Self-Ownership and External Property

By On April 25, 2012 · 92 Comments · In Left-libertarianism, Libertarianism, Rights Theory, Symposium on Libertarianism and Land

What kind of external property rights are consistent with self-ownership?

It seems to me that once one acknowledges self-ownership, one cannot acknowledge any other rights unless those rights are themselves grounded in self-ownership.

How so? Well, the difference between rights and other moral claims is that rights are legitimately enforceable. So any limits that self-ownership sets to the use of force will also be limits to the existence of rights.

Self-ownership would seem to license the use of force in self-defense against the aggressive force of others; if I own myself, I surely have the right (i.e., the legitimately enforceable claim) to exclude others from subjecting me forcibly to their uses. (In Locke’s words, we are not “made for one another’s uses.”) Likewise one can arguably use force in defense of another’s self-ownership by acting as that person’s agent.

But any use of force that goes beyond such defense would seem to be prohibited as a violation of the other party’s self-ownership. And that in turn means that the right to use force in defense of self-ownership (one’s own or another’s) rules out all other enforceable claims.

So in order to justify external property rights of any kind, one has to ground them in self-ownership; which in turn means that any property rights that cannot be construed as an extension of self-ownership rights must be rejected. (This in turn is why external property rights have to be fairly stringent; they must either be grounded in a stringent foundation – self-ownrship – or rejected entirely.)

A broadly Lockean conception of acquiring property by “mixing labour” would seem to pass the test. After all, if I own my self, then I must own the particles of which my body is composed; thus the means by which I acquired those particles (most of which were acquired post-birth) must be a legitimate means of acquiring internal property. Labour-mixing is an analogous means of acquiring external property; in both cases I transform external material in such a way as to make it an instrument of my ongoing purposes.

Such a derivation will justify not only private property, but in certain cases public property also (since an unorganised public can acquire property by mixing labour too, as when members of a community create a trail through repeated passage).

But some forms of property will be ruled out. In particular, any claim that the public at large has a residual claim not based on labour to land and unowned resources will be ruled out – which disqualifies the Lockean Proviso and the various forms of Georgism, as well as the so-called “left-libertarian” position defended by Hillel Steiner. (I say “so-called” because I prefer to reserve the term “left-libertarian” for an earlier and still active use.)

Herbert Spencer argues that private ownership of land would render permissible a situation in which the entire earth is owned, and thus the non-owners, having nowhere of their own to stand, would exist at the sufferance of the owners. But Spencer implausibly assumes that the right to evict trespassers is unlimited by all considerations of context and proportionality; absent that assumption, his argument does not go through.

Other property claims that would be ruled out by the approach I’ve just defended include:

  • the claim that we own only the improvements to land, not the land itself (since if we analogously owned only the improvements to our ingested particles and not the particle themselves, we’d have no right to move our bodies in any way, given that we can’t move our bodies without moving the particles they’re composed of)
     
  • the claim that society has a right to the individual’s land on the grounds that its value depends on social factors beyond the individual (since the right to benefit from the value of one’s property derives not from ownership of the value (whatever that would mean) but from ownership of the property; after all, the value of my own personal services depends on social factors beyond myself, but that doesn’t make me partly a collective asset)
     
  • intellectual property rights (since these would interfere with the individual’s right to transcribe information from her own brain onto her own external property)
     
  • all existing claims to land that has never been transformed by labour – which today includes most of the land in the u.s. west of the Mississippi

          

For fuller (though still in-need-of-work) defenses of the arguments I’ve rather breezily rushed through here, see some of my earlier pieces:

The Paradox of Property
Land-Locked
This Land Is Mine
Why Libertarians Believe There Is Only One Right
Left-Libertarianism, Class Conflict, and Historical Theories of Distributive Justice
A Plea for Public Property
Thoughtcrime
Abortion, Abandonment, and Positive Rights
The Irrelevance of Responsibility
Twelve Theses on Libertarian Eudaimonism

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  • good_in_theory

    The link to “The Irrelevance of Responsibility” causes a 404 not found error.

    • http://pulse.yahoo.com/_N6HQ4Y5ZPT4HGXE3EPX3Z7KH2E BerserkRL

      Thanks!  Try now.  

  • geoih

    Ahhh, the joy of unmuddled thinking.

    • Amateur_Economist

      No doubt your criteria for “unmuddled” means it agrees with you.  I found it ponderously muddled.   For instance what is the limit and extent of labor mixed?   Do I by dent of having breathed air now own it?  If it was “unmuddled” such stupid questions would be easily answerable.

      All defenses of homestead are nothing more then muddled justifications for privilege.   This is why no such defenders ever defend the homestead rights of aboriginals.  The consistent behavior  is that they defend privilege not freedom.

      The inferred strawman about Goergist ”ownership” of ones own molecules  is just more cowardly distraction and deceit.    Since georgists defend all ownership of ones own labor, they only defend the ownership of the created form.   The molecules that are taken in the duality of form and substance are not owned.

      The substance is the pool of freedom that we all draw from.  And when the appropriation is in contention (scarcity and value) then equal freedom is the only remaining guide that will meet Locke’s admonition against being
      “made for one another’s uses”.It is not possible to understand liberty, georgism or self-ownership with out also adressing the duality of form and substance.   Homestead muddles this with the undefinable hopelessly muddled phrase “labor mixing”.   I don’t blame Locke for missing the duality, because he attempted a cover with his proviso.   He saw the misinterpretation possible with his concept of homestead, but didn’t think to split form and substance.   Now along comes a muddle-head  who wants to dispose of even the cover.

