by Tim Sommers
Do You Own Yourself?
In 1646, the Leveller leader, Richard Overton became the first person in the English-speaking world to assert that we own ourselves. “To every Individuall in nature, is given an individuall property by nature, not to be invaded or usurped by any,” he wrote, “for every one as he is himselfe, so he has a selfe propriety, else he could not be himself.”
We might question the claim that without owning ourselves we couldn’t be ourselves. After all, we don’t need ownership, or property law, to explain why my beliefs are mine or why my actions are mine.
But it’s easy to appreciate the political strategy behind Overton’s use of self-ownership – once you hear it.
The Levellars, so-named originally by opponents for supposedly having leveled hedges during the enclosure riots, were the egalitarians of the English Civil War preaching that sovereignty was founded on consent and that the franchise and property ownership should be extended to all men. Overton was responding to the argument that only men of property should be allowed to vote, when he wrote that all men are men of property, because all men have property in themselves.
Do they, though? It sounds plausible. But do you own yourself?
Actually, that’s an easy one. Ownership is a legal notion. In no legal system in the world do you own yourself. (About as close as you can come to a legal precedent, in American law, that might be interpreted as supporting self-ownership has to do with copyright: celebrities do, at least to some extent, own the use of their image for commercial purposes.)
But even if you don’t own yourself, maybe, you should.
Maybe, the question is ethical and political, normative not legal. Here’s Robert Nozick, perhaps the most influential libertarian philosopher of the last fifty years, arguing in Anarchy, State, & Utopia that we should, in fact, all of us, own ourselves.
Imagine, he says, that roughly half the time people are born with two eyes, and half the time people are born with none. Further, imagine that eye transplants are relatively cheap and painless. Would the government be justified in setting up a compulsory eye-redistribution program – taking one eye from each of those with two and giving it to one of those with none? Even if you think that, under such circumstances, it might be nice for people to donate an eye, you are probably horrified at the thought of the government forcibly redistributing eyes. Such a scheme surely violates some moral or political principle or principles.
Nozick says that it shows that we own our eyes. We are horrified by the thought of the government taking the eyes – that we own – away from us. But I don’t think that’s right. First of all, what we are horrified at is the thought of having one of our eyes cut out. Though Nozick is right that we also would probably agree that such a scheme is unjust or immoral. But is it because we think that we own our eyes and that the government is stealing them from us?
I think there are a number of more plausible interpretations. Here’s one. In a just society everyone is entitled to certain basic rights, liberties and freedom. One of these freedoms is the right to bodily integrity and control thereof.
But how is saying that you have the right to control your body different from saying that you own your body?
Consider your kidney. You don’t own your kidney under most current legal regimes. You sure don’t own it, if you live in America. But no one is allowed to take it out of you. Not because that’s stealing, but because it’s assault, maybe murder. On the other hand, you can donate it to someone else who needs it under certain circumstances. Here’s what you can’t do with your kidney. You can’t sell it. That’s what it means to say that you don’t own it.
I think there are good reasons to not have a commercial market in kidneys – or other body parts. You may disagree. If you think that, all things considered, it would be better to let people sell their kidneys on the open market, you may still be a liberal though. If you think, on the other hand, that you have a right to sell your kidneys no matter what the consequences for society or yourself, and that the government (or anyone else) would be morally wrong to stop you – then you really do think you own your kidneys. Congratulations. You are a libertarian.
Again, that doesn’t mean that liberals need to deny that you – or anyone – can ever sell their kidneys. What liberals deny is that you have an inviolable right to sell them no matter what.
Libertarians are fond of the following trilemma: Either you own yourself or someone else owns you or no one owns you. I am not sure why. It’s not a puzzler. No one owns you. It’s morally wrong to own people – even yourself. The main problem with describing political liberty in terms of ownership, for liberals, is that ownership implies salability. If you own yourself, you can sell yourself. And so Nozick found himself arguing in Anarchy, State, & Utopia that income tax is wrong because it is a kind of partial slavery, but that real, actual slavery is fine, if you want to sell yourself into it. Surely, something has gone wrong there.
The Levellers use of self-ownership as part of an argument to extend the franchise, by the way, immediately confronted a difficulty. They didn’t want to extend the franchise to servants, particularly household servants, since they assumed they would vote as surrogates for (or at least be too much under the sway of) their masters. So, they argued that servants had surrendered their property in themselves to their masters (at least in abeyance) and were not eligible for the franchise. Even when asserting “self-ownership” seems like a reasonable, even egalitarian, political strategy, it seems always somehow to lead to someone explaining why, for whatever reasons, some people don’t, in fact, own themselves.
What Does Self-Ownership Have to Do with Slavery?
You might think that I am misrepresenting defenders of self-ownership when I say that they endorse slavery. Don’t take my word for it. Here’s the three most prominent contemporary left-libertarians, Peter Vallentyne, Hillel Steiner, and Michael Otsuka on slavery: “Of course, many will view the right to sell oneself into slavery as highly implausible. We believe, however, that affirmation of this right of transfer is more in keeping with our status as autonomous, rational choosers than its denial.” In case that was a little dry for you, they said, sure, it seems implausible, but we are in favor of slavery.
