Abstract
Left and right libertarians alike are attracted to the thesis of self-ownership (SO) because, as Eric Mack says, they ‘believe that it best captures our common perception of the moral inviolability of persons’. Further, most libertarians, left and right, accept that some version of the Lockean Proviso (LP) restricts agents’ ability to acquire worldly resources. The inviolability of SO purports to make libertarianism more appealing than its (non-libertarian) egalitarian counterparts, since traditional egalitarian theories cannot straightforwardly explain why, e.g. forced organ donation and forced labor are serious wrongs even when they generate more equitable outcomes or benefit the greater good. I argue that, when SO is coupled with LP, this appeal is unfounded. SO, as usually construed, allows for the possibility of justified incursions of non-culpable agents up to and including forced organ donation. I conclude by considering a few possible responses on behalf of the libertarian, assessing each one’s plausibility.
Keywords
The thesis of self-ownership (SO), as I’ll use it here, states that human beings fully own themselves in a way which entails that one has robust rights over one’s own body and labor, similar to the kinds of rights associated with ownership of inanimate property.
Left and right libertarians alike are attracted to SO because, as Eric Mack says, they ‘believe it best captures our common perception of the moral inviolability of persons’ (Mack, 2002a: 76). Moreover, defenders of SO also accept the view that self-owners can come to acquire equally robust or maximal ownership over worldly resources due to some process between themselves and the world. The traditional Lockean story involves a self-owner coming to own a particular worldly resource by ‘mixing her labor’ with it, but this could also involve improving an object, staking a claim in an object, bringing it in to his possession, etc.
SO, along with our ability as self-owners to become full owners of worldly resources, can explain important non-consequentialist intuitions we have about freedom, autonomy, and property ownership. It can also help to support arguments against forced labor and redistributive taxation. However, concerns about the risk of unfairness in acquisition and later distributive inequalities have led to a widely-accepted view, starting with Locke, that there must be some constraint on original appropriation of worldly resources that, in Locke’s words, ‘enough, and as good’ be left for others to appropriate. I’ll call any principle which provides some non-vacuous set of conditions which constrain initial appropriation a Lockean Proviso (LP).
The inviolability of SO purports to make libertarianism more appealing than its (non-libertarian) egalitarian counterparts, since traditional egalitarian theories cannot straightforwardly explain why, e.g. forced organ donation and forced labor are serious wrongs even when they generate more equitable outcomes. In what follows, I argue that any LP as strong as or stronger than the very weak version proposed by Robert Nozick (1974 ) will give rise to possible situations in which non-consensual intrusions on a non-culpable agent’s SO are justified as a result of brute luck. These justified intrusions on the SO of a non-culpable agent, although not in conflict with the letter of the thesis of SO, undermine the spirit and central motivations for accepting SO. If SO is conditional on things outside of the self-owner’s control, as I argue it must be given a standard version of the LP and the contingencies of human need, it opens up the possibility of strongly anti-libertarian upshots such as the non-consensual organ harvesting of blameless persons. Libertarians of all stripes will certainly want to avoid this possibility, no matter how remote. 1
I begin by briefly sketching one influential version of the LP, the Nozickean Proviso of Robert Nozick (1974). I then present a few cases to demonstrate the possibility of justified non-culpable forced labor and organ use, or as I will call it, (JNFC), 2 in order to satisfy the Nozickean Proviso. The bulk of the paper involves two related explications. Firstly, I attempt to illustrate that the problems of the cases generalize to any proviso which meets a minimal set of conditions. Furthermore, these conditions are accepted by the bulk of left-libertarians and right-libertarians alike. Secondly, I consider a few ways that the friend of SO may respond to the cases, as well as some of the important implications of each response.