      • http://profiles.google.com/crossofcrimson Ryan Wills

        “No doubt your criteria for “unmuddled” means it agrees with you.  I found it ponderously muddled.   For instance what is the limit and extent of labor mixed?   Do I by dent of having breathed air now own it?  If it was “unmuddled” such stupid questions would be easily answerable.”

        I’m certainly not a philosopher, but upon the framework professor Long seems to be laying out, this actually seems “easily answerable”. You clearly take ownership of any gas particles you pull in from the commons for bodily functions……and you clearly relinquish ownership of any particles that you exhale or otherwise release back into the commons.

        • http://www.facebook.com/EmbraceUnity Edward Miller

          What you said would apply to usufruct, but he’s not advocating usufruct. He claims you can gain eternal ownership by mixing labor with land, because property rights must be eternal and universal. He made some qualifications regarding community homesteading, but those qualifications can necessarily only be applied arbitrarily. It is impossible to clearly distinguish between what has been collectively homesteaded and what has not.

          • http://profiles.google.com/crossofcrimson Ryan Wills

            I’m sorry (I’m sure I’m misreading you here), but I’m not quite sure precisely what contention you mean to raise regarding my answer.

  • Hume22

    “My having a right to be treated in a certain manner involves, at least, other people having an obligation so to treat me; but it must involve more than this, for not every such obligation has a right as its correlate.  I have an obligation to be polite to my associates and grateful to my benefactors, but they have no right (except metaphorically) to my politeness or my gratitude.”

    Perhaps I do not have a right to gratitude.  But let’s explore rights a little further.  My fiance has an obligation not to cheat on me with my philosophy professor.  I do not think it is merely metaphorical to say that I have a moral right for her not to cheat on me (unless we are stipulating a prior conception of rights).  You have an obligation to me not to break your promises, but I do not think it is metaphorical to say that I have a right to the performance of the promise (without any reliance, etc.), or that I have a right to free you from your obligations.

    My point is that I do not think rights are conceptually tied to “legitimately enforceable” if by that you mean the permission to “force” others to live up to their correlate obligation.  If I am correct about the above rights, this would go some ways in showing that rights are not so tied (not many people believe they have the permission to “force” their fiance to not cheat).  “Legitimately enforceable” may also mean the appropriateness of making moral demands on others.  This would be getting closer to what I believe rights are.  They establish the ability to make moral demands on others: they provide moral standing in some important sense.

    • Gary Chartier

      Clearly, we do sometimes use “rights” in just the way you’ve suggested, and I have sometimes found the failure to acknowledge this confusing and frustrating. But it does seem to me that Roderick’s point could be made easily enough if he substituted another word or phrase for “rights” here–say “legal rights.” His underlying focus is on the just use of force. So it seems to me as if he could concede your point about the fuzzy and inclusive character of “rights” and related phrases while still continuing to distinguish between claims that can reasonably be upheld or vindicated using force against people and their stuff and those that can’t.

      • Hume22

        Gary,

        I agree that this move is open to Roderick; indeed, I think the move is required for any plausible theory of rights (i.e., a move that distinguishes moral rights in general and the subset of those that are legitimately enforceable).  But I think that he would try to resist this move because it casts some doubt on his most important claim: there is *one* and *only* one legitimately enforceable right (the right against non-aggression).  Once we recognize the plurality of legitimate moral demands, there is an accompanying doubt that non-aggression deserves absolute lexicographical priority.

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

          Indeed, it opens the door for “the rest of morality” to have a bearing on “rights” that just isn’t allowed by the legalistic libertarian narrative, which I don’t think Roderick would be willing to accept. It would amount to a challenge to that reductionistic narrative of non-aggression and property.

          • berserkrl

             it opens the door for “the rest of morality” to have a bearing on or
            overlap with “rights” that just isn’t allowed by the
            legalistic libertarian narrative

            But I certainly do think — and have argued ad nauseam — that the “rest of morality” has a bearing on rights.  The question is whether that bearing comes mostly upstream or mostly downstream from self-ownership.

        • berserkrl

            I think that he would try to resist this move

          I wouldn’t resist it, since I explicitly grant it here.

          But the rights I there call BC-rights are the ones I’m talking about here.  Granting the existence of rights other than BC-rights doesn’t imperil the thesis that there is onlyu one basic BC-right.

  • Gilman Greg J

    The surest way to get the wrong answer is to ask the wrong question.  To ask who should own a human being is to presume human beings should have owners.

    If you make that assumption, then self ownership will be preferable to ownership by the king or the church or the plantation owner.  But what if you don’t make that assumption?  Then you find that the concept of ownership really shouldn’t apply to humans at all.

    We are all born into this world entirely dependent on others for years.  Even as adults we are all part of a complex web of interdependent relationships.  This creates a complex web of rights and responsibilities that cannot be understood by a simple ownership rule.

