A Challenge to Self-Ownership
Rothbard's basic principle that we own ourselves is open to question.
For the libertarian who seeks to dissuade those who have been beguiled by ideological modernity, a fully validated justification for the acquisition and unqualified use of material objects is the sine qua non. In addition, the libertarian must describe the process by which unowned resources may be justly acquired.
Only an absolute right of self ownership, asserts Rothbard, can provide [an]… objective ground…for the assignment of original rights of ownership.
—Jeffrey Paul, Review of Property in a Humane Economy, REASON, November 1976
"But why should the statement that every man owns himself go unchallenged?" asks Jeffrey Paul in his review of Samuel Blumenfeld's collection of essays. And he goes on to say that Murray Rothbard, in his "Justice and Property Rights," sets out to answer this question, among others. But, even with this "now-classic piece" at our disposal, we must reiterate the question. Why, indeed, should we accept the idea of self-ownership? Neither Paul nor Rothbard appears to realize just how perplexing and troublesome it is.
There is a striking and immediately puzzling feature of the claim that each person owns himself or herself. This feature is the unusual one-to-one relationship that Rothbard postulates for the ownership of human beings. There are a lot of people in the world. If it should happen that on a given day each one of them owned exactly one shirt, then it would be very probable that on the next day some of them would own two or three shirts and others would own no shirt at all. For in all probability some would trade their shirts for other things; some would give them away, some would lose them gambling; and so on. And so the ownership of shirts would be in constant flux. But the ownership of human beings, according to Rothbard, persists in an absolutely unchanging and precise one-to-one relationship. Each of us owns exactly one human being—no more and no less—and that human being is himself. And that seems, to say the least, to be a little odd. For if human beings are property—if they can be owned—then why is there not a market in human beings, as there is for cattle or soybeans?
One possible response to this question is to remind us that there often have been markets in human beings—slave markets—and there may be some such markets still existing (or perhaps they will arise again). And in the contexts in which such markets flourished, there were legal systems that recognized, in a straightforward way, the ownership of human beings. The people who took those systems as a matter of course might therefore agree with Rothbard that human beings are a perfectly good type of property. They would find his precise one-to-one relationship absurd, however. For some people own several cows, some own one cow, and some own no cow at all. And, they would say, so it is also with the ownership of human beings.
No doubt Rothbard is quite aware that there have been such markets and such patterns of legal ownership of human beings. He would probably not consider it particularly relevant, however. And he might reply that he is not concerned primarily with actual legal systems, which may be distorted in various ways, but is engaging in a moral and normative enterprise. He wants to determine, we might say, the facts about the ownership of human beings in the true moral order of things. And in that order, he apparently holds, such things as purchase and sale, multiple ownership, and the ownership of a human being other than oneself simply have no place.
Let us focus, then, on this moral order. Assuming that it includes the ownership of human beings, why does it not allow for the transfer of such ownership, multiple ownership, and so on? Rothbard does not answer this question directly. Two possible replies, however, might be suggested by his article.
Paul, in discussing Rothbard's article, says, "Apparently, then, the purpose of self-ownership derives from the higher value of survival. That is not an implausible interpretation of Rothbard's approach, and one might think that if the value of survival generates the right of self-ownership, then by that same token—since it is self-ownership that is generated—it rules out transfers and multiple ownership. But while this may be plausible as an interpretation of Rothbard, it is not so plausible as a candidate for the true account of the matter. In the first place, as Paul notes, Rothbard does not argue for the validity of the survival ethic. Although survival no doubt has some value, it is not at all obvious that it is the highest value available to humans; and many people have thought otherwise. If there are values higher than survival, they might override survival and generate the legitimacy of other patterns of the ownership of human beings. And so the argument in terms of a survival ethic would seem to be incomplete, at best.
This is a serious objection. But even if survival were the highest value, it would not guarantee self-ownership. Quite the contrary.