Self-ownership, in fact, typically gets defined with reference to slavery. G.A. Cohen in his classic, Self-Ownership, Freedom, and Equality, writes that “According to the thesis of self-ownership, each person possesses over himself, as a matter of moral right, all those rights that a slaveholder has over a complete chattel slave as a matter of legal right, and is entitled morally speaking, to dispose over his slave.” And here’s Vallentyne, Steiner, and Otusuka again: “Full self-owners own themselves in the same way that a (full) chattel-slave-owner owns a slave.” These are not isolated examples. Self-ownership is almost always described using slavery as the explanans. Why should that be the case?
Maybe, the connection is conceptual. Maybe, once we have accepted that you can be owned, to paraphrase an old joke, all that’s left is setting the price. As Attracta Ingram writes, “Self-ownership embraces the most important claim of slavery: that people can be the objects of private property law.”
But there is a historical connection as well. The Levellars were a hiccup, a blip, historically. Mainstream political and philosophical thought about “self-ownership” is influenced not so much by them, as by a somewhat neglected and misunderstood aspect of the Republican tradition – and by John Locke (who despite his temporal and geographical proximity seems not to have noticed the Levellers at all).
Roman ideas about private property were not as well developed as you might expect, and, the Romans didn’t have any notion of basic, universal, human rights at all. And these separate deficiencies may have had a common source. The idea of freedom as self-ownership may be a historical byproduct of the ubiquity of real, actual slavery. Indeed, the most influential version of self-ownership seems to have originated out of the way Medieval Scholastics, and later, John Locke, developed this line of thinking, from Roman slave law, that freedom means not being a slave, being a slave means being owned by someone else, so not being a slave must mean owning yourself, and, therefore, freedom means owning yourself. Ironically, the chapter in the Two Treatise in which Locke offers his definition of freedom is called “On Slavery”.
The dispute over whether to think of political liberty as the possession of certain basic rights, liberties, or freedoms or to think of it in terms of self-ownership has been from the beginning, and remains, a dispute about slavery.
Here’s one argument in favor of the liberal view. Since liberal rights are inalienable they foreclose the possibility of selling yourself into slavery. Self-ownership, since it is a form of ownership, necessarily implies the right to sell yourself into slavery. “If slavery is not wrong,” as Lincoln said, “then nothing is wrong.” Slavery is wrong. Therefore, self-ownership is wrong.
Suppose we set aside the fact that defenders of self-ownership have argued that it implies the right to sell yourself into slavery. Why can’t we just say that, even though you own yourself, you are not allowed to sell yourself; and, hence, defend self-ownership without defending slavery?
The problem with that is this. The only difference between the liberal view that you have an inalienable right to control your own body and the libertarian view that you own it, is over whether or not you can sell it. Self-ownership without slavery is a plausible view. It’s just that the plausible view that it is, is the liberal view that you have a right to control your body but not a right to sell it.
What Does Self-Ownership Have Going for It?
It’s no secret, of course, that self-ownership has a slavery problem. Why would so many bright, even brilliant, thinkers defend it then? Presumably it has other advantages. I can’t possibly do justice to all of them. But here are just a few glancing blows at some of the main ones.
(1.) Does Self-Ownership Explain Property Acquisition in a Way that Liberals Can’t? One way of understanding the contemporary appeal of self-ownership, certainly a plausible way of understanding the timing, content appeal of Anarchy, State, & Utopia, is as an attempt to save “classical liberalism” from the egalitarian turn in liberalism generally – in particular, as a way of opposing the replacement of a principle of acquisition with a principle of distribution in (for example) John Rawls’ A Theory of Justice.
Rawls argued for an egalitarian liberalism where the first principle of justice is still the protection of the basic liberties. But he replaced the idea that everyone is entitled to an unlimited right to acquire whatever property they can, with the idea that the distribution of wealth is itself a matter of justice. Defending self-ownership came to be seen, then, by many as way of defending “classical” liberalism – and property acquisition – from this “egalitarian”, distributive liberalism.
The problem is that, despite the popularity of the view, going all the way back to Locke, self-ownership has nothing to do with property acquisition.
To oversimplify a bit, defenders of self-ownership assume that if I own myself, I own my labor; and, since I own my labor, I come to own property in the external world by “mixing my labor” with it or the like. But the connections here are much looser than usually supposed. If I own myself, we can agree, I own my labor; and if I own my labor, for the sake of argument let’s grant, that I can acquire external property by “mixing my labor” with it. However, I don’t need to own my labor to acquire property by laboring. Nor do I need to own myself to be owed a fair return for my laboring. We can equally well hold that we have claim to the products of our labor because we did the laboring, as that we own our laboring. There is no pressing philosophical reason to unpack the claim that the laboring is mine by introducing property law to mediate it. We have a perfectly serviceable pre-philosophical, pre-legal conception of the relevant kind of “mine-ness” involved. Just as we don’t need property law to explain what makes my belief’s mine or my action’s mine, we don’t need property law, or property claims, to explain what it means to say that my labor is mine. What makes something my labor is that I do it, not that I own it.
