What is Freedom? (2): A Right to Self-Ownership?

Libertarians stress the importance of the right to self-ownership. I would argue that it’s an interesting and useful right in the context of human rights more generally, but also one that is a bit of a problem. When we say that people have a right to self-ownership we mean that they own themselves in just the same way that they can own objects. It follows that people have the same rights over themselves and their bodies as they have over objects:

  • they are free to use their bodies as they please
  • they can claim that others, including the government, refrain from using it
  • they can use the government to protect themselves against others trying to use it
  • and they can transfer property rights to others.

Self-ownership rights understood in this sense are the core of libertarian philosophy and are believed to justify standard libertarian policy recommendations such as the elimination or reduction of taxation, the freedom to sell organs, use drugs, engage in all forms of consensual sex etc. And indeed, self-ownership can be an attractive right to non-libertarians as well: it can be used to justify the prohibition of slavery and rape, to protect people’s rights to euthanasia and assisted suicide, to solve the forced transplant dilemma, to support the rejection of capital punishment on the basis of a theory of non-instrumentalization etc.

However, useful as the right to self-ownership can be, it’s not without drawbacks. The right can, and in the minds of most libertarians does imply a denial of the obligation to help others in need (apart from an obligation based on prior wrongdoing and assistance based on voluntary agreement). Such an obligation would be a form of slavery. It would mean the forced use of our bodies and labor power for the benefit of others. Libertarians often reject taxation for the same reason. All this seems needlessly selfish and contrary to moral intuition.

It also seems incoherent. Most if not all libertarians accept taxation for the funding of some collective goods such as highways and the police force. It’s not clear how they can accept a limitation of the right to self-ownership for the sake of some types of taxation but not others. Taxation is always the non-consensual use of persons for the benefit of others, whatever its purpose.

If you view the right to self-ownership as an absolute right – or axiomatic – you may wind up accepting some absurd conclusions: you’ll have to claim that it’s impermissible to gently push the arm of a driver holding his steering wheel and heading towards of group of school children, because that would mean using the body of the driver without his consent to aid others in need. Self-ownership therefore can’t be an absolute right, at least not in a non-solipsistic world. Minimally, it should be limited for the sake of the self-ownership rights of others: imprisoning murderers or slave holders means limiting their self-ownership rights for the sake of the same rights of their potential victims. And, on top of that, it’s probably also necessary to limit self-ownership rights for the sake of certain other values. The problem is that it’s difficult to think about a limited right to self-ownership: every limit to that right seems to destroy it completely. Either you own yourself or you don’t.

There are, I think, three ways to react to these problems with the right to self-ownership.

  • You can bite the bullet and maintain that the right to self-ownership is the fundamental right and should be absolute whatever the consequences.
  • Or you can hold on to the right but only as one value amidst others, and to be balanced against others.
  • Or you can abandon it, claiming that it only has a rhetorical value, and that it’s better to focus on the “derivative” rights – such a the right not to suffer slavery – and try to justify those derivative rights independently (e.g. an anti-slavery movement doesn’t need the concept of self-ownership in order to be effective).

As a good value pluralist, I prefer the second option. The rhetorical and unifying force of the right to self-ownership should not be underestimated. If we manage to prune its extreme libertarian outgrowths (such as selfishness and extreme marketization in the form of organ sales or the “right” to sell yourself into slavery), we’re left with a powerful concept that can be of great value in the struggle for individual liberty (which isn’t a libertarian monopoly by the way). But it can’t guarantee liberty by itself. It depends on and is only meaningful together with a theory of ownership of the rest of the world. Imagine that one other person owns the entirety of the world, minus yourself (i.e. you only have self-ownership). That means that when you want to eat you’re a thief, and when you want to move about you’re trespassing. That’s hardly freedom. Self-ownership without a theory about how the rest of the world is owned can be utterly meaningless.

So the question then turns to the way in which nonhuman things and beings should be owned and distributed. Who can own what? Libertarians would claim that self-ownership provides a basis for ownership in general, and they use Locke’s theory of property to argue for that claim (I own myself, therefore also my labor, therefore also the fruits of my labor – since hardly anything in the world today hasn’t been touched by human labor, almost everything can be said to be owned by someone).

