In 2006, property rights attorney, Stephan Kinsella (Houston) published this article for The Mises Institute titled, How We Come to Own Ourselves. In it, Kinsella lays his case for how it is human beings can claim a ownership, or a property right, in their own body. This compelling argument has influenced my own work toward a libertarian theory of reproductive rights and a pro-life libertarianism. My only caveat is in reference to Hoppe.
I disagree that the direct link of ownership in our body is our will. I touch on this briefly in my podcast episodes where I first introduce the idea of fetal self-ownership. I also question his argumentation ethics, but I digress. This article is quite useful toward understanding the libertarian principle of self ownership. So, how do we own ourselves? This article is republished under a Creative Commons license. LEE ESTO EN ESPAÑOL
How Do We Own Ourselves?
(How We Come to Own Ourselves, by Stephan Kinsella)
The primary social evil of our time is lack of respect for self-ownership rights. It is what underlies both private crime and institutionalized crime perpetrated by the state. State laws, regulations, and actions are objectionable just because the state is claiming the right to control how someone’s body is to be used.
When the state drafts a man or threatens him with imprisonment if he violates its narcotics laws, for example, it is assuming partial control of his body, contrary to his self-ownership rights.
Moreover, laws such as tax laws or fines for failure to comply with arbitrary state decrees (e.g., economic regulations, anti-discrimination rules) also violate self-ownership rights by assuming ownership of property owned by individuals.
After all, although self-ownership is more fundamental than rights in external resources — one must own oneself in order to own other things — self-ownership is rendered meaningless if the right to own private property is not also respected. This is why Murray Rothbard insisted that all “human rights” are property rights — ownership rights in scarce resources, whether self-ownership rights in one’s body or property rights in external objects.
Now as the example above shows, all political theories advocate some form of property rights, since they specify certain owners of various types of resources. State policies that tax, conscript, or imprison or fine individuals for failure to comply with various regulations in effect assign partial ownership in the subjects’ bodies or property to the state. The state claims a partial ownership right in these resources.
All political systems assign owners to resources according to some assignment rule. What sets libertarianism apart is its own unique property-assignment rule: the rule that specifies that individuals, not the state, are owners of their own bodies and property.
First Use and Homesteading of Unowned Resources
It is, therefore, crucial that libertarian theory have a sound basis for property rights and for its unique property assignment rules.
Relying on some version of the Lockean notion of homesteading — an individual appropriating something unowned from the state of nature, thereby becoming the owner — libertarianism rightly focuses on the concept of first use of a previously unowned scarce resource as the key test for determining ownership of it.1
One’s initial impression might be that first use is the bedrock principle of libertarian property assignment, that is, that it decides questions of ownership of all scarce resources, both human bodies and external things. The owner of a plot of land is its first user (or his descendent in title), just as the first user of a body is its owner. This would mean that self-ownership rests on the first use principle.
Parents as First Owners
And what is wrong with relying on first use as the basis for self-ownership? To be sure, with respect to most claimants to one’s body — a robber or state trying to conscript, say — one is indeed the “first user,” and thus has a better claim to the body than the outsider. But what about one’s parents? Is one really the first user of one’s body? Was one’s body simply lying around unowned, in state of nature, waiting for some occupant to swoop down and appropriate it?
No, obviously not. It was (one was) in the care of — and produced by — one’s parents. So if we maintain that “first use” always determines the answer to the question “who owns this resource?”, for any resource at all, then it would seem that parents do own their children. The mother owns the physical matter and bits of food and nourishment that assemble into the zygote, embryo, fetus, and then baby.
So, when does the child become a self-owner? Or does he? The libertarian seems to be faced with a dilemma.
Possible Solutions to the Dilemma
Several possible arguments might be put forward to avoid the uncomfortable specter of children in bondage. First, it could be noted that the main political issue in society concerns third parties who want to dominate and control others. Slaveowning parents do not seem to pose the most pressing danger. For the typical case of conflict, the first-use principle suffices to prove self-ownership of one’s body vis-à-vis the third party claimant. Still, this leaves open the possibility of parents owning their kids.
