This will be my 10th and last blog post devoted to the contested concept of self-ownership. In summary, I have presented the main arguments against self-ownership, and I have found those arguments to be overrated or woefully inadequate. At the same time, however, I agree with Ben Bryant, whose work I mentioned in my previous post, that self-ownership cannot be an absolute right, that self-owners owe limited duties toward others. But who are those others, and what do these limited duties consist of?
Before proceeding, I agree with Barbara Fried, who I introduced in another previous post, that there are many ways of answering those key questions. This is why even left-libertarians disagree among themselves about the practical implications of self-ownership. But at the same time, let’s not miss the larger and more amazing point here: that both left-libertarians and right-libertarians share the same paradigm or premise: the moral axiom of self-ownership! For my part, I now want to conclude this series by channeling my “inner Richard Epstein”, so to speak — by turning to our Anglo-American common law tradition for answers, a venerable tradition going back to King Henry II and to the immortal jurists of ancient Rome, instead of trying re-invent the philosophical wheel. Specifically, if we take a step back and begin to look at the common law as a whole — especially the law of torts, the law of property, and the law of contracts — something beautiful will begin to emerge, and that something is what I like to call “The Law of Self-Ownership.”
Simply stated, the law of self-ownership can be reduced to a secular Silver Rule for interactions among strangers, i.e. for interactions outside the family or outside other voluntary associations. Broadly speaking, this code contains two parts: (1) a default right, along with a corresponding duty, and (2) a default remedy. The first part consists of one’s default right to negative liberty. Absent a voluntary agreement between A and B, A can’t tell B what to do, and B can’t tell A what to do. (This default right to be left alone, in turn, generates a corresponding or Hohfeldian duty: absent an emergency, A is not allowed to injure or interfere with B’s person or property, and B is not allowed to injure A’s person or property.) The remedy part tells us what happens when the above rule is broken. A must compensate B if A does injure or interfere with B’s person or property, even in an emergency, and likewise, B must compensate A if B injures or interferes with A.
These two “simple rules” (to borrow Professor Epstein’s apt phrase) are, in a nutshell, what the Law of Self-Ownership is all about. We get to decide how to live our lives and how to raise our children, but at the same time, we also owe corresponding duties to others. Although most of these duties are voluntarily assumed by us via contract, some of them are imposed on us via the common law, such as the general duty of ordinary care and the duty to provide compensation for breaches of these voluntary and involuntary duties. What is wrong with this common law picture? I think it’s beautiful!