However, I argued elsewhere that this is a difficult if not impossible move. Hence, ownership should be justified independently from self-ownership, and should probably include the notion of a “fair share”, whatever that means. Perhaps this notion can be based on another element in Locke’s theory, namely the “Lockean proviso” that we should leave enough and as good for others, or on some form of sufficientarianism (meaning that all should have enough resources for basic subsistence, for a decent life, for a life worth living etc.). Or it could be based on the persuasive claim that the earth is the common ownership of all, regardless of the labor some have put into it. But I’ve already discussed those issues here and here respectively.

Why Do We Need Human Rights? (22): Private Property Rights, Justifications Based Not On Their Origins But On Their Purpose

Property is the set of rules governing people’s access to and control of things. Three types are traditionally distinguished: private property, common property and collective property.

Types of property

1. Private property

In the case of private property, an individual agent (usually persons, but also families, businesses etc.) has a right to private property if he or she has a right to control the object and to regulate access. Control means sole decisional authority: the individual agent is the only one who has a right to decide what should be done with the object or what should happen to it.

This right allows the owner to decide, to some extent, to do things with the object that affect other people. Private property rights include the right to use property in ways that disadvantage other people, as long as these disadvantages do not include violations of the rights of other people. For example, a factory owner can decide to close her factory. A rich person can decide to buy and own a large house even if some other families would benefit more from living there.

However, a factory owner deciding to use his factory in such a way that it harms the health of workers or of neighboring families violates the rights of these people, and her property rights do not include a right to violate the rights of others. In such cases, rights have to be balanced and the more important right (depending on the circumstances) should prevail.

2. Common property

In the case of common property, the purpose is not individual control and exclusive access, but, on the contrary, equal access to all. Common property of a park or a common grazing field, for instance, is meant to stop certain people using it as if it was private property and as if others were precluded from using or accessing it. If farmers are allowed to use a common field for their cattle, common ownership would imply that no farmer overuses the field and brings so many cattle that there’s no grass left for the cattle of other farmers. Farmers who violate this rule of common property act like the field is their private property because they exclude others from using it. (That’s also called the tragedy of the commons, to which I will return below).

3. Collective property

In the case of collective property (sometimes also called joint property), the purpose is not only equal access to all but also equal control and decisional power. The community as a whole determines, through systems of collective decision making, how the resource is to be used. Each individual’s use is subject to a decision process to be concluded to the satisfaction of each of the co-owners – or of a majority, depending on the type of collective decision procedure. Collective ownership of a farm, for instance, means not only that all farmers belonging to the collective have an equal right to access the farm (as in common property), but also that all farmers have an equal say in the management of the farm. The latter is not (always) the case in common ownership: equal access to a commonly owned park does not (necessarily) imply an equal say in the management of the park.

When does property make sense?

In many cases, talk of property only makes sense under conditions of scarcity. In the case of private property, there would be no reason to demand exclusive control over and access to things if these things were so numerous and abundant that no one else would want to control or access what you want to control or access.

And yet, in the case of intellectual property for example, which is by definition, in our age at least, anything but scarce given the means of reproduction, we still talk about private intellectual property in the sense of exclusive control of access. But in general, it makes sense to view private property as meaningful only in circumstances of scarcity. (Perhaps that’s a good reason not to talk about “intellectual property” at all). The same is true of common property: if the whole wide world were a park, there would be no risk of some people excluding others from accessing it, and hence no need to talk about the common property of the “park”. And the same is true for collective property.

What does property require?

First, it requires rules. It only makes sense to view types of ownership as rule based. Property is in essence a rule. You can’t say that something is your property simply because you have it, hold it, exclude others from it etc. You have property because there are social rules granting you property of something and granting you rights to defend it. People should not rely on their own strength or willingness to cooperate in order to defend their holdings.

Because the state intervenes in the enforcement of property rules and rights, it’s important to have a morally sound justification of those rights. Hence, property also requires a justification. We wouldn’t want the state to use its power for immoral or unjustified ends. I’ll focus on the justification of private property in the remainder of this post because that’s arguably the most common type and the one that most often raises moral issues.

