Cohen's Challenge

Part of Cohen's critique of the libertarian argument is to question premise (1). Cohen claims that it does not follow from X being non-contractually obliged to do A for Y that Y then possesses a right of disposal over X's labour of the sort that a slave-owner has. For Y to have that type of control over X, it would have to be the case that Y has full discretion over the personal power X uses to fulfill A. A slave owner, by definition, has full discretion over the use of the personal powers of his/her slave. That is, a slave owner is entitled to decide whether or not the personal powers of his/her slaves will be used and also to what end those powers will be employed. However, as Cohen argues, non-contractual obligation need not imply that the obligated exist under such slave-like control.

It could be the case that Y has no right to absolve X of the obligation in question. For example, the government could have a duty to tax X, in which case the government would have no right to decide whether or not the personal powers of X be used or not be used. Note that the question here is not whether the government actually has such a duty. Rather, the point is that having a duty to do something means that one has no right not to do it, or in other words, no right to decide whether to do it or not. But that exact right is constitutive of ownership, since one cannot truly own something if he/she is not the final authority on whether or not that thing will be used (or not be used) to some end. The same obviously applies for a slave-owner. Thus, it cannot be said that Y exercises slave-owner like control over X if Y has no right to absolve X of A. Further, independent of Y having a right to absolve X of A, it also does not follow from non-contractual obligation that Y can tell X to do whatever it is Y desires with the power X would use to fulfill the stated obligation. This is another right constitutive of slave-ownership. As non-contractual obligation fails the definition of slave ownership in at least two key ways, Cohen concludes that non-contractual obligation need not imply slave-owner like control.

Cohen's purpose here is to stop libertarians from helping themselves to the conclusion that non-contractual obligation is the same thing as slavery, thus rendering the libertarian argument unsound. However, Cohen anticipates one libertarian reply. The libertarian may concede that non-contractual obligation is not the same thing as slavery, but may still make the broad objection that what matters is not whether Y has certain rights constitutive of slave-ownership over X per se. Rather, what is troubling is the loss of X's full ownership rights in him or herself. "[X's] own condition, as far as [X] is concerned, is not in every important way different from that of a short-term or partial slavery. For [X] has no more right to decide what to do with [his/her] faculties within the given frame of task and time than [X] would have if [his/her] obligation had been imposed by an arbitrary master (235)."

One of Cohen's replies to this objection is to claim that the libertarian state, minimal as it is, will also be guilty of infringing on self-ownership in order to maintain the coercive apparatus necessary to protect the rights it so prizes. He puts it this way:

"It is impossible to argue that an hour's labor that ends up as part of somebody's welfare payment is like slavery, while an hour's labor that ends up as part of a policeman's salary is not, when focus is on the condition of the putative slave himself. To be sure, and this is not here denied, if [the libertarian] is right, then taxation for policeman is justified and taxation for the poor is not, because the principle of self-ownership, through a complicated argument to do with self-defence, licenses the first taxation and forbids the second. But the principle of self-ownership cannot here be invoked to distinguish the cases, nor in particular, to show that one case is like slavery and the other is not, since the slavery consideration is here supposed to be an argument for the principle of self-ownership (235)."

In short, I think what Cohen is saying is that the libertarian cannot have it both ways. Given his commitments, he cannot appeal to the principle of self-ownership to license taxation for the purpose of safeguarding certain rights. Libertarians often like to make the distinction between positive rights and negative rights--positive rights being entitlements to goods or services and negative rights being entitlements to non-interference with one's affairs. Libertarians dislike positive rights because they undoubtedly conflict with the negative rights they prefer. However, as Holmes and Sunstein (1999, 43) argue, "In the context of citizens' rights to state enforcement, all rights are positive."

The Libertarian Argument

The libertarian argument is rooted deeply in the thesis of self-ownership. Ownership of oneself follows plausibly from a status-based conception of rights, and it is hard to deny its intrinsic appeal. For a libertarian, violations of self-ownership are an affront to the dignity of human beings. Within a libertarian ethos, this affront, as Jeff noted, is tantamount to enslavement--or at least partial enslavement, which is to any degree wrong.

Cohen (1995) recounts the argument this way:

(1) If X is non-contractually obliged to do A for Y, then Y has a right of disposal over X's labour of the sort that a slave-owner has.
(2) If Y has a right of disposal over X's labour of the sort that a slave-owner has, then X is, [to that extent], Y's slave.
(3) It is morally intolerable for anyone to be, in any degree, another's slave. Therefore
(4) It is morally intolerable for X to be non-contractually obliged to do A for Y.