Nozick’s Lockean Proviso
Libertarians going all the way back to Locke have been concerned about limitations on the initial appropriation of property. When a person wants to turn a worldly object from something unowned into something privately owned, he/she must be sure that no one has a reasonable complaint against his/her appropriation. Once he/she has mixed his/her labor with an object, he/she gains a robust property right in the object ‘at least where there is enough, and as good left in common for others’. 2 Most libertarians still accept, with Locke, that something like a ‘reasonable complaint’ or a ‘no worsening’ condition on appropriation is correct since other things being equal, it seems unfair for one person to claim far more than his/her fair share of worldly resources from the outset (Vallentyne, 2010: sec II). Further, an object’s becoming private property inherently decreases all other self-owners’ liberty. Namely, their liberty to use the appropriated object now vanishes. This decrease in others’ liberty may also provide some motivation for accepting a LP. 3
However, one major worry is that Locke’s version of the proviso is hopelessly ambiguous. It isn’t clear what constitutes leaving ‘enough’ for others. Enough to survive? Enough to have an equal opportunity of welfare? Enough to have some minimal baseline level of welfare? All of these are plausible readings of the ‘enough, and as good’ clause. Nozick also points out that Locke’s Proviso is ambiguous between leaving ‘enough, and as good’ for others to acquire versus leaving ‘enough, and as good’ for others to use (Nozick, 1974:177-178). These ambiguities, as well as several others, render Locke’s Proviso untestable against particular cases (Attas, 2003). It is Robert Nozick who was perhaps the first to fully develop the LP into a workable and (in principle) testable constraint on property acquisition.
Nozick’s statement of the LP is that ‘A process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened’ (Nozick, 1974:178). This canonical statement remains ambiguous, but Nozick’s discussion renders it substantially clearer. Let’s assume, for simplicity, that the appropriation in question takes place on an island with only two people, A and B. A wants to acquire worldly object O. The rough idea is that, in order to test the proviso, we must compare two scenarios. The first scenario is B’s level of welfare were A to appropriate O. The second scenario is B’s level of welfare were O to remain unowned (either by A and B). Crucially, the second scenario is not one in which B appropriates O, but rather one in which O remains unowned by anyone. 4 If B’s level of welfare in the second scenario is higher than in the first, then, other things being equal, A counts as worsening B’s condition, and thus has violated the proviso in relation to B.
The fact that B’s level of welfare is the relevant metric for comparison is important, since it results in a weaker (that is, easier to satisfy) proviso than at least two alternatives. Firstly, ‘enough, and as good’ could be read as applying to particular things. On this reading, initial appropriation looks to be impossible. If O is thought of as an individual item, then it’s impossible for A to leave enough and as good of this particular item for B to use. 5 Secondly, ‘enough, and as good’ could be read as applying to kinds of things, rather than particular objects. In this case, if O is, say, a coconut, A can only appropriate O if he leaves a number of coconuts ‘enough, and as good’ unowned for B. This second interpretation, where enough and as good is read as applying to kinds of worldly resources, is a more plausible approach than the first. However, Nozick’s level of welfare approach is equally plausible. And furthermore, Nozick’s proviso is weaker, because an appropriator has two ways of meeting it. He/she can meet the proviso by leaving enough and as good of the same kind unowned for others to use, as in the second interpretation, or he/she can choose not to leave enough and as good of the same kind for others, so long as he/she sufficiently compensates the non-appropriators in some other way. If there are only two equally-sized trees on the island, then both A and B have equal claim to one tree. However, it may take both trees to build one boat. Under a stronger interpretation of the proviso than Nozick’s, A can’t build a boat since he/she must leave enough and as good trees for B. However, since Nozick’s Proviso involves a comparison between the welfare of B were A to not appropriate and the welfare of B were A to appropriate, A can appropriate both unowned trees to build his/her boat, so long as he/she compensates B. He/she can compensate B with any kind of resource B can use to raise his/her level of welfare to the appropriate baseline, 6 which is B’s level of welfare had the tree remained unowned (and thus available for his/her use in at least limited ways).
Nozick’s Proviso has one more important feature, which he calls the ‘historical shadow’ of the LP on appropriation (Nozick, 1974: 180). The proviso itself provides a constraint on what we can justly appropriate—if the proviso itself is violated (by an appropriator taking enough to worsen others’ position without compensating), the claim of ownership is invalid—the object or resource in question remains unowned, contrary to the claims of the attempted appropriator. The shadow, on the other hand, provides an ongoing limit to our property rights. If I come to own all of the water in the desert, the shadow provides severe restrictions on how I can use that water, even if I came to acquire it through a series of otherwise just transfers.