Some of those issues are the morality of taxation and eminent domain, the needs of the poor, the justification of redistribution, the property we’re allowed to own (guns?) or sell (organs?), the things we’re allowed to do with our property (shoot our gun at people? suicide?) etc.

Justifications of private property

What is the point of private property? It must have some moral value, otherwise the moral issues just cited wouldn’t arise in the first place and private property wouldn’t receive legal protection. From the discussion above, we know what private property is, which other types of property there are, which rights property entails, when it is likely to make sense, and what it requires. But we don’t yet know why there should be private property. Some would say that there’s no way for property rights to come about or to be justified because if you go back far enough in time – and sometimes that’s not very far – all “property” is in fact the result of theft of commonly owned resources.

John Locke is famous for his attempted justification of private property. My body is my own and my property, and hence I also own the power of my body. Through labor I incorporate the power of my body in the goods I produce. By working on an object, I mix my labor with the object. If someone wants to take this object away from me, he also takes away my labor, which means that he takes away the power of my body. He therefore uses my body, which is incompatible with my right to possess my own body.

However, justifications like these tend to be very shaky. Hence, I think it’s better not to focus too much on the ways in which, historically or theoretically, a right to private property has/can come about in a world that’s originally equally owned by all. We should rather think about what would happen when a right to private property, taken as a given, would disappear, and distill a justification from that (in other words, trying to look for a consequentialist justification).

We can, in fact, without much trouble, list a number of harms that would result from the elimination of a right to private property. Kant defined property as “that with which I am so connected that another’s use of it without my consent would wrong me”. What wrongs would that be? Here’s a tentative list:

  • Private property is a means to protect the private space. Without private property, without your own house or your own place in the world, and without your own intimate and personal things, it is obviously more difficult to have a private life. The four walls of your private house protect you against the public. Without private property, there is no private world (another example of the indivisibility and interdependence of human rights).
  • Just as there is no light without darkness, there is nothing common to all people and no public space without private property. So private property protects publicity, commonality etc. Freedom of speech, one of the most public acts, is difficult to imagine without privacy and secrecy, and hence without private property.
  • Independence, self-reliance, autonomy, and therefore also freedom, are important values, and these values rely heavily on private property.
  • Private property is also important for the creation and maintenance of relationships. You have your own house and your own place in the world, but not in the world in general. You live in a particular world, in a very concrete social context of friends, enemies, neighbors and other types of relationships. A place in the world is always a place in a particular community, even if you have to transcend this community now and again. And it’s difficult to imagine a place in a particular community without you own home and hence without private property.
  • Private property is an important tool in the creative design of your personality, especially, but not exclusively, when you are an artist.
  • It is obvious that without private property there can be no help or generosity. Generosity and the absence of egoism are important for the preservation of a community.
  • Private property prevents the tragedy of the commons, referred to above. If everyone has free access to a piece of land for example, then no one has an incentive to avoid over-usage. Every additional cow an individual introduces for grazing brings full benefits to the individual, whereas the costs of overuse resulting from the additional cows are shared among all individual users of the land. Conversely, the benefits of any individual’s self-restraint will accrue to all the other individuals whether or not they also exercise self-restraint. Individual self-restraint is ultimately useless unless all cooperate, which is unlikely because the benefits of self-restraint for each individual are outweighed by the benefits of overuse. Only private property allows people to reap the benefits of self-restraint.
  • The right to private property, and in particular, the right to your own house, is linked to the freedom to choose a residence, which again is linked to the freedom of movement (again another example of the indivisibility of human rights).
  • As already mentioned above, you also own your own body. Your body is part of your private property. It is something that is yours; it is the thing par excellence that is your own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning your body means that you are the master of it. Other people have no say in the use of your body; they should not use it, access it, hurt it or force you to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. It also implies the right to self-determination, and therefore, the right to die. You carry prime responsibility over your own body and life.

Property is therefore an instrumental value, one which serves the realization of other values.

