These posts are all part of a much larger work-in-progress that I am currently working on and that I will be presenting at the 11th Annual Meeting of the Association for Law, Property, and Society (ALPS) at Tulane Law School later this month. My project is tentatively titled “The Law of Self-Ownership.”
A deck of cards contains 52 cards. The mathematical symbol “!” is called a “factorial” and refers to the product of an integer as well as all the integers below it. For example, the factorial of the number four (4!) is equal to 24 because 4 x 3 x 2 x 1 = 24. So, yes, 52! is an astronomically large number. How large? See tweet below:
Alternative Title #1: Against Self-Ownership? Lit Review, Part 5
Alternative Title #2: The Problem of “Special Cases”: Self-Ownership of Children and Non-Human Animals
Thus far in this series, I have presented–and refuted–several theoretical critiques of the concept of self-ownership. Among these theoretical objections are logical incoherence (the problem of self-reference), indeterminacy (the level-of-generality problem), and the ghost of Ronald Coase (the problem of minor intrusions). But that said, how should we handle special cases like children and non-human animals?
Libertarian theories of self-ownership, however, tend to be “fact-insensitive”–to borrow G. A. Cohen’s apt term. That is, libertarian theorists by-and-large wave away or brush this important question aside. Calling forth their “inner economist” (in a bad way), they simply assume these special cases away. Consider, for example, this incredible statement by Peter Vallentyne (1998, p. ), a leading proponent of self-ownership: “… to keep things simple, we’ll assume that all beings with moral standings are fully psychological autonomous (fully capable of self-governance), and that they pop into existence in this state (as opposed to developing gradually).” WTF?
Alas, this strategy of side-stepping these special cases simply will not do. Any workable theory of self-ownership should be able to handle these cases or at least explain them away–explain why children or animals are not self-owners–instead of assuming the problem away. As it happens, I am happy to report that several scholars have, in fact, attempted to address different aspects of this problem head on. By way of example, David Favre’s 2000 Duke Law Journal paper on “Equitable Self-Ownership for Animals” uses existing property law concepts to propose a limited form of self-ownership for animals, while Hillel Steiner’s 2009 Public Reason paper on “Left Libertarianism and the Ownership of Natural Resources” (especially pp. 3-5) explains why parental rights over one’s children is consistent with left-libertarian theories of self-ownership.
I won’t evaluate the relative merits of either of these special theories here. It simply suffices to say that, although I don’t necessarily endorse Favre’s creative theory of animal self-ownership or Steiner’s qualified theory of temporal parental rights over children, the work of professors Favre and Steiner in this domain show that it is, in principle, possible to accommodate children, non-human animals, and other special cases into a self-ownership framework. Their works also show us just how versatile most theories of self-ownership are. Contra Barbara Fried and other critics of self-ownership, this flexibility is a feature, not a bug. Self-ownership is a moral axiom with implications for all sentient beings.
But wait up. What if self-ownership is a “bad” moral axiom? To the point, why should we prefer individualism over some social form of “communitarianism” or “collectivism” as our paradigm? I suspect that what is really going on here is that most, if not all, of the critics of self-ownership reject the individualistic nature of the self-ownership paradigm out of hand and would prefer a more communitarian or socialist model of ownership. After a brief hiatus, I will explore this fundamental objection–and then wrap up this series–in my next few blog posts starting on Wednesday, May 19.
Alternative Title #1: Against Self-Ownership? Lit Review, Part 4b
Alternative Title #2: Live and Let Live, Mother-Bleepers!
I presented Sobel’s self-ownership paradox–the problem of minor intrusions–in my previous post. In summary, ordinary activities like smoking (blowing smoke in someone’s face), listening to music (noise), driving cars and flying aircraft (accidents), etc., often generate minor risks of injury to third parties. Don’t these risks or minor intrusions somehow violate the deontological rights that self-owners are supposed to have, such as the right to one’s body and health? That is precisely the type of slam-dunk argument that scholars like David Sobel and others have made.
Before proceeding any further, it’s funny–or should I say ironic–how so many high-level scholars and brilliant minds can get all tied up in knots over such a simple problem, i.e. the problem of minor intrusions. In truth, this wouldn’t be the first time–or the last–that moral philosophers “overthink” a particular problem or make such a simple, everyday dilemma unnecessarily complex. For it turns out that the problem of minor intrusions has a prosaic and common-sense solution: the live and let live rule.
