Richman on Inalienable Rights

Related:

• Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) [LFFS]
• A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, in LFFS
• Inalienability and Punishment: A Reply to George Smith, in LFFS, esp. Part III.C
• The Title-Transfer Theory of Contract

I recently put the Liberty archives online and was browsing through old issues, most of which I had read when I used to subscribe to the print edition. One that caught my eye was Sheldon Richman, “The Absurdity of Alienable Rights” (January, 1989, p. 50). This article was in response to Ethan O. Waters (the pseudonym for R.W. Bradford), ¹ “Reflections on the Apostasy of Robert Nozick” (September-October, 1987), p. 14). ²

As Richman summarizes,

Ethan O. Waters … argues that if all the people in a geographical area “agreed to vest all ownership of real estate in a corporate body (and to subject themselves to) periodic payment of fees (called “taxes”) and various other controls (called “laws and regulations”) on the behavior of those who might live on the corporately owned land,” that a political system identical to our own statist society might develop in a way that would be entirely consonant with libertarian principles.

This argument of Bradford is similar to ones you hear nowadays by postlibertarians who try to justify the modern state on quasi-libertarian grounds by analogizing it to a shopping mall or private club or even a Hoppean covenant community; ³ if we support the right of private property owners owners to “set the rules” then analogously, a country has the right to do so, especially if the “country” “could have” arisen by legitimate means, like an actual contract (not merely social contract) between previous citizens. Of course this is a quasi-“social contract” argument, ⁴ since it’s not really argued that there was such an agreement, only that there “could have been”; which similar to Nozick’s argument for minarchism, which Rothbard has eviscerated. ⁵

In any case, even if some previous residents/citizens of a given region had agreed to be “bound by” some “constitution” or laws, there are still problem with this. One is that contracts do not create binding obligations but are only transfers of title to resources. ⁶ Another is that rights are inalienable, and one generation cannot bind future ones anyway. Even Jefferson recognized this. For example, in a letter to =James Madison (6 September 1789), he argued that “the earth belongs in usufruct to the living,” i.e. that each generation holds the world in temporary stewardship and cannot impose perpetual obligations, laws, or debts on future ones. He calculated that, based on life expectancy, constitutions and laws should naturally expire after about 19 years—the span of a majority generation—to avoid binding successors without their consent. Or as he wrote, “no generation can contract debts greater than may be paid during the course of it’s own existence.” This view influenced his view that the U.S. Constitution should lapse around 1808 unless renewed:

Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.—It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. ⁷

(Note also Jefferson’s famous quote (November 13, 1787 letter to William Stephens Smith), responding to Shays’ Rebellion: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.” This also reflects  Jefferson’s philosophy of periodic renewal—whether through peaceful constitutional resets or, if needed, rebellion—to ensure liberty isn’t constrained by the past.)

Madison, in his reply (4 February 1790), partially disagreed, suggesting some obligations could descend between generations for societal continuity.

In any case, Richman zeroes in on a similar problem with Bradford’s argument:

In doing so, Waters overlooks the one essential element of self-ownership: the inalienability of individual rights. By agreeing to form the hypothetical, forever-binding corporation, the hypothetical persons have to be able to alienate their rights to life, liberty and property.

Similarly, several of the critics of Hans-Hermann Hoppe’s rights theory objected on grounds that slaves can discuss philosophy, thereby disproving Hoppe’s thesis that argumentation implies self-ownership. These critics also overlook the fact that, by definition, a slave is a person who does not possess the right to self-ownership; that is, a person whose rights have been alienated.

Because they do not understand that  rights are inalienable, Waters and Hoppe’s critics have failed in their endeavors. Only by understanding the nature of rights can we come to grips with the philosophical issues involved. ⁸

(Complicated arrangements using title-transfer contracts to create conditions that “run with the land,” like restrictive covenants, negative servitudes, and so on, could be used, ⁹ but in any case, (a) never were in actual US history, and (b) still would not prevent someone from exiting or changing their mind, just as a football player can refuse to play, a boxer can step out of the ring, a singer can refuse to sing, and a woman who promised sex previously can revoke her consent and change her mind.) ¹⁰

I will briefly highlight below some important insights in Richman’s article, plus a few cases where his arguments are a bit off-base or could be supplemented.

Self-ownership as uncontroversial.

