How We Come to Own Ourselves

Note: Updated and revised version included as chap. 4 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023).

***

The originally-published article is here: “How We Come To Own Ourselves,” Mises Daily (Sep. 7, 2006).

(Mises.org blog discussion; audio version)

See also Rothbard, Ethics of Liberty, anticipating Hoppe’s argument for self-(body) ownership: “He also discovers the natural fact of his mind’s command over his body and its actions: that is, of his natural ownership over his self.”

See also Kinsella on Self-Ownership, AutoDogmatic (Sept. 7, 2006)

And here are the archived comments:

Vince Daliessio September 7, 2006 at 9:13 am

Nice work. Gives me a deeper appreciation of Hoppe also. This is a way to help square Rothbard’s “infamous” formulation of the negative rights of children with a positive analysis.

Person September 7, 2006 at 9:21 am

I’m going to have to agree with Kinsella. No objective link, no scarcity, no property rights. I’ve always thought the whole concept of property rights in the electromagnetic spectrum was suspect. How do you “own” a frequency?

Ulrich Hobelmann September 7, 2006 at 9:43 am

Agreed. It’s barbaric that our society gives parents quite strong powers over their children, even where these might disagree and choose to be free.

OTOH, what use is freedom when the outside world isn’t any freer and doesn’t give you any rights of self-ownership (and at least in Germany as a kid you may not even work (in general))?

Bill September 7, 2006 at 9:49 am

Excellent essay: Therein is described the basic tennants of iddvidual freedom. Also articulated aptly is the obligations with limits parents must adhere to.

Government intervention is another issue: Government in the USA has transcended all dictates of human rights and self ownership with the CLEAR intent of converting us into in essence a mere conduit and implement for channeling ourselves and our posessions into readilly acessable holding of the government.

All the government programs and entitliments bestowed upon the ignorant American poeple are predicated on the confiscation and/or imfringement of the rights and/or holdings of another.

Read and understand the preamble to our counstitution: How have we allowed this transformation to occur?

David C September 7, 2006 at 10:01 am

I think the problem here is that the ends in it self is not property rights, nor avoidance of conflict, but free will and human dignity. While just property rights tend to lead to strong incentives and conflict avoidance – incentive and conflict avoidence do not necissairly lead to just property rights.

Most property rights are a consequence of free will as people need systems to resolve mutual desires for limited resources, without denying the individual choice of other people. That’s why property rights fail when it comes to things like slavery, ownership of children as they grow up, patents, copyrights, and spectrum. It’s also why a person can’t just jump on a ship and claim ownership of the ocean, or individually homestead a private piece of land the size of Mississippi, or dig down to find a coal pit in their yard and claim all the coal in Tennessee. A test of property must be how it denies choices of each party in addition to the nature of the resource.

Stephan Kinsella September 7, 2006 at 10:44 am

Person: the topic here is not about the EM spectrum. That can be discussed elsewhere, such as: Buying into the artificially scarce spectrum monopoly. But of course the EM spectrum is scarce (rivalrous). No one familiar with denies this, even mainstream economists. See e.g. The Spectrum Should Be Private Property: The Economics, History, and Future of Wireless Technology, by Burger King Marcus, and David Kelley & Roger Donway, Laissez Parler: Freedom in the Electronic Media.

Ulrich Hobelmann: “Agreed. It’s barbaric that our society gives parents quite strong powers over their children, even where these might disagree and choose to be free.”

This was not quite my point. Mine was more general, more concerned with fundamental issues, not particular, detailed applications to concrete situations.

Bill:

Excellent essay: Therein is described the basic tennants of iddvidual freedom. Also articulated aptly is the obligations with limits parents must adhere to.

Thanks.

Read and understand the preamble to our counstitution: How have we allowed this transformation to occur?

The Constitution was a mistake, and not a libertarian document. Our decline was to be expected once that monstrosity was in place. See When Did the Trouble Start?.

David C:

I think the problem here is that the ends in it self is not property rights, nor avoidance of conflict, but free will and human dignity.

Problem? There’s no problem. It’s solved.

While just property rights tend to lead to strong incentives and conflict avoidance – incentive and conflict avoidence do not necissairly lead to just property rights.

Since the purpose of property rights is to permit conflict to be avoided, I disagree with this.

Most property rights are a consequence of free will as people need systems to resolve mutual desires for limited resources, without denying the individual choice of other people.

Not sure what you mean by “consequences of”. Rights don’t really have a “source”… to imply this is a bit positivistic. Truths such as 2+2=4 don’t have a source, neither does do justified normative ropositions. They are just true, or justified.

Elf September 7, 2006 at 10:57 am

Stephan, great article. I’m at work, so I can’t yet get into it as deeply as it deserves, but I found it quite interesting, readable, & thought provoking. It provides much to ponder & follow up on. Personally, I have found a conscious understanding of rights a lot more slippery than I would have suspected, especially given the immediate affinity I had for the principles of Austrian economics & libertarian rights theory. I’d unconsciously fallen into the trap of looking for a source of rights. This article has done much to clear up my confusion on this fundamental issue. I look forward to working with these ideas futher. Thanks!

Person September 7, 2006 at 11:00 am

Stephan:

Person: the topic here is not about the EM spectrum.

EM spectrum rights are a critical test of property theories. That makes it relevant.

But of course the EM spectrum is scarce (rivalrous).

No, it’s not. Two people can simultaneously broadcast along the same frequency. Only if you consider people’s various petty conflicting desires to constitute scarcity, would they be scarce. But once you concede that, intellectual property is scarce in all important respects and thus a valid form of property, by your very own theory. You can keep putting this off all you want, denying it, smearing those who remind you of this, hoping it will go away, but it won’t.

No one familiar with denies this, even mainstream economists.

Stephan, one day you’re going to have to learn that intimidation doesn’t work on me. I don’t care how many people you can dredge up who agree with you. YOU ARE WRONG and that is all that matters. Moreover, even if I were foolish enough to buy into arguments from popularity, the fact that most people use the concept of “rivalrous” inconsistently makes the point irrelevant.

Stephan Kinsella September 7, 2006 at 11:29 am

P-dog: “EM spectrum rights are a critical test of property theories. That makes it relevant.”

Thank you for your input.

“No one familiar with denies this, even mainstream economists.”

Stephan, one day you’re going to have to learn that intimidation doesn’t work on me. I don’t care how many people you can dredge up who agree with you. YOU ARE WRONG and that is all that matters. Moreover, even if I were foolish enough to buy into arguments from popularity, the fact that most people use the concept of “rivalrous” inconsistently makes the point irrelevant.