Second, it could be argued that even if the parent does own the child, in most cases a decent parent would manumit the child at a suitable age. This is probably true, but the possibility of a brutal parent selling his son or daughter into slavery is still unsettling. Third, perhaps one could try some kind of “regression theorem” based on this … back to “Adam.” But this seems unlikely to be fruitful.
Fourth, it is not difficult to envision a scenario in which most lines of descent, at some point, become permanently “liberated” or “manumitted” by the benevolent actions of a key ancestor. Great-great-great-Grand-dad manumits his child on the condition that he free his issue, and so on. In this way, eventually all or most lines of descent become freed by some distant act in the past of a benevolent ancestor. But still, this leaves open the possibility that some might not; and, in any event, it admits that at some points in time, child-slavery exists and is permissible.
Finally, and to me most decisive: the libertarian could argue that the parent has various positive obligations to his or her children, such as the obligation to feed, shelter, educate, etc. The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide.
Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs. And surely this set of positive obligations would encompass the obligation to manumit the child at a certain point.
This last argument is, to my mind, the most attractive, but it is also probably the least likely to be accepted by most libertarians, who generally seem opposed to positive obligations, even if they are incurred as the result of one’s actions. Rothbard, for example, puts forward several objections to such an approach.2
Objective Link: The Real Touchstone
All this said, it turns out that these Herculean efforts are unnecessary. The dilemma arises only if it is assumed that “first use” determines ownership not only for homesteaded resources, but also for bodies.
However, the “first use” rule is merely the result of the application of the more general principle of objective link to the case of objects that may be homesteaded from an unowned state. Recall that the purpose of property rights is to permit conflicts over scarce (rivalrous) resources to be avoided. To fulfill this purpose, property titles to particular resources are assigned to particular owners.
The assignment must not, however, be random, arbitrary, or biased, if it is to actually be a property norm and possibly help conflict to be avoided. What this means is that title has to be assigned to one of the competing claimants based on “the existence of an objective, intersubjectively ascertainable link between owner and the” resource claimed.3
Thus, it is the concept of objective link between claimants and a claimed resource that determines property ownership. First use is merely what constitutes the objective link in the case of previously unowned resources. In this case, the only objective link to the thing is that between the first user — the appropriator — and the thing. Any other supposed link is not objective, and is merely based on verbal decree, or on some type of formulation that violates the prior-later distinction.
But the prior-later distinction is crucial if property rights are to actually establish rights, and to make conflict avoidable. Moreover, ownership claims cannot be based on mere verbal decree, as this also would not help to reduce conflict, since any number of people could simply decree their ownership of the thing.4
So for homesteaded things — previously unowned resources — the objective link is first use. It has to be by the nature of the situation.
But for bodies, things are not the same. As noted above, one is not really the “first user” of one’s body in the same sense as one is the first user of a previously unowned thing that one appropriates. It’s not as if the body was just lying, unoccupied and unused, in the wild, waiting for an occupant to homestead it. And moreover, as noted above, the occupant is not exactly the first user of his body, with respect to his parents.
Additionally, to homestead an unowned resource presupposes one already has a body, which one uses to act in the world and to homestead unowned things. But this is not the case for “homesteading” one’s body. One has no body before one gains rights to it.5
If “first use” is not the ultimate test for the “objective link” in the case of body ownership, what is? It is the unique relationship between a person and “his” body — his direct and immediate control over the body, and the fact that, at least in some sense, a body is a given person and vice versa. This is what constitutes the objective link sufficient to give that person better title to his body than any third party claimant, even his parents (an exception would be the victim of a crime committed by the body-owner, who might thereby acquire a “superior” link to or claim on the criminal’s body).
