by Ken MacVey

In my last two columns, I raised issues about certain versions of right-wing libertarianism. In my column “How Yard Sales Could Explain the Rise of Billionaires and Challenge Libertarian Thinking” I argue that the “yard sale model” developed by mathematicians and physicists to explain wealth inequality presents a provocative challenge to philosopher Robert Nozick’s vision of libertarianism as “utopia.” In my column “Crony Capitalism, Milton Friedman’s Contradiction, and Trumpocracy,” I discussed how Milton Friedman’s libertarian program was self-defeating by encouraging business to seek and get government favors inconsistent with a libertarian agenda.

Here I will discuss one of the most touted foundations for libertarianism: self-ownership. The first articulation of the idea of self-ownership is attributed to John Locke in his classic 1690* Second Treatise of Government* when he pronounced: “[E]very man has a property in his own person; this nobody has any right to but himself. The labor of his body and the works of his hands we may say are properly his.” Nozick himself traces his libertarianism to Locke. Based upon this mixture of labor with property, rights to other property are established. Ultimately all property rights are derived from self-ownership and property rights ultimately define our fundamental rights as individuals. Accordingly, the nonconsensual taking of property by private force or government taxation is violative of self-ownership and therefore wrong.

What is the Foundation of Self-Ownership and Property Rights?

It has been noted by critics, such as philosopher Thomas Nagel, that Nozick does not lay a foundation to justify the Lockean starting point. I personally have observed that many libertarian writers assert self-ownership as a given without further justification. Libertarian Karl Hess, for example, wrote in his pioneering manifesto “The Death of Politics” that “Libertarianism is the view that each man is the absolute owner of his life, to use and dispose as he sees fit.” That’s the extent of his justification of the self-ownership premise. Locke’s justification likewise does not go much further than its pronouncement. Nevertheless, the notion of self-ownership does have an intuitive appeal as a slogan. Versions of the idea can resonate outside libertarian circles, such as when women assert their reproductive rights (“I have the right to control my own body”).

There are some important values of autonomy the idea of self-ownership tries to capture. But there are problems with the idea.I noticed some of these problems when I was in law school. Harold Demestz was a nationally known economist who was associated with what was called the Chicago School of Economics. This school was part of the law and economics movement originating at the University of Chicago that used economics as a framework to investigate, explain and critique law. It was conservative/libertarian oriented in arguing against case law, statutes and regulations that ran afoul of laissez-faire capitalism. But the Chicago School and law and economics movement also attempted to provide empirical explanation why law, particularly Anglo-American common law, was the way it was.

Demsetz was a visiting professor at my law school when I took his course on law and economics. There was a self-described libertarian in the class who applauded Demsetz’s arguments in favor of government lite markets. But it became apparent that Demsetz’s economic framework was in keyways incompatible with the student’s libertarian framework. Demsetz wrote a well known article called “Toward a Theory of Property Rights.” He recited historical situations (such as the growth of the fur trade in North America) whereby property rights came into existence because, according to him, they promoted economic efficiency by constraining resource depletion (a problem sometimes called “the tragedy of the commons”). The libertarian in the class seemed distraught that Demsetz’s explanation for property rights was not based on natural rights such as Lockean self-ownership but instead on economic efficiency. The problem that dawned on him is that if economic efficiencies are the empirical explanation and normative justification for property rights they don’t necessarily have anything to do with a natural right of self-ownership. Indeed, it might even explain and justify laws not compatible with a natural rights version of libertarianism. Taxation—verboten under self-ownership principles—might even be justified for economic efficiency reasons in preventing free riding on public goods, such as national defense or an effective system of laws necessary for upholding individual rights, which would otherwise be under-produced or not produced at all. (Even Ayn Rand disciple Alan Greenspan acknowledged as an economist that essential government services required taxation, contrary to Ayn Rand’s in toto rejection of taxation as violative of property rights.)

The Concept of Self-Ownership Does Not Fit in with Actual Property Rights

When thinking more about it, the idea of self-ownership struck me as odd. Property rights, as Demsetz himself helped to demonstrate, is a creature of convention and law developed over time in a course of usage which in some manner gets set by custom, decree or adjudication. Property rights as developed in case and statutory law were not said to be based on individuals’ self-ownership. In fact, studying property in law school revealed property legally can be owned not just by individuals but also by non-individuals, such as churches, colleges, governmental entities, non-profit charitable organizations, which aren’t owned by any individuals, or anyone for that matter. The only time the idea of self-ownership came up when I was in law school was when my law professor teaching a class on business associations mentioned it was legally possible for a corporation to be the sole owner of itself. He added law professors labeled these corporations “ghost ship corporations” with no idea how they could function.

“Self-ownership” cannot be found in legal dictionaries or treatises on property law either.