For there is no single and uniform relationship between survival and self-ownership (in a sense that makes self-ownership incompatible with slavery). Many slaves, no doubt, met untimely and early deaths. But so have many freemen. And some slaves have lived to a ripe old age. Perhaps it is true that slaves have, in general, a lower life expectancy than freemen in the same society. But this generality, if indeed it is a truth, could not override the fact that in particular cases it may be quite clear that slavery enhances one's prospects for survival.
In this respect, Locke seems to have had a much more accurate view of the realities and facts of human life than does Rothbard. Locke held that a person might forfeit his right to life, by some criminal deed, and that he might thereafter survive only by accepting the status of a slave. (If he doesn't like slavery, Locke observed, he can always resist his master and thus get himself killed.) And Locke seems to have held that this slavery is fully compatible with the true moral order of things (Two Treatises of Government, bk. 2, chap. 4, sect. 23). In the Lockean case, then, it is slavery which serves the value of survival—the slave buys survival with his servitude. And if survival were the highest value, that would, of course, be a perfectly reasonable thing to do. Elevating survival to this high status in the hierarchy of values cannot, then, guarantee that each person owns himself.
Now Rothbard might well come to the defense of his link between self-ownership and survival as the highest value, in this way: each of us is born owning himself, and no one would in fact voluntarily transfer this ownership. We need not spend much time on this. We have already seen, as did Locke, that if survival is an overriding value, then just such a transfer would be, in some circumstances, an eminently reasonable thing to do. But even if it were not reasonable, what of it? "A fool and his money are soon parted," says an old proverb, and it identifies a common, though regrettable, feature of human life. Hardly anyone, least of all Rothbard, seems to argue that, because I have struck a foolish bargain in the sale of my house, therefore I have not really sold it. I have sold it, and my foolishness is just someone else's good fortune. If people could transfer ownership of themselves, as they can with houses, it would be just incredible to suppose that none of them would do so.
OWNERSHIP OF HUMANS
Let us turn now to the argument Rothbard presents for his claim that we all own ourselves. He considers a couple of alternatives; one of them is the rather strained possibility that everybody owns a tiny share of everybody else, and the other is that one class of people has the right to own everyone else. And Rothbard then argues that neither of these arrangements accords to the individual the rights that are necessary to his survival. With the elimination of these two alternatives, Rothbard apparently thinks that self-ownership is established.
This argument is unusually weak. It is apparent by now that there are difficulties, for this purpose, in appealing to the value of survival. Even if we waived those difficulties, however, we should soon meet others. There is something strange, for example, in Rothbard's choice of the alternatives to be considered. For he neglects others that would seem initially rather more plausible—if for no other reason than that they have actually been practiced and recognized in the legal systems of slave-owning societies. (Perhaps the more closely we attend to the actual practice and history of slavery, the less force we will find in the argument from the value of survival.) But there is also a more fundamental weakness in the argument.
Even if we were to list every form which the ownership of human beings could possibly take and were then to find arguments ruling out all of them except for self-ownership, we would still not have established the propriety of this last system. In order to justify that conclusion we should have to add still another premise to our argument—the premise that every human being is, or ought to be, owned by somebody or other. We need this premise to keep us from rejecting self-ownership right along with the other forms, concluding that human beings are not owned by anyone at all.
Rothbard does not argue in this connection for the claim that everyone is owned by somebody or other. He does not even mention it. He rather seems to assume it as something so obvious that it hardly rises into consciousness at all. But is it obvious? Why should there not simply be unowned people?
Perhaps this possibility is rejected because of a view that people are so avaricious that they will acquire the ownership of everything valuable which they possibly can. It then seems incredible that there should be something as valuable as me just running around loose, unowned. Even a stray cow would be grabbed up by somebody. And surely by now someone would have put a halter on me, too—unless, of course, I really owned myself, in which case I wasn't just running around loose.
But there might be a different reason why no one has put his brand on me, at least in the true moral order of things. For it might be, in that true moral order, that I am just not the right kind of thing to be owned, I am not a possible piece of property. And if that were so, then no one could own me. I could not even own myself.
