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  • Lloyd P. Gerson (a1)

Neither a doctrine of rights nor a doctrine of justice can provide a non-question-begging foundation for political philosophy. Instead, all political philosophical theories must rest on the recognition of the existence of moral agents, individual members of a natural kind capable of entering into associations with other moral agents. Beginning with moral agency, we can deduce that for there to be any associations, political or otherwise, there has to be the mutual recognition of self-ownership. The nature of moral agency excludes the possibility that groups like states or societies or nations can be moral agents. From moral agency and self-ownership, we can deduce the exigency of property ownership. On this basis, we can explain a state of affairs as just when and only when there is no aggression against moral agents. And we can show that the only nonarbitrary right is the right to self-ownership and property ownership. Thus, A has a right to p means: to deprive A of p is unjust. So, rights are founded on justice and justice is founded on property and property is founded on self-ownership and the recognition of self-ownership is a necessary condition for the mutual recognition of moral agency, the only possible basis for the existence of human associations. Thus, rights and justice are derivative or dependent concepts; they are not basic or foundational.

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1 See Griffin, James, On Human Rights (Oxford: Oxford University Press, 2008), 33, who argues that human rights “can be seen as protections of our human standing or, as I shall put it, our personhood.” So, for Griffin, human personhood is basic. Griffin's concept of human personhood, however, is almost entirely derived from his intuitions about human rights. The concept of personhood is designed to generate exactly Griffin's list of human rights. See, e.g., page 51, where Griffin includes in his concept of personhood “minimum provision” for a human life. See also page 101, where Griffin concedes the arbitrariness of much of his account.

2 One of these is Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 10, 118, who seems to rest political philosophy on a Lockean theory of “rights possessed by each individual in a state of nature.” These are negative rights.

3 Since, on a theory of negative rights, conflicts of rights are, at least in some versions, impossible in the way that they are not so on a theory of positive rights, the reason for rejecting the former is slightly different from the reason for rejecting the latter. The very rejection of positive rights in favor of negative rights presumes a criterion for the rejection which in turn requires some moral principle to justify that criterion. Hence, rights are not basic. I emphasize here that my claim is that rights and justice are not basic in political philosophy. I am not here addressing the question of their role in moral theory as basic or not.

4 Cohen, G. A., Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), 4, frankly acknowledges that his radical egalitarian concept of justice is founded on his own “deepest normative convictions.” This certainly looks like an intuition that dares not speak its own name.

5 Compare Schmidtz, David, “Property and Justice,” Social Philosophy and Policy 27, no. 1 (2010): 79100, who provides a somewhat different argument for what is essentially the same claim.

6 The view I am developing here is a version of what is sometimes called a theory of agent causation as opposed to events causation. The basis for the general view is that agents are irreducible to events in an explanatory framework. Some proponents of agent causation do not distinguish agents from moral agents. See Hornsby, J., “Agency and Actions,” in Agency and Action, ed. Hyman, John and Steward, Helen (Cambridge: Cambridge University Press, 2004), 123, for an argument for the explanatory superiority of agent causation over events causation.

7 See Locke, John, An Essay Concerning Human Understanding, ed. Nidditch, P. H. (Oxford: Clarendon Press, 1979) Book II, chap. 26.

8 See Rawls, John, “Justice as Fairness,” Philosophical Review 67 (1958): 166, who includes under the concept “person” nations, provinces, business firms, churches, teams, and so on. He thinks that all of these are subject to laws of justice, though he acknowledges a “logical priority [to] human individuals.” In Rawls, John, The Law of Peoples: With “The Idea of Public Reason Revisited” (Cambridge, MA: Harvard University Press, 1999), 27, he distinguishes “peoples” from states, arguing that it is the former to which a “moral character” may be ascribed. Rawls seems to hold, however, that a state acting in a just way would be indistinguishable from a “people.” Kant, Immanuel, Perpetual Peace, ed. Reiss, Hans, 2d edition (Cambridge, MA: Cambridge University Press, 1991), section 1.2, assumes that states or nations are moral persons and, accordingly, fall under (his) moral rules.

9 See Dennett, Daniel C., “Conditions of Personhood,” in The Identities of Persons, ed. Rorty, Amélie Oksenberg (Berkeley: University of California Press, 1976; reprint, Brainstorms), 176–78; Dennett, Daniel C., The Intentional Stance (Cambridge, MA: MIT Press, 1987), 1522.

10 See Sokolowski, Robert, “What Is Moral Action?New Scholasticism 63 (1989): 2325.

11 See, e.g., Frankfurt, Harry G., “Freedom of the Will and the Concept of a Person,” Journal of Philosophy 68 (1971): 520.

