Against self-ownership: There are no fact-insensitive ownership rights over one's body

Philosophy and Public Affairs

Volumn 36, Issue 1, 2008, Pages 86-118

  Lippert Rasmussen, Kasper ^a  

^a NONE

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EID: 42049095083     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2008.00125.x     Document Type: Article

References (73)

1. I thank Johan Bränmark, Nir Eyal, Cécile Fabre, Frits Gåvertsson, Nils Holtug, Karsten Klint Jensen, Anders Gorm Nissen, Michael Otsuka, Thomas Søbirk Petersen, Wlodek Rabinowicz, Peter Vallentyne, and the Editors of Philosophy & Public Affairs for very helpful comments on previous versions of this article.
2. Peter Vallentyne, "Critical Notice of G. A. Cohen's Self-Ownership, Freedom, and Equality," Canadian Journal of Philosophy 28. 4 (1998): 609-29
3. Peter Vallentyne, Hillel Steiner, and Michael Otsuka, "Why Left-Libertarianism Is Not Incoherent, Indeterminate, or Irrelevant: A Reply to Fried," Philosophy & Public Affairs 33 (2005): 201-22
4. Warren Quinn, Morality and Action (Cambridge: Cambridge University Press, 1993), pp. 170-71.
5. Peter Vallentyne, "Libertarianism," http://plato.stanford.edu/ entries/libertarianism/, p. 1.
6. Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974), p. 172. I have put the term 'redistributive taxation' in quotes to cancel the unquoted term's suggestion that a 'free market distribution'-I use quotes again for a reason similar to the one being expressed in the present sentence-has a morally privileged status relative to other market rules and resulting distributions. A similar reservation applies to talk about the redistribution of bodily parts. Having flagged these reservations I shall omit the quotes henceforth.
7. Michael Otsuka, Libertarianism Without Inequality (Oxford: Oxford University Press, 2003), pp. 15, 19. Otsuka formulates the first right as one "...that bars others from intentionally using one as a means..." Hence, the first right of self-ownership would not be violated by someone who uses another person as a means unintentionally, e.g., by a bystander who pushes what he takes to be a mannequin but is in fact another person dressed to look like a mannequin into the path of a runaway trolley to bring it to a halt, thereby saving five others. Yet this case certainly seems morally different from one in which a bystander diverts a trolley from a track, on which five innocents are trapped, onto a sidetrack on which there is what the bystander takes to be a mannequin, but is in fact a person. For instance, it would seem permissible for a third party to harm the bystander to prevent him from pushing the person (whom the bystander mistakenly believes to be a mannequin) into the path of the trolley, but not permissible for a third party to harm the bystander to prevent him from diverting the trolley in the latter case. Note further that the first self-ownership right does not bar others from "forcing one to sacrifice life, limb, or labour" as an end in itself. Nevertheless people who believe that intentions matter typically think that harming someone as an end (as when the bystander diverts the trolley, not to save the five, but to harm one whom he dislikes) is no less problematic than harming someone as a means. In response to these two observations, Otsuka might want to say that the scope of self-ownership goes beyond the two rights he describes it as encompassing in the quoted passage. In response specifically to the first observation, I suggest he might want to omit the qualification "intentionally" in his statement of the first right encompassed by self-ownership. I thank Michael Otsuka for clarification here.
8. Nozick, Anarchy, pp. 174-82; Judith Jarvis Thomson, The Realm of Rights (Cambridge, Mass.: Harvard University Press, 1990), p. 226.
9. Otsuka, Libertarianism, pp. 22-29.
10. The latter possibility is compatible with a restricted version of the asymmetry thesis that applies to essential bodily parts only.
11. G. A. Cohen, "Facts and Principles," Philosophy & Public Affairs 31 (2003): 211-45.
12. E.G., Jan Narveson, The Libertarian Idea (Philadelphia, Penn.: Temple University Press, 1988).
