Sobel’s Paradox

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 …

Are Property Rights a Solution to Pollution?
Image credit: PERC (Property & Environment Research Center)

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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1 Response to Sobel’s Paradox

  1. Pingback: The Law of Self-Ownership | prior probability

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