12 See Moran, Richard, Authority and Estrangement: An Essay on Self-Knowledge (Princeton: Princeton University Press, 2001), especially chaps. 3–4.

13 Ibid., 101.

14 See Fischer, John Martin, The Metaphysics of Free Will (Oxford: Blackwell, 1994), 132–34. “Guidance control” is contrasted with “regulative control.” The latter indicates that the agent “could have done otherwise.” It is notable that in Fischer's account, the possession of guidance control and, therefore, of moral responsibility does not exclude causal determinism. Cf. 204–5. So, too, on the account of Frankfurt, Harry G., “Alternate Possibilities and Moral Responsibility,” Journal of Philosophy 66 (1969): 829–39. See Korsgaard, Christine M., “Self-Constitution: Agency, Identity, and Integrity,” The John Locke Lectures at Oxford University, (2002); Rosati, Connie, “Agency and the Open Question Argument,” Ethics 113 (2003): 490527, for two similar accounts in terms of “self-constitution.”

15 See Searle, John, “Collective Intentions and Actions,” in Intentions in Communication, ed. Cohen, Philip, Morgan, Jerry, and Pollack, Martha (Cambridge, MA: MIT Press, 1990), 401–15; Gilbert, Margaret, “Walking Together; a Paradigmatic Social Phenomenon,” Midwest Studies in Philosophy 15 (1990): 114; Bratman, Michael, “Shared Intention,” Ethics 104 (1993): 97113; Velleman, David, “How to Share an Intention,” Philosophy and Phenomenological Research 57 (1997): 2950; Pettit, Philip, “Groups with Minds of Their Own,” in Socializing Metaphysics, ed. Schmitt, Frederick (Lanham, MD: Rowman and Littlefield, 2003), 167–93. See for a response to this line of reasoning Narveson, Jan, “Collective Responsibility,” Journal of Ethics 6, no. 2 (2002): 180–98; Miller, Seumas and Makela, Pekka, “The Collectivist Approach to Collective Moral Responsibility,” Metaphilosophy 36, no. 5 (2005): 634–51.

16 See French, Peter A., Collective and Corporate Responsibility (New York: Columbia University Press, 1984), 37–38, 46–47, 144, who argues that moral agency arises from the distinctiveness of group intention and action. Also, see Rovane, Carol, The Bounds of Agency: An Essay in Revisionary Metaphysics (Princeton: Princeton University Press, 1998), 137–41, who finds that group moral agency is a sort of unity or concurrence of actions among the individuals in the group. Vincent, Andrew, “Can Groups Be Persons?Review of Metaphysics 42 (1989): 712–14 argues in reply to French. French's notion of moral agency is not distinguished from a sense of mere agency sufficient to ground the legal responsibility of corporate entities. In reply to Rovane, the “rational unity” of the group, since it may be adventitious is irrelevant to the moral agency of the individual.

17 See Olsaretti, Serena, Liberty, Desert, and the Market: A Philosophical Study (Cambridge: Cambridge University Press, 2004), 139, who distinguishes sharply between volition and freedom. But Olsaretti thinks that an action is nonvoluntary if it is performed because there are no acceptable alternatives, where “acceptable” is determined by some objective standard such as well-being. Thus, one is not acting voluntarily if the alternative is, say, starvation. The only way that Olsaretti can distinguish the constraints that justify political coercion from those that do not, however, is to rely on her intuitions regarding some ideal political outcome. That is, she is not deriving her political philosophy from a concept of moral agency, but rather the other way around.

18 Narveson, Jan, “Property and Rights,” Social Philosophy and Policy 27, no. 1 (2010): 105–6, makes a useful distinction between self-ownership and self-possession, in which the latter term is descriptive and the former is normative. I would add that the normative term follows automatically from the existence of any sort of human association. That is, self-ownership is intrinsic to the origin of any political foundation.

19 Cf. Mill, John Stuart, On Liberty (Indianapolis: Bobbs-Merrill, 1956 [1859]), 13, for a similar description of self-ownership, “Over himself, over his own body and mind, the individual is sovereign.” I am using “authoritative” in the way that Mill uses “sovereign.” Perhaps Mill's description is virtually identical to Locke's “every Man has a Property in his own Person. This no Body has a Right to but himself” (Locke, , Second Treatise of Government, ed. Macpherson, C. B. (Indianapolis, IN: Hackett, 1980), section 27.