The live and let live rule originated the in the law of nuisance, an area of common law involving the intersection of property law and the law of torts or wrongs (injury law). Legally speaking, a “nuisance” occurs when someone uses his property in such a way as to produce a significant and unreasonable annoyance, inconvenience, discomfort, or injury to another person or to the public at large. These harms might consist of foul odors, loud noises, pollution, etc., but in order to prove a wrongful or unlawful nuisance, the plaintiff must show that the harm resulting from the defendant’s activities is a substantial and unreasonable one. In other words, minor or reasonable harms are not wrongful or unlawful from a common law perspective. Boom: problem solved!
This famous rule was explained by Baron Bramwell in the 1862(!) case of Bamford v. Turnley: “It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience, and interference and must take a certain amount of risk in order that all may get on together. The very existence of organised society depends on the principle of ‘give and take, live and let live’.” (For a modern-day nuisance case, see here, for example.) Of course, the mental act of deciding what types of annoyances or harms are sufficiently “substantial” or “unreasonable” so as to constitute a nuisance is not always easy. When in doubt, contemporary common law courts will weigh the following four factors in order to make these types of close calls:
the severity of the harm;
the geography of the alleged nuisance, e.g. is the nuisance occurring in a residential area or in an industrial district?;
the utility of the defendant’s conduct, e.g. the benefits generated by the harm; and last but not least,
the sensitivity of the plaintiff, e.g. is the person complaining about the alleged nuisance overly or unreasonably sensitive?
One more clarification is in order before we move on. I will be the first first to concede that any set of balancing factors will either be incomplete or will leave a lot of latitude and room for maneuvering, but my larger and more important point is this: we can easily rescue self-ownership from the problem of minor intrusions by adding on or incorporating some version of the live-and-let-live rule. The alternative is to abandon the concept of self-ownership altogether, and yet, as I explained in my response to Barbara Fried’s indeterminacy objection, the critics of self-ownership have yet to offer a viable or less indeterminate alternative.
Okay, fine, but what about special cases like children and non-human animals? Are all sentient beings self-owners? If not, where should we draw the self-ownership line? Rest assured, I will further explore the problem of special cases in my next blog post and then wrap up this series on self-ownership soon thereafter …
Alternative Title #1: Against Self-Ownership? Lit Review, Part 4a
Alternative Title #2: Self-Ownership and the Problem of Minor Intrusions
Thus far, I have presented several theoretical critiques of the concept of self-ownership, including incoherence and indeterminacy. I was also able to demonstrate without too much fuss why self-ownership is, in fact, a coherent concept and explain why this moral axiom is no more indeterminate than any other viable alternative, but what about “the ghost of Ronald Coase”? What about the reciprocal nature of the self-ownership problem? That is, at a minimum, one’s supposed right to self-ownership generates corresponding duties of non-aggression and non-interference, thus limiting the freedom of everyone else to really do as they please.
From a Humean perspective, however, one could argue that Coase’s critique does not pose a significant problem; to the contrary, one could even argue that the reciprocal nature of self-ownership is a feature, not a bug. Like Hume’s oarsmen, who are able to tacitly coordinate their actions for their mutual gain, I am happy to give up my right to harm you or to interfere with your life choices so long as you agree not to harm me or interfere with my life. [FYI: David Hume’s famous example of the oarsmen appears in Appendix III of his Enquiry Concerning Human Understanding as well as in Book III, Part 2, Sec. 3 of his Treatise of Human Nature.] But what about minor harms or actions that generate minor risks of injury?
At this point, I want to introduce you to David Sobel and his 2012 paper titled “Backing away from libertarian self-ownership.” Among other things, Professor Sobel notes in his 2012 paper that minor intrusions–such as minor but involuntary risks of injury–are ubiquitous in real life, and he shows how the existence of these minor risks produces a potentially fatal paradox. Simply put, full self-ownership, if taken to its logical conclusion, would have the counter-intuitive effect of restricting everyone’s liberty rights, thus making everyone worse off. Why? Because many of our actions impose a trivial risk of injury on others, but full self-ownership prohibits all “boundary-crossings” or infringements, even trivial ones, of one’s deontological rights.
Sobel (2012, p. 35) himself, following in Coase’s original footsteps, uses the problem of air pollution to illustrate this paradox, to point out this Coasean flaw in the logic of self-ownership: “Suppose there is a pollutant that is produced by a wide range of human activity, such as driving a car, flying a plane, running [a] lawnmower, making toasters, and so on.” Sobel then asks us to further suppose that (i) “this pollutant’s only effect is to produce itchiness once a year in proportion to the amount [that] lands on one’s skin” but that (ii) the effects of this itchiness, at worst, are “not debilitating but only annoying.” (Ibid., footnote omitted.) Having described this concrete example of a minor intrusion or involuntary but minor risk imposition, Sobel concludes (pp. 35-36, footnotes omitted): “Presumably putting this pollutant into the air such that it lands on me and I am affected by it is an infringement of my powerful property right to my skin. So, if you cause this stuff to end up on my skin without my permission, you infringe my rights.”