Cranks and nuts often reject what every other normal person sees. But you are not one of them. Hmmm. Thank you for your opinion.

Person September 7, 2006 at 11:34 am

Stephan Kinsella … just called someone a crank … for not seeing what everyone else sees.

You can’t make this stuff up, folks.

Vince Daliessio September 7, 2006 at 11:50 am

(…wading in, foolishly), gentlemen, can we at least agree that analog broadcasts on a given frequency in a given geographic area at a given broadcast power are rivalrous at that point? I think BK Marcus and Murray Rothbard have been over this before, re the Oak Leaves decision, arguing that it IS a rivalrous resource in that manner, best resolved by according property rights.

Digital broadcasting opens up whole new avenues for the avoidance of conflict in frequency usage and the case is worth considering re; scarcity. As the technology evolves, and the number of broadcasters that can be accommodated on a given frequency increases, this will need to be re-examined.

However, the current broadcast regulatory regime retards innovation and reinforces extreme artificial scarcity, so this is probably a BAD example to argue either position, certaimly not extensible to a general case for scarcity and accordance of property rights, in any event.

Person September 7, 2006 at 11:55 am

Vince: Frequencies. Are. Not. Scarce. Because. More. Than. One. Person. Can. Broadcast. On. One. At. The. Same. Time. How many times do I have to say it to get a response?

Vince Daliessio September 7, 2006 at 12:11 pm

Let me elaborate.

It is in NO ONE’s interest for two or more broadcasters to broadcast on exactly the same frequency, time, space, power – they will cancel each other out, interfere (possibly) with third parties on adjacent frequencies, and subject neighbors (via trespass) to possibly harmful radiation. Technology helps, but there will be conflicts over the use of one’s own property to transmit information to others.

So we have issues of scarcity, technology, trespass, and property. Other than repeatedly asserting that frequencies are not scarce, an argument I am not yet close to buying, how do you posit resolving conflicts between broadcasters and receivers? Show your work.

Person September 7, 2006 at 12:17 pm

Vince: Apparently, you’re a little slow at this. It is *physically possible* for more than one person to broadcast along the same frequency at the same time. You attempt to contradict this by saying that such simultaneous broadcast is in “no one’s interest”, which is obviously false. If I don’t want people to hear the broadcast, it’s certainly in my interest to cover it up with an interfering signal. The only conflict is that one person gets what he wants, and the other doesn’t. THAT’S EXACTLY THE SAME CONFLICT THAT OCCURS IN INTELLECTUAL PROPERTY RIGHTS, and I’ve said this several times with no response. How about instead of showing my work again, you show *some* sign that you have yet comprehended this point.

Neal September 7, 2006 at 12:24 pm

Stephan, excellent post. I’ve tried summarizing it on my site as it’s so comprehensive (and useful).

That said, I’ve concluded on that post that self-ownership can only exist out of action, which implies will. It is the action to secure one’s own existence that begets one’s self-ownership. Action begets ownership. This concept seems to fit perfectly with the idea of first use as well as parents-as-trustees.

billwald September 7, 2006 at 12:33 pm

The concept of self ownership is silly and of no pragmatic value unless it refers to one person living in isolation.

JIMB September 7, 2006 at 1:06 pm

Kinsella – This is just not correct – self-ownership, a physical reality, is elevated to a claim to morality. But the two are not the same. Context switching between physically real and morally appropriate behavior is just not correct.

The ideology of self-ownership is also contrary to the belief in God – whose reality is evidenced by the rich information contained in creation (which we observe can occur only from intelligence as non-intelligent changes create losses of information), as well as our own morally fallen and rebellious state (it’s hard to accept the reality of our own sin, and how that sometimes is the controlling factor in our own beliefs, rather than evidence).

God commands that we abide by certain rules of behavior and those laws are infused in the natural moral laws of the universe which are observable. And we can observe that breaking those laws leads to social dysfunction and destruction.

In fact, I’d argue that a great deal of libertarian thought is self-contradictory – In the end, the “non-violent” ethics of self-ownership end in substantially greater violence. After all, saying that “anything sexual goes” (consider carefully how broad “consentuality” can be argued these days – incest, transsexuality, etc.) or that abortion is okay, or selling liquor to drunks is fine, or taking and selling drugs is “victimless”, in general asserting morally false doctrines NECESSARILY gives more power to corruption – When people of corrupt nature get enough power, the fiction of a “non-violent society” will disappear. Evil will only renounce violence until it has consolidated power into itself, then it will work to exterminate the opposition using all violence at it’s disposal. So the endpoint of “non-violence” (at least a Rothbardian approach) is worse.

While we might disagree on what the government should enforce, this search for “objectivity” has yielded a strange inversion of morality where we toss out all sorts of inhibitions in the name of morality. What? Natural moral law is only PARTLY consonant self-ownership paradigm, not fully consonant with it.

There are some things (such as traditional family structure) that should have legal preference or society will be destroyed. I think libertarians should be casting a little bit broader net integrating more knowledge here, rather than creating a sandbox universe.

Logical Theist September 7, 2006 at 1:42 pm

Suppose we don’t own ourselves?

The cardinal axiom of libertarianism is that we own ourselves. But what if God owns us instead? Although this theistic approach does not appear acceptable in libertarian circles, it surely has logical value as a foundation for deduction. If we change this one axiom and apply all the same logical reasoning, we can erect the same structure with a different landlord.

It doesn’t matter whether we like the idea or not. If there is a God who owns everything in the universe, then we are beholden independent of whether it appeals to us. Personally, I see no more problem being subject to God as owner of my soul than to being subject to Hertz’s terms when I rent their cars. Use their property, follow their rules.

Divine ownership resolves many issues, albeit arbitrarily in the view of many who would rather not believe that it could be true. It no longer matters how deity may have established ownership, it only matters how deity deigns to dispose of the property rightfully owned. God gets to make the rules by virtue of being the owner. Admittedly, given that humanity is inherently possessed of free will, it would appear that God is quite benevolent.

As owner of everything, God is in a position to dictate terms. We can have rights and we have responsibilities–positive and negative obligations–because God promulgates what is “right”. We can assume that God is bound by immutable laws (would you have much confidence in a God who lied?), but we still may depend upon revelation of those laws. I believe that God is acting in our best interests, but from a logical point of view it wouldn’t matter if we agree to use God’s property, would it?

On the other hand, believing in deity as the ultimate owner offers some new dilemmas. The first one I can think of is how do we discover the terms of the contract? We are born rather at a disadvantage knowing nothing as babes. Most of us would readily proclaim that God has not paid us a visit to give instruction or profer a manual. My assumption is that there are sound technical reasons why God keeps at a distance, but distance doesn’t prove non-existance.