I think Cohen's treatment of the argument is accurate and instructive. If any criticism of libertarianism is to be made (at least within a status-based rights framework), it must take this argument head on. Can one insist on a redistributive taxation scheme without violating self-ownership? It doesn't seem possible to me.

Some Theories of Rights

(A lot of this is taken from an article by Wenar)

There are two broad approaches to justifying rights--status-based theories and instrumental theories. Instrumental theories say that we have rights because generally speaking, they bring about good consequences--they make us better off. It is clear, however, that as part of the larger utilitarian framework, an instrumental theory of rights stands little chance of rendering any rights absolute. This is because the moment aggregate welfare might be improved by dispensing with rights, utilitarians will gladly do so. For example, a utilitarian will legislate progressive tax schemes that transfer money from the rich to the poor on the grounds that the poor have a higher marginal utility of wealth than do rich people. That is to say, a dollar is valued more by a poor person than by a rich person, so aggregate welfare would be improved if income were redistributed. To a utilitarian, property rights, like all other rights, are only valuable insofar as they promote aggregate welfare.

Status-based theories, on the other hand, seek a grounding of rights on the basis of human attributes--namely rationality, free will, autonomy, and the ability to regulate one's life in accordance with one's chosen conception of the good life. Status theorists contend that these attributes of humans make it fitting that humans should have certain rights.

Quinn on status-based rights:

"A person is constituted by his body and his mind. They are parts or aspects of him. For that very reason, it is fitting that he have primary say over what may be done to them—not because such an arrangement best promotes overall human welfare, but because any arrangement that denied him that say would be a grave indignity. In giving him this authority, morality recognizes his existence as an individual with ends of his own—an independent being. Since that is what he is, he deserves this recognition." (1993)

So status-based rights are, in a way, natural rights. That is, they arise from our nature as human beings possessing certain attributes that are worthy of respect. How we have those attributes, whether from God or some other source, is beside the point.

Finding a Foundation For Rights

I know I am moving the discussion back a step or two, but these issues are important if subsequent argument is to rely on adequate answers to these foundational questions:

That property rights are absolute presumes that one has a right to property to begin with. The question then is: in what is such a right grounded? This is relevant because if there is no grounding, a property right cannot reasonably be said to exist. To say that rights are conferred on us by God has the odd consequence that if God did not exist, then rights would not exist. The same goes for a protoplasm. Problems also arise when claiming we are endowed with rights by nature or the universe. Do we know this is true in the same way we know that nature or the universe endowed us with certain physical restraints such as the law of gravity? How can we prove this? In any case, to say, "our god/creator/universe/random protoplasm/what-have-you endowed individuals with natural rights" answers the question: "Where do rights come from?" It does not necessarily guarantee a satisfactory answer to the question: "How are such rights justified?"

Even if we do find a suitable grounding for rights in general, that is, even if we prove they exist, it is a further task to prove they are insuperable so long as they do not infringe on the exercise by any other individual of those same rights. Also, we must supply an argument for why property rights belong to this set of absolute rights. Arguing that property rights are foundational for all other rights does obviously entail their membership in such a set, but that is a stronger claim, and one that is therefore harder to prove. Perhaps a sketch of that argument is provided, but at the moment I am not sure how to interpret the phrase 'to own one's liberties.' What exactly does this mean? In any case, it suffices to prove the weaker claim that property rights are simply part of an overall rights scheme--not that they are the foundation for such a scheme.

One thing to keep in mind is the distinction between a property right in oneself and a property right in external worldly resources. When we discuss a right to property as being an absolute right, which type of property right are we talking about? Are both kinds of rights absolute? Even Locke, a big fan of natural rights, placed limits on the right to property in external resources. His Proviso stipulates that in appropriating previously unowned worldly resources, one must leave "as much and as good" for others. Robert Nozick, perhaps the prominent libertarian philosopher, stipulated a similar proviso.

There is a lot to chew on here, but the most important thing to do first is find a suitable foundation for rights.

Property Rights

I think this is a good place to start. I think a good question to ask of property rights is, are they absolute? If so, why? If not, how far do they extend and how are such limits justified?

The Armchair Park

My idea for this blog is to create a space where we (my friends and I) can engage in good spirited intellectual exchange. I don't see it as a blog in the sense that blogs usually try to stay current and on top of things as they happen. Not that I have something against being topical, but I am hoping we can concentrate on subjects as long as is needed to see if we might be able to gain a deeper understanding of the topic at hand. In all, I think it would be a neat way to keep meaningfully in touch with people even if we all live in different parts of the country slash world these days.

It might be difficult for me to attend to this blog regularly, but I still feel like starting it to see what happens