[Editor’s Note: The following is a guest post by Neera Badhwar, professor emerita of philosophy at the University of Oklahoma, and affiliate at George Mason University.]

“Every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say are properly his” (John Locke, Second Treatise of Government, Section 27).

To own oneself is to have a right to use one’s faculties and energies as one pleases, without interference, so long as one does so compatibly with other people’s like rights. Self-ownership expresses the idea that we are ends in ourselves, with our own lives to lead, not mere means to others’ ends. It expresses the thought, as Robert Nozick and others have put it, that “[i]ndividuals are inviolable,”[1] and explains why “unprovoked acts of killing, maiming,” etc. are wrong.[2]

Since the limits of self-ownership rights are other people’s like rights, it follows that self-ownership rights are as extensive as logically possible. But such rights – what Steven Wall calls full self-ownership (FSO) – have implications that Wall and other critics claim repeatedly clash with widespread and plausible moral intuitions.[3, 4]

I think that most of these criticisms are due to the critics’ conception of self-ownership rights, and not to the nature of the rights themselves. Here I will discuss only the criticism that full self-ownership rights are paralyzing, leaving us unable to exercise any of them.

In “Locke, Stock, and Peril: Natural Property Rights, Pollution, and Risk,” Peter Railton argues that Lockean natural rights forbid not only intentional, but also unintentional, indeed, even unforeseeable, boundary crossings.[5] E.g., “If I spray my lettuce with an insecticide that drifts onto your property, where you breathe it and develop a nervous disorder, I have crossed a boundary wrongfully” – even if I neither intended the result, nor even could foresee it (92). For “on a Lockean view we have an objective obligation not to cross a boundary, intentionally or otherwise.”

However, Railton does not tell us why we should accept this notion of obligation. It’s hard to see how someone can have an obligation to avoid doing x when, in the nature of the case, she has no idea that she is doing x. Such an obligation makes sense on Railton’s own act-consequentialist view, since the rightness of an act on act-consequentialism depends entirely on its results. On rights theory, however, as on non-consequentialist theories generally, intention or foreseeability and avoidability are necessary for an intrusive act to count as a violation of someone’s rights. This is why there is no such thing as unintended theft, or unintended and unforeseeable murder. If a ship capsizes in a sudden, unexpected storm and kills everyone aboard in spite of the crew’s best efforts, the ship’s crew are not guilty of murder. If the wind blows me into your house, I’m not guilty of a home invasion. No intention, foreseeability, or negligence — no violation of anyone’s rights.

But Railton is not the only one to defend the view that rights violations don’t require intention or even forseeability. David Sobel defends it by arguing that if we – the potential victims of someone’s potentially harmful action – judge that this person’s action is going to harm us, we have a right to protect ourselves.[6] Hence even if the agent of the potentially damaging act doesn’t foresee the potential damage, he violates, or at least threatens, our rights.

I agree that we have a right to protect ourselves against such an action. It doesn’t follow, however, that the agent of the potentially damaging act is violating, or even threatening, our rights. We have a right to protect ourselves and our property against wildlife, tornados, or earthquakes, even though they can’t be accused of violating or threatening our rights. Of course, under strict liability, we have a legal claim against someone who harms us or damages our property inadvertently, but strict liability doesn’t imply that the individual in question violated our rights. All it implies is that she or he played the crucial causal role in the harm.

Peter Vallentyne, Hillel Steiner, and Michael Otsuka have an even more counterintuitive view of rights violations than Railton or Sobel.[7] They argue that FSO is violated not only by unintentional and unforeseeable harmful acts, but also by unavoidable and harmless acts, such as “inadvertently send[ing] a small bit of stone one hundred yards away, where it lightly flicks my hand.” Minor unintentional incursions of this sort are inevitable in everyday life, so if they count as violations of other people’s rights, then either everyone’s rights to exclude intrusions will be constantly violated, or no one will be able to exercise their liberty rights.

But if an interpretation of self-ownership entails that it’s impossible for anyone to exercise her self-ownership rights without violating other people’s self-ownership rights – because, horrors, a passing stranger’s ears or nose or eyes might be subjected to an unconsented-to sound, smell, or sight through the physical impact of sound-waves, light-waves, or air currents – then this interpretation of self-ownership is self-defeating. Vallentyne, Steiner, and Otsuka themselves reject full self-ownership because, they say, it is too demanding. But putting it thus misstates the problem by suggesting that we could fulfill its requirements if only we would try hard enough, or if only we were better creatures.