Yes, I do believe in God, and I believe that we have a conscience as a divine gift and I believe that God does communicate with people in person (those prophet guys). But I recognize that most people do not share my faith, and I chalk that up to God’s interest in promoting independent thought and free will. Isn’t it great that God apparently does not rely on coercion? I would suggest that God would make a pretty good friend and has something great to offer, but only if we freely choose it.

Of course, we can point to examples in many religions where destruction of the “wicked” is attributed to God. Is there a problem with this? If you trash your apartment, your landlord will exact compensation. Laying aside whether we understand the basis for divine retribution, surely we must admit that if God is our owner, God can do what God pleases within terms and conditions we may not like.

Personally, I do not believe that God destroys innocent people unaware of their offences. When bad things happen to innocent people, it isn’t God doing it. Malevolent people do bad things (free will again) and bad things happen naturally (a consequence of an open system).

People may decide there is no God because they cannot believe God would allow all the evil in the world. I choose to believe that God allows the world to work in freedom and the consequence is that both good and bad will be done by free agents. I think it would be very productive if people spent time exploring rational reasons why God operates accordingly instead of trying to rationalize that there must not be a God.

After all, if there is no divine arbiter of virtue, then there is no good or evil and all actions are neutral. If there is no good and evil, then might makes right and all the logical arguments are trumped by liberal application of the sword.

Vince Daliessio September 7, 2006 at 3:18 pm

Person said;

“It is *physically possible* for more than one person to broadcast along the same frequency at the same time. You attempt to contradict this by saying that such simultaneous broadcast is in “no one’s interest”, which is obviously false. If I don’t want people to hear the broadcast, it’s certainly in my interest to cover it up with an interfering signal. The only conflict is that one person gets what he wants, and the other doesn’t.”

What about all of the third parties whose property is trespassed upon by the broadcaster. You leave no room for the possibility of trespass, for example – a fatal flaw in your argument.

Note I was careful to say (imply) that two people broadcasting on the same frequency in the same geographic area were using their own transmitters (property) and that preventing this by law would be an unacceptable restraint on their property rights.

However, how do you solve the reciprocal – how do you square this with the property rights of the receivers, some of whom do not wish to receive the interfering broadcasts? The second (interfering) broadcaster is trespassing, pure and simple, on the property of the receiver.

And how do you handle the trespass of the signal onto the property of third parties, neither broadcasters or willing receivers?

There is clearly an interest in preventing such trespass, i.e., a need to allocate a scarce resource, whether you consider the resource to be “frequency”, “spectrum” or the property of intentional and unintentional receivers of radio signals.

JC September 7, 2006 at 3:21 pm

“self-ownership is a category mistake: ownership is a relation between owner and thing owned such that the owner is free to dispose of what he owns. It is nonsense to talk of a relation between you and yourself. Nor can you dispose of your own self, exchanging it for another’s as you could exchange a thing you owned for another thing” Anthony de Jasay.

Self-ownership implies that there is a distinction between a person and his body. Is this distinction a cartesian one between mind and body? I think that fellow libertarian Thomas Szasz have shown that the mind doesn’t exist(its a verb not a noun). Surely you are you and and to say that “this is my arm” does not mean the same as saying “this is my land”. The capability to be able to utter anything allows the ability to self reference and that this should not be construed in the manner that Hoppe and Kinsella have given it.

This part is directed to Stephan Kinsella:

By your analysis, would an 8 year old child who ran away from home be considered to have homesteaded themselves? Assuming that they were “capable of communicating, discussing, arguing, and in particular, [who are] able to engage in an argumentation of normative problems”. I mean the rational agent criteria actually seems vague especially as there are degrees to which you could claim someone is capable of these things.

Stephan Kinsella September 7, 2006 at 3:23 pm

Theist: “The cardinal axiom of libertarianism is that we own ourselves. But what if God owns us instead? Although this theistic approach does not appear acceptable in libertarian circles, it surely has logical value as a foundation for deduction. If we change this one axiom and apply all the same logical reasoning, we can erect the same structure with a different landlord.”

God owns you if and only if there is some objective connection that is relevant here. This needs to be demonstrated rationally.

billwald: “The concept of self ownership is silly and of no pragmatic value unless it refers to one person living in isolation.”

Wow, I guess I have to retract my article.

Actually ownership, like all rights, makes no sense at all if there is only one person. It’s a relational concept.

Jimb: “Kinsella – This is just not correct – self-ownership, a physical reality, is elevated to a claim to morality. But the two are not the same. Context switching between physically real and morally appropriate behavior is just not correct.”

Ownership is the right to control. It is different than actual control or possession.

“The ideology of self-ownership is also contrary to the belief in God”

No, not at all: I have only stated that every person has a better title in his body than any other human claimant. Whether it can be shown that there is a God who has some kind of superior ownership claim is not foreclosed by this. But this needs to be a rational demonstration.

JC: “self-ownership is a category mistake: ownership is a relation between owner and thing owned such that the owner is free to dispose of what he owns. It is nonsense to talk of a relation between you and yourself. Nor can you dispose of your own self, exchanging it for another’s as you could exchange a thing you owned for another thing” Anthony de Jasay.

I agree with all this: ownership of one’s body is not the same as ownership of something else. But as I have noted explicitly many times, to own is to have the right to control. A criminal or socialist asserts the right to control your body; self-ownership means you have the right to control it not others. That is all.

“Self-ownership implies that there is a distinction between a person and his body.”

Irrelevant. We need to know who has the say-so over a given pereson’s body. In the case of a jailed or punished criminal, we implicitly say that the victim or jailer has the right to control the criminal’s body. That is what justifies coercing him into jail and keeping him there. In the case of an innocent person, we say that he has the right to control his body, not others. This, in fact, is just why others may be punished for using someone else’s body without their consent.

“By your analysis, would an 8 year old child who ran away from home be considered to have homesteaded themselves?”

That is an application, a detail. I have no idea. We all, I assume, believe that at *some point* a child reaches “adulthood”. What point or age, I do not konw. It’s a continuum and line-drawing problem.

Personally I think 8 is not old enough, except in extreme cases of abuse. I would think mid-late teens, but that’s just my judgment. Who knows what standards given libertarian communities would arrive at?

Som: “This is a great article btw. I’ve pondered over the issue of childrens rights and self-ownership thoroughly after I read Rothbard’s For A New Liberty. Anyway…”

Thanks.

“btw this should not construe any additional info on the abortion issue. I support Walter Block’s view of eviction, so I’m neither pro-choice nor pro-life.”

