Alternative Title: Against Self-Ownership? Lit Review, Part 2

In my previous self-ownership post, I identified five critiques of self-ownership. Now let’s take a closer look at the first argument against self-ownership: the problem of self-reference. In brief, how can a thing own itself?

Many scholars have commented on this self-reference problem. English literature professor John Frow (1995, p. 155, emphasis added), for example, has noted, at least in passing, on the “curious reflexivity [of Lockean self-ownership] by which the subject form is split between that which owns and that which is owned.” Similarly, feminist legal scholar Nadine Naffine (1998, pp. 200-202) has further explored the idea of a “divided self”, asking (ibid., p. 200): “How can it make sense to describe a single entity or being – the human being – as both the subject and the object of property rights? How can the one entity be two?”

But this self-reference problem goes back to Kant’s “Lectures on Ethics”, delivered during the years 1775-1780 in Konigsberg, where the great deontologist–by now fully awake from his previous “dogmatic slumber”–reasons as follows:

“Man cannot dispose over himself because he is not a thing; he is not his own property; to say that he is would be self-contradictory; for in so far as he is a person he is a Subject in whom the ownership of things can be vested, and if he were his own property, he would be a thing over which he could have ownership. But a person cannot be property and so cannot be a thing which can be owned, for it is impossible to be a person and a thing, the proprietor and the property.”

Or in plain words: men cannot be self-owners because only things can be owned and man is not a thing.

Alas, the Kantian self-reference objection amounts to pure sophistry for two reasons. One is that self-reference is generally no big deal in the absence of a contradiction. By way of analogy, it is one thing (pun intended!) to say “this sentence is false” or “this is not a tobacco pipe” below a picture of such a pipe. Those statements are problematic because they generate an internal contradiction. But it is quite another thing to say “this sentence is true” or “this is a pipe” below a picture of an actual tobacco pipe. This second set of statements, though self-reflexive, are logically coherent.

The other, more serious, problem with Kant’s critique of self-ownership is that it misrepresents the meaning of such key concepts as “property” and “things”. Legally speaking, “property” and “things” are not synonymous. The idea of “property” refers not to the things one owns but rather to one’s ownership rights. These ownership rights, in turn, consist of the set of legally-recognized claim rights the owner has over the things he owns, such as title, possession, income rights, transfer rights, etc.

Yes, Kant is correct that “things” (i.e. things that can be owned) are usually external to their owners in the physical sense, such as land and other forms of real estate as well as livestock, furniture, utensils, and other forms personal property. But this is not always the case. Under our common law tradition, for example, “things” can include such “intangibles” as ideas or the expression of ideas, such as trade secrets, poems, musical compositions, drawings, pictures, just to name a few such intangible things that can be owned. In other words, under certain conditions, which are specified by law, one can assert ownership (claim rights) over the products of one’s mind!

So, as a logical matter, why can’t a person also have claim rights over his own person? After all, if a person can own the rights to a formula under trade secret law or the rights to a creative work under copyright law, why can’t he own as well the rights to his body and to his labor?

That said, we still have to figure out what self-ownership consists of. That is, even if you can own yourself as a logical matter, what exactly do you own? Alas, proponents of self-ownership themselves vehemently disagree about the set of rights that self-owners actually have! We will consider this second objection to self-ownership in my next blog post …