20 Atlas, Daniel, “Freedom and Self-Ownership,” Social Theory and Practice 26, no. 1 (2000): 7, argues that self-ownership does not in itself justify the rejection of slavery because defenders of self-ownership only condemn involuntary enslavement. What is wrong with voluntary permanent enslavement given the principle of self-ownership? The answer is that such an arrangement necessitates the disavowal of moral agency. If it really were voluntary, then the ongoing possibility of one calling off the arrangement would obtain, and that would not be permanent enslavement. The only way that permanent enslavement could be instituted would be by the use of force, in which case it would not be voluntary. Freeman, Samuel, “Illiberal Libertarians: Why Libertarianism Is Not a Liberal View,” Philosophy and Public Affairs 30, no. 2 (2001): 131–35, argues that absolute self-ownership entails the licitness of the complete alienation of the self that is slavery. He takes this as a reductio ad absurdum of absolute self-ownership. One reply, that of Nozick, Anarchy, State, and Utopia, 331, accepts the entailment but denies the reductio. A better reply is to insist that selling oneself into slavery is not possible according to any coherent notion of contract law. A contract, if it is to be licit and so enforceable must specify what each party to the contract must to do fulfill it and at least implicitly what the sanctions are for nonfulfillment. But the one who enters into a putative contract to enslave himself to another either expects to get nothing in return for his slavery or he expects to get something. If the former, there is no contract, but only a promise, which is perpetually defeasible without penalty; if the latter, then we may well ask what the difference is between this situation and an employer-employee contract. But no contract based on wages (however small in amount) for labor is enforceable in perpetuity because one can only make a defeasible promise to “work forever” for someone. If one refuses to work, the penalty is loss of wages, nothing more. If one is paid and refuses to work, the employer or “slave owner” can sue for compensation.

21 Cohen, G. A., Self-Ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995), 234, argues that the appropriation by the state of the fruit of one's own labor is not slavery because the state, unlike a true slaveholder, is not exercising discretionary power in doing so. We may agree with Cohen that the state is not a slaveholder just because the state is not a moral agent. But this hardly absolves the moral agents who run the state from the injustices committed in transferring by force property from its owners to others.

22 See Mack, Eric, “Self-Ownership, Marxism, and Egalitarianism: Part 1,” Politics, Philosophy, and Economics 1, no. 1 (2002): 75108 and Self-Ownership, Marxism, and Egalitarianism: Part 2,” Politics, Philosophy, and Economics 1, no. 2 (2002): 237–76, on the primacy of self-ownership and for a refutation of arguments against this.

23 Do threats constitute an impediment to voluntary behavior? I would say that they do, but only if they are threats of physical aggression, not, say, the threat involved in blackmail. Only physical aggression negates the moral agency of another.

24 See e.g., Atlas, “Freedom and Self-Ownership,” 16–18.

25 See e.g., Vallentyne, Peter, “Self-Ownership and Equality: Brute Luck, Gifts, Universal Dominance, and Leximin,” Ethics 107, 2 (1997): 321–43.

26 Some, e.g., Fried, Barbara, “Wilt Chamberlain Revisited: Nozick's ‘Justice in Transfer’ and the Problem of Market-Based Distribution,” Philosophy and Public Affairs 24 (1995): 226–45, question the right to the “surplus” value of one's labor, owing to scarcity. I deny that the notion of surplus value makes any sense whatsoever. For the value of something is exactly what someone is prepared to pay for it. Hence, something has infinite values. What anyone is prepared to pay for something is always circumstantial, that is, he or she is prepared to pay so much for something here and now. Hence, nothing can have surplus value. Attempts to distinguish a “fair” price for something from the price that constitutes surplus value fail for the same reason. A fair price could only be something like the average among values at a certain time. But this average, like all averages in real life, is fictitious. Why is it not fair that I am willing to pay more than the average for something?

27 Nozick, Anarchy, State, and Utopia, 150–53, similarly distinguishes between justice in acquisition, justice in transfer, and justice in rectification. An unjust acquisition would taint a transfer, making it unjust. It would also mean that the restoration of property was not just. If I did not acquire the gold justly, I could not justly transfer it.

28 Cf. Williams, Bernard A. O., Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985) on “thick” ethical concepts like treachery, promises, brutality, and courage.

29 I use the verb “own” and the noun “ownership” to indicate a relation between a subject and that subject's property. As I shall argue below, the only subjects who own property are moral agents. Accordingly, all property is owned by moral agents.

30 It would seem that if property is a normative concept, then so is possession when used in contradiction to property. I will henceforth distinguish “mere possession” used normatively from “possession” used neutrally or descriptively.

31 See Murphy, Liam and Nagel, Thomas, The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002), especially pp. 810, and passim.