Unlike the previous arguments we have seen thus far, this Coasean critique of libertarian self-ownership–what I like to call “Sobel’s paradox”–is a potentially fatal one. For Sobel, Coase’s critique stings once we take a closer look at the concept of harm and focus on minor harms or minor intrusions. After all, the whole point of self-ownership is to promote freedom and protect autonomy, but given the wide variety of actions that impose minor but involuntary risks on others, Sobel shows us how the reverse might be true. Does Sobel’s paradox have a solution?
Stay tuned. It turns out that the problem of minor intrusions is greatly exaggerated and easily solvable. All we have to do is follow Coase’s own footsteps and look to the common law for answers. I shall thus explain how the common law is able to solve Sobel’s paradox in my next post …
Alternative Title #1: Against Self-Ownership? Lit Review, Part 3b
Alternative Title #2: Self-Ownership and the Problem of Indeterminacy: Richard Epstein to the Rescue
I presented two powerful critiques of self-ownership in my previous post: one based on indeterminacy–i.e. what rights do self-owners really have?–the other based on the ghost of Ronald Coase–i.e. because rights are reciprocal in nature (create corresponding duties), your self-ownership rights, however defined, will impose costs on me and limit my own freedom. Both of these arguments against self-ownership are made by Barbara Fried (2004), and of the two, the first of them can easily be rebutted and refuted, so I will respond to the indeterminacy argument first.
The indeterminacy argument can be challenged in one of two ways. First, we could turn this argument on its head by responding as follows: “So what?” or “Compared to what?” In other words, we could concede that self-ownership, like all general concepts, is indeterminate to some extent but then shift the burden of persuasion to Professor Fried–and to her fellow critics of self-ownership–to propose a workable theoretical alternative. Alas, to my knowledge neither Fried nor any of the other critics of self-ownership have proposed an alternative to the concept of self-ownership. Furthermore, I suspect this omission is no accident or unintentional oversight on their part. Simply put, as Richard Epstein (1995, pp. 54-59) has conclusively shown, the reason why the critics of self-ownership haven’t bothered to offer an alternative to self-ownership is because no such alternative exists!
(I won’t rehash Professor Epstein’s slam-dunk arguments here. It simply suffices to say that any imagined alternative to self-ownership would be even more indeterminate than the concept of self-ownership is and would produce even worse social consequences than self-ownership allegedly does. But don’t take my or Epstein’s word for it. Just try imagining an alternative system of property rights in which every person has an ownership interest in every other person. What would such a counter-intuitive system look like or operate in practice?)
The other way of responding to the indeterminacy argument is to point out–with all due respect to Fried and her kind, of course–that self-ownership is not indeterminate at all. In fact, the reason why so many scholars of all stripes–both hardcore “right-libertarians” like Robert Nozick and more egalitarian “left-libertarians” like Peter Vallentyne–defend the concept of self-ownership is not because they are able to derive their preferred set of rights from this concept but because self-ownership makes intuitive sense and comports with our most basic moral intuitions. Although right-and left-libertarian theorists have good faith disagreements (even among themselves) about how self-ownership should play out in practice, they all take self-ownership as an axiom or starting point.
In any case, it turns out that the indeterminacy argument is not new. Thomas Grey (1980, p. 163, quoted in Epstein, 1985, pp. 20-21) made more or less the same argument against the concept of property as Barbara Fried makes against self-ownership:
“The conclusion of all this is that discourse about property [or self-ownership] has fragmented into a set of discontinuous usages. The more fruitful and useful of these usages are those stipulated by theorists; but these depart drastically from each other and from common speech…. It seems fair to conclude from a glance at the range of current usages that the specialists who design and manipulate the legal structures of the advanced capitalist economies could easily do without using the term ‘property’ [or ‘self-ownership’] at all.”
My response to Grey (and to Fried and to other critics of self-ownership) is the same as Epstein’s (1985, p. 21): “Try it.” That is, as I invited us to do in paragraph #3 above, try imagining a legal or moral system without the concept of self-ownership. However indeterminate the moral and legal axiom of self-ownership might be, this general concept wins by default because any conceivable alternative to self-ownership would be worse on all relevant dimensions, such as level of determinacy, social consequences, consistency with moral intuitions, etc.
