Why doesn’t the concept of self-ownership inform our understanding of the Takings Clause?

Note: This is my third blog post in my series on “Lockean takings.”

Now that we have surveyed some lockdown orders, the next question is, Why doesn’t the concept of self-ownership inform our understanding of the Takings Clause?

Generally speaking, there are two broad schools of property rights: natural law theories, which emphasize the moral aspect of property, and consequentialist theories, which link property rights to social welfare. John Locke, for example, famously defended the proposition that people have natural rights to property, while David Hume, Karl Marx, and many others have argued that property is merely a useful social convention, one that is in our self-interest to follow.[1] Nevertheless, whether the justification of property is rooted in social utility or in natural rights, most theories of property share the same Lockean premise: each person owns his own body and is generally entitled to the fruits of his own labor.[2] Of course, both perspectives–the Lockean/Nozickian one grounded in natural rights or Humean/Marxian theories based on social conventions–both can be true. We can have a natural right to X, and at the same time, X can also constitute a socially-useful artificial convention.

Either way, whichever perspective one prefers–i.e. whether property rights are considered a Lockean natural right essential for human autonomy or a Humean social convention essential for the maximization of economic welfare–most people agree that everyone owns their own labor, or in the memorable words of John Locke (1690, Sec. 27), “every man has a property in his own person; this nobody has any right to but himself.”[3] As Richard Epstein (1985), Alex Tuckness (2020), and others have noted, Locke’s general self-ownership principle–regardless of whether it is rooted in natural law or positive law–is among his most important contributions to political philosophy.[4]

Some commentators, however, have criticized this Lockean premise–i.e. self-ownership–as too individualistic and narrow-minded.[5] Following in the footsteps of Aristotle and Aquinas, some scholars like to emphasize the notion of “the common good” above and beyond personal self-interest.[6] This communitarian critique of Locke’s self-ownership principle, however, overlooks an important point: it is up to each person to decide for himself what the common good consists of. In fact, many Marxists and so-called “left libertarians” embrace the self-ownership principle as the starting point of their critiques of capitalism and inequality.[7]

In addition, I wish to make a further clarification here. Locke’s self-ownership principle should not be confused with his labor theory or “mixing” theory of property rights–the idea that we acquire property rights over something (something unowned) when we mix our labor with that thing.[8] Put another way, makers have property rights over what they make. This aspect of Locke’s theory, however, runs into some notorious difficulties. Robert Nozick, for example, a libertarian political philosopher sympathetic to Locke, posed the following famous hypothetical: “If I own a can of tomato juice and spill it into the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?” (Nozick, 1974, p. 175.)

Putting aside Nozick’s fanciful hypothetical, another difficulty with Locke’s labor theory of property occurs in science and mathematics. Proving a theorem or discovering a law of nature like F = ma takes a lot of work, but who owns the rights to the proof or the discovery? The person who proved the theorem or made the discovery? Or do theorems, like most scientific discoveries, belong to our “intellectual commons”?[9] At the same time, even if no one “owns” mathematical proofs or other types of intellectual discoveries in a legal sense, the informal “priority rule” in science nevertheless confirms the resiliency and generality of Locke’s labor theory of property. Generally speaking, “priority” (i.e. credit for making a discovery) is supposed to go the person or group who first made the discovery; theorems and discoveries are supposed to be named after the person who discovered them.[10] At the very least, only the discoverer of a theorem or law of nature is entitled to publish the results of his work. 

In any case, although Nozick’s radioactive can of tomato juice and the process of intellectual discovery in science and mathematics both test the outer limits of Locke’s labor theory of property, these examples do not detract from Locke’s general self-ownership principle: we own our own bodies and the fruits of our labors; we get to decide how to live our own lives. Most, if not all, “left libertarians” accept the general Lockean principle of self-ownership.[11]

So, to sum up our definitional analysis of “property” thus far, most people, even the most ardent opponents of natural rights and critics of Locke, generally agree with the principle of self-ownership, that we have property rights in our persons. This key Lockean insight is so fundamental and so universally accepted that it should inform our understanding of the Takings Clause. Specifically, when the government restricts our self-ownership by preventing us from leaving our homes to make a living, we are owed just compensation. In my next post, I will discuss the reciprocal nature of the pandemic problem. (PS: My footnotes are below the fold.)

Image credit: Joshua D. Glawson (via Medium)

[1] By contrast, one respected property law treatise (Cribbet & Johnson, 1989, ch. 2) identifies no less than five theories that have been propounded to justify property rights: “the occupation theory, the natural rights theory, the labor theory, the legal theory, and the social utility theory.” Ibid., p. 7.

[2] Cf. Mill (1974) [1859], p. 69: “Over himself, over his own body and mind, the individual is sovereign.”

[3] Furthermore, for Locke self-ownership also extends to the fruits of one’s labor: “The labor of his body and the work of his hands are properly his.” See Locke (1690), Sec. 27. I discuss Locke’s labor theory of property and its relation to the self-ownership principle further below.

[4] For a survey of the secondary literature on Locke’s theory of property rights, see generally Tuckness, 2020, Sec. 3. Also, for an in-depth survey of Robert Nozick’s defense of self-ownership, see van der Vossen (2019), Part 1.

[5] Cf. Whitcraft (2015): “Included in this notion [of libertarian self-ownership] is the idea that the only purpose of society is to help the individual. They [libertarians] have no concept of a higher purpose for society, of a society of greater value than the individuals in that society. If you disagree, they disparage you as a ‘communitarian.’”

[6] See generally Etzioni (2015).

[7] See generally Cohen (1995). See also Steiner (1994), ch. 7; Otsuka (2005), ch. 1; Heller & Salzman (2021), ch. 5. Also, although the focus of Van Parijs (2009), a Marxist scholar, is on the ownership of the means of the production, Van Parijs (ibid., p. 127) also considers “the distribution of ‘ownership’ over jobs.”

[8] See generally Ellerman (1992), chs. 3 & 4.

[9] Cf. Nathanson (2020), p. 1: “Suppose there is a true mathematical statement, and you prove it. Now it is a theorem. It is ‘your theorem.’ In what sense might you own it? Can or should a theorem be considered the private property of its discoverer, who may or may not choose to publish? If you own the theorem, can you license it or rent it? Can you insist that anyone who wants to use or apply the theorem must pay you to do so?”

[10] See, e.g., Strevens (2003). But see Stigler (1980).

[11] See generally Cohen (1995). See also Steiner (1994), ch. 7.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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