    • Hume22

      Gilman,

      I agree that “ownership”

      is inappropriate in the context of “self ownership”.  I think many libertarians take it too
      literally.  In my mind, self-ownership is
      only a metaphor, but the underlying idea is better captured by “self sovereignty”
      or “self authority”.  This is because the
      idea is that we are not naturally under the moral authority of anyone else, and
      that anyone who makes moral demands/commands on us or at us, must justify these
      demands/commands to us.  But there is an asymmetry
      here.  We do not have such a requirement
      when we make “demands” to ourselves. 
      This, I believe, is what is meant by self-sovereignty and it is what
      Gerald Gaus and Stanley Benn are getting at with their “presumption of liberty”
      thesis.  I think the intuitiveness of the
      idea is well captured by a thought experiment by Margaret Gilbert in her A Theory of Political Obligation (2006), at 249-50:

      “What of the case of commands to self? This seems to be less
      troublesome from the outset. Consider the contrast between the following two
      cases. First case: in a railway carriage, John turns to Angela, a stranger to
      him, and says, ‘Shut the window!’ She may well feel affronted. Even if she says
      nothing, she is liable to think, ‘He has no right to order me about!’ I
      construe this type of situation as follows. John struck her as attempting to
      give her an order. She denies that he has the standing to do so. Second case:
      John is sitting alone in the railway carriage, feeling cold. He is also lazy,
      and is finding it hard to bestir himself to get up and open the window. Finally
      he says to himself ‘Get up and shut the window!’ This strikes him—it is,
      indeed, intended—as an order. The thought that he has no right to order himself
      about is unlikely to occur to him. He may of course continue to resist getting
      up, thereby disobeying his self-addressed command. But he is unlikely to deny
      that it is indeed a command—an authoritative, self-addressed imperative. It
      seems, then, that one automatically has the standing to command oneself.

      Perhaps there should be a ceteris paribus clause here.
      Perhaps I could somehow deprive myself of that status. Be that as it may, there
      still appears to be a sharp asymmetry between the case of self-commands and the
      case of commands to others. All else being equal (at least) one has the
      standing to command oneself. One does not, in other words, have initially to
      earn that standing by some ‘special’ relationship to oneself that one might
      have lacked. In contrast, all else being equal, one lacks the standing to
      command others. One has to earn that standing or, if ‘earn’ is not quite the
      right word, it has to be argued. This contrasts with the case of a
      self-command.

      … It seems [] that the stranger’s capacity to command you—as
      opposed to helping you mightily by getting you to stop—can be properly
      questioned and, indeed, rebutted unless something more than the fact that he
      issued an imperative to you, with whatever intentions or consequences, can be
      cited.”

      • Gilman

        Thanks for that reply Hume.  I agree self ownership works better as a metaphor but I’m skeptical that many libertarians take it that way.

        I agree entirely about adults closing windows.   I just don’t think the principle gets us very far with tougher problems.  In most disputes each side thinks the other is the aggressor.

        If we must think in terms of ownership it seems clear we start as infants being at least partial owned by our parents in some sense.  I am not an expert on libertarianism but I assume everyone agrees with that and that those parental ownership rights fade with age.  This should alert us to the fact that forcing things into an ownership model is a false dichotomy.

        • berserkrl

           I don’t think it’s appropriate to treat guardianship as ownership.  A parent is acting as an agent on behalf of a temporarily incompetent child, and their right to make decisions on the child’s behalf is restricted by and to that agency relationship.

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

        “I agree that ‘ownership’ is inappropriate in the context of “self ownership”.  I think many libertarians take it too literally.”
        Yes, I think so, too.  Instead of the phrase “self owner” Tomasi uses the phrase “self author” in his new book Free Market Fairness, which I think conveys a more accurate libertarian meaning.

        Also, other Lockean analysts have pointed out that a natural person is both (1) entitled to self-authorship rights with respect to his/her government and other humans, but also (2) is him/herself the property of the “creative force of the universe” (which may explain why we don’t have the right to commit suicide or create slave contracts).

        A too literal interpretation of the phrase “self owner” can convey the idea of a self that is totally independent or split-off from nature, government, culture, etc.

        • berserkrl

          A too literal interpretation of the phrase “self owner” can convey the
          idea of a self that is totally independent or split-off from nature,
          government, culture, etc.

          I think that’s a much stronger objection to “self-author” than to “self-owner.”

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

            It’s always “what I meant,” I know, but there’s a big difference (in my mind at least) between someone who has power to “individuate” or to be “authors” of their own existence, as opposed to someone who believes they can “enclose” or “possess” or “own” themselves.

            Being a “self author” is, again to me, more akin to being an intellectual property right holder, which is explicitly authorized as a property in the Constitution under Article 1, Section 8, Clause 8:

            “Congress shall have power … to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” 

          • berserkrl

            there’s a big difference (in my mind at least) between someone who has power to “individuate” or to be “authors” of their own existence, as opposed to someone who believes they can “enclose” or “possess” or “own” themselves.

            I agree, but the difference to me seems to cut in favour of self-ownership and against self-authorship.  I’m not the sole creator of my own identity, but I do have the right to exclude people from attacking me.

            Being a “self author” is, again to me, more akin to being an intellectual property right holder, which is explicitly authorized as a property in the Constitution under Article 1, Section 8, Clause 8

            I’m no fan of either IP or the Constitution; but even if I were, I have a hard time seeing how IP rights could apply in this case.  What would that even mean — that I have the right to forbid people to clone me?

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

            I’m no fan of the present-day conception of IP rights, either. They originally started out with protection for 17 years (to compensate the author or inventor for unpaid labor during research and development years, but now they’re held for 50 years or more, and I think even longer if held in corporate form), but no, it doesn’t mean to “forbid people to clone” you. It means you have the right to employ the federal government to keep trespassers (including gov’t itself) away from your “self authorship.”

