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KOL130 | Bad Quaker: Kinsella and Tucker on Abortion, …

Kinsella on Liberty Podcast, Episode 130.

From the Bad Quaker podcast with host Ben Stone, Jeff Tucker and I discuss a variety of libertarian issues, including abortion and the like.

Update:  Here is the (lightly edited) text of the email I sent Tucker and Stone a few hours before the podcast, that was alluded to at the end:

There is something I’ve been chewing over in my mind lately that I’ve been thinking about discussing or putting on a podcast, and I’ll briefly mention below, in case you two think this is worth talking about.
It concerns the interrelationship between concepts of aggression, self-ownership, and homesteading of external resources. Basically libertarians sometimes treat aggression as a primary, and then struggle with including trespass to property as a case of it, … so then some of them finally admit that aggression depends on property rights-you need to know who owns an apple before you can tell if someone’s forceful taking of it (or keeping of it) is “aggression or not.” But then you get them turn around and apply property-ownership principles that apply to the apple–like contracts and homesteading–back to one’s body, after all one is a “self-owner” and therefore, “just like” the way you own the apple was by homesteading and you can have a contract to sell it, you also gain ownership of your body by homesteding and you can also sell it (voluntary slavery). I think Walter Block employs a version of this reasoning, and I’ve heard others employ variations of it.
(A similar fallacy is the twin pair of related ideas: if you own something, that implies that you can sell it; and if you sell something, that implies you must own it first. The former idea, which is based on a flawed idea about the origin and nature of property rights and contract theory, is used to justify voluntary slavery; the second, which is based on a flawed understanding of contract theory, is used to justify intellectual property.)
I’ve thought about this of the years, and kept toying in my mind with Rand’s (to my mind original) expression of the non-initiation of force principle. Similar to the way I toyed with self-ownership and finally figured it out due to Hoppe’s insights on this very topic, combined with his singular focus on economic scarcity as the touchstone of property (something Rothbard didn’t do, whcih is why he went astray on IP and a couple other fairly minor issues having to do with contract theory). Rand didn’t do it either, which is why she also was a bit fuzzy, beyond her NAP. What Hoppe made me realize (as I discuss in How We Come To Own Ourselves) is that there is a difference in the basis of property rights in one’s body, and in external resources. It is a difference that is already partially implicit in the elementary formulation of the NAP itself, as Rand and Rothbard formulated it.
The difference is this. it is not homesteading that is primary. It is the objective link–some objective, demonstrable link between the owner/claimant and the resource in dispute (an “intersubjectively ascertainable” link, as Hoppe might say in Kantian terms). The purpose of property rights is to allocate or determine an owner of a disputed resource, in the case of a dispute, so as to avoid conflict and to permit resources in general to be used productively. Thus the allocation rule has to be based on some objective criteria, not on something arbitrary, particularizable, or mere verbal decree–since the latter types of basis for deciding who owns something does not fulfill the function of property rights–of avoiding conflict, since if the rule is inherently arbitrary or unfair or particularizable then we cannot expect the people on the receiving end to respect it, so there will just be confict once more (might makes right; war of all against all). And any number of people could simultaneoulsy verbally claim the resource, so that could never be a good way. It has to be an objective criterion that everyone can see and recognize as objectively connecting one of the claimants to the resource in a way that gives him a superior claim to it. That is the objective link test.
In the case of one’s body, the objective link just is one’s direct control over one’s body–one’s special link to, connection to, one’s intimate relationship to one’s body. Whether you are atheist or theist, you can see this link exists: one either ‘is” one’s body, or “inhabits” one’s body, or is a soul that “drives” one’s body, whatever, in any case, one’s “person” is intimately bound up with a particular body. So, in a dispute between A and B over who owns A’s body, the answer is: A. Not B. The answer B would be slavery, other-ownership, and there is no way to justify a generalized system of other-ownership as this is particularizable and probably arbitrary too.
I would also argue that this is only a presumption. That is, if A is attacking B, B now has the right to use self-defense, which means, to invade A’s body without A’s consent (you could also say, instead, that A is consenting by attacking B, and this is an okay way to put it, but it might stretch the concept of “consent’ a bit much). So, in general, if A and B have a discussion about who owns A’s body, B cannot argue he owns A’s body, “because he is B” (that is particularizable), for example. But B can point to some objective fact in reality to make a distinction, such as: A is attacking, threatening or has attacked and threatened me, which changes the normal default presumption, etc. In other words, the commission of aggression by one of the parties suffices to change the presumption of equal-status of all parties involved. That is to say, self-defense is justified. That is to say, normally A has a set of rights (self-ownership, or more precisely, body-ownership), but he can forfeit or… “alienate” them, by committing aggression. (I discuss some of this in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. Also, in Defending Argumentation Ethics: Reply to Murphy & Callahan, explaining how Hoppe’s argumentation ethics is compatible with some people being treated as slaves/means–you just need a good reason.)
 