The problem I have with this is I view the fetus (in most cases) as an invitee. If you invite someone aboard your ship for dinner and go out to sea, by the nature of the situation you may not decide to evict them until you reach shore and safety. Similar with abortion.

Som September 7, 2006 at 3:32 pm

Wait, just hold on one second here…

“Hoppe also argues that rights are held by rational agents — those who are “capable of communicating, discussing, arguing, and in particular, [who are] able to engage in an argumentation of normative problems.”

So, do we lose all these rights held while we sleep, or passed out, or even drunk? during this “pause” time can someone come up and claim use of our property (or just take it) and make use of our bodies or take some organs as long as we don’t wake up? Surely we are not capable of communicating, discussing, or arguing (unless through creative snoring) let alone engage in an argumentation of normative problems, so some awake agent could strip us of our body and property once we doze off. However, no principled libertarian would agree this is just, and there might be another aspect of being a rational agent that is overlooked..

This is a great article btw. I’ve pondered over the issue of childrens rights and self-ownership thoroughly after I read Rothbard’s For A New Liberty. Anyway…

A possible solution to the issue regarding body ownership rights for recently born (and probably unborn) children and the “sleeping libertarian” example above is that rights in owning one’s body, and all self ownership rights for that matter, is not only for rational agents, but also for POTENTIALLY RATIONAL AGENTS.

To elaborate further, if it known beyond a reasonable doubt (to use legal terms here) that a body, entity, or forming body (as in the case of a human fetus) has the capability of being rational and engage in argumentation of normative problems SOMETIME in the future, then that body reserves self-ownership rights.

Remember that rights such as these exist INDEPENDENT of time, so it doesn’t matter if the body is a sleeping person who will wake up in 6-10 hours and resume argumentation ability, or a human fetus for 9 months who is born and develops his rational brain fully (and to say no) after another 3-5 years. In each preceding example, we know each body is capable of being rational in the future beyond a reasonable doubt. Therefore this does not apply to dead people, dirt, or animals, since there is reasonable doubt they could be rational in the future.

btw this should not construe any additional info on the abortion issue. I support Walter Block’s view of eviction, so I’m neither pro-choice nor pro-life.

The potentially rational idea may give may give much more consistent strength to the right of self-ownership, and is consistent with the arguements made by Mr. Kinsella and Hoppe in the article. I would like to hear their perspective and feedback on my addition, and would like to know if this has been brought up before. Thank you.

Som

Dan September 7, 2006 at 4:35 pm

Som:

“do we lose all these rights held while we sleep”

I believe Hoppe’s argument is that the implications of argumentation carry forward indefinitely upon demonstration, i.e. that once an actor has argued at any point in time, his right to self-ownership and everything else that argumentation implies extends forward indefinitely. Whether or not he can argue at a given point in time is irrelevant.

Nick Bradley September 7, 2006 at 4:37 pm

Kinsella,

Great point expanding the self-ownership right to abortion (and sticking it to the Objectivists):

“Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake.:

And in the blog here, you wrote the following:

“The problem I have with this is I view the fetus (in most cases) as an invitee. If you invite someone aboard your ship for dinner and go out to sea, by the nature of the situation you may not decide to evict them until you reach shore and safety. Similar with abortion.”

I wish you would have touched on this point (abortion) in the article.

Extending the Ship-Pregnancy analogy, if somebody were uninvited on your ship, would you be within your rights to take their life by throwing them over-board? You obviously see the point I’m getting at: would eviction (and subsequent life-taking) be justified in the case of an “uninvited” pregancy. Thoughts.

Richard Garner September 7, 2006 at 5:10 pm

JC wrote,

“self-ownership is a category mistake: ownership is a relation between owner and thing owned such that the owner is free to dispose of what he owns. It is nonsense to talk of a relation between you and yourself. Nor can you dispose of your own self, exchanging it for another’s as you could exchange a thing you owned for another thing” Anthony de Jasay.

Much as De Jasay is worthy of our respect, he is wrong on this point (see especially GA Cohen’s chapter defending the coherence of Self-ownership – Cohen later tries to reject it because he finds it immoral, not incoherent – in Self-Ownership, Freedom and Equality). The sentence “It is nonsense to talk of a relation between you and yourself.” is the weakest point, since one can quite clearly have relationships with oneself. There is noting incoherent with the statement “I wash myself,” or “I hurt myself,” or “I love myself.” Why then are we to suddenly suppose that “I own myself” is incoherent?

Self-ownership implies that there is a distinction between a person and his body. Is this distinction a cartesian one between mind and body?

It implies no such thing. Are you invoking the cartesian paradigm every time you feel proud of yourself.

Live Free

Richard

Paul Edwards September 7, 2006 at 5:52 pm

Dan,

“I believe Hoppe’s argument is that the implications of argumentation carry forward indefinitely upon demonstration, i.e. that once an actor has argued at any point in time, his right to self-ownership and everything else that argumentation implies extends forward indefinitely. Whether or not he can argue at a given point in time is irrelevant.”

Yes. And they also carry back in time to vindicate those who intuitively suspected their action was justified, and to also condemn unjustified acts in the past.

averros September 7, 2006 at 8:02 pm

There’s a much simpler and way less contrived approach to the issue of origin of self-ownership:

The child’s body is a GIFT from his parents. Since the child does not make any contractual promises of anything as a condition for receiving his body, he becomes the sole owner of all rights to it.

Stephan Kinsella September 7, 2006 at 10:01 pm

Averros: “There’s a much simpler and way less contrived approach to the issue of origin of self-ownership: The child’s body is a GIFT from his parents. Since the child does not make any contractual promises of anything as a condition for receiving his body, he becomes the sole owner of all rights to it.”

My solution is not “contrived”. It is a response to real questions and dilemmas.

Your solution does not work, since you are just deeming there to be a gift. But a gift is voluntary. What if a parent has child but does not grant this gift? Etc.

Adem Kupi September 8, 2006 at 2:24 am

As much as I’d not like to admit it, Averros has a small point here, in that the child did not ask to be born. To call it a gift though is a bit incomplete, as you pointed out, sort of, Stephan.
The parents have thrown the child into the world, regardless of its will. And therefore, they are responsible for it (as making choices – human action – is the basis for responsibility). However, the child who decides on his own to continue living regardless of his parents’ desires or actions has gained self ownership. At the moment that he forgoes imposing responsibility for his life upon his parents, he is self-owning (a paraphrase of Hoppe). (he could have also chosen suicide and reversed his parents’ choice) There is a sort of analogy to homesteading, but a vague one.
It also means that a child could refuse to make the choice of self ownership (which means that the parents are responsible for him until he does), in which case he would belong to the parents until he did, even if this was his entire life.