32 See Risse, Matthias, “Does Left-Libertarianism Have Coherent Foundations?Politics, Philosophy, and Economics 3, no. 3 (2004): 344, who usefully distinguishes between an original state of non-ownership in which case what is needed is a theory of acquisition and an original state of group ownership (whether joint or common) in which case what is needed is a theory of privatization.

33 The position known as left-libertarianism maintains both a commitment to self-ownership and a denial of the thesis that resources are unowned until they are owned by someone. See Otsuka, Michael, Libertarianism without Inequality (Oxford: Oxford University Press, 2003). See Arneson, Richard J., “Self-Ownership and World Ownership: Against Left-Libertarianism,” Social Philosophy and Policy 27, no. 1 (2010): 168–94, for a critique of both left-libertarian claims. Arneson basically argues that self-ownership and access to world ownership on fair and equal terms are incoherent positions taken together because the differences among people will always undercut access on fair and equal terms. All of these views seem to spring from Rousseau, Jean-Jacques, Discourse on the Origin and Foundations of Inequality Among Men, ed. Rosenblatt, Helena (New York; Boston, MA: Bedford Books, 2010), Part Two, ab initio “The first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows, ‘Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.’ ”

34 See Becker, Lawrence C., Property Rights: Philosophic Foundations (London; Boston: Routledge and K. Paul, 1977), 25; Cohen, Self-Ownership, Freedom, and Equality, chaps. 3 and 4; Kymlicka, Will, Contemporary Political Philosophy: An Introduction (New York: Oxford University Press, 1990), 117–18; Steiner, Hillel, An Essay on Rights (Oxford: Blackwell, 1994) for arguments on behalf of the position that with respect to resources, there is no such thing as a state of being unowned. Cohen, 103–4, recognizes that a regime of self-ownership plus the left-libertarian principle of the equal ownership of resources will potentially have anti-egalitarian results. Hence, Cohen, committed to egalitarianism, wants to deny self-ownership. Cf. Lippert-Rasmussen, Kaspar, “Against Selef-Ownership: There Are No Fact-Insensitive Ownership Rights Over One's Body,” Philosophy and Public Affairs 36, no. 1 (2008): 86118.

35 In this regard, social ownership is as much a fiction as a social contract.

36 See e.g., Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 101–2; Dworkin, Ronald, “What Is Equality? Part 2: Equality of Resources,” Philosophy and Public Affairs 10 (1981): 283345.

37 Christman, John, “Self-Ownership, Equality, and the Structure of Property Rights,” Political Theory 19 (1991), 3739, distinguishes between “control rights” and “income rights,” applying the former to self-ownership and the latter to the fruits of one's labor. He claims that income rights are subordinated to an egalitarian principle of justice whereas control rights are to be justified by principles of individual interests such as autonomy and liberty. Christman does not explain how constraining or regulating the value I put on the labor of others is not an infringement on my autonomy and liberty. He does not do so, I think, because the egalitarian principle of justice always trumps individual rights, if not in regard to my body itself, certainly in regard to what I accomplish with my skills, efforts, etc. It is odd that Christman says, at p. 35, that “[income rights] cannot be said to be a manifestation of the individual's autonomy and liberty, since income is a product of things over which an agent can claim no independent sovereignty.” What is the argument for the claim that a self-owner cannot “claim sovereignty” over his talents and the benefits from the value put on them by other self-owners?

38 See, e.g., Van Parijs, Philippe, Real Freedom for All: What If Anything Can Justify Capitalism? (Oxford: Clarendon Press, 1995); Cohen, Self-Ownership, Freedom, and Equality.

39 Cf. Narveson, Jan, The Libertarian Idea (Peterborough, Ontario: Broadview Press, 2001), 8285. For a contrasting view, see Gaus, Gerald, “Property, Rights, and Freedom,” in Property Rights, ed. Paul, Ellen Frankel, Paul, Jeffery, and Miller, Fred (Cambridge: Cambridge University Press, 1994), 209–40.

40 As Cohen, Self-Ownership, Freedom, and Equality, 98, realizes: “It looks as though the suggested form of external resource equality, namely, joint world ownership, renders nugatory the self-ownership with which he [the advocate of the joint ownership regime] had hoped to combine it. Self-ownership is not eliminated, but it is rendered useless, rather as it is useless to own a corkscrew when you are forbidden access to bottles of wine.” What Cohen calls “joint ownership” is what I mean by “group ownership” of the world's resources, which is not fractional ownership. Group ownership undercuts, if not eliminates, self-ownership, if self-ownership includes ownership of the fruits of one's own labor.

