From my July 20, 2014 Daily Bell interview by Anthony Wile, “Stephan Kinsella on Libertarian Legal Theory, Self-Ownership and Drug Laws.” I have to point this out so many times over and over to people, that I thought I’d put it in a separate post.
Update: See Stephan Kinsella, “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” The Libertarian Standard (October, 25, 2022); also KOL395 | Selling Does Not Imply Ownership, and Vice-Versa: A Dissection (PFS 2022) and “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” the section “Selling Does Not Imply Ownership”.
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Anthony Wile: You’ve called the following a fallacy: “If you own something, that implies that you can sell it; and if you sell something, that implies you must own it first. The former idea, which is based on a flawed idea about the origin and nature of property rights and contract theory, is used to justify voluntary slavery; the second, which is based on a flawed understanding of contract theory, is used to justify intellectual property.” Can you elaborate please?
Stephan Kinsella: I discuss this in more detail in some podcasts such as
- Tom Woods Show: Against Fuzzy Thinking;
- Libertarian Legal Theory: Property, Conflict, and Society: Lecture 6: Applications Continued;
- Common Libertarian Mistakes (Fraud Etc.); and
- Correcting Some Common Libertarian Misconceptions.
This is hard to elaborate in a quick interview. But here is a summary answer.
Ownership means right to control. It is not automatically clear why this would imply the power or ability or right to stop having the right to control it. My view is that we own our bodies not because of homesteading but because each person has a unique link to his body: his ability to directly control it. Hoppe recognized this decades ago, as I point out in How We Come To Own Ourselves. I had to find an old German text of his and have it translated, to find out his early insight on this, from 1985. This has implications for the idea of the voluntary slavery contract and the so-called inalienability debate. (For my views on this, see A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability and Inalienability and Punishment: A Reply to George Smith.) In fact, the idea of homesteading one’s body is obvious nonsense. A homesteader is an actor; an actor already has a body. It is inconceivable to imagine an actor homesteading his body. Homesteading, or original appropriation, has to do with the acquisition of property rights, by already body-owning actors, in external scarce resource in the world that were previously unowned. For these resources, they are acquired by intentional action and thus can be abandoned – or, thus, sold, or given, to others. So ownership of external resource does imply the capacity to contract, or sell, but self- or body-ownership does not, because they have different bases. The point is that ownership as a legal concept does not imply the right to sell. Too many libertarians just assume that it does. They are used to the right to sell in the case of ownership of external resources and thus assume that right to sell is some inherent right of ownership; it is not.
The converse mistake is the assertion that if you sell something you must have owned it. Otherwise you could not have sold it. So pro-IP advocates observe that people are paid to teach or to provide information or to invent. So they reason that the person being paid must have sold something. And to sell it, you must have owned it. You can only sell things that you own, right? Well what was sold? It was the information that you were paid to come up with or transmit. Therefore, information is an object of a sale contract and must be an ownable thing. Of course, the argument is rarely put this explicitly, mostly because people making such arguments are legal naïfs, but if it was, it would be easier to show how ridiculous and flawed it is. Contracts are simply ways owners of resources grant, or deny, permission, to others, to use the resource, whether temporary or permanent (as with a lease versus a sale) or whether partial or complete. Often this involves exchange where two owners of two resources exchange title to these things: my apple for your pear. My coin for your milk. And so on. But some title transfers—contracts—are only one-way: a gift, or donation, say. Or if I agree to perform some action within my capability on the condition that you give me a monetary payment, this is a one-way title transfer: only the money is being transferred. People confuse this because they analogize it to a normal bilateral exchange and wonder what is being exchanged in the service contract, and they assume the thing being sold is labor and that it must be ownable. This is just wrong. A careful study of Rothbard’s truly revolutionary and path-breaking title-transfer theory of contract is a good idea for people who want to argue this way. (See my A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability; also Justice and Property Rights: Rothbard on Scarcity, Property, Contracts….) But the point is that you cannot use this confused legal reasoning to shore up the arguments for ownership of labor, or for ownership of the “fruits of one’s labor,” of or IP. Just because I can persuade someone to give me money on the condition that I invent something for them or teach or divulge to them some information does not mean that inventions or information is an ownable object.
Stephan Kinsella writes:
The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies.
I agree. You can own something which is inalienable (such as yourself) and one can sell stolen property.
This leaves the questions about how property rights are established and what they are.
“A homesteader is an actor; an actor already has a body. It is inconceivable to imagine an actor homesteading his body. Homesteading, or original appropriation, has to do with the acquisition of property rights, by already body-owning actors, in external scarce resource in the world that were previously unowned………… So ownership of external resource does imply the capacity to contract, or sell, but self- or body-ownership does not, because they have different bases.”.
While I agree that they have different bases, I don’t understand why this difference in WHEN the resource was acquired has any bearing on whether the resource can be sold by its owner?
The fact that self-ownership is automatic at birth (or maybe even before) and is not something that ever has to be acquired in the way an external resource does, seems irrelevant to me when determining whether someone has the right to sell it?
e.g. If we own our kidneys at the same time we are deemed to automatically own the rest of our body, does that mean that we don’t have the right to sell one of them because the owning of our kidneys has a different ownership base and was not homesteaded?
I presume that’s not what you meant but I fail to see the distinction between that example and any part of the rest of the body- or even the entire body.
e.g. Why does someone NOT have the ‘right’ to sell ones’s body or life (say, for scientific experimentation) in exchange for something else?