At any extent, this article and the essay on the “origin” of rights were both top-notch, Stephan. Good stuff.

averros September 8, 2006 at 4:18 am

Stephan –

I think you’re making things a lot more complicated than they have to be. The whole idea of the natural law is that it is *simple* and can be understood by any person.

The “objective link” standard is seriously vague – and Hoppe is plainly wrong in claiming that it is always clear-cut who’s in the control. A human can exist in a large spectrum of states from non-conscious to fully conscious. When someone is irreversibly unconscious (for example, brain-dead) there’s no way to claim that there’s someone inside to “own” the body. A nurse has way more control over it than its owner. This situation is relatively easy to deal with when the person was fully conscious and then lost control of his body due to illness or trauma – he can be considered an absentee owner.

It is a lot more interesting to consider a case of a child who’s born without consciousness. Can anyone reasonably claim that something inside “owns” the body? When does the pile of senseless flesh becomes a self-owner?

What about a mental illness causing a person to lose his will – he’s quite conscious, but cannot do anything without another person telling him what to do? Whose body it becomes?

Does embrio own itself? In the beginning it is nothing more than a ball of cells, a biological automaton, which may (and in most cases, never will) become a human. When does it come into posession of itself? It may be conscious in some sense long before it has any control of the body exceeding the _direct_ control of the same body by his mother.

You see, these real-life cases make it very hard to apply the homesteading principle or its analogues to embodiments of subjects.

The concept of a gift neatly sidesteps these issues – we can simply state that deliberately and voluntarily creating a body for a consciousness to arise in (or enter into, if one believes in reincarnation) consititutes the act of giving that body to the subject which comes to occupy it. One can give a gift to someone who does not exist yet.

The important thing is that this act does not create any obligations for the recipient. And giving gifts is commonly recognized as irreversible. And, just as important, the common sense tells that the actual transfer of title occurs at the moment when the giftee accepts the gift. He doesn’t have to *use* it to become the righful owner (this excludes claims that, for example, since an infant cannot walk someone else could “homestead” his legs by moving them). Conversely, if a brain-dead child is born, his body still belongs to parents. It never becomes an unowned propety which can be homesteaded by first comers.

For an even stronger test case, consider a computer (which is an owned object) which someone sets up to run a conscious AI program. Should we be able to claim that this AI is his slave and that he can kill it to reclaim his computer? I think not. The former owner never abandoned or had any intention to abandon the computer; and he retains the physical control of it. So which “objective link” is stonger – the prior claim to the title and the direct physical control, or the fear of death of the newly embodied artificial consciousness? Right now this question is hypothetical, but the chances are, we’ll live long enough to see it becoming very actual.

The objection that a parent somehow can have a child and not give him the body is nonsensical; the body is given by the act of procreation, not by any separate gift-giving. If I give someone a pencil in a context which makes it clear that it is not a loan or a contract, I gave a gift. It does not require words if my deliberate and voluntary action makes the intention clear (and no, I cannot state a contrary intention in a way excluding the recipient from knowing it and then claim afterwards that it wasn’t really a gift). A child, not being there, does not have a way to know if his parents claimed that it is not their intention to give a gift of body to him – and, therefore, they loses any further ownership rights when they take it. “Etc” is not an objection, either:)

Finally, there is a very good reason to think that procreation does not create any positive rights – and the reason is that there is no logical way to determine the extent of these rights. When someone claims that parents “owe” children food and education, they fail to take into account the fact that different people and cultures have wildly different standards of what constitutes adequate care for children. Claiming existance of any positive rights always, unconditionally, means having third parties to impose their will on people who didn’t do anything bad to these third parties. Back to full-blown collectivism, in other words. In fact, it is hard to find any act of statist pillage and murder which for which the needs of children weren’t used as a prime justification.

LeoTolstoy September 8, 2006 at 4:56 am

if there is an object link between a person and their body (I believe there is) and first use/appropriation establishes the link with regards to resources ownership then how are we to have self-ownership rights at all if one views the 3D space that one occupies (with gravity forcing us to touch the landed surface of the earth) as a natural opportunity/resource and all of these resources are already legally occupied via first appropriation?

LeoTolstoy September 8, 2006 at 4:58 am

if there is an object link between a person and their body (I believe there is) and first use/appropriation establishes the link with regards to resources ownership then how are we to have self-ownership rights at all if one views the 3D space that one occupies (with gravity forcing us to touch the landed surface of the earth) as a resource/natural opportunity and all of these resources are already legally occupied via first appropriation?

Paul Edwards September 8, 2006 at 5:08 am

averros,

“The concept of a gift neatly sidesteps these issues – we can simply state that deliberately and voluntarily creating a body for a consciousness to arise in (or enter into, if one believes in reincarnation) consititutes the act of giving that body to the subject which comes to occupy it. One can give a gift to someone who does not exist yet.”

“We can simply state”? You mean to suggest that by decree we can give meaning and intent to an act that may in fact be entirely void of such meaning and intent? In order to enforce such a decision, one would need to demonstrate possession of a better objective claim to the child’s body than the parents did. And no one except perhaps the child would ever be able to do this, presuming no child abuse. Therefore, this approach is not justifiable. An ethic is concerned with establishing who possesses the best objective claim to a particular scarce and valuable resource. In this way, such an ethic, which focusses on the establishment of property rights, allows for the possibility of conflict avoidance. Your “gift by third party decree” is not consistent with such an ethic and is the basis of all statist thinking.

The proper method of establishing who has ownership of the child’s body is in determining who can demonstrate the better title to it. Clearly, the newborn child can scarcely act at all, if at all. Its motions are instinctual. But in time more and more of the behavior of the child is actually purposeful action of the child. And at the point where the child can say and would be inclined to say something to his parents like “i’m my own person now, just as you are yours, and i will ask no assistance from you, nor take orders from you”, this child now unequivocally demonstrates his superior claim to his body.

This strikes me as consistent with the reality of life and with the libertarian ethic.

Vince Daliessio September 8, 2006 at 6:41 am

Paul Edwards said;

“And at the point where the child can say and would be inclined to say something to his parents like “i’m my own person now, just as you are yours, and i will ask no assistance from you, nor take orders from you”, this child now unequivocally demonstrates his superior claim to his body.”

My 9-month old daughter is an example of this – although she cannot yet earn a living, she is definitely able to demonstrate when she will NOT take a bottle and will NOT go to sleep…they develop their own distinct personalities as early as 4-5 months, and as soon as they can crawl away from you their journey toward independence begins…to recognize this is to be aware that acting humans are always works in progress, only the potency of their actions changes, over time.

quasibill September 8, 2006 at 7:38 am

Stephan,

“Your solution does not work, since you are just deeming there to be a gift. But a gift is voluntary. What if a parent has child but does not grant this gift? Etc.”

