what draws people to Rothbard’s position. It is certainly what drew me to it. And then I studied tort law, in particular the law of nuisance.
There are two houses next to each other. How much fumes/noise can one emit without infringing on the rights of the other?
The answer does not come from reflecting on the concept of ownership. You cannot get a valid conclusion by axiomatic-deductive reasoning. Rather it depends on various other factors. Indeed this was (implicitly) acknowledged by Rothbard in his seminal essay on this topic:
The reason why not is that these boundary crossings do not interfere with anyone’s exclusive possession, use or enjoyment of their property. They are invisible, cannot be detected by man’s senses, and do no harm. They are therefore not really invasions of property, for we must refine our concept of invasion to mean not just boundary crossing, but boundary crossings that in some way interfere with the owner’s use or enjoyment of this property. What counts is whether the senses of the property owner are interfered with. (emphasis added) (p. 151)
There is nothing in the concept of ownership which favours one conception of invasion rather than the other. Rothbard goes for the latter because it is a sensible one on utilitarian grounds (otherwise the world would grind to a halt since merely speaking would be wrongful). This is what is doing the real work.
So property rights are not in themselves wholly determinate and, in the area of indeterminacy, they can clash. We resolve the issue by refining them but this is not done by reflecting on the concept of ownership.
C. Denying the claim
In the above the claim that if I am not a self owner others own me (partly) was assumed to be true.
This claim will now be challenged.
One possible alternative is that no one owns anyone (including themselves). That, however, is ambiguous. This alternative can be interpreted in two ways: (1) no one has any rights in others and himself and (2) whatever moral claims there are are not expressed in terms of ownership.
Under (1) everyone has a Holfeldian liberty to do whatever one wants. This means that killing someone else is not wrongful.
That view is obviously unattractive.
Now consider (2). Suppose it could be shown that moral statement could be translated in the language of ownership. That claim is true in a trivial way. “I have a right that X” can be translated to “I own the right that X”. But that’s so trivial so as to be useless. What I mean is something like “I have a right to exclude the whole world from X” = “I own X”.
Suppose this could be done for every moral statement. A non libertarian statement such as that one has the right to an adequate level of health care would then be translated as that person partially owning others.
However all this change has done is given a rhetorical advantage to the libertarian position. No actual argument against such a right has been given. Of course the conclusion that someone owns others seems odd. But that is not because the underlying moral claim is wrong but because we do not normally translate those in the language of owning others.
IV. How many sticks?
The standard treatment of ownership is that of a bundle of sticks. Each stick represents a right/power/liability. Tony Honoré in his seminal essay on the concept of ownership (1961) lists 11 sticks:
(1) the right to possess
(2) the right to use
(3) the right to manage
(4) the right to the income of the thing
(5) the right to the capital
(6) the right to security
(7) the right of transmissibility
(8) the right of absence of term
(9) the duty to prevent harm
(10) liability to execution and
(11) the incident of residuarity
However, according to Honoré for one to be an owner one must have most (but not all) of the sticks. The upshot of this is the following. Suppose I have 10 of those 11 sticks in myself and you have 1. I am still a self owner and the fact you have 1 stick does not make you a part owner of my body.
Now the libertarian no doubt wants to claim that I should have all the sticks. However, if Honoré is right, it is insufficient for the libertarian to say “if I do not have all the sticks then others partly own me” – that claim is false, others do not then partly own you.
In light of this libertarians would no doubt wish to argue that Honoré is wrong. I don’t think such an argument would be successful. Consider two houses, A and B. B has a right of way over A. We still say that whoever owns A is the owner of A. Furthermore we would not say that the owner of B (partly) owns A.
Be that as it may. Libertarians wishing to argue for standard libertarian conclusions based on SO would then have to engage in debates concerning personal identity and they will also have to take down the orthodox understanding of the concept of ownership.
There were a lot of various threads of arguments going on. Here I will try to put them together:
Firstly, there are conceptual difficulties with SO. The self referential aspect makes it incoherent. The only way out is to appeal to an implausible Cartesian conception of the self.
Secondly, those difficulties notwithstanding it is unclear that SO actually yields the standard Rothbardian conclusions. The conclusions will vary depending on which conception of the self one takes. Furthermore, under the orthodox understanding of ownership being an owner does not mean one has all the sticks in the bundle. So merely invoking SO does not mean, as Rothbard would want it to, that one has all the sticks.
If one wanted to get the standard Rothbardian conclusions from SO one would then have to argue for a certain (I don’t know which one) conception of the self and against the orthodox understanding of ownership. This is by no means impossible but a lot more work is needed then merely invoking SO.
This brings us to the third conclusion. The best argument given for SO, that if I do not own myself others partly own me, fails. Even if the claim were true libertarian conclusions do not follow unless one can show that ownership is the sole value. This in turn relies on the claim that property rights do not clash. That claim is false.
In any event the claim that if I do not own myself others partly do does not get libertarians anywhere. At best it simply gives a rhetorical advantage. Furthermore it follows from the orthodox conception of ownership that the fact other people might have rights in me does not make them part owners of me.
I have not argued against the libertarian view that others have no rights against me. This might very well be true. However, an argument is required. Invoking SO will not suffice.
Feser, E. “Personal Identity and Self Ownership”, Social Philosophy and Policy, (2005), 22, 100-125
Honoré A M. Ownership. Making law bind: essays legal and philosophical. Oxford: Clarendon Press, 161–92, (Originally published in Guest AG, ed. Oxford essays in jurisprudence. Oxford: Oxford University Press 1961. 107–147.)
Rothbard, M. “Law, Property Rights and Air Pollution”, The Logic of Action Two (Cheltenham, UK: Edward Elgar, 1997), 121-170. Available online at: http://mises.org/rothbard/lawproperty.pdf