Self-Ownership and Individual Rights

It has been said that all rights we have as human beings are rooted in individual self-ownership. If taken literally, and not as some sort of metaphor, this cannot be right.

Some talk suggesting self-ownership is the source of rights might be nothing more than rhetorical flourish, elaborating the observation that we have rights with respect, e.g., to our hands that are, in many respects, at least as strong as our rights with respect to our gloves. That I will not dispute. I here take issue only with those, perhaps few in number, who have been carried away and truly embrace the theory that the fundamental basis of individual rights is a property right of self-ownership

Property based rights talk is mostly engaged in by right-libertarians: those who tend to believe that taxation is slavery; that markets are an unmixed blessing; that inequality in bargaining position never weakens the moral force of agreements; and that the externalization of enterprise costs to the general society is trifling. Secretly many also tend to think that a free market in public officials is not such a bad thing – if there must be public officials in the first place.

As you might detect, I am not altogether sympathetic to right-libertarianism. I do not even show them the courtesy of using its advocates' self-awarded moniker as – sans phrase “libertarians.” That is because I think that they have, from the ground up, a defective understanding of liberty.

I am not, however, from here on out, going to go after right libertarianism. What I will argue, instead, is that even the right-libertarian should reject the self ownership theory of rights. There are far less vulnerable ways to enunciate a right-libertarian position. (A good place to start is Nozick's Anarchy, State, and Utopia.)

Property is not the right sort of thing to be the font of our fundamental individual rights: As every first year law student learns, property is not a concept set in stone. Property ownership is a “bundle” of rights and duties, a bundle that varies from place to place and from time to time. If this is so, then self ownership cannot be the source of immutable individual rights, because, first, it itself is mutable. Second, and of more theoretical importance, self ownership cannot be the fundamental source of rights, because it itself is constituted, in part, by rights.

So to make the heroic attempt to base all rights on self ownership, the first thing one would need would be a concept of property that is absolute, because not varying in content across societies, and primitive, because not depending upon pre-existing concepts of rights.

Absolute property is crazy: It might be thought that “absolute property” fulfills these desiderata. An absolute property right gives the possessor the right to exclude any and all from the property under any and all circumstances and to do any and all things with the property. Absolute property has one small problem, however. As Nozick notes, putting it in your back is not among the many things I should be allowed to do with my knife.

Maximum property is definition-defective: A potential solution to the knife in back problem is to retreat from absolute property to maximum property with some such formula as “so complete a dominion over one's property as is compatible with a like dominion over their property by others.” The problem with this and similar formulations is the “incompatible” and the “like.” After all, my putting my knife into your back is not incompatible with your putting your knife into my back. It is your maximizing your back rights that is inconsistent with my maximizing my knife rights. It is obvious enough that knife rights should give way to back rights, but a great deal more is therein involved than is straight forwardly covered by “like dominion” and “compatible.”

One beach goer's property right in his or her top, in particular the choice of wearing or removing same, conflicts with another beach goer's right to movement of owned head, eyes and eyelids. On almost all US beaches “like dominion” over eyes is understood to give way to male property rights over tops but to dominate female property rights over tops. On European beaches there is more variability in the resolution of this particular property right conflict.

The idea that there is some grand a priori notion of maximal dominion over property compatible with a like dominion over others in their property is an illusion. Instead, conflicts of interests and rights have to be resolved by concepts that go deeper into the human condition than does the concept of ownership. Nozick went deeper by drawing upon Kant's ideas of human autonomy, and the non-use of others. He also gave a passing nod to the concept of the meaning of a human life. The current generation of right-libertarians would do well to take seriously both his arguments and his intimations.

Rights without property: There can be rights without anything that looks much like property. Consider the possible immaterial world in which five souls can do nothing but think and communicate with each other by an immaterial version of talking. (If you are concerned that they would have nothing to talk about, you may assume that they have an immaterial app for browsing the internet.) We can imagine that the right not to be interrupted might be recognized by these five, and that such underlying concepts as equal respect would animate whatever principles emerged for regulating their conversations. I suppose that the origination of novel ideas might give rise to something like intellectual property. (“Doesn't Alice deserve the credit for first recognizing that the continuum hypothesis is flatly false?”) Still, there cannot be more than a wisp of property in this hypothetical world, but could well be clear rights.

Other-ownership: We have a model of ownership of persons close at hand: chattel slavery as it existed in the United States. The owner was another rather than the first person self, and this, of course, makes a great difference. Still, it is precisely the contrast between slavery and self ownership that gives the latter concept its rhetorical force. Self ownership is the repatriation of the property model from the outside to the inside.

Even though other-owned, the slave had a few rights (though very few), varying from state to state. The slaveholder's rights over the slave did not extend as far as his rights over his boots or even quite as far, usually, as his rights over his horse. This, by itself, shows that ownership cannot be the root of all individual rights, as even those without self-ownership had some rights.

On the other side, there were rights that neither the owner nor the slave possessed. Even working jointly the slave and master could not qualify the slave to be a citizen, a juror, vote, attend school, and so on and on. Ownership can protect the owned property from some sorts of insults but is not proof against others. An important set of rights may plausibly be associated with ownership, but as not all rights. Therefore, again, self-ownership cannot be the fundamental source of rights.

Alienability: One of the paradigmatic features of property is its alienability. Indeed, there were jurisprudents, in the bad old days of unguarded essentialism, who went so far as to say that alienability was an essential feature of property. We would not now say that. Still, inalienability counts against the aptness of saying that your relation to yourself is that you are your own property. Slaves could be alienated, but since the 13^th amendment no one resident in the US or subject to its jurisdiction can sell himself or herself.

Animal rights: Only humans and such artificial legal persons as corporations own property. Your dog, whatever she may think about her food bowl, cannot own property. Therefore, on a self-ownership model of rights, it is quite impossible that your dog or even the unowned bobcat of my neighborhood woods should have any rights at all.

Mind-body metaphysics: The idea that the body is owned by the mind or soul is only going to be appealing on fairly strong theories of mind body independence. Then, however, it is not so much self-ownership as the self owning a separate thing – the body. It is worth noting that on some theistic traditions the individual soul does not really own the body; God does. The soul has the body on a kind of long term lease.

On most theories of selfhood, it is more attractive to say that it is self identity rather than body ownership or self ownership that is metaphysically primary.

Commoditization: For right-libertarians the greatest of all historical villains is Karl Marx. Marx predicted that with the advance of capitalism human beings and the relations among human beings would more and more be reduced to property relations. Now some right-libertarians would have it that a property relation is at the center of human rights. Ironic? Marx would not be surprised.

Ideological drift: Right-libertarianism at its most attractive has seen property and free markets as means to the realization of human freedom. Its vision of freedom may be cramped, but it is genuinely concerned that human choices not be shut down in certain sorts of ways. Placing property and ownership in the center of focus risks a slide in emphasis. At its worst, instead of capitalism as a means to human freedom, humans become merely an input to capitalism.

It is to have one's heart sort of in the right place to advocate capitalism on the (doubtless mistaken) understanding that it is a requirement of human freedom. When capitalism itself comes to be seen as a high value, there follows a tendency to celebrate lavish consumption and even greed. That some go to bed hungry and sick is not an evil to be addressed, nor even a regrettable but inevitable concomitant of the way things ought to be, but instead exactly the way things ought to be. It is certainly possible to hold the theory that rights flow from our self-ownership without going to this extreme, but property as the core concept of political theory tends to make easy the Rand-y path.