Unfortunately, I think your solution is also contrived. How many boat owners negligently or recklessly invite someone onto their ship? Say what you will, but some people do not intend to get pregnant, although they know it is a risk. That’s recklessness, at worst.

I’m trying real hard to think of an analogy where the owner recklessly “invites” someone onto their property, but can’t come up with one. I don’t think the concept of “invite” makes any sense outside intentional, or possibly, in some select instances, knowing conduct.

And of course, there’s the always challenging issue of a rape-induced pregnancy. Can someone be forced to invite a third party onto their property? Does the concept of “invite” have any meaning if you stretch it that far?

JC September 8, 2006 at 8:34 am

“I agree with all this: ownership of one’s body is not the same as ownership of something else. But as I have noted explicitly many times, to own is to have the right to control. A criminal or socialist asserts the right to control your body; self-ownership means you have the right to control it not others. That is all.”

The thing is that just because an individual has the ability to control themselves it does not then create a moral right to continue to do so without others controlling you. Only conventions create the guidelines for what acts are legitimate or not. I just don’t think there is any need for the concept of self-ownership anyway even if it were coherent. If X attempts to control Y without Y giving either implicit or explicit consent then Y is going to attempt to defend himself and the only way that X is going to be prevented from attempting to control Y is by ethical norms which themselves can only be conventional. You cannot derive an ought from an is.

“Irrelevant. We need to know who has the say-so over a given pereson’s body. In the case of a jailed or punished criminal, we implicitly say that the victim or jailer has the right to control the criminal’s body. That is what justifies coercing him into jail and keeping him there. In the case of an innocent person, we say that he has the right to control his body, not others. This, in fact, is just why others may be punished for using someone else’s body without their consent.”

We need to know what acts are just or unjust. The category mistake is the application of ownership here and the meta-ethical and epistemological mistake is thinking that you can derive an ought from an is.

“That is an application, a detail. I have no idea. We all, I assume, believe that at *some point* a child reaches “adulthood”. What point or age, I do not konw. It’s a continuum and line-drawing problem.

Personally I think 8 is not old enough, except in extreme cases of abuse. I would think mid-late teens, but that’s just my judgment. Who knows what standards given libertarian communities would arrive at?”

The cut off point then becomes conventional, yes? I mean voluntary communities in a free society can live by whatever rules that those individuals consent to, but these rules do not have to be even spoken never mind written in contracts. Indeed contracts need the convention of promise keeping in order to be kept. Without that contracts would be worthless.

“Much as De Jasay is worthy of our respect, he is wrong on this point (see especially GA Cohen’s chapter defending the coherence of Self-ownership – Cohen later tries to reject it because he finds it immoral, not incoherent – in Self-Ownership, Freedom and Equality). The sentence “It is nonsense to talk of a relation between you and yourself.” is the weakest point, since one can quite clearly have relationships with oneself. There is noting incoherent with the statement “I wash myself,” or “I hurt myself,” or “I love myself.” Why then are we to suddenly suppose that “I own myself” is incoherent?

Self-ownership implies that there is a distinction between a person and his body. Is this distinction a cartesian one between mind and body?
It implies no such thing. Are you invoking the cartesian paradigm every time you feel proud of yourself.

Live Free

Richard”

I will try and check that book out sometime.
Saying that “I wash myself” is coherent because we are capable of self-reference. This is mere speak though, “I wash myself” is a description of my arms washing parts of my body. If ownership is defined as needing an owner and a thing owned then how can that relationship be coherent in regards to an individual and himself. You are both owner and the thing owned?

My point was that there is no cartesian dualism and that self-ownership is different to “I wash myself” or “I am proud of myself” which means I take pride in what I do or have done.

Artisan September 8, 2006 at 10:37 am

David C
Most property rights are a consequence of free will as people need systems to resolve mutual desires for limited resources, without denying the individual choice of other people.

I like that! Perhaps the only concept I missed in this interesting article: individual free will. That’s the true key to property, and I dare anyone to deny it! If you presuppose the existence (or at least the ideal) of free will… and only then, … there’s necessarily the need for property rights that is implied.

Property is a sheer expression of that free will in society and its uniqueness. Without any possibility of ownership, there’s no individuality possible either, as “your”, “mine”, and “his” gives to individuality the ability to trade, which just “you” and “me” and “him” don’t. Now to “trade”, that’s the essence of any social group.

Certainly Children don’t have yet the ability to self-determination in the eyes of society. That doesn’t make anyone else “owner” of their body though. Indeed, although it becomes quite unnecessary to question the incompatibility of the slavery of a body if one considers free will, … the mother of an unborn child in her womb still cannot pretend to own and do everything she pleases with it. A foetus is not 100% a part of its parent’s individuality, as all its living organs naturally strive to develop their own ability of free determination from the minute it is conceived. To kill it is to rob the first property it is fully entitled to: its human life.

… To suppose that God “owns” you makes no difference as God leaves you your free will in most religions.

The question is thus perhaps for some libertarian: can there be property without free will?
An absurd question. If there’s no free will, all questions are absurd indeed. Free will is the first principle of all social philosophy.

Stephan Kinsella September 8, 2006 at 11:19 am

Somewhat bill:

Unfortunately, I think your solution is also contrived. How many boat owners negligently or recklessly invite someone onto their ship? Say what you will, but some people do not intend to get pregnant, although they know it is a risk. That’s recklessness, at worst.

I’m trying real hard to think of an analogy where the owner recklessly “invites” someone onto their property, but can’t come up with one. I don’t think the concept of “invite” makes any sense outside intentional, or possibly, in some select instances, knowing conduct.

My view is that you are responsible not really becuase of an invitation (that was an analogy), but because, as in the push-in-the-lake scenario, you *caused* this human-with-needs to exist. Your voluntary action–wheter you really “want” to get pregnat or not–is the cause of the position of peril a child find himself in. By the *nature* of the situation, this is the result of one’s actions. I just believe actions give rise to responsibility. I admit however that this view of mine is not rigorous like my other rights views.

JC (Jesus Christ?):

The thing is that just because an individual has the ability to control themselves it does not then create a moral right to continue to do so without others controlling you. Only conventions create the guidelines for what acts are legitimate or not. I just don’t think there is any need for the concept of self-ownership anyway even if it were coherent. If X attempts to control Y without Y giving either implicit or explicit consent then Y is going to attempt to defend himself and the only way that X is going to be prevented from attempting to control Y is by ethical norms which themselves can only be conventional. You cannot derive an ought from an is.

