Previously I have argued here (and here) that the Self-Ownership views associated with left and right-libertarianism have difficulties stemming from their failure to adequately differentiate serious from unimportant property rights infringements. The self-ownership libertarian (the only kind of libertarian I am here discussing) tends to conclude that we enjoy very strong protection against paternalism or infringing our property rights for the sake of the greater good of others. They tend to reach these conclusions by supposing that our property rights provide strong (if not absolute) protection even against infringements that involve only small or trivial harm to the person whose rights are infringed. This presupposition is what licenses the inference that such actions are quite generally wrong without an investigation into the size of the harm that would be caused by the infringement.
But such powerful protections would make impermissible most pollution or fires as these things cross the border of other people’s property, e.g. their lungs, without permission. I argued earlier (following Nozick and Railton), that when we see this, we see that the above simple path from self-ownership to a vindication of traditional libertarian conclusions is unpromising. Thus the path from self-ownership to traditional libertarian conclusions needs to become more complicated if it is to be plausible.
One obvious way to respond to the challenge would be to distinguish between important property rights and relatively trivial ones and be willing to sell violations of the less important property rights relatively cheaply for social good. That is, the view might provide a theory of value that explains why some property rights are more significant than others by showing that some protect more valuable things and others protect only trivial things.
So we are supposing our libertarian seeks a theory of value that simultaneously accomplishes 3 things: 1) the distinction in significance of rights stems somehow from the thought that we are self-owners rather than being ad hoc or potentially in tension with that view, 2) it vindicates traditional libertarian conclusions such as the broad impermissibility of anti-paternalism and the near inviolability of our body when it comes to taking hair or blood for others who badly need it, yet 3) it makes room for infringements on our property rights where we think we surely must permit them, such as in the case of some not very toxic pollution, intuitively acceptable risks such as flying planes over people’s heads, and soft-paternalism cases such as pushing people out of the way of busses. Let us call these the three criteria of adequacy for a theory of value that will serve our libertarian’s purposes.
Here I want to try out the start of an argument to the conclusion that there are great difficulties for any such theory of value that would serve our libertarian’s purposes.
Let us consider two different types of such theories of value our libertarian might offer. This theory of value can either, in one of several different ways, defer to the agent’s own point of view in determining what makes an infringement more serious or not do so. Just to have labels, lets call the former subjectivist and the latter objectivist. There will be many different objective and subjective theories. All subjective theories will, in one way or another, defer to the agent’s choices or preferences under certain conditions.
If the theory of value is objectivist, then although the agent who does not consent to paternalistic action A or B (both of which infringe upon her property rights) but who prefers that A happen rather than that B will, in some cases, nonetheless enjoy less protection from B than from A. There will be cases where, due to the social good involved, paternalistic action B is permissible but A is not. According to our objective theory of value this could either be because B is in fact better for our agent despite her preference to the contrary or it could be because it is thought morally more important that we not infringe on the agent in one way rather than another, despite her explicit preference for the objectively lower ranked option. I want to say that either way, whatever is generating this view about the relative moral significance of different paternalistic actions, it is not stemming from the agent’s self-ownership. To the extent that our ranking of the significance of different paternalistic actions was stemming from the self-ownership of the agent that we are acting paternalistically towards, to that extent the ranking should reflect in some way the agent’s own view of the significance of the infringements upon her. If anything is bad about paternalism on a self-ownership view, it is that others who do not own something are making decisions about what will happen to that thing without gaining the consent of the person whose property it is. Naturally then, what would make such an infringement worse is that it is even less responsive to the point of view of the person who owns the thing. So, I claim, the objective picture is not a good fit for what makes a paternalistic action worse on a self-ownership view. The thing about owning something, at least on the views we are considering, is that this gives me broad authority to have my say determine what may happen to that thing. The objective theory of value we are considering severs the connection between something being mine and being the person with authority over what may happen to it. That is, I am claiming this theory of value fails to capture well the first criteria of adequacy discussed above for a theory of value that serves our libertarian’s purposes. It looks disconnected from and in tension with the idea that we are self-owners.
Alternatively, if our libertarian uses a subjectivist theory of value here, she will have a hard time vindicating the idea that there are powerful considerations against forbidding someone to engage in homosexual sex or being forced to avoid saturated fats. People care about such prohibitions to different extents. Some may not much mind such state requirements while not doing anything that counts as having consented to them. We do not consent to something merely by not minding it. So the problem on the subjective side is that what different people value can differ so widely. As a result, the subjective theory of value will not be able to vindicate the thought that there are classes of actions, such as freedom of conscience, or freedom from interference with self-regarding actions, that we enjoy powerful protections from. On this view under discussion there will be people who do not value or only slightly value this or that traditional libertarian sphere of protection, and then they will not enjoy powerful protections against infringements into that sphere. Further, some may not much mind state paternalism generally, at least when it is objectively correct about what is good for us. Such people will, on the subjectivist theory of value under consideration, enjoy only quite weak protections against a wide range of state paternalism. The traditional libertarian claim that we all enjoy powerful protections against state action that paternalistically infringes upon our property in such ways will not be vindicated. The threatened result would be that the status of our supposed libertarian protections on the less simple, value-responsive libertarian account, will be quite subject to empirical fortune, not unlike consequentialism, in its defense of our traditional Millian liberties. Thus I am claiming such views score poorly in vindicating the second criteria of adequacy for a theory of value that can serve the needs of our libertarian.
The above is sufficient to fuel the suspicion that there is nothing significantly more important about the property rights that libertarians stress than the property rights that protect us from things like pollution. That is, there is nothing about the value of what such rights protect that provides a principled basis for our libertarian’s insistence that the former sort of rights are very stringent while allowing that the latter sort of rights are much more easily made permissibly infringable for the sake of social goods.