Those of us concerned with individual rights and their roots in the nature of Man have searched long and hard for a foundation for our convictions: a set of premises about which everyone could agree, from which the rights we champion can be smoothly derived. The stops along the way have included religious convictions, the assertion that rights are “self-evident,” and a variety of arguments from symmetry. None of these have proved completely satisfactory.
In recent years, the most promising possibility has been the notion of self-ownership: the premise that one owns oneself in a fashion comparable to other kinds of property. Several notable theorists, including David Friedman and Walter Block, have traced a logical path from that premise to the individual rights to life, liberty, and honestly acquired property that are at the heart of the libertarian idea. Indeed, the premise even lends support to the important proposition that the rights of a minor child are held in trust by his parents until the child can “homestead himself” into a recognizably functioning adult.
However, successfully founding our rights on an axiom of self-ownership requires two things: The first, and more obvious, is that some accept the assertion...but some do not:
The humans are always putting up claims to ownership which sound equally funny in Heaven and in Hell, and we must keep them doing so. Much of the modern resistance to chastity comes from men’s belief that they ‘own’ their bodies — those vast and perilous estates, pulsating with the energy that made the worlds, in which they find themselves without their consent and from which they are ejected at the pleasure of Another! It is as if a royal child whom his father has placed, for love’s sake, in titular command of some great province, under the real rule of wise counselors, should come to fancy that he really owns the cities, the forests, and the corn, in the same way as he owns the bricks on the nursery floor. [C. S. Lewis, The Screwtape Letters]
(Indeed, Lewis’s observations above might help us to resolve the ultimate problems with a premise of self-ownership...but that’s for later.)
The second requirement is that the implications of self-ownership not appear absurd. Here, the difficulties arise from aspects of the property relation that are clear and well supported by practice when applied to other sorts of property. The most troublesome one is the notion of transferability.
We abhor slavery. All civilized nations have outlawed the practice; those nations in which it persists must deny it for public-relations purposes. Yet slavery is merely the property relation as applied to a human being. If Smith owns himself in the same way as he owns his house, car, and pets, what prohibits him from agreeing to become Jones’s slave? More troubling still, what would prevent Jones from seeking a decree of involuntary indenture against Smith, if Smith has incurred a debt to Jones that he can satisfy in no other way?
No decent person would want to see that come about. We outlawed debtor’s prisons and established a legal path toward debt relief through bankruptcy to avert it. Yet to regard Smith as Smith’s property carries the implication that that property relation is transferable, as are all other property relations recognized in civilized societies. If self-ownership is to become the foundation of our argument for individual rights, this is a problem that must be solved.
It’s not enough to dismiss the matter as unworthy of consideration. The implications, both philosophical and social, are serious enough to fatally undermine the edifice of individual rights. It is impermissible to invoke religious arguments; not everyone accepts the same assumptions about such things. Indeed, at least one major religion, Islam, accepts slavery as fully justified. Nor can the problem be solved with legislation, Constitutional or otherwise, as the very purpose of the assertion of rights is to circumscribe legislation. We must either find a refutation of self-transferability that nevertheless preserves the essence of self-ownership, or accept that it justifies slavery, with all the consequences thereof.
Various persons, some very bright, have grappled with the matter without reaching a satisfactory conclusion. The late Robert Nozick, in his masterwork Anarchy, State, and Utopia, concluded that slavery was a permissible consequence of the axiom. His conclusion disturbed many persons who were otherwise thrilled with the excellence of his reasoning.
The answer might lie in one of the insufficiently discussed and understood aspects of the property relation. It’s been important to the adjudication of matters concerning both real and movable property, and has special application to weapons law.
In an essay that originally appeared at Eternity Road and which is reposted here, I wrote:
The concept of ownership -- that status that confers rights over the thing owned -- has a small number of prerequisites:
- The thing owned must have been acquired either by:
- homesteading: That is, it was previously owned by no one, and the owner gathered it in by his own action or the action of a contracted agent;
- trade: That is, it was previously legitimately owned by another, who parted with it voluntarily in exchange for some other consideration, or none.