          • berserkrl

             But how is it more analogous to IP than to other kinds of property rights (as your preference for “self-authorship” over “self-ownership” suggests)?

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

            Because it’s really not possible to own oneself in the sense that we can own a commodity and have personal power to exclude access by most, if not all, other persons. 

            Whereas being a “self-author,” like having a registered IP right, I think implies a more creative, realistic relationship with the legal system, and others in general, even though I’m admitting to a dependency on government to keep trespassers away (which dependency apparently even Locke thought was unavoidable).   

          • Properal

            How is it that one can have more power to exclude people from a commodity than one’s own self?

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

            A property right in oneself, like an intellectual property right, is much more amorphous than property rights in commodities. It’s like we’re trying to assign a commodity-like right to our mental and physical energy (labor) and then trying to legally represent that by an equally amorphous thing called money (in the form of wages).

          • berserkrl

            I don’t see how the reference to wages comes in.

    • Shawn P. Wilbur

       ”To ask who should own a human being is to presume human beings should have owners.”

      That probably distorts the case a bit. We have a notion of “self-ownership” because the question of whether human beings should have owners has taken long, difficult struggles to settle. We talk about “self-sovereignty” because it has been assumed that people need sovereigns. Had we developed these notions outside of the historical circumstances where they arose, they might have very different names, and we may not have done all of the work extricating them from their authoritarian contexts. But, if that’s the case, then we probably need to grapple with the issue in its transitional state: a commitment to “self-ownership” keeps us on the lookout for lingering slaveries, but a *serious* commitment ought to have us grappling with the details of this condition where *owning* and *being* are some sort of equivalent.

      The problem that I frequently do see with “self-ownership” (though not from Roderick, that I can recall) is that it can channel our thinking about the “self” into a pattern suggested by what we know, or imagine we know, about other ownership relations. In the context of the property debates, “self-ownership” is generally the thing about the self from which other property relationships might be denied. The place to look for clarification is going to be in the self, which is, I think, inseparable from that “complex web of interdependent relationship,” rather than in, say, a homesteading relationship with the body, or something similar. If we started by attempting to work out what sort of property was implied by complex webs of interdependence, or, as I’ve suggested elsewhere, sought what is “proper” to the self in by trying to account for both our sense of separate, autonomous being and our reflective acknowledgement of all that interdependence, the label could just be a matter of convention.

       

      • Glman Greg J

        Shawn,   I agree with a lot of what you have written.  In my non-libertarian opinion the concept of self ownership is a historical artifact that creates more problems than it solves for libertarians.   You could argue for the policies you want without it.

        This seems especially ironic to me since libertarians so often rely on thought experiments like trying to reason out what would happen in a state of nature or figuring out what the imaginary characters of Ayn Rand would do.   At the same time they fail usually fail to address the problem of why vanishingly few libertarian communities have emerged and survived here in the real world.

        • Shawn P. Wilbur

          Well, I’m a mutualist anarchist, strongly influenced by Proudhon, and have found taking up the historical discourse as we have inherited it useful, rather than necessary, in part because, seen from a bit more “outside” perspective, I think it brings those problems into fairly clear view. There’s presumably a bit more at stake than just arguing for the policies we want. We can do that without any sort of coherent theoretical framework. I’m just not certain we will build anything very sturdy in that way.

        • berserkrl

           thought experiments like trying to reason out what would happen in a state of nature

          Well, by Lockean standards we’re in the state of nature now.  No thought experiments required.

    • http://independent.academia.edu/DannyFrederick Danny Frederick

      I agree that ‘self-ownership’ sounds odd. I never use the expression myself, except in quotation marks (unless I forget). I say instead that I own my body, or that my body is my private property. I think that is what libertarians should mean when they speak of self-ownership; and it may be what most of them do mean.

      • berserkrl

         But isn’t my right over my own mind at least as important as my right over my own body?  Talking about owning one’s body instead of owning oneself leaves that out.

        • http://independent.academia.edu/DannyFrederick Danny Frederick

          I appreciate the thought. But if we are dualists or idealists, then I AM my own mind. So, if I cannot own myself, I cannot own my own mind. On the other hand, if we are materialists, then my mind is just an aspect of my body. So, if I own my own body, I own my own mind. So, I say I do not own myself but I own my own body.

          What is wrong with saying that I own myself? It seems to me that the relationship of ownership is asymmetric: if x owns y, then y does not own x. If that is right, then ‘x owns x’ is self-contradictory.

          • berserkrl

             I don’t see why ownership is asymmetric.  I mean, it will be asymmetric in cases where the owner and the owned are distinct, but that’s because ownership is a right against others — so it will be a right against the owned when (but only when, because because) the owned is an other.  [My use of "because because" there is actually grammatical!  (Albeit ungainly.)]   So it’s not inherently asymmetric.

            After all, if ownership just means the right of exclusive control, there doesn’t seem to be anything asymmetric about that concept.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            Thanks, Roderick.  I concede that I have offered no cogent argument against the concept of self-ownership. I still, though, having a feeling of discomfort about it. Perhaps it will pass.

          • Rad Geek

            Right, but the question is why it seems that way to you. Saying that (C) self-ownership seems to you to be impossible because (P) the ownership relation is necessarily asymmetric seems just to be restating your conclusion, not providing a reason for it. (The way you define “asymmetry” in the sense you are using it is necessarily caught up in what you say about the possibility of something’s having that relation to itself. It presumes an answer to that question; it does not provide it.)