7
And this is true even if one comes to own all of the water as a result of brute luck:
[A] person may not appropriate the only water hole in a desert and charge what he will. Nor may he charge what he will if he possesses one, and unfortunately it happens that all the water holes in the desert dry up, except for his. This unfortunate circumstance, admittedly no fault of his, brings into operation the Lockean proviso and limits his property rights. (Nozick,1974: 180)
(b) A acquiring one of two watering holes in the desert mere days before the other watering hole dries up, leaving B without any access to water.
In both cases, A’s appropriation of the watering hole makes B’s situation worse in comparison to the watering hole’s remaining unowned.
On the other hand, intuitively it won’t always be the case that unequal future distributions of a resource will be unjust, even if they are a result of luck. For example, suppose that A and B both agree to distribute plots of land based on a lottery. If B’s ticket gets drawn rather than A’s, and as a result B ends up with the better plot of land, this doesn’t entail that B has violated the shadow of the proviso against A. Plausibly, the difference between Nozick’s watering-hole case and this one is that the former is an instance of brute luck, while the latter is an instance of option luck. 10 So while Nozick himself did not have the brute/option luck distinction at his disposal, I will understand the shadow of the proviso to only be violated when the would-be-violatee’s condition is a result of brute luck. 9
The problems I will raise for Nozick’s Proviso will arise for any proviso which is as weak as Nozick’s, or stronger, in the relevant sense discussed below. This includes versions of left-libertarianism which ground their egalitarian distribution of worldly resources on strengthened provisos. 10 So it is illustrative to focus on Nozick’s version of the LP not just because it is highly influential, but also because it represents one of the weakest plausible versions of the proviso.
Provisitis, plants, and natural disasters: encroachments on self-ownership
Two people, A and B, set foot on an island. The island, among other things, contains two separate fields in which grows a wild edible plant named ‘Curea’. Here is one thing which A and B know, and each knows that the other knows: A and B will contract a fatal kidney disease, Provisitis, if they don’t consume any Curea before the age of 30. It only takes one serving of Curea to keep the gene that causes Provisitis latent for life, but once Provisitis sets in, nothing can be done short of a kidney transplant to save the victim.
With this information as background, imagine first a case similar in form to the case Nozick uses to demonstrate the shadow of the proviso:
Curea 1: At t1, A appropriates one of the two fields of Curea, satisfying the proviso by leaving the other field unowned. B neither appropriates nor consumes any of the Curea in the other field. He is busy building a shack and engaging in other survival projects, and besides this, is far below 30 and so has plenty of time to consume some Curea in order to prevent Provisitis. At t2, however, an unforeseeable tsunami crashes on the side of the island in which the non-appropriated field of Curea grows, thus destroying the crop and its hopes of returning any time before A and B are well past the age of 30. Through this unforeseeable event, A now owns the only field of Curea on the island. B is now worse off than he/she would have been, had the first field of Curea remained unowned. So A’s ownership of the field now violates the proviso against B. A must provide B with the minimal means necessary to bring him/her up to the appropriate baseline. Since Curea will prevent a severe shortening of B’s life, and B would have had access to it had A not appropriated the field in question, A owes B (at least) enough Curea to prevent B’s Provisitis. (Nozick, 1974: 180)
Granting all of this, only one more step is needed to show how proviso violations can encroach on the spirit of SO. Consider Curea 2:
Curea 2: Curea 2 is analogous to Curea 1, with one minor difference. After acquiring the field, but before the tsunami, A consumes all of the Curea growing there, more than necessary to ensure the prevention of Provisitis. (Perhaps A finds the plant to be extremely tasty.) Before the tsunami, it should be pointed out, A hasn’t done anything wrong. He/she hasn’t yet violated the proviso against B—before the tsunami, there is more than enough Curea left in the other field to be appropriated and/or eaten. Furthermore, neither before nor after the tsunami has A done anything for which he/she is morally culpable. The tsunami is unforeseeable, and at the time when he/she consumes the plant he/she is merely exercising the robust property rights he/she has in the Curea. None the less, post-tsunami, A’s appropriation of the first field of Curea now violates the shadow of the proviso, just as it did in the original case.
11
A owes B compensation. But now, there is no Curea left for A to give B. The only way for A to compensate B, to raise B up to the appropriate baseline—B’s level of welfare had the first field been left unowned—is for A to give B a kidney, thus preventing the onset of Provisitis.
