Sobel’s New Argument Against Self-Ownership

By On March 6, 2012 · 59 Comments · In Academic Philosophy, Libertarianism, Rights Theory

I thought BHL readers might be interested to learn about two cool new companion papers arguing against the Self-Ownership Thesis (SO) written by philosopher David Sobel. Sobel argues that SO is implausible because it cannot differentiate between normatively significant and normatively insignificant impingements on other people’s bodies. In other words, SO draws the line between the permissible and the impermissible in the wrong place. That counts as a strong reason against it.

To be more specific, SO claims that “we are entitled to powerful protections against even trivial infringements on our property” which has very unattractive consequences. However, if we weaken SO, then it becomes a less attractive principle on which to base a non-consequentialist political morality. At the very least, SO fails to ground a robust right or left-libertarianism.

Sobel makes his argument in two papers. In his first paper, “Backing Away from Self-Ownership,” he focuses on Nozick’s engagement with this problem by utilizing a principle Sobel calls “Cross and Compensate,” which can be found in Chapter 4 of Anarchy, State and Utopia. The second paper, “Self-Ownership and the Conflation Problem” addresses a number of other replies.

So instead of summarizing the papers as a whole, I focus on the theme I found most compelling, namely what Sobel calls the Conflation Problem.

The SO principle is an example of a “Broad, All or Nothing” deontological theory that seeks to “illuminate a broad swath of the moral terrain with a single principle.” And this principle suggests that “an action either fully has the morally problematic feature or fully fails to have it.” But the problem is that “such views conflate cases on the trivial end of the spectrum and on the serious end and treat them as if they were equally morally important.” This is the Conflation Problem.

Sobel draws our attention to the case of pollution. If I pollute your property, I am impinging on it. But I can pollute your property to varying degrees. The SO principle claims that all such pollution is impermissible and contains within itself no way of explaining why minor pollution is less wrong than major pollution. So consider three cases where my land is adjacent to yours and I run a shop that releases a small amount of oil into your water.

(i) Unnoticed Oil: the oil does not affect your health and you cannot see, smell or taste it.

(ii) Noticed Oil: the oil does not affect your health but you can see, smell or taste it.

(iii) Harmful Oil: the oil adversely affects your health, though to a minor degree.

An unmodified SO-principle claims that all of these impingements are wrong, full stop. However, we expect for principles of right to distinguish between the permissibility of Unnoticed Oil, Noticed Oil and Harmful Oil. Harmful Oil is morally worse than Noticed Oil which in turn is morally worse than Unnoticed Oil.

One way of handling this problem is to require me to compensate you when it is prohibitively expensive for me to avoid polluting your water. Compensation comes in degrees, so a compensation principle promises a way out. With a compensation addendum to the SO-principle, perhaps we can solve the Conflation problem. Nozick arguably pursues this strategy.

But Sobel rejects Nozick’s approach, canvassing a number of problems with the cross and compensate principle, which is substantially underspecified. There are questions, for instance, about the basis for compensation. Is compensation based on subjective desires? Objective interests? We might also wonder whether compensation truly preserves self-ownership or whether it in fact makes others partial owners of your property in virtue of their right to compensation. If so, we’ve backed away from self-ownership. You’ll have to read Sobel to explore these moves in detail, though I found Sobel’s case compelling.

An alternative move that Sobel does not address (and with good reason, since it’s not in the philosophy literature’s ambit) is to situate self-ownership within a broader theory of practical reason which may in turn provide resources to help an SO principle make fine distinctions. The most obvious candidate is Roderick Long’s eudaimonist libertarianism, which takes the self-ownership principle to specify the content of the virtue of justice (the virtuous person complies with the SO principle) but holds that the content of the virtues cannot be determined independently of one another. So the virtue of benevolence may flesh out the content of the virtue of justice such that justice identifies Harmful Oil as worse than Noticed Oil because it requires people to allow harm to come to others, contrary to benevolence. The benevolent person would be more hesitant to allow Harmful Oil rather than Noticed Oil to occur.

I suspect the right response to Sobel requires probing the foundations of SO in the structure of practical reason. Perhaps such a strategy can resolve the Conflation Problem. But until some libertarian theorist does that work, Sobel’s arguments stand strong.

