Perhaps the best argument against utilitarian and self-ownership defenses of libertarianism is this:
Utilitarianism is too consequence-sensitive and self-ownership is too consequence-insensitive.
It’s a simple criticism. Utilitarianism is well-known for being too insensitive to matters besides utility, such as the separateness of persons (as Rawls made famous in TJ). Utilitarianism provides an unattractive account of our reasons for action, as all reasons for action ultimately rest on the promotion of utility. The same goes for consequentialism, as all reasons for action ultimately rest on the promotion of whatever we decide are salutary consequences. But our reasons for action simply do not all depend on what promotes good consequences. To give two common cases, we often have reason to keep our promises even if it makes us worse off. Further, we usually have reason to respect rights even if we sacrifice utility in the process.
But the self-ownership principle overcompensates for the deficiencies of utilitarianism. As BHL-ers well know, the self-ownership thesis coupled with right-libertarian principles of acquisition, transfer and rectification can leave people out in the cold and fail to provide for the least-advantaged. While Cohen surely exaggerates, he was not entirely wrong when he said of Nozick’s view that “there is no more justice in a millionaire’s giving a five dollar bill to a starving child than in his using it to light his cigar while the child dies in front of him.” (Cohen, SFE, p.31, ft.28.)
While Nozick’s proviso on acquisition (ASU, 178) bars acquisitions that make others substantially worse off, we can still see Cohen’s point in the abstract: justice requires not letting people suffer in easily avoidable ways. We may be self-owners but it is hard to see why that fact is so weighty that it cannot be overridden by the easily met needs of the least well-off.
Of course, there is a distinction between the self-ownership thesis and the enormous priority typically ascribed to it. One might demote the weight of the self-ownership thesis. But for the self-ownership theorist, this demotion would destroy the thesis. For true moral ownership cannot be so easily overridden.
People try to amend both approaches to avoid these drawbacks. Utilitarians sometimes put rights into utility functions, for instance. And left-libertarians conjoin self-ownership with a principle of equal resource ownership, which helps to avoid the untoward consequences of self-ownership.
I find such attempts ad hoc. Instead of trying to repair these principles, I think we should look for an alternative contractualist view on which state coercion is permitted only when persons cannot reasonably reject the rules or principles on which the coercion is based. Reasonable rejectability is a somewhat vexed standard, but reasons to reject (or accept) will include both teleological reasons beloved by consequentialists and deontological reasons beloved by self-ownership theorists.
The promise of contractualism is avoiding the Scylla of consequence over-sensitivity and the Charybdis of consequence-insensitivity in an intuitively compelling principle.
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