13. Vallentyne, "Critical Notice,"pp. 613-14n. It is not clear what role Vallentyne ascribes to voluntary occupancy of one's body. Suppose agents are indeed purely mental beings, but (oddly enough) have no choice as to which body they occupy. Why would this have any greater tendency to render their particular body different from an external resource than the tendency of the fact that Robinson Crusoe did not occupy his remote island voluntarily (for quite some time) has to render that island, for him, something other than an external natural resource?
14. Ibid., p. 623;
15. Peter Vallentyne, "Self-Ownership and Equality: Brute Luck, Gifts, Universal Dominance, and Leximin," Ethics 107 (1997): 321-43
16. Vallentyne, Steiner, and Otsuka, "Why Left-Libertarianism,"p. 205.
17. Presumably Otsuka would endorse a similarly lax view of inessential incursions on essential parts. (I owe this observation to an Editor of Philosophy & Public Affairs.) This grading of ownership over bodily parts according to the importance they have for the owner is surprising if what makes them fall within the scope of a nonderivative principle of self-ownership is that they are, or are part of, the owner. However, it is easily explained if the self-ownership principle is derived from those basic concerns that determine the grading of self-ownership rights.
18. Nozick, Anarchy, pp. 72-73; Otsuka, Self-Ownership, p. 19. For other exceptions to full self-ownership, see Vallentyne, "Libertarianism,"p. 1.
19. Immanuel Kant, Lectures on Ethics, trans. L. Infield (New York: Harper and Row, 1963), pp. 165-66; see also Brian Barry, "You Have to Be Crazy to Believe It,"Times Literary Supplement (October 25, 1996), p. 28.
20. Barbara H. Fried, "Left-Libertarianism: A Review Essay," Philosophy & Public Affairs 32 (2004): 66-92
21. Michael Gorr, "Justice, Self-Ownership, and Natural Assets," Social Philosophy and Policy 12 (1995): 267-91
22. Barbara H. Fried, "Left-Libertarianism, Once More: A Rejoinder to Vallentyne, Steiner, and Otsuka," Philosophy & Public Affairs 33 (2005): 216-22
23. Richard Arneson, "Lockean Self-Ownership: Towards a Demolition," Political Studies 39 (1991): 36-54
24. Fried, "Left-Libertarianism,"pp. 77-78. Fried argues, convincingly, to my mind, that one cannot helpfully fix the content of full self-ownership by appeal to the notion of permissible uses of oneself, because when one attempts to do this the issue of indeterminacy simply reappears as the (generally, in the absence of appeal to other moral principles than self-ownership) unsettled issue of which uses of oneself are permissible: See Fried, "Left-Libertarianism, Once More,"pp. 216-19.
25. Nagel's remark that Nozick "has left the establishment of the moral foundations [of his libertarianism]to another occasion"can be seen as a gesture at a complaint of the last sort: See Thomas Nagel, "Libertarianism Without Foundations,"in Thomas Nagel, Other Minds: Critical Essays 1969-1994 (Oxford: Oxford University Press, 1995), p. 139.
26. Cohen, Self-Ownership, pp. 213-17, at p. 230.
27. Cohen, Self-Ownership, pp. 230, 240. It is not clear whether Cohen thinks this because he takes no putatively fundamental moral principle to be demonstrably false.
28. Nozick, Anarchy, p. 206; Jonathan Wolff, Robert Nozick: Property, Justice, and the Minimal State (Cambridge: Polity Press, 1991), pp. 7-8; Cohen, Self-Ownership, pp. 70, 243-44;
29. John Christman, "Self-Ownership and Property Rights," Political Theory 19 (1991): 28-46
30. Daniel Attas, "Freedom and Self-Ownership," Social Theory and Moral Practice 26 (2000): 1-23
31. Samuel Freeman, "Illiberal Libertarians: Why Libertarianism Is Not a Liberal View," Philosophy & Public Affairs 30 (2001): 105-51
32. Robert S. Taylor, "A Kantian Defense of Self-Ownership," Journal of Political Philosophy 12. 1 (2004): 65-78.
33. John Harris, "The Survival Lottery," Philosophy 50 (1975): 81-87.
34. Cohen, Self-Ownership, pp. 70, 244.
35. This case raises the issue of whether something analogous to Locke's 'no-waste condition' on ownership over external resources applies to one's body: John Locke, Second Treatise of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1965), chap. 5, §§31-32, 37-38. Self-ownership so conditioned would avoid the present objection.
36. Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990).
37. Moore v. Regents raises the issue of whether one has the right to sell parts of one's body for money. Many think that this right raises a whole set of problems in addition to whatever problems the right to use one's body in ways other than selling it for money raises. I bracket those issues here.