12
Before considering the implications of the forced kidney donation case just given, one additional thing should be noted. It may be objected that cases like this are so far-fetched that they won’t arise in the actual world, and thus need not be worried about. However, I don’t think this is so. It is almost universally agreed that SO includes full and robust property rights in not just our bodily organs, but also our talents and labor. Forcing me to labor as a slave constitutes as much of a violation of my SO as taking a kidney. Given this we could construct numerous variations on the case given above which will have the same upshot: agents can, through no fault of their own, have their SO intruded upon to compensate others. Take, for example, Curea 3:
Curea 3: As in Curea 2, A has consumed all of the Curea he/she appropriated, except for that he/she has saved some of the seeds. After the destruction of the second field, A owes B compensation for the proviso violation.
Firstly, David Schmidtz has argued that in many circumstances, appropriation of resources will not only be permitted by the LP, but required (Schmitdz, 1991: ch.2). This is because in circumstances where resources are scarce, leaving them unowned will almost inevitably lead to a tragic overuse of those limited resources. When an apple tree is unowned, it will be ravaged by the population at large, whereas if it is owned, its ability to grow fully-ripened apples can be protected both now and into the future by its owner. Thus, the appropriation of the apple tree (by someone or other) is required in order for the proviso to be satisfied and tragedy to be averted.
Applying this idea to Curea 1–3, we can ask two related questions. Firstly, was A required to appropriate his/her plot of Curea, and if so, does this absolve him/her from having to compensate B after the tsunami? Secondly, did B fail to do what the proviso required of him/her by not appropriating the second plot of Curea, and if so, does this mean that the proviso has not been violated against him/her? Addressing the first question first, I see no reason to believe that A was required to appropriate his/her plot of Curea. Recall that A and B are the only people on the island, and before the tsunami, Curea is not a scarce resource, nor would it foreseeably become one in the future. Since there is no (reasonable) threat of a tragic overuse ofwith respect to this particular resource, this does not seem to be the kind of case in which Schmidtz argues that appropriation is required to satisfy the proviso. But suppose I am incorrect about that, and that A was required to appropriate his/her plot of Curea. This wouldn’t at all entail that he/she didn’t owe B compensation after the tsunami. Even if Schmidtz is right that some initial appropriations are required by the proviso, this wouldn’t mean that the proviso is inviolable in those cases. (Just because I am required by the proviso to appropriate an apple tree doesn’t mean that I am permitted to appropriate all of the apple trees around, for example.)
On the other hand, has B violated the proviso by not appropriating the other field of Curea? For similar reasons to those stated above, I think the answer is no. But it’s worth further emphasizing that since the tsunami was unforeseeable, there is nothing B could reasonably have done to prevent the destruction of the second field. His/her appropriating or not appropriating is irrelevant with respect to whether A owes him/her compensation, since regardless of what would have happened, the tsunami would have wiped out the second field. Since appropriation is only required to satisfy the proviso when appropriation is needed to protect the resource, B has not failed to meet the proviso by spending his/her time appropriating other resources.
A second caveat also comes from a discussion of Schmidtz’s (1991: ch.2). Schmidtz’s notion of the LP involves what he calls the ‘use-proviso’. The use-proviso ‘requires that those who appropriate resources also practice, in some sense, ecologically sound management’ (Schmitdz, 1991: 29). Couldn’t A be plausibly culpably faulted for violating the use-proviso by consuming all of his/her Curea and saving none for the next season? There are two things worth noting here. Firstly, I think it is unclear if A can be culpably faulted, whether or not he/she has violated the use-proviso. The tsunami was unforeseeable, and we can assume for the sake of the example that the unowned Curea field would not wither away under environmentally normal circumstances. So A has every reason to believe that there will be more than enough Curea left for B, the only other (current or future) inhabitant of the island, into the indefinite future. But secondly, even if A has culpably violated the use-proviso in the cases given above, nothing about the use-proviso blocks the possibility of non-culpable violations of the use-proviso. If A stores some leftover Curea seeds in a shed with the intention of replanting them next year, he/she certainly has done all that could be reasonably expected of him/her to meet the use-proviso. But if the seeds are washed away in the tsunami along with the second field, A is still in violation of the use-proviso with respect to B, even though he/she is non-culpable. In short, the use-proviso is just a special kind of shadow on the LP, one which is subject to the same kinds of JNFCs.
