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The Self-Ownership Proviso: A New and Improved Lockean Proviso*

  • Eric Mack (a1)

In this essay I propose to explicate and defend a new and improved version of a Lockean proviso—the self-ownership proviso (SOP). I shall presume here that individuals possess robust rights of self-ownership. I shall take it that each individual has strong moral claims over the elements which constitute her person, e.g., her body parts, her talents, and her energies. However, in the course of the essay, I shall be challenging what I take to be the standard conception of self-ownership and proposing an enrichment of that conception. The SOP is presented and in part justified as an implication of the right of self-ownership as it is more richly conceived—hence its designation as the self-ownership proviso. As an implication of the right of self-ownership which is also compatible, in theory and practice, with extensive and robust private property rights, the SOP is offered as an integral element of classical-liberal political theory.

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1 This is not to say that, if any use of the paralyzing device infringes Zelda's rights, then any use of the disappearing device likewise infringes her rights.

2 Violations of the SOP can, therefore, be the organic product of the actions of separate property-disposing individuals (or firms). This raises obvious and difficult questions about which individuals' actions are blameworthy and which individuals must change their behavior. The situation is similar to that in which numerous individuals engage in acts which only together (and organically) yield pollution over some significant threshold.

3 Locke, John, Two Treatises of Government, ed. Laslett, P. (Cambridge: Cambridge University Press, 1967), Second Treatise, section 27. Locke says that no complaint will arise “at least where there is enough, and as good left” (emphasis added). This suggests (as I believe Judith Thomson has pointed out) that there being enough and as good is sufficient, but not necessary, to preclude just complaint.

4 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 174–82.

5 For a discussion of the general character of entitlement conceptions of property rights (or, as he says, of “justice in holdings”), see Nozick, 's Anarchy, State, and Utopia, pp. 149–74. For a somewhat different slant on entitlement-conferring procedures, see Mack, Eric, “Self-Ownership and the Right of Property,” The Monist, vol. 3, no. 4 (10 1990), pp. 519–43.

6 For the sake of brevity, I shall often refer to the classical-liberal position simply as the liberal position. I also use phrases like “private property regime” and “liberal market order” interchangeably to refer to the sort of economic arrangements that warm the libertarian heart.

7 The hard-line opponent of provisos will maintain that the only substance to Zelda's complaint consists in politically irrelevant grievances about Adam's personal moral shortcomings, e.g., about his lack of fellow-feeling or his mean-spiritedness.

Hard-line analyses can be found in Sanders, John, “Justice and the Initial Acquisition of Private Property,” Hanurd Journal of Law and Public Policy, vol. 10 (1987), pp. 367400; Paul, Jeffrey, “Historical Entitlement and the Right to Natural Resources,” in Man, Economy, and Liberty, ed. Block, W. and Rockwell, L. (Auburn, AL: Ludwig von Mises Institute, 1988), pp. 247–65; and Narveson, Jan, “Property Rights: Original Acquisition and Lockean Provisos” (unpublished manuscript).

8 Among the critics of liberalism who see the inclusion of a Lockean proviso as injuring the integrity of liberal doctrine are Stick, John, “Turning Rawls into Nozick and Back Again,” Nurthwestern University Law Review, vol. 81, no. 3 (Spring 1987), pp. 363416; and Arthur, John, “Resource Acquisition and Harm,” Canadian Journal of Philosophy, vol. 17, no. 2 (06 1987), pp. 337–47. See also Cohen, G. A., “Self-Ownership, World-Ownership, and Equality,” in Justice and Equality: Here and Now, ed. Lucash, F. (Ithaca, NY: Cornell University Press, 1986), pp. 108–35.

9 Aside from Locke and Nozick, liberal defenders of a proviso are not easy to find. Two defenders, each of whom understands “enough and as good” being left as no one's suffering a net loss of utility, are Rose, Carol, “‘Enough, and as Good’ of What?Northwestern University Law Review, vol. 81, no. 3, pp. 417–12; and Schmidtz, David, “When Is Original Acquisition Required?The Monist, vol. 73, no. 4 (10 1990), pp. 504–18.

10 Nozick says that his Lockean proviso “introduce[s] an additional bit of complexity into the structure of the entitlement theory” (Anarchy, State, and Utopia, p. 174).