Writes Richman:

Many people find the concept of self ownership rather peculiar. After all, in all other forms of ownership, we have two things, a person and an external, alienable object. Isn’t it contradictory to say, as Locke said, that “every man has a property in his own person”?

Not at all. Property rights do not refer primarily to relations between men and things. “Property rights are understood as the sanctioned behavioral relations among men that arise from the existence of things and pertain to their use.”* ¹¹ “Rights” is a moral concept; people’s relations with things are neither moral nor immoral. Thus rights address the issue of how people may and may not treat one another. Self-ownership, then, does not describe a relationship between a person and himself, but between a person and all other persons.

Richman is right that some libertarians bridle at the idea of self-ownership. I have had similar criticisms along these lines directed my way. But as I wrote previously,

Some libertarians object to the concept of self-ownership or body-ownership, maintaining that it implies some mystical belief where the “person,” or perhaps his soul, is some spirit that owns and “inhabits” or “occupies” the body. For an example of a silly objection along these lines, Leland Yeager claims my advocacy of self-ownership involves some kind of mind-body dichotomy mistake. … Self-ownership simply specifies that each person has the right to control his body; it is the opposite of other-ownership, or domination and slavery. Nothing could be more libertarian.  ¹²

Property as rights between people.

Richman also perceptively notes that

Property rights do not refer primarily to relations between men and things. “Property rights are understood as the sanctioned behavioral relations among men that arise from the existence of things and pertain to their use.” ¹³

I pointed this out previously: “Property rights can be conceived of as rights between human actors, but with respect to particular resources”. ¹⁴

Libertarians and voluntary slavery.

Richman points out: “Hugo Grotius, a seventeenth-century espouser of natural law, believed one could literally give oneself away.” This is correct. See Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625;  Grotius and the Laws of War II), Book II, ch V, Section XXVII et pass.

And a few other libertarians do as well, such as Walter Block, Robert Nozick, and Gerard Casey. I have discussed Block’s views previously. ¹⁵ As for Casey, he writes:

… after a conversation with Walter Block on the topic of voluntary slavery, I am persuaded that there can be no legitimate objection to that principle’s encompassing specific performance also.” ¹⁶

And Nozick:

Even though the details of the framework aren’t settled, won’t there be some rigid limits about it, some things inalterably fixed? Will it be possible to shift to a nonvoluntary framework permitting the forced exclusion of various styles of life? If a framework could be devised that could not be transformed into a nonvoluntary one, would we wish to institute it? If we institute such a permanently voluntary general framework, are we not, to some extent, ruling out certain possible choices? Are we not saying in advance that people cannot choose to live in a certain way; are we setting a rigid range in which people can move and thus committing the usual fault of the static utopians? The comparable question about an individual is whether a free system will allow him to sell himself into slavery. I believe that it would. (Other writers disagree.) It also would allow him permanently to commit himself never to enter into such a transaction. ¹⁷

This seems to be a minority view, as Nozick seems to recognize.

Alienating the Will.

In another section, Richman argues that self-ownership rights are inalienable because you cannot alienate your will:

A slave contract would mean the willful giving up of one’s own will. How can one give up one’s will? What is giving up what? If the will is being given up, what’s doing the giving? If the will is doing the giving, what is it giving up?

A person can never transfer control of his will. It is inseparable. Nor can anyone directly control the will of another.

I think Richman here is recognizing that the basis for one’s ownership of one’s body is not homesteading, but rather one’s direct control of one’s body. This was also implicitly recognized by Rothbard ¹⁸ and made clearer and more explicit by Hoppe:

The answer to the question what makes my body “mine” lies in the obvious fact that this is not merely an assertion but that, for everyone to see, this is indeed the case. Why do we say “this is my body”? For this a twofold requirement exists. On the one hand it must be the case that the body called “mine” must indeed (in an intersubjectively ascertainable way) express or “objectify” my will. Proof of this, as far as my body is concerned, is easy enough to demonstrate: When I announce that I will now lift my arm, turn my head, relax in my chair (or whatever else) and these announcements then become true (are fulfilled), then this shows that the body which does this has been indeed appropriated by my will. If, to the contrary, my announcements showed no systematic relation to my body’s actual behavior, then the proposition “this is my body” would have to be considered as an empty, objectively unfounded assertion; and likewise this proposition would be rejected as incorrect if following my announcement not my arm would rise but always that of Müller, Meier, or Schulze (in which case one would more likely be inclined to consider Müller’s, Meier’s, or Schulze’s body “mine”). On the other hand, apart from demonstrating that my will has been “objectified” in the body called “mine,” it must be demonstrated that my appropriation has priority as compared to the possible appropriation of the same body by another person.