What features of Nozick’s Proviso entail the possibility of JNFCs?
In the next section, I’ll consider different ways that the friend of LPs can respond to cases like Curea 1–3. We need to determine just what feature of Nozick’s version of the proviso results in threats to the inviolability of SO. If cases like the above only work because of an idiosyncratic feature of Nozick’s Proviso, then a workable proviso which avoids such problems could be formulated dissolving them. I’ll argue that there is no easy fix: the feature of Nozick’s Proviso which raises a problem is a central feature, falling straight out of the most central motivations for having a proviso at all.
It is important to see that Nozick’s claim that compensation need not involve identity in kind is not necessary for problem cases such as the Curea/Provisitis cases. Consider Curea 3, where A consumed all of the Curea, but saved some of the seeds. Post-flood, B is owed compensation, since his/her proviso has been violated. If, contra Nozick, that compensation can only be met with a return of Curea, A is still required, against his/her consent if necessary, to labor on the land in order to grow more Curea for B. And it is seemingly irrelevant whether Curea is easy to grow or a process which takes years. B has a claim over A’s labor, despite the fact that A has done nothing for which he/she can reasonably be held morally culpable. 15
Nor do the problems directly rely on the particular counterfactual scenario Nozick uses to develop the comparative baseline of welfare. Recall that the baseline Nozick uses to test whether a given appropriation satisfies the proviso is how well off the non-appropriators would be had the object/resource remained unowned. Several other ways of determining the relevant baseline can be found in the literature on LPs. 18 However the baseline is determined, any minimally-adequate proviso must leave the non-appropriators with a baseline of at least minimal resources sufficient for survival, at least in standard cases. If A’s appropriation of the Curea is constrained at a minimum by leaving enough for B to survive, then the shadow still kicks in post-tsunami, and the cases continue to involve JNFCs. 17
Finally, while all of the cases given above rely on the shadow of the proviso, structurally-similar cases could be given which involve violations that take place at the moment of (attempted) appropriation. To see why, consider Curea 4:
Curea 4: A justifiably believes that there are two fields of Curea on the island. (Perhaps he/she just saw the other field when he/she was on the other side of the island a week ago.) Believing this, he/she stakes a claim in one field. Justifiably believing him/herself to be the rightful owner of the field, he/she consumes all of the Curea in that field. Unbeknownst to A, a tsunami has hit the other side of the island and destroyed the other field of Curea.
It appears that the only feature of Nozick’s Proviso which is required to open up the possibility of JNFCs is that non-culpable ownership of resources can still constitute violations of the proviso, and, just as with other rights violations, these violations require compensation, at least when they are a result of brute luck. In each of the problem cases, A has done nothing we would consider intuitively morally blameworthy. He/she in no way contributed to the natural disaster that destroyed the second field of Curea, nor was the disaster foreseeable to him/her. But what if, to the contrary, his/her appropriations or activities helped to contribute to the destruction of the second field? If A carelessly dumps chemicals in the soil which he/she has reason to believe will cause all of the plants in the second Curea field to be killed or rendered inedible, he/she still owes B compensation. This compensation could still come at the cost of A’s sacrificing his/her SO via forced labor or even organ donation. However, this kind of case is familiar territory for the proponent of SO. Compensation and punishment for rights violations which are a result of an agent’s free choices aren’t (and shouldn’t be) generally considered problematic for the friend of SO. If I steal $10 from you and spend it, I have violated your property rights and thus owe you compensation. If I don’t have $10 (or more than $10, depending on one’s theory of punishment) to return to you to compensate, it doesn’t constitute a violation of SO to force me to work to be able to pay off my debt. 19 Violations of the proviso which are freely caused by the violators themselves constitute rights violations in a similar way to other rights violations such as theft, and so it seems the libertarian can, without problems for SO, accept intrusions on SO for knowingly caused proviso violations. 20
The problem cases, then, only arise because of the possibility of proviso violations that are a result of brute luck. I’ve been focusing on natural disasters that destroy natural resources; any event which is out of the control of the proviso-violating owner will raise the same problems.
