From The Meaning of Morality.
As I write in an upcoming paper (“The Ethical Case Against Intellectual Property,” Griffith Law Review, Symposium on Law and Anarchy: Legal Order and the Idea of a Stateless Society (Symposium Editor, Gary Chartier; forthcoming 2012)) [update: this article was withdrawn from this symposium due to a disagreement with the editors; a version was published as “Law and Intellectual Property in a Stateless Society,” Libertarian Papers (vol. 5, 2013)]:
First, as Professor Hoppe has argued, the assignment of ownership to a given resource must not be random, arbitrary, particularistic, or biased, if the property norm is to serve the function of conflict-avoidance. This is because any possible norm designed to avoid conflict must be justified in the context of argumentation, in which participants put forth reasons in support of their proposed norms. The norms proposed in genuine argumentation claim universal acceptability, i.e. they must be universalizable. Reasons must be provided that can in principle be acceptable to both sides as grounded in the nature of things, not merely arbitrary or “particularistic” rules such as “I get to hit you but you do not get to hit me, because I am me and you are you.” Such particularistic norms or reasons are not universalizable; that is, they are not reasons at all, and thus are contrary to the purpose and nature of the activity of justificatory argumentation. B’s claim that he owns his own body and also owns A’s body, while A does not get to own his own body, is an obviously particularistic claim that makes arbitrary distinctions between two otherwise-similar agents, where the distinction is not grounded in any objective difference between A and B.
See Hoppe, A Theory of Socialism and Capitalism, supra note 4, pp. 131–38. See also Kinsella, “A Libertarian Theory of Punishment and Rights,” supra note 16, pp. 617–25; idem, “Defending Argumentation Ethics: Reply to Murphy & Callahan,” Anti-state.com (Sept. 19, 2002).
Regarding the comment above:
B’s claim that he owns his own body and also owns A’s body, while A does not get to own his own body, is an obviously particularistic claim that makes arbitrary distinctions between two otherwise-similar agents, where the distinction is not grounded in any objective difference between A and B.
—I have pointed out many times in other fora that during argumentation about rights and norms between two people, whatever rights-claims one of them makes, he is necessarily assuming self-ownership. If A claims a right to own resources, or not to be attacked by B, or even a right to dominate or enslave B, A is explicitly or implicitly claiming he has certain self-ownership rights, that is, rights in his own body. It does not matter what his basis for this claim is—natural law, consequentialism, etc.—or even if he has no basis and is just asserting it. The point is that whatever his claim is based on, it is based on something about his identity or nature; e.g., the fact that he’s an intelligent human, etc. When he claims rights in himself based on his nature, he can’t deny that B has these rights too, since B has the same nature as A. To overcome this presumption A has to demonstrate that something about B‘s nature makes him relevantly different so as to justify denying B the same type of rights that A is claimed to hold. You can’t just say “well I’m me and you’re you,” since this is particularizable and simply fails to offer a reason. You can’t say “I’m white and you’re black” since you can’t demonstrate that skin color has any connection to the reason the agent has rights. Now you could argue “because you committed an act of aggression against me,” since this is an actual objective fact that does justify different treatment of the two actors: A has rights because (say) he’s human and has not committed aggression against B; B had rights as a human but forfeited some of them by harming A. This is why a victim does not run into contradiction or argue in a particularistic way or violate universalizability when he claims a right to be free from unconsented-to force but also maintains the right to use force against B even when B doens’t consent.
It is interesting that John Locke made a similar insight long ago, in The Two Treatises of Civil Government:
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.
In other words, all humans have similar natures and thus whatever rights one person has by virtue of this nature, others also have (unless God, who owns us all, decrees otherwise). To “subordinate” another person is to treat them as having fewer rights than the dominator, but there is no reason one can give to justify this difference in treatment; all such reasons would be particularistic, that is, not reasons at all.1
See also Defending Argumentation Ethics: Reply to Murphy & Callahan, Anti-state.com (Sept. 19, 2002); Hoppe, A Theory of Socialism and Capitalism, pp. 131–38. See also Kinsella, “A Libertarian Theory of Punishment and Rights,” pp. 617–25. And “What Libertarianism Is,” text at n. 15 et pass.