As far as bodies are concerned, it is also easy to prove this. We demonstrate it by showing that it is under my direct control, while every other person can objectify (express) itself in my body only indirectly, i.e., by means of their own bodies, and direct control must obviously have logical-temporal priority (precedence) as compared to any indirect control. The latter simply follows from the fact that any indirect control of a good by a person presupposes the direct control of this person regarding his own body; thus, in order for a scarce good to become justifiably appropriated, the appropriation of one’s directly controlled “own” body must already be presupposed as justified. It thus follows: If the justice of an appropriation by means of direct control must be presupposed by any further-reaching indirect appropriation, and if only I have direct control of my body, then no one except me can ever justifiably own my body (or, put differently, then property in/of my body cannot be transferred onto another person), and every attempt of an indirect control of my body by another person must, unless I have explicitly agreed to it, be regarded as unjust(ified). ¹⁹

Now Richman writes:

If you cannot give up control of your will, how can you give up your right to control it? The receiver of this right could never exercise the right. A right that cannot be exercised is absurd. Thus the right itself cannot be transferred.

Here I have a slight disagreement. The fact that a person always has a will and directly controls his body only means that he is the presumptive owner because he has a better claim to his body than anyone else, who can only indirectly control his body. This is why a contract does not serve to alienate rights and voluntary slavery contracts are invalid: first, because contracts are not binding promises, as implied by the Rothbard-Evers title-transfer theory of contract; and because merely saying words, making a promise, does not commit aggression and thus does not give anyone else a right to retaliate. ²⁰

What this means is that it is, in fact, possible, to alienate rights to one’s body: by committing an act of act of aggression. It is simply that uttering words, making promises, does not suffice to alienate rights because (a) it is not aggression (initiated force or trespass), and (b) the basis of ownership rights in one’s body is not acquisition, as it is for alienable, acquired goods, which can be abandoned by intent or declaration, but rather one’s direct control over one’s body. ²¹ But during an act of aggression, the victim may use force against the aggressor’s body even though he still has a will; his act of aggression may be views as a type of implied consent to retaliation. In a sense, by committing aggression, one does become partially or completely “owned by” the victim, for purposes of defense or retaliation, because the force used by the victim is in response to initiated force and it not itself aggression.

Some of Richman’s related comments are also a bit unnecessary and slightly wrong, e.g.

because the right of contract presupposes a free and sovereign will, where there is no free and sovereign will there is no contractual obligation. To invoke such an obligation is to be guilty of a contradiction …

as one who has given up his will, he cannot legitimately exercise his powers of understanding before being granted permission. He would first have to get permission to use those powers for the purpose of getting permission to carry out the original command …

Could one surrender the right to control just one’s body and not the will? The answer again is no. The question rests on a mind-body dichotomy. The body cannot be surrendered without the will. The will obviously cannot “act” without a body.

… if slave contracts are valid, the slave can have no obligation to honor his owner, but he also has an obligation to refrain from honoring his master—a contradiction if ever there was one. That which makes a contract binding—a free and sovereign will—is what makes a slave contract invalid.

If contracts are not seen as binding promises, then these objections make no sense. Contracts are just transfers of title to alienable resources—to those that are owned and acquired by first use or by contractual transfer. Because one owns these things by the combination of possession and intent to own, and because they were acquired, they can be un-acquired or abandoned by intentional transfer and so on. But because one does not homestead one’s body or own it because of homesteading or contractual transfer, but because one has direct control of one’s body and thus is the presumptive owner in any dispute over one’s body, one can lose rights to one’s body, not by contract, but by committing an act of aggression. If a victim of aggression has a right to use force against a slave, that is, to treat the slave as a means, to act as the owner of the slave’s body, it is not necessary that the slave have an obligation to obey the “master,” since contracts are not binding promises. The master can own the slave—have the right to use force against the aggressor-slave’s body—meaning he is justified in using force to compel or coerce the slave, even though this ownership can only be indirect. ²² The fact that it is only possible to indirectly control the body of another does not mean slavery is impossible, only that because it is impossible to alienate your will, each person normally has the better claim to own his body; but this status can change when there is an act of aggression. ²³

On the obligation to be reasonable.