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  • Sheldon Richman

    This sounds a lot like David Friedman’s critique.

  • http://www.facebook.com/profile.php?id=743482150 David Sobel

    In my “Backing Away” paper I claim that Nozick was quite concerned about a worry of this form. The pollution complaint is certainly not novel to me. I try to generalize the worry (mainly in the “Conflation” paper), make it as forcefully as possible, and argue that Nozick and other self-ownership libertarian’s attempts at solutions fail.

  • MARK_D_FRIEDMAN

    This is a complicated subject, which I will not attempt to cover in depth here. Rather, I will just make a few quick points without extensive argument. First, although Nozick’s discussion here is not crystal clear, I believe it is almost certain that he intends the principle of “cross and compensate” [infringe rights but compensate the holder] to apply only to typical activities that people would reasonaby like to conduct, such as driving, that unfortunately pose a substantial risk to innocent third parties. He uses the example of an epileptic driver. So, he says at the top of p. 82 of ASU, “This principle is meant to cover forbidding the epileptic to drive while excluding cases of involuntary Russian roulette and the special manufacturing process. The idea is to focus on importans done by almost all, though some do them more dangerously than others.” So, we could prohibit  the unfortunate epileptic from driving, but would have to compenate him for the loss. 

    However, even as so limited, immediately upon ASU’s publication anarcho-capitalists such as Roy Childs and Murray Rothbard pointed out that this idea is inconsistent with Nozick’s basic understanding of rights, which he himself noted might require “that either you have the right to forbid these people’s risky activities or you don’t.” (ASU, p. 83). 

    Nozick was tempted by the principle of “cross and compensate” because he needed it for his defense of the minimal state as not inherently rights-violating. A critical move here is to prohibit the independent administration of justice by independents in exchange for the protection of the minimal state. But this justification the minimal state is almost universally (and correctly) regarded as a failure. But the fact that this defense fails does not imply that no other justification is possible.

    It is quite clear that Nozick does NOT derive libertarian rights from self-ownership, but rather on the value of rational agency, and the fact that coercion is inconsistent with the exercise of this capability. Thus, without compromising his basic principles, and assuming an alternative justification of the minimal state, he can abandon “cross and compensate” in favor of a more defensible means of arbitrating potential conflicts of rights in cases such as pollution and risk, such as cost-benefit analysis. This techinque would be employed to determine the scope of rights, but would not give anyone a license to violate a right in exchange for compensation.

  • http://www.facebook.com/profile.php?id=743482150 David Sobel

    Mark,

    In my opinion you are conflating cross and compensate with Nozick’s Principle of Compensation. What you write is true of the latter, but I think not of the former. Nozick is, I believe, not good at separating these two different claims. But he does seem to acknowledge that they are different and that the Principle of Compensation is not just a special case of cross and compensate on p. 87. 

    Nozick seems to treat the Kantian claim that there is no legitimate sacrificing of one of us for others as the foundation of the view and derive (or at least wish to derive) libertarian constraints from that. I think this Kantian rationale for the view is the main problem with the view. I think the unwillingness to sacrifice one, no matter how trivially, for benefits to others, no matter how important, is the problem with the view. And the catastrophe exception is insufficient to remedy the problem. We see how difficult it would be to avoid sacrificing the one, even trivially, for others when we consider pollution and risk cases. 

    I wonder about the cost/benefit approach you favor. Does it permit us to impose costs on one person provided the benefits to others are much more significant? If so, then it is not clear to me that it captures Nozick’s Kantian rationale.

    • MARK_D_FRIEDMAN

      Thanks for the comment. I agree with you that Nozick’s discussion about rights violations/compensation is not well focused or clear. Nevertheless, I don’t believe that Nozick ever endorses as a general principle the idea that we are morally free to infringe the rights of others so long as we are prepared to compensate them. This, it seems to me, would be wildly inconsistent with the overall substance of libertarian rights that he wishes to uphold. I note that on p. 78 he places the sub-heading “The Principle of Compensation,” so I tend to see all of the discussion that follows as relating to this principle, and not to a more generalized license to “cross and compensate.”

