Humane Studies Review

Volume 10, Number 1 Winter 1995-1996

Persons, Property, and Profits

by Tom G. Palmer

Bibliographic Essay

The old questions of "distributive justice" associated with Aristotle's political science are still with us, and a spirited debate concerning the legitimacy of "economic residuals," "unequal shares," and "profits" is challenging the intellects and ingenuity of classical liberals and egalitarian redistributivists alike. What is especially interesting and promising is the recent focus on the relationship between rights in "external goods" and rights in one's person.

An important work clarifying the terms of the ancient debate, with reference to contemporary problems in political economy and moral science, is Fred D. Miller, Jr.'s new work *Nature, Justice, and Rights in Aristotle's Politics* (Oxford: Clarendon Press, 1995), in which Miller argues that notions of individual rights, including rights to own and alienate property, can be found in Aristotle's politics. These issues are updated and debated further in *Profits & Morality* (Chicago: University of Chicago, 1995), Robin Cowan and Mario J. Rizzo, eds., in which a variety of different approaches to the moral justification of profits are offered, including essays by Israel Kirzner (who defends his "finders-keepers" rule of property acquisition), Jan Narveson, Peter J. Hammond, Eric Mack, and Robert D. Cooter and James Gordley.

The issue of rights in one's own person figures strongly in the various discussions. A controversial new work that explicitly grounds rights to property in "things" and to the economic residuals, or profits, resulting from production and exchange is Richard Epstein's, *Simple Rules for a Complex World* (Cambridge, Mass: Harvard University Press, 1995), which argues that "property in one's person," or "self-ownership," provides a simple and easily grasped foundation for social coordination. (See especially chapters 3-5.) Another defense of "self-ownership," focusing on the concept of a right as such (claiming that, for a system of rights to qualify as such, that system of rights must be "compossible," such that all could exercise their rights simultaneously), is contained in Hillel Steiner's rigorously analytical *An Essay on Rights* (Oxford: Blackwell, 1994).

Self-ownership and the derivation of rights to external objects from self-ownership are vigorously criticized in a new work by G. A. Cohen, *Self-Ownership, Freedom, and Equality* (Cambridge: Cambridge University Press, 1995), in which Cohen argues that, even were one to concede rights in one's own person, this would not justify what he terms "capitalist inequality." (In addition to this immanent critique of classical liberal claims, Cohen goes on to offer strong criticisms of the idea of self-ownership itself, as well. Cohen's basic argument is repeated in Will Kymlicka, *Contemporary Political Philosophy: An Introduction* (Oxford: Oxford University Press, 1990), esp. pp. 103-125, and Alan Haworth, *Anti-libertarianism: Markets, Philosophy and Myth* (London: Routledge, 1994).

Other recent criticisms of the notion of property in one's person are offered by Alan Ryan in his "Self-Ownership, Autonomy, and Property Rights" (in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul, eds., *Property Rights* [Cambridge: Cambridge University Press, 1994]) (arguing that the notion of "self-ownership" is unnecessary to a rights theory), Richard Arneson in his "Property Rights in Persons" (*Social Philosophy and Policy*, Vol. 9, No. 1, 1992) and "Lockean Self-Ownership: Towards a Demolition" (*Political Studies*, Vol. 39, 1991) (arguing that the untalented should exercise ownership rights over the talented), and John Christman, in various essays and in his book *The Myth of Property: Toward an Egalitarian Theory of Ownership* (Oxford: Oxford University Press, 1994) (arguing that property rights can be "unbundled" and that "income rights," i.e., rights to profits, can be not only conceptually but also legally separated from "control rights" and that the these "income rights" should not or need not be privately owned in order to satisfy moral requirements of autonomy).

Far less rigorously than Cohen, and more stridently, Attracta Ingram has criticized self-ownership arguments in her work *A Political Theory of Rights* (Oxford: Clarendon Press, 1994), largely on the grounds that self-ownership would not fulfill the requirements of her expansive theory of autonomy. As she points out, "Given a specification of autonomy we can see that a libertarian state would fail to satisfy the autonomy interests of all those who were to be bound by it. Of course, the libertarian may dispute the specification of autonomy offered here. But that would require a much more extensive debate about conceptions of autonomy than currently engaged in by libertarians"(p. 164).

More recently, much discussion of autonomy has centered on "second order desires," i.e., desires for desires, and the claim that one is autonomous only when one acts in accordance with one's desires regarding one's desires; hence, for example, a smoker who expressed a desire to quit smoking, but who smoked nonetheless, would not be an autonomous agent. An important set of essays, largely pushing the discussion of autonomy in the direction of "we are autonomous only when we act in accordance with wants that we want to have" is found in John Christman, ed., *The Inner Citadel: Essays on Individual Autonomy* (Oxford: Oxford University Press, 1989). A recent attempt to update autonomy-based arguments for classical liberal "negative rights" and to property in one's person and derivative property rights in external objects has been made by Eric Mack, in various essays, including "Agent-relativity of value, deontic restraints, and self-ownership" (in R. G. Frey and Christopher W. Morris, eds., *Value, Welfare, and Morality* [Cambridge: Cambridge University Press, 1993]) and "Personal Integrity, Practical Recognition, and Rights," *The Monist*, Vol. 76, No. 1 (January 1993).

