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January 1989
Vol. 2, No. 3
Clarification
The Absurdity of Alienable Rights
Sheldon Richman is a contributing editor of Liberty.
There was good reason for Jefferson to characterize the rights to life, liberty and the pursuit of happiness as “inalienable” when he wrote the Declaration of Independence. For rights to be meaningful, they must be inalienable. Rights (unlike some of the things one has a right to) are not possessions to be bought, sold and alienated at will. They are essential to self-ownership, a concept that is central to libertarianism.
But some libertarians have missed the point.
Ethan O. Waters, for example, argues that if all the people in a geographical area “agreed to vest all ownership of real estate in a corporate body (and to subject themselves to) periodic payment of fees (called “taxes”) and various other controls (called “laws and regulations”) on the behavior of those who might live on the corporately owned land,” that a political system identical to our own statist society might develop in a way that would be entirely consonant with libertarian principles. In doing so, Waters overlooks the one essential element of self-ownership: the inalienability of individual rights. By agreeing to form the hypothetical, forever-binding corporation, the hypothetical persons have to be able to alienate their rights to life, liberty and property.
Similarly, several of the critics of Hans-Hermann Hoppe’s rights theory objected on grounds that slaves can discuss philosophy, thereby disproving Hoppe’s thesis that argumentation implies self-ownership. These critics also overlook the fact that, by definition, a slave is a person who does not possess the right to self-ownership; that is, a person whose rights have been alienated.
Because they do not understand that rights are inalienable, Waters and Hoppe’s critics have failed in their endeavors. Only by understanding the nature of rights can we come to grips with the philosophical issues involved. Apparently, some elucidation is still needed.
Self Ownership
Many people find the concept of self-ownership rather peculiar. After all, in all other forms of ownership, we have two things, a person and an external, alienable object. Isn’t it contradictory to say, as Locke said, that “every man has a property in his own person”?
Not at all. Property rights do not refer primarily to relations between men and things. “Property rights are understood as the sanctioned behavioral relations among men that arise from the existence of things and pertain to their use.” “Rights” is a moral concept; people’s relations with things are neither moral nor immoral. Thus rights address the issue of how people may and may not treat one another. Self-ownership, then, does not describe a relationship between a person and himself, but between a person and all other persons.
This is made clear by James A. Sadowsky when he defines one’s right to do certain things to mean “that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof. We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral use.”
Some philosophers ask why we need to talk about ownership of the self at all. But how can we help it? Ownership refers to the rightful and ultimate control of a thing. It becomes an issue when something of value is scarce. Life is such a thing. It is not only a value, but the source of the very possibility of value. It is obviously scarce. The successful development of a life requires the use of that life in self-sustaining action and thus the rightful and ultimate control of it. Without this control each life would be at the mercy of anyone’s whims. Ethics, as a discipline devoted to the flourishing of life (it can have no other purpose) therefore must concern itself with who owns each individual life. Even if the term self-ownership is never used, the issues involved cannot be escaped.
In an article I wrote ten years ago, I took up the question of whether voluntary slave contracts were enforceable. Whether a man could agree to become a slave had been controversial among natural-rights theorists for centuries. Hugo Grotius, a 17th-century espouser of natural law, believed one could literally give oneself away. So does Robert Nozick (though if you rent yourself to him, you may be subject to rent control).
Lysander Spooner, on the other hand, disagreed. “No man,” he wrote, “can delegate, or give to another, any right of arbitrary dominion over himself; for that would be giving himself away as a slave. And this no man can do. Any contract to do so is necessarily an absurd one, and has no validity.” By “absurd” Spooner did not merely mean ridiculous. He meant logically absurd, impossible. Spooner was absolutely correct and that this point applies to any argument against self-ownership.
A slave is one who belongs — mind and body — to his master. He is one who doesn’t own — that is, does not possess the right of use and disposal of — his will and person. He lacks the right to control his actions. All slavery entails the subordination of one will to another. A clue to the contradiction involved is that we can’t help but use the possessive “his” regarding the slave’s will despite his (there we go again) status.
A slave contract would mean the willful giving up of one’s own will. How can one give up one’s will? What is giving up what? If the will is being given up, what’s doing the giving? If the will is doing the giving, what is it giving up?