Saving self-ownership?
We have seen the problems that can arise for SO once we grant Nozick’s Proviso. We have also seen that there is one essential feature of Nozick’s Proviso which allows the problem cases to get off the ground: the proviso allows for the possibility of self-owners to non-culpably violate the proviso against other self-owners. Any proviso which involves this condition will entail the possibility of a JNFC. Can we plausibly reject it, thus avoiding the problem cases?
Should non-culpable proviso violations require compensation?
Given that the problem cases arise only when compensation for a proviso violation is demanded of a non-culpable agent, a natural question is whether the libertarian can plausibly give up this aspect of Nozick’s Proviso while respecting the motivations for accepting it in the first place. There are two general ways that one could deny this feature of the proviso. Firstly, the libertarian could argue no non-culpable proviso violations require compensation. Secondly, the libertarian could make a more limited argument, that non-culpable proviso violations can require compensation, but cannot require compensation which infringes on SO. I address each in turn.
Could the libertarian plausibly argue that proviso violations, in so far as they are non-culpable, don’t require compensation? Such a position hasn’t (to my knowledge) been defended, and it is unclear how such a view would be motivated. Non-culpable proviso violations can surely meet the ‘reasonable complaint’ notion which motivates the proviso in the first place. Even Nozick’s discussion of the historical shadow of the proviso involves two such cases of non-culpable proviso violations (Nozick, 1974: 180). Unless one is prepared to accept that the sole owner of an island can choose not to allow a castaway, who will otherwise drown, onto his/her island, there will be cases in which non-culpable proviso violations do restrict usage rights and/or require compensation. And if one is prepared to bite the bullet on the island castaway case, the shadow of the proviso looks to be rendered toothless in cases where there is no question that the violatee has a ‘reasonable complaint’. Further, if there is no other principled reason for accepting these tough consequences of such a view than to avoid JNFC cases, it appears an ad hoc solution.
The second approach looks initially to be more plausible. Proviso violations always arise out of the distribution or appropriation of worldly resources. It doesn’t constitute a proviso violation for Sally to be born with far superior intelligence or talents than Bob. Sally’s intelligence and talents were never unowned, so Bob has no reasonable complaint against Sally in this case. This is the familiar libertarian line. It might be thought that even if one worldly resource can be traded for another worldly resource when compensating for a rights violation, self-owned resources, since they were never in the world to be appropriated, cannot be forcibly taken to compensate a rights violatee. Therefore, the argument goes, in the Curea 1–3 cases above, B finds him-/herself in a tragic situation: the proviso has been violated against him/her by A, but A has no (worldly) resource with which to adequately compensate B. The situation is similar in this respect to one in which a rights violator has died without leaving any estate with which to compensate his/her victim. The victim of the now-deceased rights violator has a reasonable complaint against the rights violator, but there is no straightforward way for the victim to be compensated. 21
This argument as it stands won’t work. As we saw above, it is widely agreed that intrusions on SO in the form of punishment and compensation for rights violations are permissible. If I own no property, and steal $10 from you to gamble, I still owe you compensation, even if I must be put to work to provide it. Cases like this involve intrusions on SO which don’t constitute a rights violation against my SO. So we’ll need to propose an even more restricted principle. One such principle was given above: compensation for non-culpable proviso violations can be extracted only via worldly resources. If no worldly resources are available, compensation cannot legitimately be demanded.
It is traditionally accepted by defenders of SO that our labor and skills are not considered worldly resources, but rather resources owned by a self in virtue of being a self-owner. If that is right, then this principle as it stands will lead to implausible consequences. For it states that no non-consensual intrusion on SO is permissible in order to extract compensation for a non-cuplable proviso violation. Consider a case in which A non-culpably violates the proviso against B. Without compensation, B will die. However, the only means available for A to compensate B is to engage in minor labor for 15 minutes. After 15 minutes, B will be fully compensated—that is, up to the relevant baseline level of welfare had A not appropriated the resource in question. And yet, according to the principle being considered, B cannot demand that A engage in the 15 minutes of labor needed to save his/her life. Perhaps there is some way to alter the principle in order to avoid these results. 22 I make no claim that there is no way to develop our principle in a way that will avoid all of the problem cases. Indeed, one could always accept the consequences of in such cases and continue to accept the principle—one could plausibly argue that it is fundamentally egalitarian intuitions that are being pumped in cases like this. I can only note that, other things being equal, this is a mark against such a limitation on compensation for proviso violations.