I am not clear what you are saying, but I agree you cannot get an ought from an is. I am not. I am getting an ought from an ought. I am showing that IF you value XYZ, THEN something follows. It happens that participants in civilized discourse are, in fact, valuing XYZ.

The point is simply this: when civilized people inquire into who owns a given resource, such as a body, they are asking to whom should title be assigned so as to reduce conflict; the only answer can be, he who has the objective link to it; and this answer is obviously: each person himself that directly and immediatley controls, uses, and is basically defined by that body.

We need to know what acts are just or unjust.

No, “we” don’t. It just happens that some people choose to be civilized, which is to seek justification for their actions. THey happen to prefer to value this. Actually your statement is the categorical one that woudl violate the is-ought dichotomy.

The category mistake is the application of ownership here and the meta-ethical and epistemological mistake is thinking that you can derive an ought from an is.

A practical, libertarian minded jury would hear here, “blah blah blah”. Dispute resolution–and property assignment–is practical and basic. Not fancy. Neighboring farmers need to be able to do it.

Personally I think 8 is not old enough, except in extreme cases of abuse. I would think mid-late teens, but that’s just my judgment. Who knows what standards given libertarian communities would arrive at?”

The cut off point then becomes conventional, yes?

Maybe. AS with many rules that have to make descisions in the face of continnuums.

My point was that there is no cartesian dualism and that self-ownership is different to “I wash myself” or “I am proud of myself” which means I take pride in what I do or have done.

I think this is sophistry. It’s a distraction. A diversion. The question is who has the right to control A’s body: himself, or some third party. This is a real, practical question. the answer we give is: A. Don’t need to get all complicated about cartesian dualism.

Stephan Kinsella September 8, 2006 at 11:51 am

“At any extent, this article and the essay on the “origin” of rights were both top-notch, Stephan. Good stuff.”

Thanks Adem. What essay are you talking about though, other than this article itself? Daddy’s confused.

JIMB September 8, 2006 at 1:40 pm

Stephan – Still you’ve not answered the objection: let me broaden it and make it more clear – The connection between a person, his or her mind, and the moral concepts of self-ownership (and the moral derivations from it) is not at all objective.

It’s simply invalid to argue that “asserting the will proves self ownership” or any other propositions of self-ownership in this article. These are not arguments, they are abstract (I know you hate meta arguments, but it has to happen) assumptions posing as real “things”.

Action shows a physical connection between mind and body, it demonstrates willfullness, it displays choice and ranking of alternatives as a given (or as Mises argued: we know these things are true because we are men, and we need nothing else to argue that other people share these same characteristics), but it never could be honestly construed as a general-purpose morality for structuring society.

JIMB September 8, 2006 at 1:47 pm

Stephan – and here’s the “meta” part – who gets to decide what constitutes real moral knowledge and by what criteria and why?

Mark Nameroff September 8, 2006 at 2:10 pm

Mr. Kinsella,

As usual, what you write provokes me to think (and, occasionally, to scream at you). I admired your piece on property, “How We Come to Own Ourselves”. It provoked me to ask (an old question) — whether a theory must be able to supply an answer to every question. Whenever a theory of something is produced, it must be the result of considering a limited set of circumstances. So, Newtonian or Einsteinian physics, for example, does not (cannot?) produce an answer to the question, who will win the next election. Maybe, then, there are some questions, like who owns a baby, that can’t easily be squeezed into libertarian theory and have to be regarded as special cases or logical givens, unless you engage in some sort of acrobatic reasoning. Maybe the problem arises because the world is considered to be divided into 2 classes of things — those that are owned and those that are not, and this viewpoint produces a Gödelian-like paradox, which arose because the universe of mathematical/logical theorems was divided into 2 classes — true and false.

Just as the special case of black box radiation led to the overthrow of Newtonian physics, and Gödel’s theorem led to an understanding of logical incompleteness in mathematics, maybe the baby question will some day lead to the overthrow of libertarian theory, which will then be regarded as a limiting approximation to a new (better?) theory.

Som September 8, 2006 at 2:26 pm

Kinsella,
I see your analogy of the invitee on the boat, but where exactly does the formal invitation take place when a women becomes pregnant, even when voluntarily engaging in sex? Even couples that are trying to have children never know exactly which egg inseminates which sperm successfully (not to get too graphic here), so there is no specific/formal invitation. However, I suppose there are often not formal invitations to a shopping mall either, but in that case both parties of rational humans existed before that transaction took place. I would think that the person one wishes to invite already existed before the invite. And since the creation of a fetus is not directly a result of human action, I don’t think the word invite applies, because there no choice on the receiver’s end to be a fetus or not (which is outside of human action).

I might add that the only reason i support the eviction stance is because mother to surrogate mother fetal transfers are not widespread and still experimental, which will invalidate that position because one must remove others with the least amount of violence. Until then, I think justice would be to leave it up to local communities revolving around the eviction stance.

Adem Kupi September 8, 2006 at 4:16 pm

“What essay are you talking about though, other than this article itself?”

Empathy and the Source of Rights:
http://blog.mises.org/archives/005573.asp

averros September 8, 2006 at 9:02 pm

Paul –

You mean to suggest that by decree we can give meaning and intent to an act that may in fact be entirely void of such meaning and intent?

Excuse me, but how did you ever come to a conclusion that act of human procreation can be entirely devoid of meaning and intent to create a conscious human being and endow this being with a body?

As for “decreeing” something – the set of rules of what is just and what is not just is not set in stone tablets: we can (and should) seek to improve it if a logical problem arises or if consequences of the reasoining from these rules yield a set of clearly undesireable outcomes.

The current set of rules does not really address emergence of consciousness, and does not have embedded criteria for differentiating between objects (which can be posessed) and subjects (which can have property rights).

Let me reiterate my position: applying homesteading principle to embodiment of conscious beings is not logically correct, and creates a lot of seriously strange results when applied in real (i.e. “borderline”) test cases.

Application of the idea that ownership is determined by strength of some vague “objective link” is also totally illogical because the strength of the “objective link” can change, while rights are meant to be immutable until voluntarily reassigned.

Hoppe (and Stephan, after him) confused the process of adjudication of challenged posession (which must by necessity rely on incomplete information, and thus can work only probabilistically) with the logical structure of the system of property rights which does not admit any vagueness. You either own something or not.

Paul Edwards September 9, 2006 at 1:44 am

Averros,

“Excuse me, but how did you ever come to a conclusion that act of human procreation can be entirely devoid of meaning and intent to create a conscious human being and endow this being with a body?”