- The thing owned must be held apart from the common: That is, the owner must sustain his claim of ownership by assertion, use, and the maintenance of the thing in an "improved" state.
- The thing owned must be within one's adequate control: That is, one must be able to make reasonable guarantees that neither its possession nor its use will infringe upon the rights of any innocent party.
Failure of any of the above conditions nullifies a property claim. For example, having acquired a plot of land, Smith might permit it to deteriorate to the point that it can no longer be distinguished from an unowned field. That would nullify Smith's claims through the agency of neglect. Alternatively, he might pollute it in such a fashion as to pollute his neighbors' lands as well. That would nullify his claims through the agency of inadequate control. Either of these would warrant a fresh homesteading of the field, or seizing the field from him on the grounds of a clear and present danger.
If the language sounds familiar, that's because it's well embedded in Anglo-American legal practice for about three centuries now.
Adequate control is also the logic behind assessing a claim of damage against an owner for what his property did without his knowledge. For example, if Smith were to buy gasoline -- an ordinary sort of transaction -- and store it in his garage, he would become liable for any damage that gasoline might inflict on others. If he were to park his car on a hill, and the car's parking brake were to fail and send it careening into a crowd, he would be liable for the deaths, injuries, and property damage that ensued. And if he were to acquire radioactives, which then poisoned his neighbors or made their homes uninhabitable, he would be liable for those crimes as well.
By acquiring an item, the owner assumes responsibility for whatever that item might inflict upon unconsenting others. Alfred Bester's classic short story "Fondly Fahrenheit" is a neat dramatization of this principle.
The subject of that essay was the hoary old “private nuclear weapon” exception to the right to keep and bear arms. The subject of that essay was the hoary old “private nuclear weapon” exception to the right to keep and bear arms. Private parties cannot exercise adequate control over weapons of mass destruction; indeed, it’s become questionable whether even governments can do so. If you cannot control it, you cannot claim ownership of it.
The critical step here is the all-important distinction between control and coercion. A human being can only be controlled by himself. (Let’s pass in silence over the many cases of persons who fail to exercise that control.) Slaves are not controlled by their owners; they are coerced with the threat of punishment. In consequence, the slave does only what he must to avert such punishment. Moreover, when the agency of punishment absents itself, or is induced to “look elsewhere,” the fiction of control becomes a mockery as the slave undertakes whatever course suits him best: a course very likely to be at the expense of his owner.
I submit that coercion does not constitute adequate control under Anglo-American notions of property, and that therefore no man can legitimately claim another as his property. If this conclusion is defensible – and I must admit that I’ve never before used this chain of reasoning in the context of self-transferability or slavery – it solves the problems inherent in the axiom of self-ownership, freeing us to use it as the fundamental premise for arguments about individuals’ rights.
The many passionate advocates for individuals’ classically understood rights have fought long and hard to have their case accepted by others. Too often those others will reply with one or another of the never-ending “Yes, buts:” “Yes, but what about the army?” “Yes, but what about the poor?” “Yes, but what about my dairy subsidies?” These are not philosophically sound rejoinders; they can all be dealt with. The intellectual case for our rights has often been snorted aside as hanging weightless in mid-air, a set of assertions as arbitrary as any infant’s claim that “I want it, therefore it’s mine.” And of course, there will always be carpers who dismiss the entire subject as “antiquated,” “impractical,” or most galling of all, “simplistic.”
If self-ownership can be made to serve as a foundation for our argument, we might at last succeed in planting a firm foothold on philosophical territory. Yet as I’ve discussed above, it’s vital that we succeed in coping with the implications of our premises. Given the intensity of the sentiments aroused by any discussion of slavery, the one addressed here may be the most important of all.