      My suggestion about CBA is along the following lines. Nozick’s Kantianism is built on “respect for persons” and the idea of not using a person solely as a means to the accomplishment of some supposedly greater good. I do not believe the “respect for persons” is violated when person A exposes person B to a trace amount of pollution that people in that community willingly accept under similar circumstances, as measured by CBA. So, if A wishes to grill food on his backyard BBQ, emmitting a trace level of pollution that people typically do not object to, his neighbor B cannot object that his libertarian rights are violated. But, if A wishes to do something in his yard that would be ruled out on CBA methodology, B has a right to object, and A is not entitled to proceed and then compensate B. CBA is just used to establish the existence of a right, once established the right has great stringency, because the violation of the right would offend “respect for persons.” This is just the outline of the idea I develop in greater depth in my book. 

  • http://marjaerwin.livejournal.com/ Marja Erwin

    Who gets to decide which of the infringements, when it comes to our bodies, are ‘trivial’ and which of the infringements are not? If it’s not the survivors, it’s all-too-likely to be the people with the most influence, the people with the most power, who aren’t on the being-violated end of rape culture. If libertarianism is to mean liberation for all, libertarians have to empower the survivors, not silence us. And that means speaking against rape culture, speaking against the idea that some violations of our bodies are ‘trivial’ – an idea that all-too-often gets tied to our status and our violators’ status – and speaking for a culture of genuine equality and genuine consent.

    If anything I think self-ownership is too weak. We need a stronger right to our own bodies, and bodily autonomy, and I think that may require a much weaker right to some external property. Self-ownership seems to use this weaker right to some external property as an analogy for what should be the stronger right to our bodily autonomy.

    • Kevin Vallier

      (1) Some one or group must make the decision. The answer is probably to establish some sort of convention. Forgoing all impingement is practically impossible.

      (2) SO is often defined as maximally extensive ownership over the self, so what do you have in mind?

      • http://marjaerwin.livejournal.com/ Marja Erwin

        (2) I think that one’s self *is* one’s self and *includes* one’s body, while it *owns* things which are, at best, at some remove from the self. Speaking of ownership implies some separation, and that undermines the case for, well, self-autonomy.

        (1) I think a libertarian society needs strong respect for one’s autonomy, including one’s bodily autonomy – I’m not including one’s possible property claims here. Allowing some outside group to decide which violations matter, and which ones don’t, comes awfully close to rulership, and awfully close to rape culture. Now I’m not ready to present absolutes – if someone is unconscious, or is unable to communicate, one shouldn’t wait for permission before administering first aid – but as long as we have rich men, who hardly have to worry about being raped, deciding what count as significant and insignificant violations of poor womyn’s bodies [and poor men's bodies via the prison system], and blaming the victims, and setting the cultural norms, we have a very real problem.

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

      “If anything I think self-ownership is too weak. We need a stronger right
      to our own bodies, and bodily autonomy, and I think that may require a
      much weaker right to some external property. Self-ownership seems to use
      this weaker right to some external property as an analogy for what
      should be the stronger right to our bodily autonomy.”

      Yes, this. The SO principle seems strange to me because it seems to start with the rights to external forms of property as primary and then, by declaring our persons to be a form of property, extend those property rights to say, “You can’t tell me what to do!” because that would violate my right to do as I wish with my “property”.

      And then this post is even stranger, since it seems to have everything to do with external property and nothing to do with our persons. So I’m not sure what self-ownership has to do with it anyway.

      It just seems backwards, upside-down, and inside-out to me.

      • http://marjaerwin.livejournal.com/ Marja Erwin

        To me, self-ownership is a misleading term, but if one’s talking about self-ownership, one has to be talking about one’s mind, or body, or an immediate extension thereof such as one’s privacy. Not land, not goods, etc. since those would be property-ownership, or something.

        If this is merely about external property, why mention self-ownership?

        • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

          Good point, Marja.

          This is purely my conception of how Lockean property rights should be prioritized, but the order, with #1 being most important, should go something like this:

          (1) one’s body and mind;
          (2) the labor, energy or actions that proceed from one’s body and mind;
          (3) external goods acquired through labor, such as food, shelter, clothing, personal vehicles, etc.;
          (4) buildings and land improvements attached to land;
          (5) land, which can really only be rented, though we often speak of “owning” land, ocean and air space access rights, etc.;
          (6) intellectual property rights that are allowed to exist beyond the point that research and development costs have been recouped;
          (7) property held by corporations or other artificial legal persons. 