11 This claim masks complications. Perhaps Adam's existence or presence on the scene has motivated others—good folk who cannot abide such people as Adam—not to be in the vicinity of Adam. Yet if they had been in the vicinity, they would have rescued Zelda. In this case, Adam's displeasing existence is a factor contributing to some third party's not being in a position to rescue Zelda. Even if we allow that this is a case of Adam's bringing it about that Zelda is worse off than she would have been had Adam not existed, this case is similar to case 4 (Unrequited Love), in which Zelda's condition is worsened by Adam, but not in a way that gives Zelda a complaint in justice against Adam.

12 Think of Adam as a deeply committed paternalist operating in accord with your favorite doctrine of what is good for Zelda among those doctrines that do not make her being uncaged itself the crucial good for her.

13 Adam does not merely enclose those objects that Zelda would have put to use were Adam not on the scene at all. Rather, Adam encloses these objects and all the objects Zelda would next turn to, and next next turn to, and so on.

14 In Anarchy, State, and Utopia, Nozick expresses two sorts of concern about constraints on an agent which might arise through others' exercise of their property rights. There is the concern about there not being, in the relevant sense, enough and as good left to use. But there is also concern about the individual left landlocked by others' refusal to allow her passage across their surrounding property (see the first footnote on p. 55). Nozick says that this issue is handled by his subsequent discussion of the Lockean proviso. But it is not obvious how it is handled. My suggestion—which cannot be developed or even explained here—is that there may be a number of more or less distinct dimensions of noninvasive disablement each of which is condemned by the anti-disablement constraint and the SOP. (Imagine that Adam puts in service a sophisticated, highly discriminatory jamming device that simply blocks any form of communication from Zelda to other persons who are willing or even quite eager to hear from her. In subjecting Zelda to the form of imprisonment known as being held incommunicado, Adam seems to nullify another facet of Zelda's world-interactive powers.)

15 Among other places, I pursue this project in “Agent-Relativity of Value, Deontic Restraints, and Rights,” in Value, Welfare, and Morality, ed. Frey, R. and Morris, C. (Cambridge: Cambridge University Press, 1993), and “Personal Integrity, Practical Recognition, and Rights,” The Monist, vol. 76, no. 1 (01 1993), pp. 102–18.

16 Cohen, G. A., “Self-Ownership, World-Ownership, and Equality” (supra note 8), p. 109. Another good example of the standard, strictly internal conception is provided by Waldron, Jeremy in The Right to Private Property (Oxford: Clarendon Press, 1988), p. 398:

To say that I own myself is to say that nobody but me has the right to dispose of me or to direct my actions. I have rights to do these things (though I must not harm others in doing so; that is, I must not exercise my self-ownership in a way which violates theirs), and those rights are exclusive of anyone else's privilege in this regard, for they are correlative to others' duties to refrain from interfering with what, in this sense, I own.

17 Perhaps the only extra-personal “material” presupposed by such tales of self-ownership is the physical space occupied by each agent and the physical space through which one agent might move on the way to invading the moral (and physical) space occupied by another.

18 Cohen does say (in “Self-Ownership, World-Ownership, and Equality,” p. 109) that the slaveholder is “entitled to dispose over” the slave; so the self-owner is “entitled to dispose over” himself. Perhaps this can be read as including within self-ownership enough to support Zelda's complaint in case 1 and cases 5 through 11. If so, my point is that there is a need to make this reading explicit and to ground it.

19 Mack, , “Self-Ownership and the Right of Property” (supra note 5).

20 This right of property is not a principle of the sort feared by the hard-line critic of Lockean provisos. For it is not a claim to particular extra-personal objects or to any share of such objects; nor is it a right of joint ownership over any set of extra-personal objects.

21 The objection and the example are the property of G. A. Cohen.

22 See Locke, , Second Treatise, ch. 5, sections 48 and 49. Locke did not envision an increasing supply of appropriators within the pre-monetary phase leading to the eventual appropriation of the last patch of land. He did not envision Nozick's Z, whose loss of opportunity to appropriate zips back to taint the appropriation of A (see Nozick, , Anarchy, State, and Utopia, p. 176).

23 Locke, , Second Treatise, ch. 5, section 50.

24 Or at least at liberty to use all extra-personal objects except those which are currently being used by others (where your commencing to use those objects would interfere with their persons). Nozick does not include this qualification, because he does not recognize that nonproperty rights also “remove” Hohfeldian liberties. For Hohfeld's treatment of liberty, see Hohfeld, Wesley, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Review, vol. 23 (1913).