Moreover, any outsider who claims another’s body cannot deny this objective link and its special status, since the outsider also necessarily presupposes this in his own case. This is so because in seeking dominion over the other, in asserting ownership over the other’s body, he has to presuppose his own ownership of his body, which demonstrates he does place a certain significance on this link, at the same time that he disregards the significance of the other’s link to his own body.
(Notice that if a victim seeks dominion over the body of his aggressor for purposes of proportional punishment, his claim of ownership over the aggressor’s body is not incompatible with a claim of self-ownership, since the cases are different. It is not inconsistent to claim that the special link between an innocent person and his body gives him the best claim over that body, and to also claim that this no longer holds for an aggressor because he has committed aggression. This distinction is neither arbitary nor particularizable; it is grounded in the nature of things.)6
The basic point about the primacy of the “direct” link over an “indirect” link (ceteris paribus — see the point above about punishment of criminals) was first suggested to me by Hoppe. As might be apparent to those familiar with Hoppe’s argumentation ethics, the Hoppean theory implies the logical priority of direct versus indirect control over one’s body. In fact, the argument made above (that any outsider who claims another’s body cannot deny the objective link between person and body) is merely an application of Hoppe’s argumentation ethics approach. In fact, Hoppe made a similar argument in a German publication in 1985:
The answer to the question what makes my body “mine” lies in the obvious fact that this is not merely an assertion but that, for everyone to see, this is indeed the case. Why do we say “this is my body”? For this a twofold requirement exists. On the one hand it must be the case that the body called “mine” must indeed (in an intersubjectively ascertainable way) express or “objectify” my will.
Proof of this, as far as my body is concerned, is easy enough to demonstrate: When I announce that I will now lift my arm, turn my head, relax in my chair (or whatever else) and these announcements then become true (are fulfilled), then this shows that the body which does this has been indeed appropriated by my will.
If, to the contrary, my announcements showed no systematic relation to my body’s actual behavior, then the proposition “this is my body” would have to be considered as an empty, objectively unfounded assertion; and likewise this proposition would be rejected as incorrect if following my announcement not my arm would rise but always that of Müller, Meier, or Schulze (in which case one would more likely be inclined to consider Müller’s, Meier’s, or Schulze’s body “mine”). On the other hand, apart from demonstrating that my will has been “objectified” in the body called “mine,” it must be demonstrated that my appropriation has priority as compared to the possible appropriation of the same body by another person.
As far as bodies are concerned, it is also easy to prove this. We demonstrate it by showing that it is under my direct control, while every other person can objectify (express) itself in my body only indirectly, i.e., by means of their own bodies, and direct control must obviously have logical-temporal priority (precedence) as compared to any indirect control. The latter simply follows from the fact that any indirect control of a good by a person presupposes the direct control of this person regarding his own body; thus, in order for a scarce good to become justifiably appropriated, the appropriation of one’s directly controlled “own” body must already be presupposed as justified.
It thus follows: If the justice of an appropriation by means of direct control must be presupposed by any further-reaching indirect appropriation, and if only I have direct control of my body, then no one except me can ever justifiably own my body (or, put differently, then property in/of my body cannot be transferred onto another person), and every attempt of an indirect control of my body by another person must, unless I have explicitly agreed to it, be regarded as unjust(ified).7
So, who owns a child’s body? Initially, the parents own it as a sort of temporary trustee. The parents, as the producers of the child, have an objective link to the child’s body that defeats any claims of outsiders (unless the parents sever this link by abusing their position). That is, parents have a better claim to the child than any outsiders, because of their natural link to the child. However, when the child “homesteads” or “appropriates” his own body by establishing the requisite objective link sufficient to establish self-ownership, the child becomes an adult, so to speak, and now has a better claim to his body than his parents.