Richman writes: “Every argument is based on what Frank Van Dun calls the obligation to be reasonable. If one did not at least implicitly believe that people ought to respect argumentation and accept valid conclusions, one would never make an argument.” See, on this, On the Obligation to Negotiate, Compromise, and Arbitrate; The Universal Principles of Liberty, ¶11; Libertarian Answer Man: Fine Print, The Doctrine of Unconscionability, Good Faith, Forced Heirship, Lesion Beyond Moiety; more forthoming in Kinsella’s Annotations and Commentary on The Universal Principles of Liberty (forthcoming).

1. See Bradford, “At Liberty” (September, 1997), p.23 n.*; Sheldon Richman’s letter (January, 1989), p. 6 [↩]
2. Bradford revisits this gedankenexperiment in Bradford, “At Liberty” (September, 1997), p.23; see also n.4; and see also Michael R. Edelstein, “Existence Exists, Slavery Enslaves” (letter) (May, 1989), p.6; Andrew B. Lewis, “Ghost Dancing With “Inalienable” Rights” (May, 1989), p. 27. [↩]
3. Kinsella, Hoppe on Covenant Communities and Advocates of Alternative Lifestyles. [↩]
4. On the social contract, see Jean-Jacques Rousseau, The Social Contract and Discourses, ed. G.D.H. Cole [New York: 1950]; John Rawls, A Theory of Justice (1971); James M. Buchanan and Gordon Tullock, The Calculus of Consent (Ann Arbor: University of Michigan Press, 1962); and, on the idea of a “constitutional contract,” James M. Buchanan, The Limits of Liberty (Chicago: University of Chicago Press, 1975). For criticism of social contract theory, see Murray N. Rothbard, “Buchanan and Tullock’s Calculus of Consent,” in Economic Controversies (Auburn, Ala: Mises Institute, 2011); idem, The Ethics of Liberty (New York: New York University Press, 1998), pass.; idem, “The State,” in For a New Liberty, 2d ed. (Auburn, Ala.: Mises Institute, 2006); Williamson M. Evers, “Social Contract: A Critique,” J. Libertarian Stud. 1 (Summer 1977): 187–88; Hans-Hermann Hoppe,”Rothbardian Ethics,” in The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Auburn, Ala.: Mises Institute, 2006), pass.; idem, “On Democracy, Redistribution, and the Destruction of Property,” “On the Errors of Classical Liberalism and the Future of Liberty” and “On Government and the Private Production of Defense,” in Democracy: The God That Failed (Transaction, 2001); idem, “Capitalist Production and the Problem of Public Goods,” in A Theory of Socialism and Capitalism (Laissez Faire Books, 2013); idem, “Foreword,” in Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023); Anthony de Jasay, “Inventing The State: The Social Contract,” in The State (Indianapolis: Liberty Fund, 1998); idem, Against Politics: On Government, Anarchy, and Order (London and New York: Routledge, 1997), Introduction, ch. 1, et pass.; idem, Social Contract, Free Ride: A Study of the Public Goods Problem (Oxford: Clarendon Press, 1989), Introduction, ch. 4, et pass.; Stephan Kinsella, “Review of Anthony de Jasay, Against Politics: On Government, Anarchy, and Order,” in Legal Foundations of a Free Society, p. 539. [↩]
5. Rothbard, “Robert Nozick and the Immaculate Conception of the State,” in Ethics of Liberty; David Kelley on the Necessity of Government. Hoppe compares and contrasts the approaches of Nozick and Rothbard in Murray N. Rothbard and the Ethics of Liberty, Introduction to the new edition of Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998). [↩]
6. Kinsella, A Libertarian Theory of Contract; The Title-Transfer Theory of Contract. [↩]
7. See also Liberty Fund excerpt. [↩]