38. Michael Otsuka is representative in stating that self-ownership "extends beyond a right against the sorts of painful and invasive incursions upon (other parts of) one's body which might be necessary in order to force [donations of body parts]. For suppose that in order to preserve the functioning of one of one's eyes or kidneys it must be temporarily removed and then reimplanted after it has been treated. One would still have a strong right of control over the disposition of that organ between the point of removal and reimplantation"(Otsuka, Liberalism Without Inequality, p. 15, n. 18).
39. Peter Vallentyne holds the minority view (personal communication). Similarly, an appeal to the (in moral terms) relatively unproblematic redistribution of organs from dead people will have little argumentative force against libertarians who think that once you cease to exist, your body, like everything else you might have owned, immediately becomes part of the commonly owned pool of external resources (or something similar).
40. Hillel Steiner, An Essay on Rights (Oxford: Blackwell Publishers, 1994), pp. 245-46.
41. We can suppose the children are orphans to avoid the complications raised by parental ownership rights: See Hillel Steiner, "Choice and Circumstance,"in Ideals of Equality, ed. Andrew Mason (Oxford: Blackwell Publishers, 1998), pp. 95-111, at p. 105.
42. Vallentyne, "Libertarianism,"p. 6.
43. Vallentyne briefly sets out some of the possibilities in his excellent introduction in Left-Libertarianism and Its Critics: The Contemporary Debate, ed. Peter Vallentyne and Hillel Steiner (Houndmills: Palgrave, 2000), p. 12. As he notes elsewhere, a plausible position on these matters has yet to be "developed adequately": See Vallentyne, "Libertarianism,"p. 6.
44. I am not suggesting that the right against unwanted bodily incursions is best seen as a component of self-ownership. Arguably, intrusion by others upon one's body requires free and informed consent, not just consent, and prior consent can be revoked at any time. These two features distinguish the right against unwanted bodily incursions from standard ownership rights. I thank Nir Eyal for helpful comments on this matter.
45. Otsuka, Self-Ownership, p. 18.
46. Even if she is compensated for the forced labor, the weaver will still need to make an effort to produce an extra set of clothing out of her hair. By contrast, no effort is involved in providing someone else with a spare pair of eyes in my first example. Hence, to the extent that efforts matter to ownership rights in the libertarian perspective, the weaver's claim to the extra set of clothing is stronger than the four-eyed person's claim to her extra set of eyes, all other things being equal.
47. Otsuka, Self-Ownership, p. 19. The case brings out nicely why Otsuka merely claims that "the conflict between libertarian self-ownership and equality is largely,"i.e., not entirely, "an illusion": See Self-Ownership, p. 11. In worlds very much unlike ours-i.e., worlds where almost all production involves no use of external resources and where individuals possess very different amounts of internal resources-despite being a left -libertarian, his position commits Otsuka to regarding the resulting highly unequal distributions as being just provided the stated sufficientarian proviso is satisfied.
48. Note that parts of one's body can be as important to others as to oneself. This is shown by a case of Siamese twins where one twin is functionally dependent on a kidney located in what we will consider to be the other twin's body.
49. For instance, from a left-libertarian point of view, if self-ownership rights are quite weak, they are quite unlikely to be what grounds "constraints on the admissible means of promoting equality"(Vallentyne, "Critical Notice,"p. 617). Yet some left-libertarians take their theory to be "promising because it coherently underwrites both some demands of material equality and some limits on the permissible means of promoting this equality"(Left-Libertarianism and Its Critics, ed. Peter Vallentyne and Hillel Steiner, p. 1).
50. Nozick, Anarchy, p. 172.
51. Nozick, Anarchy, pp. 34, 48-51; Christman, "Self-Ownership,"p. 40.
52. Nozick, Anarchy, p. 31. For a thorough critique of these three kinds of argument that differs from that presented here, see Cohen, Self-Ownership, pp. 230-43.
