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«SELF-OWNERSHIP, THE CONFLATION PROBLEM, AND PRESUMPTIVE LIBERTARIANISM: CAN THE MARKET MODEL SUPPORT LIBERTARIANISM, RATHER THAN THE OTHER WAY ...»

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LIBERTARIAN PAPERS VOL. 7, NO. 2 (2015)

SELF-OWNERSHIP, THE CONFLATION PROBLEM, AND

PRESUMPTIVE LIBERTARIANISM: CAN THE MARKET

MODEL SUPPORT LIBERTARIANISM, RATHER THAN THE

OTHER WAY AROUND?

MARCUS AGNAFORS*

LIBERTARIANISM AS A MORAL AND POLITICAL DOCTRINE is often the target of fierce criticism. Such criticism commonly takes as its starting point features that seem to come into conflict with widely and firmly entrenched moral intuitions. In this article, I will be concerned with a specific problem of that very sort, a problem that recently has been given a potent form by David Sobel: the conflation problem (Sobel 2012; 2013). The problem, in short, is the following: the basic libertarian tenet is full and stringent self-ownership.

Transgressing self-ownership is strictly forbidden (or at least “a very big deal”). This implies that one infringement of self-ownership (say, being stabbed) is precisely as forbidden as any other such infringement (say, *Marcus Agnafors is senior lecturer in philosophy at the University of Gothenburg, Sweden. The quality of this paper has been greatly improved by the comments of two anonymous reviewers. An earlier version of this paper was also presented at the Swedish Network for Political Theory’s annual workshop in Växjö, where the participants provided helpful suggestions. In particular, the author would like to thank Jörgen Ödalen for his insightful comments.

CITATION INFORMATION FOR THIS ARTICLE:

Marcus Agnafors. 2015. “Self-Ownership, the Conflation Problem, and Presumptive Libertarianism: Can the Market Model Support Libertarianism, Rather than the Other Way Around?” Libertarian Papers. 7 (2): 97-124. ONLINE AT: libertarianpapers.org. THIS subject to a Creative Commons Attribution 3.0 License

ARTICLE IS

(creativecommons.org/licenses).

98 LIBERTARIAN PAPERS 7 (2), (2015) touching someone’s hand without that person’s consent).1 On a libertarian theory taking full self-ownership as its basic tenet, there is no way of deciding that the first such infringement is worse than the other. Libertarian theory thus assigns the same normative significance to transgressions commonly regarded as severe violations of self-ownership as those commonly believed to be insignificant transgressions, which seems absurd. Finding a solution to the conflation problem is pivotal to an adequate defense of libertarianism, as the problem is shared by many other criticisms of the libertarian family of theories.2 Sobel suggests the (only) proper response is to allow that prospects of gaining or preserving important social goods can make some infringements permissible—a solution that drains libertarianism of its distinctiveness without offering a libertarian justification for doing so. This way out implies “backing away from self-ownership,” as in the title of one of Sobel’s articles.

I will argue that the conflation problem can be handled in a way that allows us to honor basic libertarian commitments; hence, there is no need to back away from self-ownership, or at least not for reasons external to libertarianism. I suggest a version of libertarianism I call presumptive libertarianism, treating self-ownership as an assumption the actual content of which remains to be specified and validated in application, rather than as a dogma ready to be applied. In light of an analogy to a standard market model, we can arrive at intuitively acceptable conclusions from a libertarian point of departure without violating libertarian core commitments in the process.

Are there other versions of libertarianism that are not exposed to the conflation problem? There might be. For instance, if the basic tenet of libertarianism is taken to be an injunction such as “Don’t transgress self-ownership,” nothing is said about the normative weight of various infringements, and thus the conflation problem might not appear. However, in this article, I will focus exclusively on what I take to be the standard versions of philosophical libertarianism—that is, versions that take the idea of selfownership as basic.