          As Rod said in prior post, we almost have it backwards today.

    • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

      “Who gets to decide which of the infringements, when it comes to our bodies, are ‘trivial’ and which of the infringements are not?”

      Ultimately, those who are deemed to be owners of the coin and currency they use, which is why it’s so important to start objecting to current monetary system, which is becoming more oppressive each day.

  • http://www.facebook.com/profile.php?id=743482150 David Sobel

    Mark,

    That is interesting. Otsuka develops a perhaps somewhat similar line, saying that the rights of self-ownership rule out intentionally using someone as a means. In the third part of the paper I argue against that view suggesting that it does not provide our bodies anything like the kind of protections we intuitively think we are owed (it would not provide protection against people messing with our bodies for its own sake, for example, rather than as a means). Alternatively, one might, as Vallentyne, Steiner, and Otsuka do, offer a kind of threshold of border-crossing harm below which is not an infringement but above which is. I argue such a view has quite counter-intuitive results.

    • MARK_D_FRIEDMAN

      David,
      Thanks for this. Since the left-libertarians expressly ground their concept of rights in SO, I believe they are heirs to problems that Nozick avoids, like the ones you mention.

      I have not read your papers, but the argument against Otsuka’s position that you mention reminds me of an argument made by G.A. Cohen in Self-Ownership, Freedom and Equality, p. 242. As you know, Cohen was incredibly influencial on the left-libertarians.

      Cohen argues against what he calls Nozick’s “consent principle” that “…it appears that you can observe Nozick’s consent principle while rejecting self-ownership. For if you punch someone in the nose without his consent, you violate self-ownership, but you do not necessarily thereby use him to achieve some end, not even in the way a punching bag is standardly so used.”

      But, if we understand Nozick’s derivation of rights as grounded in respect for persons (as I contend), then I don’t think Cohen’s argument works. A person who gets behind the wheel while blindingly drunk, and then kills someone, violates respect for persons by his criminal negligence. The fact that he was too drunk to intend this result is irrelevant. So too, the person who punches you w/o intending to use you as a means violates respect for persons. This notion is, it seems to me, is certainly broad enough to cover both impermissible “means to an end” and “I simply don’t care” acts.

      • http://www.facebook.com/profile.php?id=743482150 David Sobel

        Good, so you (unlike Otsuka) would not say our rights protect us only against intentional actions that use us as a means but would say our rights protect us against unintentional negligence or against messing with me even if not using me as a means. So now we need to know where pollution and risk start counting as infringements. These things can vary continuously. It seems not tempting to me to suppose that there is a line, even a vague one, where up to that point is no problem but above it is a full infringement. Much more tempting, at least to me, to think we are owed some protection against even very small border-crossings, such as say taking a penny or a pin, but that the size of the protection varies depending on the significance of the crossing. 

        • MARK_D_FRIEDMAN

          And this is why you are a consequentialist and I (and Nozick) are deontologists.

          • http://www.facebook.com/profile.php?id=743482150 David Sobel

            I aspire to develop the view I described in a way that remains deontological. I am in fact a consequentialist but I think the most sympathetic development of the self-ownership thought should remain deontological. The difference, as I see it, in the view I develop is that deontological rights are variably powerful against aggregate value. But still one may not infringe to prevent 5 similar instances of infringing on the view I develop.

          • MARK_D_FRIEDMAN

            Interesting. Is there an ungated version of this paper available somewhere? 

          • http://www.facebook.com/profile.php?id=743482150 David Sobel

            Hopefully the links in Kevin’s initial post to my papers are working.

          • MARK_D_FRIEDMAN

            OK, thanks.

  • http://www.facebook.com/profile.php?id=743482150 David Sobel

    Marja,

    On Nozick’s view, the preferences of the victim of the border-crossing determines how much compensation is owed. Nozick is, of course, quite concerned to avoid paternalism and so arranges things so the person whose border is crossed must themselves think that they are no worse off for the combination of crossing and compensation than they would have been without any border-crossing.

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

      That’s ridiculous. “You stepped on my lawn. Now you owe me one million dollars!”