8. R.W. Bradford, “At Liberty” (September, 1997) (overview of Liberty‘s first ten years, various controversies, etc., noted that: “Our September 1988 issue trumpeted Hans-Hermann Hoppe’s “The Ultimate Justification of the Private Property Ethic,” which proposed a radical alternative to the natural-rights-moralistic approach and the consequentialist-utilitarian approach. 17 Hoppe argued that “by being alive and formulating any proposition . . . one demonstrates that any ethic except the libertarian ethic is invalid.” Murray Rothbard was a great enthusiast for Hoppe’s argument and asked me to solicit responses from prominent Randian philosophers, whom he thought might share his enthusiasm. I decided to try to balance the responses by inviting some from individuals who would likely be more critical. We needn’t have bothered. We were again inundated by responses and letters-to-the-editor. In the end, the only support Hoppe received, aside from Murray’s enthusiastic encomium (“dazzling breakthrough”) was from Sheldon Richman.”). Bradford cites the November, 1988 issue of Liberty, but there is nothing by Richman to this effect in that issue. He may have had in mind comments that later appeared in Richman’s “The Absurdity of Alienable Rights” (January, 1989). N.b.: as noted Kinsella, “Argumentation Ethics and Liberty: A Concise Guide,” “when I asked Richman about his response to Hoppe, he did not remember one. But he is not a fan of Hoppe and told me possibly he was intrigued at the time, that but he came to think it was rationalist gimmickry that tries to bypass ethics and that if he did praise it, he would retract it.” [↩]
9. Libertarian Answer Man: Restrictive Covenants and Homeowners Associations (HOAs). [↩]
10. Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability; The Title-Transfer Theory of Contract; On Kissing the Girl, Changing One’s Mind, Reserving Rights, and Voluntary Slavery; KOL442 | Together Strong Debate vs. Walter Block on Voluntary Slavery (Matthew Sands of Nations of Sanity). [↩]
11. Quoting Erik G. Furubotn and Svetozar Pejovich, The Economics of Property Rights (1974), p. 3; italics in original; underlining by Richman; bolding by me. [↩]
12. Kinsella, “How We Come To Own Ourselves,” in LFFS, n.1. See also Kinsella, “Libertarians” Who Object to “Self-Ownership”. [↩]
13. Richman, quoting Erik G. Furubotn and Svetozar Pejovich, The Economics of Property Rights (1974), p. 3; italics in original; underlining by Richman; bolding by me. [↩]
14. Kinsella; A Libertarian Theory of Contract, n.1; “What Libertarianism Is,” in LFFS, App. I, “Property as a Right between People“. [↩]
15. See KOL442 | Together Strong Debate vs. Walter Block on Voluntary Slavery (Matthew Sands of Nations of Sanity); A Tour Through Walter Block’s Oeuvre. [↩]
16. Gerard Casey, Libertarian Anarchy: Against the State (Continuum International Publishing Group, 2012), ch. 6, n.6; see also idem, “Can You Own Yourself?“, Research Depository UCD Dublin (Dec. 2011) and “Can You Own Yourself?”, Analysis and Metaphysics 10 (2011): 60–66; idem,  [↩]
17. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), ch. 10. [↩]
18. Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, Part III.C.1, “Addendum: Rothbard’s Mistake?”. [↩]
19. Hans-Hermann Hoppe, Eigentum, Anarchie und Staat – Studien zur Theorie des Kapitalismus(Opladen: Westdeutscher Verlag, 1987) [Property, anarchy and state] (Leipzig: Manuscriptum, 2005 reprinted), pp. 98–100, translation (by Hoppe) quoted in Kinsella, “How We Come To Own Ourselves,” at n.17. [↩]
20. On the right to retaliate (including the right to engage in self-defense), that is, to use responsive force, that is, force in response to initiated force (aggression; trespass), see Kinsella, “A Libertarian Theory of Punishment and Rights,” “Dialogical Arguments for Libertarian Rights,” and “Defending Argumentation Ethics: Reply to Murphy & Callahan,” all in LFFS, and Kinsella, A Libertarian Theory of Contract. [↩]
21. Kinsella, A Libertarian Theory of Contract, Part III.A; Title-Transfer Theory of Contract, Part V. [↩]
22. See also Kinsella, Defending Argumentation Ethics: Reply to Murphy & Callahan, in LFFS, the section “Arguing With Your Slave.” [↩]
23. See also, on the issue of forfeiture of rights, see, in Kinsella, LFFS: “Inalienability and Punishment: A Reply to George Smith,” at notes 3 and 16; “Knowledge, Calculation, Conflict, and Law,” n.81; “A Libertarian Theory of Punishment and Rights,” n.88 and Appendix: The Justice of Responsive Force; “A Libertarian Theory of Contract,” n.5; also “What Libertarianism Is,” n.17; “How We Come To Own Ourselves,” n.15 and accompanying text; and “Dialogical Arguments for Libertarian Rights.” [↩]