Okay, fine, but what about Fried’s second (and more powerful) argument against self-ownership: the ghost of the Ronald Coase? Absolute autonomy and freedom are fictions at best, with or without a self-ownership regime. Why? Because my self-ownership rights (however defined) will impose corresponding costs on you and likewise limit your freedom. This second argument will be more difficult, if not impossible, to dismiss. Also, Coase’s critique dovetails into another powerful argument against the self-ownership: the problem of minor intrusions. Accordingly, I will discuss this problem and respond to it in my next two posts.
What makes something a work of art? I am once again interrupting my multi-part series on self-ownership to share this fascinating art project by Todd McLellan titled “Things Comes Apart” in which McLellan takes apart 50 ordinary objects, such as a Swiss Army knife (see below), and exposes their inner parts and workings. More details here, via Colossal; hat tip: @pickover.
Alternative Title: Against Self-Ownership? Lit Review, Part 3a
In a previous post I presented Kant’s critique of self-ownership. Here, I will explore another argument against self-ownership. This second argument goes like this: self-ownership might be a fine concept at a high enough level of generality, but once we try to work out the operational details of self-ownership–once we try to define the scope of the claim rights that self-owners actually have–this concept is far too general and vague to be of any practical use. That is, the concept of self-ownership (contra Kant) might be logically coherent, but this concept is consistent with many different conceptions of rights–in a word, this concept is “indeterminate”.
To my knowledge, this devastating critique first appeared in a 2004 paper by Barbara Fried titled “Left-Libertarianism: A Review Essay,” which I consider to be the single-best theoretical paper on self-ownership that I have encountered thus far. In summary, Fried (2004) surveys the self-ownership literature from a “functionalist lens” or pragmatic perspective and concludes that self-ownership is an indeterminate and easily-malleable concept. To begin with, self-ownership is a such a broad and general concept that it is compatible with many different and competing conceptions of self-ownership rights; as a result, it is not surprising that libertarian theorists disagree on the practical implications of self-ownership–e.g. whether self-owners have the right to sell themselves into slavery, bequeath their property to their heirs, or blow smoke into someone else’s face. (See especially Fried, 2004, pp. 76-78.)
(By way of specific example, one of the main controversies–and one of the enduring sources of indeterminacy–with respect to self-ownership is the problem of natural resources. See, for example, Fried, 2004, pp. 84-91. Specifically, does self-ownership entitle one to assert private ownership rights over external natural resources? If so, is there a limit on how much natural resources one may appropriate for oneself? Post-Locke, this perennial and contentious set of questions has generated the main dividing line between “left-libertarians” on the one hand and “right-libertarians” or traditional libertarians on the other.)
Furthermore, as Professor Fried herself correctly notes (p. 77), these disagreements about the practical implications of self-ownership are insoluble to the extent they “derive from fundamental disagreements about what ends self-ownership is supposed to vindicate.” Broadly speaking, for example, right libertarians believe that self-ownership is about the right to be left alone (so-called “negative liberty”), while left libertarians believe that self-ownership is about the ability to make choices (“positive liberty”). Professor Fried thus concludes (p. 78): “Given their foundational disagreement about the meaning of self-ownership, it is hardly surprising that left libertarians cannot agree on how self-ownership gets cashed out at the level of property rights.”
But wait, there’s more! In addition to the indeterminacy critique, Professor Fried identifies an even deeper problem with self-ownership–a fundamental problem that bedevils all rights talk and that was identified as early as 1960 by Ronald Coase (pictured below) in his classic paper “The Problem of Social Cost.” To the point, even if we could agree on what rights self-owners have, these rights (however defined) will, by definition, impose corresponding or reciprocal duties on everyone else, and these duties will thus have the effect of reducing everyone else’s autonomy and liberty rights. In the words of Fried (p. 79): “A decision to enlarge your rights over your body … necessarily constricts my rights, often including right over the use of my body.
Professor Fried illustrates the reciprocal nature of the self-ownership problem with the following simple example (p. 78): “Suppose I stand two feet from you and blow smoke in your face…. Have I coercively interfered with your right to control your body?” If not, what if I am standing only one foot away from you? Six inches? At a minimum, most people agree that self-owners have the right to decide what they want to do with their own bodies. But even this minimum conception of self-ownership imposes corresponding or reciprocal duties on others. Does self-ownership–defined as the right to control my body–allow me to use force against you to stop you from blowing smoke in my face?
These two objections–the indeterminate nature of self-ownership and the problem of corresponding/reciprocal duties–are the best and strongest arguments against self-ownership. I will respond to them in my next post …