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.