            Suppose I said that I think (P’) ownership is antisymmetric but not irreflexive. Then it would among other things follow from that premise that (C’) self-ownership is indeed possible. But have I given you any non-question-begging reason to believe that (C’) is true? Did putting the debate into this kind of terminology even help clarify anything about where we disagree or what kind of evidence we might point to to settle the disagreement?

          • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

             Hey Charles – you just posted the 10,000th comment at BHL!

            You don’t any money or anything. But imagine lots of glitter and noisemakers.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            Congratulations on the glitter and noisemakers.  I concede your point (see my response to Roderick, above).

    • Shawn P. Wilbur

      One more thought: If we understand the “self” as, in at least one of its aspect, complex and interdependent with others (and this seems true on both material and social/psychological levels), the rather than ruling out some sort of “enough and as good” proviso, it strike me that a self-ownership sufficient to serve as a foundation for enforceable property rights would instead depend on something of the sort, though at a slightly more fundamental stage.

    • berserkrl

       By ownership I just mean the right to exclusive control.  So if you think people have the right to exclusive control over themselves, you believe in self-ownership.  This is perfectly consistent with acknowledging a “complex web of interdependent relationships.”

      • Shawn P. Wilbur

         But the complaint was that the complex web could not be understood by a single ownership rule. Depending on how much complex interdependence you acknowledge, it seems you could pretty easily wind up with a rule, but no very simple means of applying it consistently and equitably.

        • berserkrl

          Agreed, but no rule is self-applyimg.

  • MARK_D_FRIEDMAN

    Professor Long,
    Why on your theory does a person who purchases raw land (that has never been transformed by labor) from its legal owner in a voluntary transaction not thereby establish a valid moral claim to this land? Since on your theory there is no rightful owner of this land around to complain, I fail to see why this transaction shouild be set aside.

    • berserkrl

       If the first person doesn’t have a valid claim, how can the second person acquire it from the first?  It would be like me selling you the moon.

      • MARK_D_FRIEDMAN

        Well, the second person acquires legal title because the state will enforce the validity of the transfer. The question is whether this enforcement is itself immoral. Normally, paying fair market value for something in a voluntary transaction establishes a moral title to ownership against all but (possibly) the real, rightful owner. Here, by hypothesis, there is no rightful owner. So, I think you need an argument as to why the second person does not acquire a valid title. See my example below.

        • berserkrl

           Well, suppose I sell you the moon, despite having no right to the moon.  If the state enforces that title, that means that the state will forbid third parties to travel to the moon and start homesteading.  What could entitle the state to do this?

          • MARK_D_FRIEDMAN

            The two cases are different. I am talking about a case where A has actual possession of a parcel of land, and that possession is recognized as “ownership” by the state. Obviously, this is not true of the moon. Now A sells to B for fmv in a voluntary transaction. I agree that if a C were to come along who really owned the land, B would have a problem. But if there is no C (as in your case), what is morally wrong with the state enforcing the A to B part? If I buy Joe’s used golf clubs for $100, is there anything wrong in the state protecting my ownership against all but the real owner (if its not Joe)?

          • berserkrl

             What do you mean by “actual possession”?  Presumably something stronger than mere legal title, but weaker than homesteading use.  What is it?

          • MARK_D_FRIEDMAN

            I am asking about the following sort of situation, for purposes of which you may assume that “actual possession” simply means legal title. A desires to purchase from B 1000 acres of raw, pristine land in Wyoming. Whatever your test for being “transformed by labor,” you may assume that this land does not meet this standard. B is shown on the county records as the owner of record, and nobody has challenged his legal title. B purhased from C, C from D, D from E, and E from F, all on a fair, consensual basis. There is no record of how F acquired this land. Again, what is immoral about the state defending A’s title when he buys from B?

          • berserkrl

            Because the land is (morally) unowned, and so nobody yet has the right to exclude anyone from it.

          • MARK_D_FRIEDMAN

            Would it be just if tomorrow, without any prior warning, the state nullified all zonong laws? Even though I believe zoning laws are unjust, this sudden nullification would itself be unjust because people have reasonably come to rely on them in buying homes and starting busineses. By this same logic, it would be wrong for the state to suddently reverse all land titles to untransformed land after protecting them for 150 years. Do you disagree?

          • billwald

            Do you think zoning laws are philosophically different than ownership covenants? Condo dues different than real estate taxes? 

    • Rad Geek

      What is being “set aside” here? If (ex hypothesi) someone has a legally-recognized title but has not really done anything that would earn them a moral claim over the land that the title covers, then (ex hypothesi) they have nothing to sell in the transaction. Voluntary transactions may transfer claims over things you already have a valid claim on. They don’t transfer claims over something that you never had any claim on in the first place.

      Now, in many cases — at least, hypothetical ones, although in actual historical cases the issues were much more complicated — the “buyer” might use the transaction to buy off a legal claimant (such as a colonial authority or the state), and then also go and do some work that would earn them a moral claim on the land that they had “bought.” No doubt in such cases the “buyer” does establish a “valid moral claim to this land.” But not in virtue of the “transaction;” the claim derives from having done the work.