There is no question that people know of the possibility of pregnancy as a result of sex. However, if you are suggesting that most people have sex even usually for the purpose of procreation, I have some news for you. Most of the time people have sex with the hope that pregnancy will not result. To presume to know that people have children only when they intend to and never by accident is quite something. This would imply that people have sex only near the approximate rate at which they have children. I don’t think you’re being serious.

Furthermore, even in the impossible event that we could know with certainty in every case that all people who ever had children did so by pure intention, it is an impossible leap to conclude that it follows that there is intent to give over ownership of the child to its self or anyone else. And the question must be answered and the answer must be justified, when the parent asks us: what gives anyone a better claim to the child than they have when they did not intend to gift the child to anyone, including the child. Kinsella answers this and shows this answer is justifiable. The child himself can and always will eventually demonstrate through his own actions a better title to his body than his parents have over his body. What’s the problem?

averros September 11, 2006 at 7:10 pm

Paul –

you claimed that sex (as a category) is ENTIRELY devoid of intent to procreate. I objected to that – now you’re trying to tell me that I claimed that sex is entirely about procrecation. Which I never did.

This is a logical fallacy, sorry. Quantifiers do not negate this way. I’ll pretty much ignore the rest of your counter-argument as it depends from that fallacy.

In any case, it does not matter if something is an undesireable consequence of some act – if a person knowingly engages in this act to gain some other benefit he STILL intends to accept the undesireable consequences.

Claiming otherwise would make a nice defense for someone discharging a gun at you – he didn’t intend to hit you, as he only intended to enjoy the boom. Like, yeah.

Paul Edwards September 21, 2006 at 1:17 am

Averros,

We’ve taken a few turns and tangents along the way here, as you are telling me I have said things which I don’t recall ever crossing my mind. So let me just quote us both a bit to get back on track (correct me if you think I’m out of context):

You said something with this in it: “… we can simply state that deliberately and voluntarily creating a body…” to which I responded with something that included this: “…that may in fact be entirely void of such meaning and intent”. In response to this, you are claiming that I said “that sex (as a category) is ENTIRELY devoid of intent to procreate.” And you conclude that I am using some kind of fallacy. I think rather you got caught up in a fallacy in your original proposition, which was that we can state that people necessarily deliberately create a body (a new baby). My answer was that getting pregnant is not always deliberate, which you were clearly suggesting it was. Furthermore, since pregnancy is not always intentional, nothing of your argument follows. That’s all. The rest of your objections seem to reflect a communication problem between us as I cannot see how they relate to my arguments.

Stephan Kinsella September 28, 2006 at 11:15 am

I just came across the following interesting comments by Roger Pilon in his 1979 article Corporations and Rights: On Treating Corporate People Justly (n. 123 on p. 1295):

Very briefly, the argument that justifies the obligations of parents to their children borrows from both the tort/crime and the contract models. In performing acts of procreation, just as in performing any other action, the parents are responsible for the consequences should those acts create rights in others (the defense of ignorance will no more avail here than in any other tort case). We are responsible, that is, for the upshots of the actions we voluntarily perform. Of course, in many cases of begetting-one would hope in most-the consequences are not only voluntarily but intentionally brought about as well. Thus the contractual model is more appropriate here. But whether children are willingly or only reluctantly brought into being, the special rights they hold against those responsible for creating them are every bit as real as the special rights of tort victims or contractors. The difficulty here, however, is that there is no status quo, as in the tort case, or no agreed upon terms, as in the contract case, to aid in delineating the content of these rights. As a result, such ideas as “custom” or “community standards” enter, with all their attendant problems, not only of verification but of justification as well.

Stephan Kinsella October 3, 2006 at 6:12 pm

See also the commments of Albert Esplugas at October 3, 2006 5:20 PM on the Block on Abortion thread:

I absolutly agree. I think this is a very important point, sadly overlooked by Block and Whitehead and other pro-choice libertarian theorists for years. Positive obligations are generellay recognized in the case of “duty founded on creation of peril”. As Williamson Evers puts it: “The third sort of legal duty that is now enforced by the criminal justice process is duty founded on creation of peril. The criminal law punishes persons who put into motion some force that invades individual rights and who then neglect to halt the force which they originally set in What is really being punished is the bringing forth of an emergency, as when the pilot of a passenger airplane bails out on a whim, leaving the passengers to crash. Returning to the idea of causality and its central role in the law, we can see that the creator of the peril has effectively committed an invasive act. If he neglects to halt or mitigate the force or effect of that act, then he can rightly be held responsible. A person is culpable who omits to halt a force which he originally put in motion. If, for example, a person accidentally starts a fire in a building, then escapes the building, but sees others who could be rescued still in the building, it is his duty to try to aid them. While the accidental arsonist created the peril whicl served as an instrument for invading his victim’s rights, the duty of the perpetrator to aid the imperiled in such cases is to be distinguished from a more generalized duty that is sometimes advanced, namely, a duty of everyone to aid the imperiled.”

Or Posner, quoted here: “Thomson is right that we don’t force people to donate kidneys to strangers, or even to family members. But normally the potential donor is not responsible for the condition that he is asked to alleviate, in the way that a woman (unless she has been raped) is responsible, although only in part, for the fact that she is pregnant. The difference in evidentiary difficulty between asking who hit X and asking who failed to save X is a strong practical reason against liability for failing to be a good Samaritan. So although bystanders are not required to rescue persons in distress, someone who creates the danger, even if nontortiously, may be required to attempt rescue, and perhaps that is the proper analogy to the pregnant woman who wants to terminate her pregnancy.”

Beckwith and Thomas, in the JLS, relate this “duty founded on creation of peril” with pregnancy: For example, according to the prima facie case for negligence, one is liable for negligence if one (1) has a duty, (2) breached a duty, and (3) caused harm as a result of breaching the duty. One could argue against McDonagh in the following way: Since pregnancy is a foreseeable result of unprotected sex, and since for McDonagh a fetus is a human person, therefore, one who engages in sex has a duty to engage in due care so as not to bring into existence persons whose death due to abortion is foreseeable.

I think Feser gets right too: “it isn’t clear how it would justify any abortion other than in the case of pregnancy resulting from rape, with which the kidnapping by the violinist’s admirers is analogous. Surely a pregnancy resulting from consensual intercourseÑwhich, as everyone knows, has a chance of resulting in pregnancy even when contraception is usedÑis not analogous to Thomson’s example.”

See also Doris Gordon “Abortion and Thomson’s Violinist: Unplugging a Bad Analogy”.

Paul Edwards November 7, 2006 at 12:21 am

Charles Anthony October 14, 2008 at 7:37 am