Hoppe recognized this basic conclusion in his 1989 treatise, where he wrote:
It is worth mentioning that the ownership right stemming from production finds its natural limitation only when, as in the case of children, the thing produced is itself another actor-producer. According to the natural theory of property, a child, once born, is just as much the owner of his own body as anyone else. Hence, not only can a child expect not to be physically aggressed against but as the owner of his body a child has the right, in particular, to abandon his parents once he is physically able to run away from them and say “no” to their possible attempts to recapture him.
Parents only have special rights regarding their child — stemming from their unique status as the child’s producers — insofar as they (and no one else) can rightfully claim to be the child’s trustee as long as the child is physically unable to run away and say “no.”8
Here Hoppe adopts the Rothbardian approach, which uses the child’s capacity to run away and say “no” as a sort of rule of thumb for indicating when a child fully appropriates his body.9 But a more general conception of body-appropriation may be developed by considering the following. First, as Hoppe emphasizes, to appropriate means to bring under control.10
Hoppe also argues that rights are held by rational agents — those who are “capable of communicating, discussing, arguing, and in particular, [who are] able to engage in an argumentation of normative problems“.11 This implies that a person reaches adulthood, or “appropriates” his body and gains full ownership rights to it, when he reaches the point where he is a rational agent in this sense.
(The act of gaining full self-ownership rights may be regarded as a type of homesteading or appropriation of one’s body — reaching adulthood, so to speak — so long as it is kept in mind that it is a special type of homesteading: not homesteading by a body-owner of an unowned (non-agent) resource, but the establishment of an objective link constituted by direct and immediate control of the body by a rational agent.)
Obviously, there are other issues that could be explored here: when and exactly how does a child homestead himself, or reach adulthood; and exceptions to the prima facie case, such as where a person commits a crime which in some sense severs his objective link or transfers it to his victim (creating a “superior” link on behalf of the victim), so that the victim has the right to retaliate.
But it should be clear that what distinguishes libertarianism from all competing political theories is its scrupulous adherence — informed by sound, i.e., Austrian, economics — to the idea that property rights in scarce resources must be assigned to the person with the best, objective link to the resource in question; and that, in the case of bodies, the link is the natural connection to and relationship between the occupant and the body, while for all other resources, the objective link is first use.
- 1.For more on the importance of and reasons for first use being the touchstone of property ownership, see my articles A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability and Defending Argumentation Ethics, esp. the section “Objective Links: First Use, Verbal Claims, and the Prior-Later Distinction,” and the links in this piece to various writings by Hans-Hermann Hoppe on this issue; and the blog posts The Essence of Libertarianism? and Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading.
- 2.See Murray N. Rothbard, The Ethics of Liberty, chapter 14, “Children and Rights.”
- 3.Hans-Hermann Hoppe, A Theory of Socialism and Capitalism, p. 12.
- 4.Hoppe elaborates on these themes in ch. 1, 2, and 7 of A Theory of Socialism and Capitalism.
- 5.For further discussion of the difference between bodies and things homesteaded for purposes of rights, see Kinsella, “A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability,” Journal of Libertarian Studies, vol. 17, no. 2, pp. 11–37 (e.g., the “Property in the Body” section on p. 29).
- 6.For more on this, see my A Libertarian Theory of Punishment and Rights, pp. 617-25; and Hans-Hermann Hoppe, A Theory of Socialism and Capitalism, pp. 131-38.
- 7.Informal translation from Hans-Hermann Hoppe, Eigentum, Anarchie und Staat (Manuscriptum Verlag, 2005, pp. 98-100; originally published in 1985).
- 8.Hoppe, A Theory of Socialism and Capitalism, n.9 to ch. 2, on p. 212; emphasis added.
- 9.Rothbard, The Ethics of Liberty, chapter 14, “Children and Rights.”
- 10.Hans-Hermann Hoppe, “Four Critical Replies,” p. 242.
- 11.Hoppe, A Theory of Socialism and Capitalism, n.2 on p. 212.