      If on the other hand the “buyer” pays off somebody who (ex hypothesi) hasn’t earned any right to the land, and then does not or cannot show up to work it, or arrange with someone else to work it for them, then it seems obvious to me that (granting a labor-mixing theory of the basis of ownership *)  they have not earned any more right to the land than they had before the “purchase.” (So, for example, suppose that Norton, as Emperor, claims legal ownership of the entire Colorado River valley; and Twain pays Norton for a parcel of it, but does not or cannot take possession of it. At the same time, or some time later, an old prospector shows up and squats on the parcel. Now, on Roderick’s theory Twain is not going to have any right to grab the land out from under the old prospector; he made a transaction with the “legal owner,” but the “legal owner” didn’t have a claim on the land, and didn’t have right to grab the land out from under squatters either, and they can’t transfer claims or rights that they don’t have. You seem inclined to say that Twain does have a right to do this; but if so you’d have to explain what got him the right. The law? If so, I hope you can anticipate why Roderick’s not going to be moved by that suggestion.

      (* Which you may of course want to reject. But then you can hardly claim to be asking Roderick a question about what happens “on his theory;” your suggestion is rather that he ought to give up his theory and adopt yours instead.)

      • MARK_D_FRIEDMAN

        Please see my response to Prof. Long which describes the type of case that interests me.

  • MARK_D_FRIEDMAN

    Further to my prior comment. I believe the claim that just title to land can only be created through “land transformation” is subject to outright refutation, as follows. Imagine that a particular community has existed for all time as hunter-gatherers, i.e. no land tranformation has occurred. Along cones a Lockean genius and convinces everyone that they would all be better off if they divided the land into equal shares, so that they could each do with their parcel as they wish. A division is proposed and agreed to by all on an entirely consensual basis. The next moment A sells B his land, again on an entirely free and consensual basis. I claim that B has just title to A’s land, w/o any transofmration having occurred. Mortal of story = homesteading may be a sufficient condition for just ownership, but it is not a necessary one.

    • http://independent.academia.edu/DannyFrederick Danny Frederick

      I don’t think homesteading is sufficient either. If you stake your claim by mixing your labour (or in some other way), the land is not yours if no one recognises your claim as valid. For example, there may be an agreed procedure for staking a claim to unowned land (which, as you point out, might not including mixing of labour) which you did not follow.

      I reject the whole idea that legal or moral relations can be understood in some purely ‘naturalistic’ way.

      • MARK_D_FRIEDMAN

        Hi Danny,
        This could be the subject of a really long debate, and this is probably not the best venue, but I don’t agree that rights generally, or the right to acquire by homesteading in particular, rest on whether other people recognize my claim as valid. The “agreed upon procedure” you mention would itself have to be morally defensible for it to cut any ice against my claim. And, in a state of nature, any “agreed upon procedure” that rejected homesteading under the Locke/Nozick model would be immoral, in my opinion. Here is where the long debate comes in…

    • Rad Geek

      What makes you think that your hypothetical hunter-gatherers aren’t transforming the land in living on it? If they are really having no effect on it in any literal sense then I am not sure where you suppose they are getting their food. If you have some standard already in mind about what kinds of use count as dramatically-transformative-enough to count as establishing a claim over the land, then probably we’ll need to know more about what those standards are. Certainly it seems to me that we’re starting off on the wrong foot if we are presuming a theory on which the only way you can gain a claim to the use of a forest is to cut it down and turn it into a prairie.

      • MARK_D_FRIEDMAN

        In standard English usage, “transform” means to change or convert. To pick berries from wild bushes hardly fits this usage, does it? Perhaps if Prof. Long meant something other than the standard usage, he should have said so. More substantively, are you really ready to defend the idea that merely harvesting what grows naturally on land is enough to confer a moral right to own the land, instead of what you harvested? So, if I land on an uninhabited island, and pick a few berries, I own the island? What about the next guy who lands on the island–he’s pretty much SOL, right?

        My idea of just initial acquisition follows Nozick in demanding development of the resource, and such improvement not harming innocent others at that time, or in future generations, as spelled out in much more detail in my book.

  • Heretic_696

    Excellent piece. But this part seems controversial to me:

    “A broadly Lockean conception of acquiring property by “mixing labour”
    would seem to pass the test. After all, if I own my self, then I must
    own the particles of which my body is composed; thus the means by which I
    acquired those particles (most of which were acquired post-birth) must
    be a legitimate means of acquiring internal property. Labour-mixing is
    an analogous means of acquiring external property; in both cases I
    transform external material in such a way as to make it an instrument of
    my ongoing purposes.”

    Is labour-mixing really an analogous means to acquiring “internal property”, i.e. the particles of which my body is composed? And what is this transformation of external material in the context of acquirind body particles?  I’m kind of lost on this – maybe some examples would be useful.

    • berserkrl

       Case 1:  I’m hungry.  I find an apple in an unowned wilderness.  I eat it.  (Many of) the particles in the apple become part of my body.

      Case 2:  I’m wet from the rain.  I find some sticks in an unowned wilderness.  I start piling them up to build a shelter.

      In both cases, I’ve rearranged and transformed the materials in order to make them instruments of my ongoing projects (my body, like the shelter, being one of my ongoing projects). 

  • http://twitter.com/VelizCF CFV

    Dear Roderick,

    I don’t think I completely understand your argument. “Mixing-labour” arguments in support of property over extra-personal stuff are exposed to well-known objections (“If I own a can of tomato juice and spill it in the sea so that its molecules mingle evenly throughout the sea, so I thereby come to own the sea, or have I foolishly dissipated my tomato juice?” Cf. Nozick, R. Anarchy State & Utopia, p. 175. See also the excellent article by Waldron, Jeremy  (1983) “Two worries about mixing one’s labour,” Philosophical Quarterly 33 (130):37-44.).