I realise that’s an extreme example, and may be illegal in some places, but it’s only to focus on why you think an individual does NOT have the ‘right’ to do that.
What am I missing?
Thanks.
I think it’s a technical semantic difference – selling yourself would be more akin to performing a job for someone (ie. the one-way contracts mentioned above) rather than “selling yourself”, which he just argued is logically impossible since we never homesteaded “ourselves”. Effectively it’s the same thing, but the logical explanation and wording is more coherent if you word it as a conditional contract, rather than using the word “selling” in that metaphorical way. (Similar to the expression “selling the fruits of one’s labor”.)
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Then I have no idea what example of ‘selling yourself’ would explain the other side of that ‘semantic difference’ to which you refer.
Without that clarification, then every example used for ‘selling yourself’ can be rejected on a whim just because it’s deemed to be a technically semantic difference.
It then becomes not just ‘logically’ impossible but ‘totally’ impossible to sell yourself because absent some definition as to what it IS to sell yourself, there can never be a counter-point.
Selling your kidneys is not performing a job for someone. It isn’t even akin to performing a job for someone else any more than it is when you sell anything else that you own. It’s simply selling something you own.
If selling your kidneys is NOT selling yourself, then what is the definition of ‘selling yourself’ that is supposedly logically impossible but which can not include selling parts or all of yourself?
You can sell parts of yourself, since after the surgical operation you no longer have direct control of that part. But you can’t sell yourself since you will always retain control of your body and mind, unless you agree to weird sci-fi brain and mind-control surgical operations. I think the confusion is that when most people think of “voluntary slavery”, they assume the slave’s brain hasn’t been modified and he’s still in full control of his body – which is the source of our self-ownership. In those cases, the slave-owner can only ask you to perform jobs for him, as per your contractual agreements with him, and the slave is free to choose whether to honor the contract or not – like any other job. The slave still ultimately owns and controls his body, regardless of the absurd clauses in the contract that he signed.
‘My view is that we own our bodies not because of homesteading but because each person has a unique link to his body: his ability to directly control it.’
What if someone puts a chain round your neck, jabs you with a cattle prod, then tells you to start picking cotton? Do you still have control of your body then?
If you argue that slaves do have self-ownership, on the grounds that they are still controlling their bodies to carry out the orders of the slave master, then this suggests that this is a different type of ownership to that which we commonly recognise, such as land ownership. In which case, you can’t really use the concept of ownership of one’s body to argue by extension for these kind of property rights.
“What if someone puts a chain round your neck, jabs you with a cattle prod, then tells you to start picking cotton? Do you still have control of your body then?”
IMO, I think you do.
I think the question here is about ‘voluntary’ surrender of ownership and control. A violent action against that which is owned (such as damage or theft) is not a voluntary action on the part of the owner and so doesn’t affect the question regarding (legitimate) ownership.
In your example, which seems of the “do this or else” blackmail variety, he can tell you to pick cotton but only you have control over actually picking it – in the same way you have control over whether or not you pay any blackmailer. Many, if not most, people will pick the cotton but it is still within their control to not pick it.
Of course, refusing to pick it could result in more injury (or even death) but it is still you who has control over whether your body picks it or not.
If he wires you up to some kind of machine that literally renders you unconscious, but which takes over your brain and is programmed to send ‘corn picking’ commands to the relevant parts of your nervous system, then that would have to be considered loss of control of your body.
However, it fails the necessary ‘voluntary’ aspect of the discussion so is not an applicable example.
I agree that a slave has control of his body and does, in a sense, ‘choose’ to carry out the wishes of the slave master. But the master also, in a different sense, has control over the slave’s body: Society allows him to force the slave to carry out the tasks that he orders. My point is that of these two separate types of control, the master’s seems much more like the concept of property than the slave’s, thus using the fact that we have automative control of our bodies as the basis of property seems problematic to me.
I don’t think he does have control according to the example you gave and the question that you asked. Force and threat of violence is not the ‘control’ of someone’s body that you were asking about.
The cattle prod only inflicts pain. It does not control the parts of the body that picks the corn. Some people will pick the corn at the mere threat of the cattle prod while others may choose to fight, escape or resist – even if it risks their own life.
The cattle prod is the constant in those instances yet it is not what determines ‘control’. Only the owner of the body determines what reaction the cattle prod will produce. The owner of the cattle prod can only hope it produces the desired effect – but he isn’t the one who controls it.
“My view is that we own our bodies not because of homesteading but because each person has a unique link to his body: his ability to directly control it.”
You are saying that “I am able to control X” implies “I own X”.
But “I own X” is equivalent to “I have the right to control X”.
So your claim can be rewritten as:
“I am able to control X” implies “I have the right to control X”.
Which seems to me clearly a non sequitur. (Or I can’t see how it follows)
It’s not simply that you are able to control your body, it’s that *only you* can ever be able to control your body (ignoring sci fi mind-control). Self-ownership is a special case of ownership, which dovetails coherently with standard libertarian thought – as Kinsella explained many times on this podcast.
The problem with this is that a slave is still able to control their own body – albeit to carry out the wishes of the slave master. Self-ownership would thus seem to be a different type of ownership to that which we normally mean when we discuss property rights, and it doesn’t seem to me that it can be used to prove property rights.
It’s a necessary component in the proof for property rights. The rest of libertarian theory (ie. argumentation ethics or universally preferable behavior) complete the proof.