      • http://www.facebook.com/profile.php?id=743482150 David Sobel

        Yes, that would be ridiculous. But Nozick does not say that the victim can name their own price. Rather they must be compensated until they are, by their own lights, no worse off for the crossing upon their property.

        • good_in_theory

          So the more unreasonable and excessive my sense of entitlement to what I own – and the more excessive and unreasonable my sense of violation from having my property impinged upon in any way – the more I must be compensated to approximate the status quo ex ante, and thus the more I benefit from the cross and compensate private property system?

          Sounds like a good way of cultivating shrill, hyper-sensitive, entitled, narcissistic, self-important, litigious libertarians.

          Feature or bug?

          • http://www.facebook.com/profile.php?id=743482150 David Sobel

            Interesting point. I wonder if Nozick can delicately avoid the problem you raise (although there will be others). Perhaps he can say something like this: the relevant preferences should be self-regarding or about how my own life is going, not moralized preferences about how well by my lights things are going morally speaking. The hope would be to screen off people’s highly moralized preferences. Even if this works, and I am not saying it does, there will be issues with Howard Hughes types who are wildly fussy about minor pollutants in their environment.

  • http://www.facebook.com/profile.php?id=743482150 David Sobel

    Rod,

    I was thinking other people’s pollution landing on my hand is, on an unmodified version of the self-ownership thesis, an infringement on my right to my hand. I try to only assume strong rights over one’s own person, not over external worldly goods, as the latter are controversial among self-ownership libertarians.

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

      Hi, David. Just so you know, I’m not a libertarian… more of a standard liberal but I lean strongly Georgist. I’m also generally sympathetic to a lot of left-libertarianism.

      In a comment to an earlier blog posting on the SO principle, I made the point that I’ll repeat and expand on here. I find the SO principle distasteful because it seems to assume that human beings are members of that class of entities in the universe which can be owned, but then disallows it by the creation of a rule. Also, logically, “ownership” is — and hopefully I’m using this term correctly — a transitive? relationship. What I mean is that it involves two entities — a subject, which does the owning, and an object, which is owned by the subject. I’m not sure how it makes sense to apply the concept recursively in the first place.

      Anyway, I just think it makes more sense and is a better starting place to assume human personal autonomy and that autonomy categorically rules out placing humans in the class of objects that can be owned.

      What I find strange about arguments from the SO principle (beyond the above objections) is that it all seems terribly circular. First, they derive some notion of autonomy from property rights in your person and then, later — when people aren’t thinking about that derivation any longer — they use self-ownership to derive strong property rights. It’s like a Star Trek closed time loop that just exists by itself  apart from the universe at large, chasing its tail around and around.

  • http://pulse.yahoo.com/_5MR6G6XGFM3AXZKRBKWHU5XPOE LeeW

    So far as I can tell, no one has mentioned Jan Lester’s book, Escape From Leviathan, which strongly supports the self-ownership principle, but also recognizes that property rights cannot be sacrosanct if others are significantly imposed upon. As the subtitle states, his thesis is ”liberty and welfare” reconciled. See his articles defending his thesis on the Libertarian Alliance http://www.la-articles.org.uk/ 

  • j_m_h

    Seems to me that this critique applies to many moral propositions and more generally to all theory when it’s applied to the messy real world.  

    Not having read the papers I’m not sure if the position is that we should just drop the idea or only that we should always be aware of the setting — abstract theory where things can be black and white in the sense that trivial transgression are still transgressions or a practical setting where trivial is trivial and you’re just being an ass if you make too much of if.

    • http://www.facebook.com/profile.php?id=743482150 David Sobel

      In the “Conflation” paper I offer what I argue is the most viable version of the self-ownership thought. The cost of this version from the point of view of traditional libertarian conclusions is that not all redistributive taxation, for example, is impermissible.

  • famadeo

    I never understood the logic or the need of the SO. The proposition “I own myself” is obscure. If we’re talking about consciousness or free will or anything in that area, it seems weird to put it in terms of ownership. Furthermore, I don’t see the need of the guarrantee of ownership to explain or justify personal autonomy.

    • http://www.facebook.com/astrekal Alex Strekal

      This a million times. “Self-ownership” is an unecessary and confusing cluster-concept in a word, conflating metaphysical and moral-political claims and issues, and it imposes a presupposed framework of property onto the concept of personhood.