    You seem to think that if something is fully incorporated into your body (because, for example, you ate them), this is enough to settle the issue (“Case 1:  I’m hungry.  I find an apple in an unowned wilderness.  I eat it.  (Many of) the particles in the apple become part of my body.”). 
    But, in my view, this is plainly false and you are simply begging the question of the first legitimate appropriation. Consider this passage from Locke:

    “He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could.” (cf. John Locke, /i>Second Treatise of Civil Government, Chapter V, Sec. 28).

    Cheers.

    • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

      If something becomes part of myself without infringing anyone else’s rights, and I do have a right to self-ownership, how does RTL’s example *not* settle the issue?

      Do you wish to deny that those particles have become part of myself? Or that we have a right to self-ownership? Either way, it would seem absurd.

      • http://twitter.com/VelizCF CFV

        Pedro: obrigado pelo seu comentário. The crucial part of your statement is “without infringing anyone else’s rights.” It is obviously circular to sustain that because something became part of yourself it does not infringe upon someone else’s rights, and that something does not infringe anyone else’s rights if it becomes part of yourself.Suppose you own some acorns. I steal the acorns from you and then eat them.It is the mere fact that I digested them – and therefore the acorns became inextricably part of myself – enough to settle the issue of who’s the rightful owner of the acorns?Locke would have said: of course, not (see the passage above).Cheers.

        • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

          Since, as Roderick has made explicit, if we accept self-ownership there can be no right other than self-ownership, I’m just supposing (for the moment) that there is no right over external things. (I’m not making the claim that external property is an application of self-ownership, yet. Though I think it is)

          So, if I eat a fruit without violating your right to control yourself, so that the matter of the fruit becomes part of myself, and if I do have the right to control myself, what is missing in my account?

          You see, the issue is not “who controls the acorns?”, but “who controls your body”?

          There is no longer acorns, once its matter has simply become part of your body, and since there is no question (for the moment) over who controls the acorns, I don’t see how I don’t have the right over my (modified) body.

          • http://twitter.com/VelizCF CFV

            “if we accept self-ownership there can be no right other than self-ownership”

            It doesn’t follow that “if we accept self-ownership”, then “there can be no right other than self-ownership.”

            “what is missing in my account?”

            Again, as far as I can see, the mere fact that you digested something seems not enough to confer you rights over the external things that you digested. Digestion is not an argument. If you stole them (or appropriate them without leaving “enough and as a good”), you owe compensation to others.

          • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

            It doesn’t follow that “if we accept self-ownership”, then “there can be no right other than self-ownership.”

            Actually, it does follow, for the reasons Roderick explain here: 

            http://praxeology.net/onerightREVdraft.doc

            and here: 

            http://aaeblog.com/2011/05/05/the-paradox-of-property/

            “Again, as far as I can see, the mere fact that you digested something seems not enough to confer you rights over the external things that you digested. Digestion is not an argument. If you stole them (or appropriate them without leaving “enough and as a good”), you owe compensation to others. ”

            I think you’re talking past my argument. My argument is that, since that “something” has been rearranged into part of my body, and I do own my body, then I also own the matter that has been rearranged (simply because of the fact that now it constitutes my body.)

            I’m going to ignore what you said about stealing, since I’ve already said I’m pressuposing self-ownership is not applicable to external object for the moment.

          • http://twitter.com/VelizCF CFV

             It doesn’t logically follow.

            I don’t really understand your argument. You seem to believe that obesity might tell us something useful about the appropriation of external resources.

          • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

            It does logically follow.

            Yes, body change does tell us something about the appropriation of external resources. It shows that the right you have over your body is not just a right over an independently identifiable amount of particles, since your body particles change over time.

            What matters in owning your own body is the way that it is part of your on-going projects.

          • http://twitter.com/VelizCF CFV

            You need to revise some logic.

          • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

            And your argument is…?

    • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

      I just read jeremy waldron’s article. Very interesting, indeed. I’d like to hear what roderick has to say about it.

      • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

        I suspect his “ongoing projects” account gives a different justification for external property than: 

        “mixing “something” (my labour) I own with “something” (an object) I don’t own, so that now I own the object in virtue of the something I conjoined with the object.”

        It’s more like: “since I rearrange the matter of something, now its principle of organization is essentially tied to me, in the same way I rearrange matter to become part of my body.”

        But I suspect Roderick would make a better case for his account. :/

        • berserkrl

          As far as I can see, Waldron is simply expanding on Nozick’s silly misunderstanding of Locke’s labour-mixing theory.  Locke’s actual theory does treat transformed material as analogous to body parts, as here:

          “The fruit, or venison, which nourishes the wild Indian … must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him.”

          See also Sam Wheeler on property rights as body rights.

    • berserkrl

      Are your familiar with Rothbard’s idea of the “Relevant Technological Unit”?  It seems to dissipate objections like Nozick’s.

      I don’t understand your second point.  My claim was that incorporation was sufficient, not that it was necessary.

      • http://twitter.com/VelizCF CFV

        Roderick,

        I’m more or less familiar with Rothbard’s work, but no with his idea of the “Relevant Technological Unit”.

        Samuel Wheeler’s “Natural Property Rights as Body Rights” was included in Left-Libertarianism and its Critics: The Contemporary Debate.  As far as I remember it, it contains nothing against, for example, the Lockean proviso (or, for that matter, moral rights to natural raw resources).