The idea of “self-ownership” as a natural right of individuals also seemed a poor fit with property rights in general. Inherent in property rights is a duality between owner and property. With self-ownership, there is no such duality. Ownership of specific property is also typically a matter of contingent fact. Whether you own a car or a house or piece of land is contingent. But self-ownership is automatic just by being an individual human. Property is generally transferrable and for that reason is usually associated with markets where property can be exchanged for money or other property. There are no legal markets for people selling themselves. (I will discuss in a bit whether it makes sense ethically or morally for individuals to be able to sell themselves into slavery.)

The Concept of Self-Ownership Has Not Been of Practical Use in Defining Rights

It’s unclear what is owned under “self-ownership.” There are situations in law where personal features of individuals are subject to property claims and when they are not. If someone captures your likeness by taking a picture of you and puts the picture on a product for sale without your permission, you have legal rights to compensation and injunctions as a right to privacy. But if you are in a protest demonstration and your picture in the protest happens to be published in a newspaper you have no legal claims. If a comedian does impressions of celebrities, no court has held their rights were violated by this appropriation of their likeness. The California Supreme Court dealt with a patient at a university medical center who had his spleen removed as part of his treatment for cancer. He sued the university when learning his spleen had unique cellular characteristics that provided the basis for a patent application by the university. The patient claimed the spleen was his property and that the use of his spleen tissue for a patent constituted wrongful conversion of his property. The California Supreme Court rejected the property claim. (But the Court found the patient could sue the doctor for lack of informed consent.) In 1905 the US Supreme Court ruled that a statute in Massachusetts requiring adults to have smallpox vaccinations was constitutional and did not violate any liberty or property right because there was no right to expose others to smallpox.

The point is that the idea of self-ownership has not actually shaped property or other legal rights in practice.

This may because the concept of self-ownership is so indeterminate it can’t provide practical or legal guidance on what aspects of a person should be considered part of that person’s property. Do you own the information about yourself that you generate by clicking away on the internet? Do you own unique segments in your DNA which you can then patent? Do the police violate your property rights by gathering a sample of your DNA from your discarded trash? Does self-ownership mean you should have the right to copyright a book title you came up with for your novel ? (Not allowed under current copyright law.) Should it provide for the right to establish copyright of a novel lasting longer than the author’s life when any self-ownership arguably ceases with death? (Allowed under current copyright law.) If there are to be term limits for patents and copyrights, how long should they last? The concept of self-ownership does no work in answering these questions.

It gets particularly tricky with children. Do they own themselves? If so, on what basis do parents have to discipline and control them? If they don’t, when and how do children develop self-ownership? Do parents own in whole or in part their children because children are “derivative” of their parents’ self-ownership? If so, do parents have full rights in deciding how to discipline their children before adulthood, even by beatings?

Does a pregnant woman by self-ownership own her embryo or fetus or does the embryo or fetus have independent self-ownership?

What about animals? Do they own themselves too? If not, is it therefore permissible to torture a cat just because you own it?

The concept of self-ownership is not particularly helpful in grappling with what people really care about in confronting such questions as how to raise children, whether abortion is permissible, or whether and when to draw the line on animal cruelty. We focus on issues other than self-ownership–children simply are incapable of taking care of themselves but become more so with time. So we set legal milestones, maybe age 16 to get a driver’s license, 18 to vote and to enter a binding contract, 21 to drink alcohol legally. The idea of self-ownership really is unnecessary to come up with the rationale for such milestones. It’s just cruel and outrageously wrong for parents to beat their children–it’s not a matter of property rights at all. In the case of abortion, maybe it violates fundamental notions of autonomy t0 say that embryos have personhood that trumps the mother’s own personhood and agency when the embryo has no developed nervous system or agency. Others, on the other hand, may object that human life is inherently sacred or it’s a slippery slope to allow abortion–again having little or nothing to do with self-ownership. And torturing animals for fun is simply sick and evil whether or not perpetrated by their owner.

How the Mixture of Labor Creates Rights in Other Property Is Confusing

As Locke and libertarians have suggested, the idea of self-ownership also gets tied with the idea that it is the mixture of one’s labor with property that creates rights to other property. If you come across an acre of unclaimed land and plant corn on it, your labor makes the land yours. But how does that work? Why should you have mineral rights just because you planted corn? Why should you get to build a shopping mall or a smelly pig farm on it just because you planted corn? Why should you get to own it with no time limit just because you cultivated the land for a year?

The Lockean idea that the fruits of labor create rights to property was a prelude to the labor of theory of value propounded by early economists such as Adam Smith and David Ricardo. They proposed that the exchange value of a good was based on the amount of labor required to produce it. If two different commodities required the same number of labor hours to be produced, their exchange value measured monetarily or by exchange with other commodities would be equal. If you own yourself, the argument goes, you own the fruits of your labor, which is why libertarians like Nozick considered taxation a form of slavery or what he called forced labor. Your labor is being confiscated and you are a de facto slave working for someone else. (Never mind the fact that taxation which funded public infrastructure, police protection, and judicially enforceable contract rights may have made any work opportunities possible in the first place.)

