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."