        “My claim was that incorporation was sufficient, not that it was necessary.”

        I am not claiming either that incorporation is a necessary condition, nor that it is sufficient. In fact, I do counter-claim that it is not a sufficient condition to make appropriation of external resources morally binding. And there are some clear-cut examples: again, if you legitimately own some acorns, and I steal the acorns from you and eat them; the fact that I incorporate those acorns into my body tell us nothing about who’s the rightful owner of acorns.

        • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

          Your “clear-cut example” just muddles the discussion. The question of “who gets what when someone violates another’s rights” is a different question than “who get what when no one’s rights is violated”.

          • http://twitter.com/VelizCF CFV

             You’re assuming  (with no argument at all) that no one’s rights have been violated just because you incorporated something into your gastrointestinal tract.

          • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

            Huh?  My point is: You can use examples in which there’s a violation of someone’s rights when you’re incorporating something, and examples where there isn’t.

            If what you’re saying is that, for any scarce resource X, if I try to incorporate X I’ll do so infringing someone’s rights, then you’d have to say why is that so, instead of just assuming that’s the case.

            You’ll also have to show how those supposed rights do not conflict with self-ownership, or why self-ownership is wrong.

          • http://www.facebook.com/people/Pedro-Eidt/1653980475 Pedro Eidt

            Btw, though maybe (I don’t think so..) your example shows *incorporation simpliciter* is not a sufficient condition to justify appropriation, your example does NOT show that “incorporation-without-violating-someone’s-rights” is not a sufficient condition to justify appropriation.

  • j_m_h

    Since you largely toss out Locke in approach why not entirely jettison Locke? I don’t find the “mixing of labor” you propose very convincing. You start with the ethereal concept of self-ownership, which seems to be a statement about your consciousness. Then claim some act of labor that grants you possession of your physical body — “the particles of which my body is composed”. In reality it’s not really your consciousness (whatever  you want to call it, it’s not been well defined in the post) doing an labor. It’s your physical body doing all the labor. From that perspective my physical body seems to have claim to me rather than the other way round.

     While I understand you’re looking for that first step towards some rightful appropriation of the external world I don’t think the solution is found in any lockeanesque mixing of labor — that’s skipping steps. It might be possible to reformulate Locke’s approach in a more modern view (physics, biology, chemistry and the natural law of the life cycle). By stepping away from the religious views of Locke and the need of God the Creator you might be able to formulate a view that both escapes the proviso trap but still allows for a more limited scope of ownership of the external world.

    • berserkrl

      You start with the ethereal concept of self-ownership, which seems to be a statement about your consciousness. Then claim some act of labor that grants you possession of your physical body — “the particles of which my body is composed”. In reality it’s not really your consciousness (whatever  you want to call it, it’s not been well defined in the post) doing an labor. It’s your physical body doing all the labor. 

      You seem to be assuming some sort of odd dualism, and then trying to attribute it to me as well.  I think a human being is an indissoluble unity of mind and body; I don’t understand your division between work performed by the mind and work performed by the body.

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

    A property right in oneself, like an intellectual property right, is much more amorphous than property rights in commodities. It’s like we’re trying to assign a commodity-like right to our mental and physical energy (labor) and then trying to legally represent that by an equally amorphous thing called money (in the form of wages).
    berserkrl’s reply: “I don’t see how the reference to wages comes in.”

    Wages are how we use money to represent labor, and wages can either be: (1) income, which is taxable as an indirect tax, i.e., the main target of the tax is not really labor, but something else; or (2) property “because of ownership,” in which case the federal government can only tax wages if they follow the rules of apportionment and proportionality mandated by the Constitution’s two Direct Tax Clauses. 

    • berserkrl

      Self-ownership has nothing (initially) to do with wages.  It’s a right to exclude others’ use of oneself. Wages come on the scene only after one has justified right to own and exchange external property.  I don’t think wages “represent” labour in any interesting sense.  They’re exchanged for labour.

      The reference to the Constitution on taxes comes out of left field; I have no idea what it has to do with our topic.  But in any case I reject the legitimacy both of taxation and of the Constitution.

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

        “Self-ownership has nothing (initially) to do with wages.  It’s a right to exclude others’ use of oneself.”

        Yes, that’s true regarding our relations with each other, but in relation to the state, self-ownership is also be the right to limit tax collector access, which was my point above by mentioning the Direct Tax Clauses. These clauses limit federal tax jurisdiction over “property because of ownership,” i.e., homes, bank accounts, vehicles, and in certain circumstances, wages.  So, in other words, the Constitution’s distinction between direct and indirect taxation helps to define the property right (in the negative, by what the government can’t do when directly taxing certain categories of property).

        “I don’t think wages ‘represent’ labour in any interesting sense.  They’re exchanged for labour.”

        It might be more accurate to say that wages are “monetized labor,” something the invention of money compels us to do to wages. But, yes, from the perspective of the employer/employee relationship wages should be something that’s simply exchanged for labor. (However, the state steps in and taxes wages as income to the employee, thereby disrupting what should be an ordinary trade of labor for wages.)

        ” . . . I reject the legitimacy both of taxation and of the Constitution.”

        I don’t understand this statement, or how property rights (and the boundaries of the various categories of property rights) could be enforced otherwise.

  • Tibor Machan

    Self-ownership is highly confusing since it implies that the self is both the owner and what’s owned. But if selves are owned, it stands to reason they could be sold or given away; but they cannot. Bummer!

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