Note that this is all implied in the elementary formulation of NAP as Rand and Rothbard did it. Saying aggression is impermissible–meaning the unconsented to use of/invasion of the borders of someone else’s body–implicitly recognizes that the person is the owner of his body, just by virtue of it being his body (the objective link of direct control/intimate relationship that Hoppe made more explicit). But it also recognizes that this ownership is only a default presumption, precisely because it implicitly recognizes that defensive force is not prohibited (because the rule itself is specifying that initiatory force is prohibited). By recognizing the legitimacy of defensive force, the rule recognizes that you normally own your body but you can partially or completely forfeit this right, by committing aggression
 
And only by committing aggression can you lose rights in your body. This is key. The reason is that if you commit some action X that is not aggression (such as: a speech act like “I promise to be your slave”) then when B tries to use force against your body, it is aggression. For B’s action of domination over A not to be aggression, it would have to be in response to aggression by A. Otherwise, by definition it is initiated force.
 
And this is the problem Walter faces when he argues for voluntary slavery. They want to say that there are two ways you can forfeit or alienate your rights: aggression, and saying certain words. But this does not follow, and is just wrong. A’s saying words to B does not violate B’s rights. It is not aggression. Therefore,  if A decides later not to act as B’s slave, and tries to run away, then if B uses force against A, it is aggression
Walter tries to get around this by saying that it’s not aggression since B now owns A’s body. A’s body is B’s property. But this is obviously question-begging since it presupposes the promise to sell was effective. But that is what is in question. Walter does not realize that what contracts are effective depends on whether B has a right to use force against A. He thinks it’s the other way around: that we determine what contract capacity A has, and then this changes the rights landscape.
And the reason he thinks this is his confusion about contracts, as I noted above. He claims to adhere to Rothbard’s title-transfer theory of contract, which argues that contracts are not binding promises at all (as most people think of them), but instead are simply transfers of title to a resource, by an owner. Walter formally agrees with this but then by just asserting that a contract to sell your body is effective, he is basically adopting the “enforceable promises” view through the back door since the end result is the same: specific performance, i.e. body alienability. And the reason he makes this mistake is he assumes that if you own something, you can sell it. But ownership is the right to control, not the right to get rid of the right to control. If A has a better claim over his body than B does, because A has a direct link to his body, then this is true even after A makes a promise to B, since A still maintains direct control over his body even after the promise, and thus still has a better claim to it than B. (I tried in vain to get Walter to see this previously: KOL004 | Interview with Walter Block on Voluntary Slavery.; see aslo KOL095 | Interview with Daniel Rothschild on Children’s Rights, Aggression, Contract Theory, Self-Ownership, Voluntary Slavery, and More.)
The objective link idea implies self-ownership results not from homesteading one’s body but from the direct control one has over one’s body. It is impossible to imagine homesteading of one’s body since you have to be self-owner already before you homestead objects. Moreover, homesteading is about the appropriation of unowned resources. But one’s body is not unowned before one becomes a person. If we imagine a fetus or infant that is not yet a “person” in some sense, the moment it becomes a “person” the mom’s property rights in the baby’s body are lost and transfer to the little baby itself. So that means this kind of homesteading is a type of theft. The homesteading model makes no sense for self ownership. That means one never finds oneself as some spirit walking around looking for bodies to homestead, like a ghost possession someone. Rather, one becomes a person already bound up with a particular body and identity. This also means that you never “acquired” your body; you always were your body (or at least: intimately related to it). This is why you cannot “abandon” your body, by verbal decree, which is what the alienabilists assume you can do.
Just as it is impossible to imagine a body-less person, a pre-body person who “homesteads” this unowned body, it is also impossible to imagine an acting human who does not have access to and the ability to control external scarce resources–as Mises points out, all human action employs scarce means. If there are no scarce means, human action–life itself–is inconceivable and impossible. So a self-owning, body-inhabiting actor necessarily also acts in the world by means of controlling scarce resources. Necessarily. It is just that what these resources are in particular, is contingent. It could be anything. and these resources were at one point unowned, and they can be abandoned too. The resources employed become an extension of you interaction with reality–it is how we achieve ends. Thati s why they are “a property of” the person; by using these tools you extend your reach into reality, your control of the future.
So the objective link between a claimant and a human body is the direct control; but the objective link between multiple claimants and a particular external (previously unowned) resource is first use, or original appropriation/homesteading. If there are many claimants to a resource, the one who first used it has the better claim—unless he has sold it to someone else (contract), or he owns restitution to someone else (rectification) because of some previous offense (tort, aggression). The reason contract does apply here and not in the case of the body, is because as noted above the body is owned because of one’s direct control over it which does not change after a promise to be a slave or to “sell” one’s body; but external resources are objects that were previously unowned and that the homesteading agent came to acquire by an explicit act of appropriation combined with a public communication of intent to own instead of to merely temporarily possess (embordering is what does this signaling or public communication function–putting up a border, a fence, a boundary, mixing labor with or transforming the object in a way that makes this clear). In other words, because you can acquire particular scarce resources, you can abandon them. That means you can have contracts to “alienate” them.
(Incidentally previously I toyed with the idea that there might be some sort of natural “bankruptcy” type right, because if you can alienate all your future property, it’s tantamount to slavery since the person you sell everything to could deprive you of food and kill you. The formulation above sort of supports this: becaues any human actor has to employ some means. so he has no right to any particular resources but he has to have some rights to some resources, which might place limits on a person’s ability to alienate all of his future owned resources–which is sort of what the bankruptcy law gets at. But I am not sure about this.)
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