A person can never transfer control of his will. It is inseparable. Nor can anyone directly control the will of another. A will can only control itself and no other. If Jones commands Smith to perform an action, the action will be performed only if Smith wills it. Threats of force notwithstanding, Smith has to exercise his will to perform the action. Jones cannot exercise it for him. “[N]o man can delegate, or impart, his own judgment or conscience to another.” In the strictest sense, all actions are voluntary.
(This by no means undermines the moral condemnation of aggression. To say that an action is involuntary or “against one’s will” means not that the aggressor exercised the victim’s will, but that the victim would not have exercised it a particular way in the absence of the threat of force.)
If you cannot give up control of your will, how can you give up your right to control it? The receiver of this right could never exercise the right. A right that cannot be exercised is absurd. Thus the right itself cannot be transferred.
Furthermore, because the right of contract presupposes a free and sovereign will, where there is no free and sovereign will there is no contractual obligation. To invoke such an obligation is to be guilty of a contradiction. As Ayn Rand would say, this is the fallacy of the stolen concept — using a concept while denying its roots. “To take rights like those of property and contractual freedom that are based on a foundation of the absolute self-ownership of the will and then to use those derived rights to destroy their own foundation is philosophically invalid.”
The upshot is that a contract slave could have no obligation to obey his master.
But we can take this further. Not only would there be no obligation to obey, but an act of obedience would actually violate the “contract” because the slave would have to assume control — ownership — of the will in order to obey. In other words, to carry out any order, the slave would have to exercise control of his person. It may be objected that the master, in giving a command, is in fact giving the slave permission to resume control of the will, temporarily, for a specific purpose, just as you could give someone permission to borrow the car you just bought from him.
But this objection fails: to give the slave permission to “borrow” the will, the slave would first have to exercise it in order to listen to and grasp the nature of the permission. But as one who has given up his will, he cannot legitimately exercise his powers of understanding before being granted permission. He would first have to get permission to use those powers for the purpose of getting permission to carry out the original command.
But that obviously leads to an infinite regress of permission-granting. Thus the “voluntary” slave could never carry out an order without violating his contract. But couldn’t someone enter a permanent, unconditional, binding contract simply to carry out every order given by the owner? No: the will cannot be carved up, as such a contract would require. Before the slave could distinguish an order from anything else, he would have to assume control of his power of understanding, which includes control of his body (brain and ears, for example).
But if that is retained in the contract, what has been given up? For the contract to be meaningful, nothing less than complete ownership of the body would have to be given up. In a normal labor contract the harshest penalty for not obeying an order is dismissal, that is, the end to orders and expulsion from the owner’s property. This could not be the case in a slave contract. What makes it a slave contract are the master’s right to use force against the slave and the slave’s obligation to submit. Thus a slave contract must entail the surrender of title to one’s body. This is what produces the contradictory result already mentioned: the illegitimacy of the slave’s using his body (regaining title) to understand and carry out orders.
Could one surrender the right to control just one’s body and not the will? The answer again is no. The question rests on a mind-body dichotomy. The body cannot be surrendered without the will. The will obviously cannot “act” without a body. The will is required to sustain the body, and the owner of the body could easily extinguish the will by withholding sustenance. Moreover, no master wants only the body of the slave, for it would do little good to have a right to the slave’s body without having a right to direct the will. Liberty is indivisible.
To sum up, if slave contracts are valid, the slave can have no obligation to honor his owner, but he also has an obligation to refrain from honoring his master — a contradiction if ever there was one. That which makes a contract binding — a free and sovereign will — is what makes a slave contract invalid. As Rousseau wrote, “To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties. . . . Such a renunciation is incompatible with man’s nature; to remove all liberty from his will is to remove all morality from his acts.”
It’s now time to apply this point to the general question of self-ownership. Because obligation and action require self-ownership, if one makes an argument against self-ownership, one is compelled by logic to concede that one’s listeners (who after all are not self-owners) have no obligations and that they are obligated to refrain from all action — including grasping the arguments. Both parts undercut argumentation per se. Every argument is based on what Frank Van Dun calls the obligation to be reasonable. If one did not at least implicitly believe that people ought to respect argumentation and accept valid conclusions, one would never make an argument. Yet the substance of the argument denies that anyone has the right to do what the arguer implies one ought to do. Such an argument is, as Spooner would have said, “necessarily an absurd one, and has no validity.”
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