All these advantages of private property are advantages for everyone. Hence, everyone should have a right to private property, which may imply the need for some kind of redistribution benefiting those people who don’t have enough private property to realize all the benefits of private property (for example the homeless). Hence, the right to private property can be an argument against redistribution, but also one in favor of redistribution.

Private property as it is described and justified here is of course an ideal. The real existence of private property, and its actual distribution in the real world never matches this ideal, as is the case for all human rights. Property is often used to oppress others, and many people can never reap the full benefits of property. In the words of John Stuart Mill, the laws of property and the actual distribution of property have never yet conformed to the principles on which the justification of property rests.

But even in the ideal world, a right to private property is not absolute, nor is it absolutely beneficial, as I stated in the definition in the beginning of this post. Property can conflict with other values. There’s no way to escape value pluralism.

Lies, Damned Lies, and Statistics (29): How (Not) to Frame Survey Questions, Ctd.

Here’s a nice example of the way in which small modifications in survey questions can radically change survey results:

Our survey asked the following familiar question concerning the “right to die”: “When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it?”

57 percent said “doctors should be allowed,” and 42 percent said “doctors should not be allowed.” As Joshua Green and Matthew Jarvis explore in their chapter in our book, the response patterns to euthanasia questions will often differ based on framing. Framing that refers to “severe pain” and “physicians” will often lead to higher support for ending the patient’s life, while including the word “suicide” will dramatically lower support. (source)

Similarly, seniors are willing to pay considerably more for “medications” than for “drugs” or “medicine” (source). Yet another example involves the use of “Wall Street”: there’s greater public support for banking reform when the issue is more specifically framed as regulating “Wall Street banks”.

What’s the cause of this sensitivity? Difficult to tell. Cognitive bias probably has some effect, and the psychology of associations (“suicide” brings up images of blood and pain, whereas “physicians” brings up images of control; similarly “homosexual” evokes sleazy bars, “gay” evokes art and design types). Maybe the willingness not to offend the person asking the question. Anyway, the conclusion is that pollsters should be very careful when framing questions. One tactic could be to use as many different words and synonyms as possible in order to avoid a bias created by one particular word.

The Ethics of Human Rights (18): A Right to End Your Life

There’s currently some controversy over the Swiss Dignitas clinic where people can receive help in their attempt to end their own lives.  This is reminiscent of the controversy surrounding “Doctor Death”, Jack Kevorkian, in the U.S. some time ago, and the Oregon Death With Dignity Act.

The issue of assisted suicide or euthanasia usually arises in discussions on terminal illnes and suffering, but it is part of the wider problem of self-determination: do human beings have the right to determine and chose the time and the method of their own death, irrespective of health issues? And do other people have a right to assist them if they can’t execute their will themselves?

I’ll focus on the first question here, and I’ll avoid the legal issues for the time being, apart from this: in international human rights law, there is no right to end your life, hence no right to suicide, assisted or not, and hence no right to euthanasia (the differences between assisted suicide and euthanasia are negligable according to me).

Should there be such a right? I don’t know. I certainly support the moral right, based on some arguments which I’ll mention below. A legal right would remove some of the prohibitions on assisted suicide and euthanasia in some countries. In such countries, people have to travel abroad – to Switzerland for example – to end their lives, at least if they want to do it in a painless and guaranteed way. This means that there is discrimination: rich people have a painless way out (the Swiss ask a lot of money), whereas other people have to use painful or riskier methods or – worse – have to continue their lives involuntarily if their (medical) circumstances don’t make it possible for them to take matters into their own hands.

Why should there be a moral right to end your life? We own our own body. Our body is part of our private property. It is something that is ours; it is the thing par excellence that is our own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning our body means that we are the master of it. Other people have no say in the use of our body; they should not use it, hurt it or force us to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. But it also implies the right to self-determination, and therefore, the right to die. We should therefore be able to cimmit suicide without interference, at least as long as we are able to determine our will independently, and as long as our suicide doesn’t harm other people’s rights (e.g. if we throw ourselves in front of a moving car, or if we believe that our suicide leads us to heaven on the condition that we take a few infidels along with us in the grave).