The real problem, however, is that if we interpret FSO as forbidding the inevitable, it implies that no one has a right to any liberty of action in a world that contains other people. And a right that we have no right to ever exercise is no right at all. Hence, if inadvertently flicking your hand with a stone is an infringement of your FSO, then FSO so conceived is not “logically compatible with all other persons having an equally extensive set of stringent rights over themselves and their powers”. Rather, on this conception of self-ownership, my liberty rights are incompatible with your rights to non-interference, i.e., your claim-rights, and my claim-rights are incompatible with your rights to liberty, because neither of us can exercise her rights without violating the other’s rights. So the problem here is not the extensiveness of FSO rights, but the idea that the unavoidable, harmless side-effects of our everyday actions – actions that don’t interfere with anyone’s right to live as they please – are violations of rights.[8]

Claim-rights are supposed to protect our liberty rights. If they are construed in a way that makes it impossible to exercise our liberty rights, then they have not been properly delineated. Hence the most extensive set of rights “logically compatible with all other persons having an equally extensive set of … rights over themselves and their powers” must be compatible with minor, unintended, and unavoidable intrusions. [9]

[1] Robert Nozick, Anarchy, State, and Utopia, p. 31; Eric Mack, “Self-ownership, Marxism and Egalitarianism Part 1” (2002) volume: 1 issue: 1 pp.75-108.

[3, 4] Steven Wall, “Self-Ownership and Paternalism,” The Journal of Political Philosophy: Volume 17, Number 4, 2009, pp. 399–417. Strictly speaking, Wall regards FSO rights as including the idea that they are stringent, obliging everyone, and not only the government, to treat them as lexically prior to all other moral considerations under all (non-catastrophic) circumstances. I omit this from the text because it is not relevant to the criticism I discuss. But in “Self-Ownership Revisited,” from which this post is taken, I argue that all moral theories with stringent or rigid rules are fated to clash with common sense.

[5] Peter Railton, “Locke, Stock, and Peril: Natural Property Rights, Pollution, and Risk,” in To Breathe Freely, Mary Gibson, ed. (Totowa, NJ: Rowman and Littlefield, 1985), pp. 89-123.

[6] See David Sobel, “Backing Away from Libertarian Self-Ownership,” Ethics, 123: 32-60, 2012, at 51. Sobel also states that Nozick and other market libertarians, such as John Hospers and Murray Rothbard, treat pollution as a rights violation (36, n. 12). But Nozick is discussing pollution known to be harmful, not merely annoying pollution that barely interferes with a person’s use and enjoyment of his property, and certainly not unintended and unforeseeable pollution. And Rothbard explicitly argues that activities not known to cause harm are not violations of rights, even if they are later proven to be harmful to an individual. Such proof is necessary for outlawing them as violations of rights. See Rothbard’s “Law, Property Rights, and Pollution” (Cato Journal, V. 2, no. 1, Spring 1982), 55-99.

[7] “Why Left-Libertarianism Is Not Incoherent, Indeterminate, or Irrelevant: A Reply to Fried,” Philosophy & Public Affairs, Vol. 33, No. 2 (Spring, 2005), pp. 201-215, at p. 205.

[8] Indeed, as Eric Mack points out in his “Elbow-Room for Rights,” they hardly even count as intrusions (201). A “sensible delineation of rights,” he argues, “will not construe [harmless or negligible] minor intrusions that are necessary for people to exercise their rights as boundary-crossings” (206-207, 216). At worst, such intrusions are annoyances. The same actions, however, are not permissible if done maliciously, because they express the agent’s disregard for others’ persons or property (211-212). Here Mack draws on the judgment made by the court in Bamford v. Turnley (Bamford 1862) that minor intrusions caused by “the common and necessary use and occupation of land and houses,” such as “burning leaves or emptying cess-pools,” are permissible “if conveniently done,” that is, if they are mere annoyances rather than harms (208). Note that new technology, scientific knowledge, and changed living conditions can change our judgment of what is a mere annoyance rather than harm.

[9] Besides, as Jason Brennan and Bas van Dossen point out, “self-ownership rights were never meant to protect us from speckles of dust that might fly up or from the gravitational distortion of passers-by.” See “The Myths of the Self-Ownership Thesis,” The Routledge Handbook of Libertarianism, ed. Jason Brennan, Bas van der Vossen, and David Schmidtz (New York: Routledge, 2018), pp. 199-211).