41 Feser, Edward, “Classical Natural Law Theory, Property Rights, and Taxation,” Social Philosophy and Policy 27, no. 1 (2010): 35, argues that “the concept of ownership presupposes the notion of rights” since to recognize someone as an owner of property is to acknowledge his right to it. Feser's mistake, I believe, is in supposing that if “X owns P” and “X has a right to have others refrain from appropriating P against his will” are coextensive, then someone's rights get to be logically prior. But the coextension itself cannot entail logical priority. In fact, if, as I have argued, moral agency is prior, we are then in a position to show that ownership is prior to rights even if it is in some sense coextensive.

42 See Nozick, Anarchy, State, and Utopia., 174–78.

43 The notion of “mixing one's labor” is notoriously vague, though it should be noted that any labor added by X gives X a prima facie claim to ownership greater than a claim by any Y who mixes no labor. Cf. Sanders, John, “Justice and the Initial Acquisition of Property,” Harvard Journal of Law and Public Policy 10, no. 2 (1987): 388–99, for criticisms of the “labor-mixing” condition and qualified support for it.

44 See Fried, “Wilt Chamberlain Revisited: Nozick's ‘Justice in Transfer’ and the Problem of Market-Based Distribution,” 230 and n.14, who expresses the problem in this way. If I were to mix my labor with land and so acquire ownership of it, everyone else is deprived of the scarcity value of the land, and so it is not the case that “enough and as good is left in common for others.” I do not think that Locke's proviso has to be read in this narrow way. “Scarcity” value is as meaningless as “surplus” value. Everything valuable as property is scarce. If any ownership is to exist, the owner is bound to benefit from the relative scarcity created by the ownership.

45 See Sanders, “Justice and the Initial Acquisition of Property,” 376–87.

46 See Wenar, Leif, “Original Acquisition of Private Property,” Mind 107, no. 428 (1998): 799820, who assumes that the acquisition of property produces burdens on others, including duties. That is because he thinks of the acquisition of property as the establishment of a right. He assumes that matters of right and justice can be established independently of and prior to the establishment of property ownership. See also Fried, Barbara, “Left-Libertarianism: A Review,” Philosophy and Public Affairs 32, no. 1 (2004): 7475, who, too, assumes that “all property rights necessarily infringe the liberties of others.” The word “liberty” here is set up for equivocal use: liberties which can and cannot be infringed according to some standard geared-to outcome, such as “general welfare.”

47 See Otsuka, Libertarianism without Inequality, chap. 1 which is a revised version of Otsuka, Michael, “Self-Ownership and Equality: A Lockean Reconciliation,” Philosophy and Public Affairs 27, no. 1 (1998): 6592.

48 Otsuka, Libertarianism without Inequality, 25, n. 39. I take it that the “initial” acquisition is not intended by Otsuka as an absolute historical moment, but only relative to subsequent distributions. That is, “initial” means the state of property ownership before an egalitarian redistribution is enacted. I have no idea, however, how Otsuka supposes that the “world's” resources are to be distributed across national boundaries. See Arneson, Richard, “Luck Egalitarianism: Interpreted and Defended,” Philosophical Topics 32, nos. 1-2 (2004): 120, for a defense of “luck egalitarianism” with ample references. The idea of “luck egalitarianism” is that inequalities that are merely a matter of luck should be eliminated. An analysis and a lengthy criticism of various forms of luck egalitarianism can be found in Anderson, Elizabeth A., “What is the Point of Equality?Ethics 109, no. 2 (1999): 287337.

49 As pointed out by Risse, “Does Left-Libertarianism Have Coherent Foundations?” 343, Otsuka's egalitarian assumption is actually more arbitrary than Locke's, since Locke, unlike Otsuka, assumes a theistic account of the origin of the world's resources; Locke's proviso, therefore, observes the prima facie claim that anyone has to these resources.

50 Ibid., 20–21, and n 26. Also see Christman, “Self-Ownership, Equality, and the Structure of Property Rights,” 39–44.

51 Cf. Vallentyne, and Steiner, , eds., Left-Libertarianism and Its Critics: The Contemporary Debate (London: MacMillan, 2000).

52 Thus, I would disagree with Waldron, Jeremy, “What is Private Property?Journal of Legal Studies 5 no. 3 (1985): 326–33, who thinks that private property is only one type of property. He calls “collective property” that which I am denying is possible for a state or a corporation. According to Waldron, collective property is distinguished by access and use of material resources by all the members of the collective. But access and use are not, I think sufficient for property ownership. If I give access and use of my property to someone else, they do not thereby own it. It is not use, but the authority over use that determines property.

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