There is a further consequence of the present view that looks arbitrary. If the only way for A to fully compensate B for a non-culpable proviso violation is to weld a chair for him, this constitutes a JNFC against A, since it forces A to labor for B. According to the present view, this compensation cannot legitimately be demanded. What if A had welded a chair for him-/herself before the proviso violation occurred? Would taking the already-welded chair from A also constitute a JNFC against A? The chair is a worldly good, so it looks like this kind of compensation would count as legitimate. It’s difficult to see the morally relevant difference between the two cases—why must B demand less merely because A procrastinated welding his/her chair? Note that unlike the cases given above, this point doesn’t rely on egalitarian intuitions. Rather, it looks like blocking JNFCs while allowing worldly compensation will lead to importantly different verdicts about arbitrarily different cases.
World-ownership renders self-ownership conditional
This brings us to a second route open to the proponent of both LPs and SO, which is to swallow the unintuitive consequences of the principles as they stand. This approach accepts the possibility of JNFCs. The historical shadow of the proviso entails that the ownership of worldly goods is conditional on the future distribution of resources similar in kind. Curea 1–3 above illustrated that this conditionality extends also to the ownership of the self and one’s labor. Just as one can be forced to labor or accept bodily intrusions in compensation for rights violations in the case of criminals, one can be forced to labor or accept bodily intrusions for proviso violations, even when they arise as a matter of brute luck. 23
Accepting an SO which is conditional on circumstances out of the owner’s control isn’t ideal, but there are (at least) two ways the libertarian can downplay the counterintuitive results of JNFCs such as the ones involving Curea and Provisitis. Firstly, the libertarian can argue that these kinds of cases will rarely arise in the real world, and as such are only a minor and highly theoretical setback, one with very little practical upshot. Secondly, the conditionality of SO involved at present is not one intrinsic to SO. Instead, a self-owner starts out with full, maximal, and unconditional SO. It is only when the self-owner acquires worldly resources that his SO is put at risk of JNFCs.
Will JNFCs be as rare in the actual world as the libertarian might hope? This is unclear. Above I argued that a non-culpable proviso violation which could only be compensated via forced labor renders SO just as conditional as it is in the forced kidney donation case. This argument succeeds in so far as one accepts that our right to our labor is part of the bundle of rights that constitute SO. Most libertarians agree with this claim. 24 How frequent JNFCs will occur is largely dependent on how strong an LP one prefers. Since left-libertarians favor stronger, egalitarian LPs, the risk for JNFCs is greater. This risk provides much to be concerned about. Left-libertarians want to defend a view that is both broadly egalitarian and that captures the thought that ‘[k]illing, torturing, or enslaving innocent individuals without their consent is unjust no matter how effective these actions are as means to equality or other moral goals’ (Vallentyne, 2000: 3). Accepting that A is required to give B his/her kidney or labor in Curea/Provisitis-type cases looks to undermine this main motivation for accepting SO. 25
Furthermore, Nozick’s ‘Taxation of earnings from labor is on a par with forced labor’ argument claims, though for a different purpose, that there is no morally-relevant difference between forced labor and taxation on earnings from labor (Nozick, 1974: 169–171). In so far as one is sympathetic to Nozick’s argument against redistributive taxation, one should also accept that any compensation taken from value added through labor to worldly resources also constitutes an intrusion on SO. Some of this compensation will be for non-culpable proviso violations. In sum, we have some reason to belive that if proviso violations are frequent, JNFCs will be frequent as well.