53. In some cases, a body part not worse than one's own may mean a body part not too dissimilar from one's present body parts. E.g., if one is tied to one's present looks, an extreme makeover of one's face may not lead one to have a better face in the relevant sense even though one would agree that another person with one's post-makeover looks is more handsome than a third person with one's present looks. Even when this point about how the quality of a body (part) is linked to its being similar to one's present body (parts) is granted, it might still be suggested that while someone with a right to a body no worse than his own has a moral status that is more elevated than that of a slave, that status is still lower than that of a self-owner. In reply, note first that this suggestion does not conflict with my argument in the present context. I am simply addressing an argument in favor of self-ownership that appeals to the fact that our moral status is different from that of slaves, and I am not making any positive claims about our moral status. Second, the present suggestion strikes me as immensely more controversial than the point that our moral status is different from that of slaves-and, accordingly, as immensely less promising as a rationale for self-ownership.
54. Cohen, Self-Ownership, p. 240.
55. Christman, "Self-Ownership,"pp. 30, 39. Christman does not think that the subset of the rights of full self-ownership comprising income rights can be grounded in a person's autonomy and individual liberty; accordingly, he rejects this subset of self-ownership rights, as opposed to control rights over one's body and life: Ibid., p. 30; John Christman, The Myth of Property (Oxford: Oxford University Press, 1994), esp. pp. 125-84. The present line of argument can be seen as an extension of Christman's general view of self-ownership showing that even limited control rights over one's body can at best be grounded in autonomy and individual liberty given certain contingent truths about the way in which we are related to our bodies.
56. For the latter point, see
57. Nir Eyal, "If You're an Egalitarian, How Come You're So Inegalitarian about Your Body?" Iyyun: The Jerusalem Philosophical Quarterly 55 (2006): 299-310
58. Richard Arneson, "The Shape of Lockean Rights: Fairness, Pareto, Moderation, andConsent, " Social Philosophy and Policy 22. 1 (2005): 255-85
59. In this section, I along with Christman have understood the concern for autonomy as the concern that people are able to control their own lives. Brenkert suggests that the concern for autonomy should be understood differently: See
60. George Brenkert, "Self-Ownership, Freedom, and Autonomy," Journal of Ethics 2 (1998): 27-55
61. Eric T. Olson, The Human Animal (Oxford: Oxford University Press, 1997), p. 145.
62. Richard Swinburne, Personal Identity (Oxford: Basil Blackwell, 1984), p. 22.
63. This account needs refinement to accommodate the case of Siamese twins. Presumably, we would not say that the first twin's body includes all parts of the other twin's body.
64. Judith Jarvis Thomson, The Realm of Rights (Cambridge, Mass.: Harvard University Press, 1990), p. 226.
65. Most of those who have considered the matter concede that if someone were to extract my brain, destroy my body in the process, and implant my brain into another body with an empty skull resulting in a person with my psychological features, I, and not the person previously occupying the body with the empty skull, would be the survivor. If so, I am not identical to my body: See Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), p. 253. Consideration of the extremely rare, but real-life, case of dicephalic twins supports the same conclusion. Dicephalic twins are two different persons even if they share the same body from the neck and below: See Jeff McMahan, The Ethics of Killing (Oxford: Oxford University Press, 2002), pp. 35-39.
66. Derek Parfit, Climbing the Mountain, chap. 5 (forthcoming).
67. For the latter point, see
68. Cécile Fabre, "Justice and the Compulsory Taking of Live Body Parts," Utilitas 15 (2003): 127-50
69. Vallentyne, Steiner, and Otsuka, "Why Left-Libertarianism,"p. 209.
70. Cohen, Self-Ownership, Freedom, and Equality, p. 71; quoted approvingly by Otsuka, Libertarianism, p. 21 n 27. Compare
71. Mathias Risse, "Does Left-Libertarianism Have Coherent Foundations?" Politics, Philosophy, & Economics 3. 3 (2004): 337-64
72. Fabre, "Justice," pp. 136-37.
73. Gorr, "Justice, Self-Ownership, and Natural Assets," pp. 267-91.