Another reason for thinking that everyone is owned by someone or other might be extracted from Rothbard's essay. Rothbard construes ownership in terms of rights—to own something is to have a set of rights relative to that thing. If I did not own myself, I would not have rights relative to myself. I would not, for example, have the right to choose one sort of work rather than another, the right to live here rather than there, and so on. But I do have these rights (even if we reject Rothbard's survival argument, we could agree with him on many of these rights). And therefore, I must own myself.
OWNERSHIP VS. RIGHTS
Pretty clearly, the line of argument just outlined plays an important role in Rothbard's thinking about this subject. Indeed, probably it plays an important role in much libertarian thinking about property. But the effect of it is pernicious. For that line of argument involves a logical blunder, and its acceptance burdens us with a clumsy way of thinking about rights.
The mistake in logic goes like this. If ownership involves a set of rights, then if I do not have that set of rights I do not have the corresponding ownership. So far, so good. But to draw from this the conclusion that, if I do not have ownership, I do not have any of the corresponding rights, would be a mistake. If I don't have ownership then, of course, I don't have full set of rights associated with ownership. But I may well have some of those rights. And so I may have rights relative to myself—important rights—even if I do not own myself.
Apparently, it needs to be stressed that a person can have rights relative to something that he does not own. If Rothbard, or anyone else, is inclined to deny this claim, it would be helpful if he could produce some argument to support his denial. And it would have to be a rather strong argument, in the face of what would seem to be the obvious counterexamples. It seems clear, for example, that an amateur pilot would normally have the right to use the orange roof of a Howard Johnson's restaurant as a convenient landmark for orienting his approach to the local airport. And he has this right even though he does not own Howard Johnson's and someone else does. To say that he has this right means that he does no wrong if he does use the restaurant in this way, independently of the desires of others in this matter. Would it not be absurd for the owners of Howard Johnson's to complain that their property rights were being infringed by this use?
An example that is perhaps more important for a general theory of property is provided in Paul's article. He says, "The man does not own the unfelled tree prior to its use. He first uses it, that is, fells it, and thereby obtains ownership to it." So Paul apparently thinks that a person may have a right to fell a tree which he does not own. He is probably correct in this. And many more examples can be envisioned.
If it should be a fact, then, that nobody at all owns me, it would not immediately follow that I do not have a right to choose my own career, and so on. Consequently, from the fact, if it is a fact, that I have a right to choose my work, it does not immediately follow that I own myself or that anybody owns me. To get such a conclusion in any plausible way we should need some additional, and plausible, premises. But Rothbard provides us with none—and it seems unlikely that there are any.
We come now to a final point—what my inalienable ownership of myself would amount to. Along Rothbardian lines that are quite sensible, we have been thinking of ownership as consisting of a set of rights, relative to what is owned. Now, one of the more important of the rights involved in ordinary ownership is the right to transfer that whole bundle of rights to someone else. That is, if I own any ordinary object, then I have a right to sell it, to give it away, and so on, so that someone else becomes the owner of it. You can get some idea of how important a right this is by imagining that today you get a letter from the Department of Motor Vehicles, informing you that your ownership of your automobile has just been converted to an inalienable ownership. You no longer have the right to sell your car, to give it away, to trade it for a sailboat, etc. You, and you only, must be the owner of that car until it rusts into oblivion. Few of us would receive such a letter with complete equanimity.
Inalienable ownership, if there were such a thing at all, would be an especially weak, curtailed form of ownership. My ownership of myself would be weaker than my ownership of a pocket knife. But the right of transfer appears to be so central to the concept of ownership that, where that right is lacking, there is no ownership at all. If that is correct then, given that I cannot sell myself into slavery, etc., I do not own myself. (Curiously, in the article under discussion, Rothbard himself stresses the right to transfer ownership as an important element in ownership. But he does not apply this insight to the problem of self-ownership.) As we have already seen, however, I may nevertheless have other rights with respect to myself. Perhaps on the basis of those rights Rothbard could construct some justification for the original ownership of other things.
George Mavrodes teaches philosophy at the University of Michigan and Kenyon College. His essay "Property" appears in Property in a Humane Economy.
This article originally appeared in print under the headline "A Challenge to Self-Ownership".