  • JCLester

    Self-ownership is not the fundamental principle of libertarianism, interpersonal liberty itself is. Where there are clashes we minimize any infringements of liberty, if necessary by referring back to the pre-propertarian theory of liberty. As outlined in reply to Zwolinski last week:

    Phase 0: Assume that interpersonal liberty as non-invasiveness (absence/minimization of proactive impositions) is applied in a pre-propertarian, state-of-nature, thought-experiment.

    Phase 1: Everyone controls (de facto owns) themselves (as this minimizes proactive impositions).

    Phase 2: Everyone controls/owns whatever else he can acquire without proactively imposing on others.

    Phase 3: Strong prima facie libertarian property rights in persons and several property (where acquired as in 2). But in the event of disputed or problem cases apply the pre-propertarian libertarian theory.

  • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

    Maybe this has been addressed in David’s papers, which I’m still digesting, but it seems that the compensation owed, if any, by “border crossers” depends on how much effort the offended party expended in establishing boundaries and preventing trespass, which I guess simply translates into how important the property right was to the violated party.

    If you continually trespass upon my lawn, that’s one thing, but if you continue to trespass upon it after I’ve erected a fence, that’s another.

    Likewise, a provocatively dressed hooker who is raped is a less serious crime than the rape of an appropriately dressed young woman who was simply jogging or minding her own business.

    • http://www.facebook.com/profile.php?id=743482150 David Sobel

      I don’t see any reason to think Nozick was committed to such a picture.

    • http://marjaerwin.livejournal.com/ Marja Erwin

      “Likewise, a provocatively dressed hooker who is raped is a less serious
      crime than the rape of an appropriately dressed young woman who was
      simply jogging or minding her own business.”

      You see, this is why I’m concerned about others deciding that my bodily autonomy is less important. This society already considers my bodily autonomy less important than some rich straight cis man’s – and this encourages the rape of those of us who are judged less worthy – who are poor, who are lesbian, gay, or bi, who are trans, who are women, who are sex workers, or who just ‘fit the profile.’ Everyone’s body and everyone’s bodily integrity is worthy of respect.

      • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

        Yes, Marja, and excuse me for provoking, and I agree that everyone’s bodily integrity is worthy of respect. My point is that some trespasses are more egregious than others (including where the rights holder has taken steps to establish clear boundaries). That’s why the law often adds words like “aggravated” to a crime, to signal that a higher price must be paid by the perpetrator.

    • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

      I think a better example of what I tried to say here has to do with the crime “breaking and entering.” 

      One of the defenses when charged with such a crime is that there was no “breaking,” i.e., the alleged victim left the door unlocked, which under certain circumstances can imply that entry (or alleged “trespass”) was intended, expected and/or foreseeable.

      So, again, the subjective state of mind of the person claiming property rights is I think very important.

  • http://anarchic-order.blogspot.com/ Curt-

    I’m no philosopher. So jargon isn’t going to work on me.

    What the description is missing is the fact that all of this happens in a community.

    There will be societal standards of compensation. Right now, those “standards” are set by legislative fiat, where they used to be based upon the common law.

    Without legislative fiat, community standards will (I expect) again be used to determine what is or is not trivial trespassing, what is or is not due for compensation and how much compensation is valid. This also deals with the so-called “free market failure” I’ve read where a wealthy person would be able to step on other people’s rights at will, since they could “afford it”. Such a repeat offender would end up paying far more, as their penchant for abuse violated the “community standard” that people ought to learn from their mistakes.

    I don’t see Self Ownership as an end point. There are no end points, no absolutes so long as people have to live together in a community.

    Self Ownership is a good starting point for principles, establishing a logical reason for private property, and for questions like “why is rape wrong?”

  • http://twitter.com/VelizCF CFV

    Firstly, an internal critique to your first paper (“Backing away from Self-Ownership”):

    “Nozick’s cross and compensate backs away from The Self-Ownership Thesis.” (p. 18). I think this conclusion is too quick. On p. 13 footnote 22 you say that liability rights are not an altogether retreat from deontologism (“The view remains deontological”).