The second way a libertarian could downplay the counterintuitive results of accepting conditional SO is to point out that the conditionality in question isn’t one which a self-owner initially has. Despite Curea 1–3, it won’t be possible for a self-owner to come into existence owing compensation to anyone. This is because proviso violations only result from the ownership of some worldly resource which thereby worsens the situation of others. Since a self-owner comes into existence without any property but him-/herself, his/her SO will not be conditional prior to him/her acquiring any worldly resources. Moreover, it is only through his/her own actions that he/she sacrifices his/her maximal and unconditional SO, since only through his/her own actions does he/she come to acquire worldly resources. Once he/she acquires worldly resources, to be sure, the rights which his/her SO entails are conditional on the distribution of worldly resources—a distribution which is partially a matter of brute luck. None the less, the libertarian could argue that when a self-owner chooses to acquire worldly resources, they tacitly consent to the possibility of JNFCs. So whether and to what extent one’s SO is conditional rests at least partially in the hands of the self-owner him-/herself.
I’ll grant that this second point does soften the blow of the JNFC cases. A didn’t need to appropriate an entire field of Curea, and when he/she chose to do so, perhaps it could be argued that he/she tacitly consented to the possibility of intrusions on his/her SO. But this strategy is not without its problems. Firstly, as human beings, acquisition of certain worldly resources is necessary for our survival. This strategy therefore pits an agent’s survival against his/her unconditional SO. Secondly, this response involves forcing an agent to choose between: (a) acquiring as few worldly resources as possible; or
(b) greatly raising his/her risk of a JNFC.
Thirdly, if David Schmidtz is right, some appropriations are not only permitted by the proviso, but required. If this is right, then agents in certain circumstances will have no choice but to open themselves up to the possibility of JNFCs (Schmitdz ,1991: ch.2). These are results which the libertarian should, other things being equal, want to avoid. A choice between conditional SO and death with unconditional SO isn’t much of a choice at all. Again, though, they may downplay this forced choice by pressing again on the first aspect of defending conditional SO, which we saw above.
Rejecting the proviso altogether
The final response to the problem of the cases given above is to reject the notion of LPs full stop. This approach would involve independently motivating a full rejection of such provisos, rather than just of the particular features of Nozick’s Proviso which allow the cases to get off of the ground. I won’t say much about this option here, other than to note that it is a position represented in the literature. 26 Generally, libertarians who reject provisos do so on the grounds that they are either arbitrary or that ‘reasonable complaint’ concerns cannot be motivated except by appealing to fundamentally egalitarian considerations. 27 A so-called ‘hardline’ libertarian (that is, one who rejects provisos altogether) could, in theory, use the cases given above to show that if one is to endorse a maximal, faultlessly inviolable thesis of SO, then one must accept the hardline version of libertarianism. In so far as libertarians tend to push the possibility of forced organ donation (or its moral equivalent) as a serious objection to egalitarian theories of rights and distribution, this approach may be found compelling. As someone who finds the ‘reasonable complaint’ condition which motivates the LP rather convincing, I leave it to the hardline libertarians to make the case against it.
Conclusion
Eric Mack points out that:
Libertarian theorists are indeed often eager to exploit the idea that taking another person’s life either by destroying that person or by enslaving her is the paradigmatic wrong that one agent can inflict upon another. … The principle that stands in opposition to the taking of another’s life must not make the wrongfulness of the action contingent upon the particular circumstances that surround such conduct. The principle must focus on some core and, presumably, readily observable feature of taking a person’s life either by destruction or enslavement, rather than on some feature that will be present in some cases and absent in others and will often not be readily observable. … the principle that condemns these wrongful acts should also allow us to condemn what appear to be lesser instances of taking a person’s life by destruction or enslavement. (Mack, 2002b: 261)
I have tried to show that even a weak proviso, when coupled with robust self- and property-ownership, leads to the possibility of JNFCs. Since the possibility of JNFCs commit the libertarian to a version of SO which is conditional on the distribution of worldly resources, the proponent of SO should, other things being equal, want to avoid such a result. In sum, then, the proponent of SO is faced with a dilemma: Either give up the most plausible and well-motivated versions of LPs or accept that SO is conditional on features which are a matter of brute luck.
Footnotes
Acknowledgements
I am indebted to CJK Gibilisco, Jennifer McKitrick, David Sobel, Steve Swartzer, Adam Thompson, Mark van Roojen, Peter Vallentyne and three anonymous referees for extensive comments on earlier drafts. I’d also like to thank the University of Nebraska Graduate Colloquium for providing helpful feedback on a presentation of this material. Special thanks to Aaron Elliott, Landon Hedrick, and Mose for helpful discussions.
Funding
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.