Of course, concerns about autonomy figured large in the derivation and growth of classical liberal tradition of individual rights. Issues of autonomy, or "self-mastery" were at the core of the arguments offered by the progenitors of classical liberal theories of property, notably the Spanish Scholastics, who defended the rights of the Indians not to be enslaved by the Spanish; prominent among the defenders of the rights of self-ownership of the Indians were Francisco de Vitoria (see "On the American Indians" in de Vitoria, *Political Writings* [Cambridge: Cambridge University Press, 1991]) and Bartolome de las Casas (see especially his *In Defense of the Indians* [1552; DeKalb: Northern Illinois Press, 1992] and the work of Lewis Hanke, *All Mankind is One: A Study of the Disputation Between Bartolome de las Casas and Juan Gines de Sepulveda in 1550 on the Intellectual and Religious Capacity of the American Indians [DeKalb: Northern Illinois Press, 1974].

The major focus of this set of autonomy concerns was responsibility for one's actions. Being a locus of responsibility, rather than a source of authentic desires for desires, was the principal concern of the writers in the classical liberal tradition. (Other important works on the origins of the notions of rights--and their relationship to self-mastery and responsibility--, tracing them back into the high middle ages, can be found in Richard Tuck's *Natural Rights Theories: Their Origins and Development* [Cambridge: Cambridge University Press, 1979] and Brian Tierney, "Tuck on Rights: Some Medieval Problems," *History of Political Thought*, Vol. IV, No. 3 [Winter 1983].)

The writings of John Locke are especially prominent in Anglo-Saxon discourse about rights and are often taken as canonical; a very insightful study of Locke's theory, providing both historical background and an attempt to show the applicability of Lockean solutions to contemporary issues in ethical theory, is provided by A. John Simmons in his *The Lockean Theory of Rights* (Princeton: Princeton University Press, 1992). A particularly useful historical study of the emergence of classical liberal theories of property can be found in Stephen Buckle's *Natural Law and the Theory of Property: Grotius to Hume* (Oxford: Clarendon Press, 1991), which shows how the various authors in the tradition built on the work of their predecessors; many issues that are vexing in Locke's treatment, for example, are made clearer when seen in the light of the ongoing controversies of the time. (All too often Anglophone readers focus exclusively on the remarks of John Locke, with no attention to the important work of Grotius and Pufendorf and others in this tradition.)

Richard Tuck also examines this "modern" school of natural law in his essay, partially a correction of his earlier book cited above, "The 'modern' Theory of Natural Law" in Anthony Pagden, ed., *The Languages of Political Theory in Early-Modern Europe* (Cambridge: Cambridge University Press, 1990). A very useful and well organized set of writings by Samuel Pufendorf, whose work was, like Locke's, central to the development of property theory, but who is not as widely known, is now available: Craig L. Carr, ed., and Michael J. Seidler, trans., *The Political Writings of Samuel Pufendorf* (Oxford: Oxford University Press, 1994).

Earlier roots of the theory of property are revealed among the Spanish Schoolmen by Alexandro Chafuen in his study *Christians for Freedom: Late Scholastic Economics* (San Francisco: Ignatius Press, 1986), who argues that Grotius and Pufendorf, although Protestants, were influenced by the Catholic Schoolmen. The language of property in Anglo-Saxon jurisprudential discourse is examined in David J. Seipp, "The Concept of Property in the Early Common Law," *Law and History Review*, Vol. 12, No. 1 (Spring 1994); especially interesting is Seipp's explication of the notion of an agent's having a "property in" a thing, and how that differs from contemporary use of the term "property," which often is used to refer to the object, rather than to the right.

A Few General Works
A few recent and useful general works on the theory of property, including treatment of issues not mentioned above, are: Alan Ryan, *Property and Political Theory* (Oxford: Blackwell, 1984); Stephen Munzer, *A Theory of Property* (Cambridge: Cambridge University Press, 1990); Jeremy Waldron, *The Right to Private Property* (Oxford: Oxford University Press, 1988); Andrew Reeve, *Property* (London: Macmillan, 1986); and special issues of *The Monist* (Vol. 73, No. 4, October 1990), *Nomos* (Vol. 22, 1980), and *Social Philosophy and Policy* (Vol. 11, No. 2, Summer 1994). (The views favorably represented in Ryan's, Munzer's, Waldron's, and Reeve's works tend to be more “social democratic” than classical liberal, but the treatment of classical liberal concerns and ideas is respectful and generally quite fair.)

The issues raised in these works are rich and complex, and provide much grist for students and scholars working in moral and political theory, in economics, in game theory, in history, in jurisprudence, and in related fields. Any of the various essays and books cited above could provide the material for an outstanding term paper, senior thesis, or more advanced research.

Tom G. Palmer, Editor, *HSR ONLINE*
Research Fellow in Political Theory Institute for Humane Studies at George Mason University and Hertford College, Oxford University

Copyright 1995 by the Institute for Humane Studies

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