25 Nozick, , Anarchy, State, and Utopia, p. 175. Nozick immediately suggests attenuation with the next sentence: “This change in the situation of others (by removing their liberty to act on a previously unowned object) need not worsen their situation.”

26 The theme of property rights being (distinctively) suspect because their appearance deprives people of their moral liberties is prominent in Gibbard, Allan's “Natural Property Rights,” in Stewart, Robert, ed., Readings in Social and Political Philosophy (Oxford: Oxford University Press, 1986), pp. 237–38:

Within limits … a person has a right to consume things, and to transform one thing into another. Such acts change the position of others by changing the world physically, and thereby denying other people opportunities they would otherwise have do not, though, invariably need another person's consent to change the physical world in a way that reduces his opportunities.

I do need his consent to bring him under new moral constraints: to make it cease to be morally permissible for him to do certain things.… A distinction must be made between depriving someone of opportunities and depriving him of rights.… What I am supposing is that it is morally permissible, in certain cases, to deprive someone else of an opportunity without his consent, but that it is impossible to deprive someone of a right unless he himself gives up or loses that right through a voluntary act.

Surely, though, the assertion in the last sentence from Gibbard is much more plausible with respect to claim-rights than with respect to liberty-rights.

27 Her natural right of property is a claim to others' compliance with the rules of a practice under which each may acquire property, by purchase or gift if not by original appropriation.

28 Nozick, , Anarchy, State, and Utopia, p. 176. Once again, Nozick's language is highly ambiguous. There is some basis in Nozick's wording for thinking that he is not intending to distinguish between the loss of opportunity to appropriate and the loss of opportunity to use. Rather, he may be intending to distinguish between the welfare loss associated with Z's loss of the opportunity to use and appropriate, and the welfare loss associated with his loss of the opportunity to use. The more stringent proviso would guarantee Z's enjoyment of the former, larger package of welfare, while the less stringent proviso (which Nozick would be endorsing) would protect Z's enjoyment of the latter, smaller package of welfare. On this understanding, what underlies Nozick's proviso is the claim of each individual to the level of welfare he would have enjoyed had he lived in a pre-property state of nature (holding constant that individual's degree of effort, ingenuity, and adaptation?). On the other hand, Nozick always speaks of different zwys a person's situation may be worsened, not of different degrees of worsening (along the welfare dimension). Furthermore, Nozick's constant talk of “compensation” contravenes the welfarist interpretation. For maintaining Z at, or returning him to, a certain level of welfare compensates him only if that welfare replaces something else, e.g., opportunities to use, to which he had a claim.

29 For Nozick's comparable remarks, see Anarchy, State, and Utopia, p. 177. For two historical studies largely in line with these observations, see North, D. and Thomas, R. P., The Rise of the Western World: A New Economic History (Cambridge: Cambridge University Press, 1973); and Rosenberg, N. and Birdzell, L. E., How the West Grew Rich: The Economic Transformation of the Industrial World (New York: Basic Books, 1986).

30 Which pre-property state of nature provides our baseline? For example, do we appeal to the natural state that existed before, during, or after the last Ice Age? Or do we appeal to the nonproperty state which would exist if property rights over currently existing things were now to be abolished? For most people, especially most people actually ensconced in semi-liberal economic orders, the last provides the highest baseline. But any proviso incorporating this baseline seems to grant agents a morally suspicious lien on the products of others' efforts and talents. The classic statement of the radical difference between complaint about exclusion from others' products and complaint about exclusion from “nature's gifts” comes from Mill, John Stuart, Principles of Political Economy (Fairfield, NJ: Augustus M. Kelley, 1976), p. 209:

It is no hardship to anyone to be excluded from what others have produced; they were not bound to produce it for his use, and he loses nothing by not sharing in what otherwise would not have existed at all. But it is some hardship to be born into the world and find all nature's gifts previously engrossed, and no place left for the newcomer.

31 Cf. Narveson, 's discussion of a “Utility-Equivalence” proviso in his “Property Rights: Original Acquisition and Lockean Provisos,” p. 4.

32 Nozick, , Anarchy, State, and Utopia, pp. 178–79n. To muddy matters further, these benefits are described as compensating agents, not for their loss of opportunities to use, but rather for “being deprived of these particular liberties.”