    Thus, liability rights (cross and compensate) can be a retreat from rights understood as side-constraints, but not from The Self- Ownership Thesis in itself. Maybe you misidentify The Self-Ownership Thesis and rights understood as side-constraints.  The Self-Ownership Thesis is a normative thesis, about what I am the rightful owner, but can be compatible with that bundle of rights protected by property-rules or liability rules (or, in some cases, inalienable-rules if it forbids to sell oneself into slavery!).

    Secondly, a more general critique. I remain basically unpersuaded by your pollution example:

    “Suppose there is a pollutant that is produced by a wide range of human activity such as driving a car, flying a plane, running the lawnmower, making toasters, etc.  Suppose this pollutant’s only effect is to produce itchiness once a year in proportion to the amount it lands on one’s skin. Even at maximal itchiness, however, it is not debilitating but only annoying. Presumably putting this pollutant into the air such that it lands on me and I am affected by it is an infringement of my powerful property right to my skin. So, if you cause stuff to end up on my skin without my permission, you infringe my rights. My property right to my skin includes a prohibition against damaging it without my permission.”

    Pollution can occur – and in fact do occur in most cases – without harming self-owners agents.  Generally speaking, polluting the environment affects future generations, and since future generations arguably don’t have (yet) rights, they are not (yet) self-owners agents. Thus, the rationale to limit pollution does not follow from The Self-Ownership Thesis. Conversely, The Self-Ownership Thesis is not, as far as I can see, put in jeopardy by pollution, except in those relatively few cases in which there is actual harm to self-owner agents. In my view, this is more a problem about what constitutes harm than about The Self-Ownership Thesis. And even in those cases, it doesn’t follow from the Self-Ownership Thesis that  prohibition is the appropriate solution for externalities.  Pigouvian taxes can do the job without “shut[ting] down much of the economy of the world” and “radically restrict[ing] people’s liberties” (p. 8).  

    Cheers.

    • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

      “Thus, the rationale to limit pollution does not follow from The Self-Ownership Thesis.”

      I don’t think it does, either. Rather, libertarians like Locke and Jefferson might say that polluting, littering, wasting natural resources, etc. are affronts or trespasses to the property right that “Nature’s God” holds as the creator and keeper of his/her commons.

      • http://twitter.com/VelizCF CFV

        Thanks for the comment, Rick. Peter Railton says something rather similar in his well-known “Locke, Stock and Peril: Natural Property Rights, Pollution and Risk” (although he believes – and I do not – that the Lockean framework is inadequate to handle with pollution – risk is a different matter).

        • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

          Thanks, I’ll definitely look into Railton’s work. I don’t remember if it was you or not, but someone recommended books by A. John Simmons on Locke, which have been excellent, and believe that’s where I got the idea of “God” being a property rights holder of the commons.

    • http://www.facebook.com/profile.php?id=743482150 David Sobel

      CFV,

      What I mean when I say that cross and compensate backs away from self-ownership is that the boundaries of our property do not themselves create the side-constraints. Not all deontological views are self-ownership views. On Nozick’s view, as I understand it, we have strong rights against having other people harmfully messing with our property but no rights that others not mess with our property. If you think that is compatible with SO, then I guess you just have a broader notion of SO than me. 

      Consider my example of a pollutant that makes one a bit itchy and one prefers to not be itchy. Unless compensation is paid for that, I claimed, it is an infringement. Further, what counts as an infringement is determined by people’s subjective preferences such that Howard Hughes may legitimately turn down any compensation for such pollution and make it an infringement for us to put it into the environment. If there were a small group of such people, such pollution would be impermissible. But that, I was urging, seems clearly not true.

      • http://twitter.com/VelizCF CFV

        David,

        I believe my point still stands. The Self-Ownership Thesis can be compatible with some rights protected by liability-rules, property-rules, or a mix of both. Also, they can be protected by inalienability-rules: for example, if one sells permanently into slavery, the State should refrain from enforcing that (immoral?) contract – I am not passing a substantive judgment about this issue, only showing that The Self-Ownership Thesis is not conceptually incompatible with inalienability-rules. 