Karl Marx, on the other hand, claimed the confiscation went a different way. He used the labor theory of value to explain how capitalists exploit workers by appropriating their full labor without full compensation in order to grab a profit. (Never mind the fact that risk-laden capital investment may have made compensation and the work possible in the first place.) This was the ultimate Marxian jujitsu flip. Lockean self-ownership used to prop up private property rights was used to undermine them. But the labor theory of value ultimately went by the wayside with the marginal utility revolution in economics (perhaps in response to Marx) contending economic value was based upon subjective value and preference, not labor.

At the same time, there are current left versions of libertarianism that take self-ownership as foundational but which are compatible with wealth redistribution based on equal rights to natural resources. I won’t explore these versions of left libertarianism but wish to note how the thesis of self-ownership can be played on opposite sides of the street and be so bendable as to risk being practically meaningless.

How the Idea of Self-Ownership Can Undermine Autonomy

What the idea of self-ownership tries to capture is the importance most of us place in having some kind of autonomy, some kind of equal and reciprocal rights and say over how we are to live. Yet versions of right libertarianism can undermine that notion. Does self-ownership include the right to sell oneself into slavery? Robert Nozick in his book Anarchy, State and Utopia said yes. Implicit in the concept of property rights is the ability to exclude others from property but also to transfer property to others. If you own yourself, the argument goes, you should be able to “transfer” your property consensually, including selling yourself into slavery.

There are at least two problems with the idea that one has the “liberty” to sell oneself into slavery. First, some aspects of personhood are not transferable. You do not have the right to give up your autonomy in a way that relieves yourself of the duty to be moral or ethical. You remain a person and a morally bound agent even if you sold yourself in slavery. If you are told by your slave master to kill or torture someone, you are not relieved of your duty from refraining from doing what is plainly wrong. To say you are morally bound by your consensual agreement to do whatever the master says, no matter how evil it is, is contradictory. There can be no moral or ethical obligation to be immoral or unethical.

Second, the appeal of the idea of self-ownership and libertarianism is their attempt to capture something important about autonomy. But it is easy to anticipate circumstances where groups of people would agree to sell themselves into slavery. If someone has been lost at sea for days and is found at sea by a fisherman who conditions rescue upon the rescued agreeing to become the fisherman’s slave, it is easy to see how such agreement could come about. If there was a war, a natural disaster, a civil war, a societal collapse, it is easy to see how a wandering group of militias would say, “We will save and protect your life and feed you if you agree to be our slave.” The group then could go on picking up more and more slaves on that basis. There could even be competing or warring groups doing the same to the point that as a matter of survival virtually everyone has agreed to be a slave in one group or another. To say that everyone is bound by such an agreement in the name of freedom is absurd. To say everyone in such a situation is really free is absurd

It might be argued such an agreement cannot be binding because there is no “real” consent in such extreme situations. But any libertarian, or anyone else taking this position, should flesh it out. Does “real consent” apply to workers born in a company town where the company is their sole source of income, food and transit? Does it apply to a congenitally disabled homeless person who has no feasible alternative but to live on someone else’s property just to exist? Does it apply to a minority in a racist geographic region where the majority exercise their property rights in concert to deny the minority access to travel, restaurants, hotels, education, non-menial employment, or other fundamental means of livelihood? Can it be said the workers, the disabled, and the minority in these examples have autonomy in any meaningful sense even if they retain self-ownership as framed by libertarians?

The Libertarian Mistake

The problem is that self-ownership as a foundation of autonomy can be incompatible with meaningful autonomy, which, to borrow from legal philosopher Ronald Dworkin’s book Life’s Dominion, can be described as the right of individuals “to make important decisions defining their own lives for themselves.”

Worse, such a notion can be logically compatible with living in a society no one would want to live in. For example, as discussed in my column on the yard sale model and libertarianism, such libertarianism is logically compatible with a society where only a small group owns all the property or where everyone is miserable because of libertarianism.

According to student notes on one of Immanuel Kant’s lectures, the concept of self-ownership should be rejected because it collapses the duality between owner and property. It transforms persons into property, thereby equating personhood with “thinghood.”

Self-ownership-oriented libertarianism leaves out too much that is critically important to human flourishing, ethics, and morality. The libertarian mistake is to use property rights to define what is valuable and right instead of using what is valuable and right to define property rights. The hierarchy of values is turned upside down—what is derivative is taken to be fundamental, what is fundamental is taken to be derivative. To assert we are property misses the mark. There is much more to us and what is important than that. Property as a concept is our servant, not our master.

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