33 Ibid., p. 175. In Locke, those who tacitly agree on money do so because they each anticipate net benefits from the enhanced incentives that money creates even while they anticipate the loss of condition C Nozick's compensationist attenuation of his proviso gives him everything that Locke gets by positing a general agreement on money (everything and more: for under Nozick's weakened proviso, no phase of the property regime must actually preserve C). The question is, if we recognize that Locke's general agreement on money sets aside his proviso, why shouldn't we also view Nozick's compensationist turn as actually an abandonment of proviso advocacy? Nozick's answer would rely upon his interpreting Locke's proviso as essentially insisting upon non-worsening, and hence as persisting through the general agreement on money. “Locke's proviso that there be ‘enough and as good left in common for others’ (sect. 27) is meant to ensure that the situation of others is not worsened” (ibid., p. 175).

34 For the most part, Nozick seems to think of compensation in terms of utility or welfare, but sometimes he seems to have wealth in mind. This is suggested by his remark that it would be relevant to fixing the correct baseline to know how much current wealth is due to the value of “untransformed raw materials” (see ibid., p. 177). The problems confronting the necessary trans-temporal comparisons of wealth are obvious.

35 Of course, if non-nullification of Zelda's powers is essential to her welfare, she cannot be compensated for the treatment inflicted in these cases. But even then, the wrongfulness of the treatment will not consist in its reducing her welfare. That the treatment is wrongful can be recognized independently of the thesis that non-nullification is essential to welfare.

36 Nozick, , Anarchy, State, and Utopia, p. 175.

37 On the possibility that Nozick intends a welfare proviso, see footnote 28 above.

38 Individuals who have been nondeceptively recruited for employment in such geographically isolated locales are a different story.

39 Is the SOP violated if someone prepares herself for an academic career and, because of an oversupply of aspiring academicians, she cannot find a job? Certainly not. This is merely an occasion for some effortful adaptation. It is, incidentally, far easier to identify violations of the SOP (or, more precisely, of the anti-disablement proviso) that are the result of government's intrusion into the market. Prime examples would be minimum-wage laws (effectively constraining the number of jobs employers can offer to presently unskilled individuals) and licensing laws (effectively limiting the number of individuals who can enter various occupations). If our aspiring academician is one of many who cannot find jobs despite appropriate adaptation, and if that is the result of government policies, then the anti-disablement constraint is violated—not by property-holders, but by government officials.

40 This point about the need for standing offers brings to mind Nozick's assertion that the existence of public standing offers of employment would undercut any private employee's charge of exploitation (Nozick, , Anarchy, State, and Utopia, pp. 253–55). Lots of interesting questions arise. One is: Why do the standing offers have to be public? Another is: To what extent is the present SOP doctrine equivalent to, or better recast as, a (classical-liberal) theory of the conditions under which exploitation occurs?

41 Cohen, , “Self-Ownership, World-Ownership, and Equality,” pp. 122–23. In footnote 21 on p. 123, Cohen acknowledges that Nozick takes the proviso to be “an additional bit of complexity” within the historical-entitlement theory. Yet Cohen insists that “the condition on appropriation… is Nozick's theory of appropriation, at least insofar as he has one.”

42 Ibid., p. 125. From this point the argument can proceed in diverse ways. Perhaps no sufficiently stringent proviso will be satisfiable for all persons. This would reveal the inap-propriateness of the “Lockean test of economic systems” (see ibid., p. 134). Or perhaps the sufficiently stringent proviso incorporates a baseline defined by some end-state principles of distributive justice (see Arthur, “Resource Acquisition and Harm” [supra note 8]). Then (as the hard-liner warned) regimes which the classical liberal will want to endorse will run afoul of the proviso.

43 The anti-disablement constraint, of which the SOP is a special case, is relatively easily satisfied. It could well be satisfied, for all or almost all individuals, within certain well-functioning, quasi-capitalist social democracies. This itself should make it clear that, for the classical liberal, the SOP is not a statement of a necessary and sufficient condition for justice in holdings.

44 Cf. Mack, , “Self-Ownership and the Right of Property” (supra note 5).

* Composition of this essay was supported by a summer research grant from the Murphy Institute of Tulane University. Mary Sirridge, Ellen Paul, and the other contributors to this volume provided helpful comments.

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