      • MARK_D_FRIEDMAN

        David,
        Just a quick word on your interpretation of Nozick. As you know, his discussion in Chapter 4 of border crossings, compensation, etc. is preliminary to and I believe a necessary step in his argument for the minimal state, which occurs in the next chapter. The absolutely key move there is his claim that the DPA can prohibit independent enforcers of justice from acting against its clients, even if the independents wish to employ the same procedures used by the DPA, on the groounds that this presents too great a risk to its members (ASU, 108-10). According to Nozick, the DPA is morally entitled to prohibit such independent enforcement of justice, provided it compensates those so disadvantaged with membership in the DPA.

        Thus, the only part of “cross and compensate” that Nozick actually “needs” for his overall project is the prohibition of unduly risky conduct that people might otherwise be entitled to, i.e. like the epileptic driver I referred to above. 

        Now, it turns out that Nozick needed his “principle of compensation” like he needed a hole in the head, since his derivation of the minimal state is almost universally regarded (across the ideological spectrum) as a failure. Accordingly, there is no advantage to retaining it from the perspective of interpreting him in a way the preserves his core understanding of rights as side constraints.

        I believe there is even less reason to incorporate any possible suggestion by Nozick of a possibly broader application of “cross and compensate” within the most sympathetic construction of his views. Such an interpretation seems squarely inconsistent with his understanding of the great stringency of rights.  I suggest that a more organic way to resolve the issues of risk and pollution within the broader context of his libertarian project, is to use CBA as a means of defining rights, while continuing to insist on the great stringency of rights once their borders are defined. 

          

        • http://www.facebook.com/profile.php?id=743482150 David Sobel

          In my view the cases of trivial risk and trivial infringement, which Nozick is quite worried about, provide much of the rationale for cross and compensate. I do not see much connection between cross and compensate and the Principle of Compensation, and thus not much of a connection between cross and compensate and the derivation of the minimal state. 

          • MARK_D_FRIEDMAN

            Well, two things, and then I’m done. First, it is very important in my opinion to seperate things that Nozick elects to speculate about (often in a very interesting and provocative way) and things that are essential to his overall strategy. The former include animal rights (35-42), the “experience machine” (42-5), etc. Whatever he says about trivial risk could be excised w/o harming his overall argument, and indeed I claim it would improve it.

            Second, the “Principle of Compensation” heading appears on p. 78, and this section starts: “Even when permitting an action provided compensation is paid (the second and third possibilities above) is prima facie more appropriate for a risky action than prohibiting it…” (my emphasis). So, I personally find it quite implausible that Nozick is somehow drawing a bright line between these two topics.

          • http://www.facebook.com/profile.php?id=743482150 David Sobel

            Well, as I say, I think Nozick acknowledges the difference between the two (and I would say the two principles just are very different) on p. 87. Additionally, I think Nozick and any view with powerful deontological property rights should be concerned about trivial border crossings and what to say about them. To my mind one of Nozick’s achievements was to see this problem and offer maybe the best way to deal with it we have, even if it is not ultimately successful in my view.

          • MARK_D_FRIEDMAN

            OK, fine. You conclude that your understanding of Nozick’s approach to trivial border crossings “is not ultimately successful in my view.” Accordingly, I would like to respectfully and humbly suggest that you consider the interpretation of Nozick’s position on this subject in Nozick’s Libertarian Project: An Elaboration and Defense (London: Continuum International, 2011), which I claim is successful in dealing with this issue and is also more organic to his overall argument.

          • http://www.facebook.com/profile.php?id=743482150 David Sobel

            I’ll hope to check it out soon.

  • Tibor Machan

    If my memory serves me well, George Mavrodes made a good case — in his paper “Property” — against the notion of self-ownership (one I have always thought was obscure*), in the summer 1972 issue of The Personalist (proceedings of a political philosophy conference held in the University of San Francisco and directed by Hospers and Machan). 
    *e.g., it assumes some kind of dualism.

    • http://www.facebook.com/profile.php?id=743482150 David Sobel

      Sounds like this might be similar to Kant’s own reasons for thinking SO incoherent. I found GA Cohen’s response to worries about SO’s incoherence compelling.

  • Sharon Presley

    I’ve never understood the idea of “self-ownership.” To me, as a psychologist, it sounds like mind-body dualism all over again.  Psychologists know that there is no mind separate from the body so it makes no sense to me to speak of an “I”  or “self” separate from the body that somehow “owns” the body.  So split all the philosophical hairs you want, but from a psychological point of view, the concept falls apart. 

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