Labor involves a volitional aspect, a choice to do a certain kind of labor, a capabilities aspect, in that I need the relevant abilities to do the labor, and an activity aspect, in that I need to actually labor. Choosing to exercise our capabilities in an activity to create something explains our claim to the products of that effort without introducing property until the last step: you own what you make. So, what I mean by asymmetry is this: while we certainly can start with self-ownership in developing our approach to property acquisition if we want to, this does not prove that a theory of property acquisition, even a Lockean theory of property acquisition, requires self-ownership either metaphysically or normatively – or even that it is strengthened by it. The principle that I have some ownership claim to what is produced through my labor is normatively compelling without introducing ownership until the last step and the metaphysical picture is, if anything, less complicated if we leave out the normative or legal notion of ownership until then. Indeed, property, and theories of property acquisition, long predate the concept of self-ownership and do not depend on it.
(2.) Does Self-Ownership Justify Laissez Faire Capitalism? Forget everything I just said. Suppose that we accept the libertarian account of property acquisition, that we own ourselves and whatever we can acquire. Does this then lead to a defense of unfettered capitalism? If it does, some people would take this as an argument against the view. But I am just going to assume that some people see this as an advantage it – and argue that it just isn’t true.
To begin with, Locke and Nozick both thought that we are morally committed to a “proviso” that limits our acquisitions, in at least one way. We can only justifiably acquire something where our acquiring of it leaves “as much and as good for others”. That sounds like a fetter to me.
But there’s a much larger issue hidden there. You own yourself and whatever you can acquire of the world. But who owns the parts of the world that are as-yet unacquired? If you think that all or most of the parts of the world are unowned and up for grabs, your political and economic system is going to look a lot different from one where it is assumed that the unacquired parts of the world are jointly owned by everyone. G.A. Cohen was the first philosopher to make this point and it led to new divide between right-libertarians (staunch defenders of capitalism) and left-libertarians (the new egalitarians). The take away for us is just this: self-ownership alone doesn’t justify any particular economic view – it depends on all sorts of background beliefs and assumptions.
(3.) Is Self-ownership Simpler than the Basic Liberties? The liberal basic liberties are usually given as a list, (including among others) freedom of conscience and religious liberty, freedom of speech and of the press, and the political liberties Even its defenders admit that these liberties need to be adjusted and readjusted to find some balance, and it’s always a struggle. Hence, the complexity of civil rights law. Is self-ownership simpler?
I leave it to Thomas Grey, from his classic article, “The Disintegration of Property”: “Most people…conceive of property as things that are owned by persons….By contrast, the theory of property rights held by the modern specialist tends both to dissolve the notion of ownership and eliminate any necessary connection between property rights and things…The specialist fragments the robust unitary conception of ownership into a more shadowy ‘bundle of rights’.”
And to Vallentyne, Steiner, and Otsuka (one last time): “[T]here is no uniquely strongest set of ownership rights. This is so because strengthening one person’s compensation or enforcement rights weakens the immunity to loss of another person. . . The notion of full ownership is thus indeterminate with respect to compensation rights, enforcement rights, and immunity to loss when a person uses an object over which another has unwaived ownership rights. Full ownership can, that is, be interpreted in various ways with respect to the implications of one person violating the rights of another.” (Sound familiar?)
(4.) Does Self-Ownership Allow Gambling, Prostitution and Recreational Drug Use? Maybe. Is that an advantage? (Are Libertarians, as the saying goes, just Republics who smoke pot?) You can argue for whatever rights you want to. Gambling is legal in many places, prostitution in some, and recreational drug use seems to be trending that way. Maybe, liberalism allows these too. Does self-ownership somehow lend itself to more robust arguments in favor of more extreme kinds of liberties? I am not convinced. The devil is in the details.
It seems to me that this is where we are. Self-ownership is not necessary to explain property acquisition nor does it, all by itself, argue for any particular economic system. Whether we think of political liberty in terms of a set of rights, or as a kind of self-ownership, it still needs to be developed and fleshed out. It’s not immediately clear that either view is simpler or more obvious than the other – or that either leads inexorably towards justifying any particular set of liberties. Indeed, the conclusion I have been arguing is very narrow and very simple.
We should prefer to think of our most basic rights as inalienable and not for sale. On occasion, it may seem a prudent way of asserting control to say that, not only do we have certain rights with regard to ourselves, but that we, in fact, own ourselves. This impulse should be resisted. Because if we own ourselves, then we can sell ourselves; and it’s always wrong for persons to be sold, therefore, we do not – and should not – own ourselves.