2 Perhaps it can be objected that libertarianism is not committed to the idea that the self-owner is entitled to subjectively determine the seriousness of a particular infringement. While clearly a possible position, it seems inconsistent with taking, as I have above, the ultimate normative ground of libertarianism to be stringent self-ownership, where such ownership is explained in terms of control rights. On such an interpretation, which I believe to be the most common one, the self-owner is certainly within her rights to stop even the smallest of infringements of her property. What kind of compensation she is entitled to if someone does infringe her property rights may or may not be a separate question, but the conflation problem will remain a problem since it is concerned primarily with normative protection rather than compensation.

SELF-OWNERSHIP, CONFLATION, AND LIBERTARIANISM 99

Since my radical proposal is likely to raise suspicion among libertarians, I will spend a large part of the paper defending it, although both my proposal and my defense of it will by necessity be much briefer than the ideal. In short, I will argue that presumptive libertarianism is not only a coherent and theoretically elegant notion helping us to disarm the conflation problem, but a version of libertarianism that honors pretheoretical commitments to selfownership and liberty better than some mainstream versions of libertarianism.





In the first section, I will describe the conflation problem and explain in what way it is weighty. I will then turn to an outline of the proposal I claim solves the conflation problem. It involves a reconceptualization of what kind of theory libertarianism is: from self-ownership as dogma to self-ownership as presumption. Using a simple free-market model as an analogy, I argue any rational and committed libertarian should welcome my solution. In the last section, I offer a defense against various anticipated criticisms, the most important being a charge that the proposed solution is nonlibertarian. I argue that presumptive libertarianism actually holds closer to a libertarian core than does any standard version of libertarianism. Hence presumptive libertarianism ought to be accepted by libertarians—whether they will in fact accept it is a different matter, as doing so will come at the cost of removing some of the characteristics and outcomes usually associated with libertarian theories. But, as I will argue below, that is a price that must be paid to make libertarianism compelling.

I. The Conflation Problem Mainstream libertarianism—both left and right—subscribes to the selfownership thesis, claiming that every individual is the legitimate, full, and sole owner of their own person. Every self-owning person thus enjoys the same

normative protection against all kinds of infringements of their property:

dropping a pin on someone’s head is as forbidden as is dropping a hundredpound rock from three floors above. Hence, the libertarian self-ownership thesis establishes a strict moral boundary around the individual, who is controlled by that individual alone. Given the self-ownership thesis, Sobel describes the problem confronting traditional libertarianism in the following

way:

The problem is that it is implausible that we enjoy the same degree of protection against all actions that infringe upon self-ownership. If we enjoyed such powerful protection against trivial infringements too much would be impermissible. Your trivial pollution, for example, that eventually falls to the earth and causes some small risk 100 LIBERTARIAN PAPERS 7 (2), (2015) of minor skin irritation, would seem to infringe upon my property rights over my skin. (Sobel 2013: 101; see also 2012: 36) Sobel calls this the conflation problem, as the self-ownership thesis seems to conflate the severity of infringements.

While Sobel’s version of the problem is paradigmatic, note that the conflation problem is not a singular problem, but a family of problems.3 Consider, for instance, proportionality in punishment. If all infringements are equal, then stealing a pin could be justly punished in the same way as

genocide.4 Moreover, consider an inverted version of the conflation problem:

if Andrew and Brenda respect Charlotte’s rights, they equally deserve praise.

But if Andrew abstains from stealing a pin from Charlotte despite being offered $1,000 to commit the crime, and Brenda abstains from torturing Charlotte despite being offered $1,000, it seems absurd to say that Andrew and Brenda equally deserve praise. Rather, it seems Andrew is more deserving of praise, since he could have gained much from causing only a minuscule harm, while Brenda could have gained the same amount but at a much steeper moral cost to herself. But someone claiming all infringements are equal cannot justify this assessment.5 Note also that the conflation problem could be described as the basic version of some of the most persistent and disturbing problems confronting libertarianism. For instance, we can understand the “easy rescue cases”—such as Shallow Pond examples—as challenges to the libertarian claim of self-ownership for conflating and

And, it should be noted, not a new family of problems. Robert Nozick, in his

Anarchy, State, and Utopia (1974), seemed to recognize the problem, as did Thomas Nagel

in his well-known review of Nozick’s book:

Even if it is not permissible to murder or maim an innocent person to promote some highly desirable result, their protected rights do not all have the same degree of importance… It is far less plausible to maintain that taking some of an innocent man’s property is an impermissible means for the prevention of a serious evil, than it is to maintain that killing him is impermissible. (Nagel 1975: 141–142) No doubt many libertarians will be unhappy with this particular version of the conflation problem. However, I will not pursue the issue here, as I believe there is no fully acceptable libertarian theory of punishment at present; furthermore, I am inclined to believe that the theory proposed below might be applicable to all, or nearly all, versions of the conflation problem.

5 Libertarianism interpreted as a full-fledged moral theory will be exposed to more versions of the conflation problem than a libertarianism seen as a theory concerned only with enforceable duties. However, the strength of the conflation problem is arguably greater in the versions pertaining to the latter interpretation of libertarianism.

SELF-OWNERSHIP, CONFLATION, AND LIBERTARIANISM 101

treating alike a minuscule infringement and a major infringement. The libertarian therefore cannot afford to ignore the conflation problem.

Note that the conflation problem challenges libertarianism in two ways.

First, it suggests libertarianism conflates two extremes that, intuitively, should not be conflated. Stealing a hair and stealing a kidney are different, and hence they should be treated differently. In this respect, the conflation problem points to the apparent fact that traditional libertarianism, in subscribing to the self-ownership thesis, is mistaken, since it treats two different actions as if they were, normatively, the same. Second, if we were to conflate the ends of the severity spectrum and afford them both equal and strict moral protection, then everyone’s liberty would be severely restricted. Hence, the conflation problem is a problem for any libertarian who values liberty.6 The conflation problem, then, criticizes standard libertarianism because of both how it describes our moral world and how it does not attribute the proper value to, or use the proper conception of, liberty. To understand the twofold character of the conflation problem it is crucial to identify a fitting solution and to discern the costs of such a solution.

II. Presumptive Libertarianism When discussing possible responses to the conflation problem, Sobel outlines “the most natural and plausible fix”: “that we allow that different property infringements are differently important and we are owed different levels of protection against them.” (Sobel 2013: 101) This means that “differently important infringements can be made permissible by different amounts of social good” (Sobel 2013: 105) and that “the badness of the rights infringement vary continuously with the size of the risk and the harm” (Sobel 2013: 116). This solution he labels the “Value-Sensitive SelfOwnership View” (VSSOV).

According to Sobel, the VSSOV must be rejected by libertarians, as it requires a theory of value at odds with self-ownership. Sobel examines a version of the VSSOV relying on objective values (some infringements are less serious than others, independently of the right-holder’s attitudes, broadly understood) and a version relying on subjective values (the status of an infringement stems from the attitudes, broadly understood, of the rightholder). Neither version appears promising. Reliance on a theory of objective values seems to conflict with the idea of self-ownership and the sphere of 6 For instance, see Sobel (2013: 101, 110), where he states that “such view no longer

–  –  –

normative control it entails. And adopting a theory of subjective values requires troublesome trade-offs. For instance, if the general feeling within the moral community is that free speech is not very important, it will not be protected as a right. Your preferences and valuations can be overridden by others’ preferences and valuations. Both approaches seem to run counter to libertarian theory (Sobel 2013: 120-122).

Sobel’s criticism seems persuasive. But I contend that the subjective strand of the VSSOV can, pace Sobel, be successfully developed and defended on libertarian grounds. The presumptive libertarianism discussed below is a version of the VSSOV, but one that maintains a well-argued connection to libertarian values. But before expounding my proposed solution, it is paramount that we understand exactly what is required of an acceptable solution to the conflation problem. When Sobel rejects the VSSOV, he does



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