LIBERALISM
LIBERTY AND
DISTRIBUTIVE JUSTICE
Contemporary Debates in Political Philosophy Edited by Thomas Christiano and John Christman
© 2009 Blackwell Publishing Ltd. ISBN: 978-1-405-13321-0
CHAPTER
S E V E N
Individualism and
Libertarian Rights
Eric Mack
I. Introduction
This essay is a partial defense of the rights that are at the core of libertarian political
theory. It provides some lines of reasoning in defense of rights-based political theory
that arrives at libertarian conclusions.1
To say that the theory is rights-based is to
say that its most fundamental interpersonal norms are expressions of rights that
individuals possess against others – rights that restrict the permissible actions of those
other agents. To say that the theory is rights-based is not, however, to say that it
takes those fundamental rights to be philosophical primitives or self-evident truths.
Thus, the need for the defense that this essay partially provides. Even the provision
of a partial defense of these rights is, to say the least, a formidable philosophical
task. My hope is that this excuses the bold and highly programmatic presentation of
this essay’s substantive normative argument – and its neglect of meta-ethical niceties.
The two fundamental rights that will come to the fore as we proceed are the right of
each individual over her own person (the right of self-ownership) and the right of
each individual to the practice of private property. Sometimes two versions of libertarianism
are identified – “right” libertarianism which combines self-ownership and
(at least almost) unrestricted private ownership of extra-personal material – and “left”
libertarianism – which combines self-ownership and some form of egalitarian ownership
of (at least natural) extra-personal material. This essay supports the core rights
of the first version of libertarianism.
The general strategy that I employ here for the defense of such rights is to situate
the affirmation of such rights within a more encompassing moral individualism. So
I need to begin with a brief description of this moral individualism and of the nonquestion-begging
bases on which its affirmation is reasonable. I take the central
– and independently plausible – root idea of this individualism to be the separate,
freestanding importance of each individual’s life and well-being. Moral individualism
is an articulation of this root idea. The more the articulation captures and clarifies
Contemporary Debates in Political Philosophy Edited by Thomas Christiano and John Christman
© 2009 Blackwell Publishing Ltd. ISBN: 978-1-405-13321-0
what makes it attractive in its more inchoate form, and the more the articulation
yields a moral structure composed of mutually reinforcing elements, the more the
plausibility of that root idea is enhanced.
If we take seriously the separate importance of persons, we should expect that
individual A’s own separate importance will have a different sort of directive impact
on her than the separate importance of others has for A. Thus, the key working hypothesis
associated with the root idea is that, for each individual, the separate, freestanding,
irreducible importance of each individual’s life and well-being has two distinct
kinds of directive import. For each individual, the directive import of her own separate
importance is that her life and well-being – her life going well – stands as the final
rational end of her actions; her goal-oriented rationality consists in her choosing and
acting in ways that result in or constitute her living as well as possible. In affirming
the separate, freestanding, and irreducible importance of each individual’s life and
well-being, each individual A affirms that the rational final end for each other individual
B is the advancement of B’s own life and well-being. But the separateness of
the importance of B blocks any inference from B’s life going well standing as a final
rational end (for B) to its being a final rational end for A.2
If the separate importance of B’s life and well-being as such has any directive
import for A, it must be different in kind than providing A with an end she is rational
to promote. Intuitively, there does seem to be this second, different in kind, directive
import. The most intuitively objectionable treatments of B by A are treatments in
which A disposes of B as though B is a resource available for A’s use and exploitation.
These actions are naturally described as A’s treating B as though B is not a
being whose life and well-being are of separate, freestanding importance – as A’s
treating B as though B is not a being with rational ends of his own. If the sense that
it is unreasonable for A to engage in such actions because of the separate importance
of B’s life and well-being is correct, it must be because B’s separate importance has
directive import for A – where that import is a requirement in reason that A not
treat B as though he is not a being whose life and well-being are of separate importance.
Such a requirement imposes constraints on the means by which A may transact
with B in the course of promoting her valued ends.
So, the root idea of the separate, freestanding importance of each individual’s life
and well-being seems to have both goal-oriented (teleological) import and meanseschewing
(deontic) import. The first import provides individuals with the ends that
they respectively have reason to promote; the second import provides individuals with
restrictions on their treatment of others which they have reason to respect. The first
(teleological) import supplies the key distinctive feature of moral individualism’s
theory of the good, viz., the individualization or agent-relativization of the good;
each individual’s life and well-being is an ultimate good – relative to the agent whose
life and well-being it is. The second (deontic) import supplies the core interpersonal
norms of moral individualism’s theory of the right, viz., rights-correlative restrictions
on the means that agents may employ in the pursuit of their respective ends. Moral
individualism’s root idea gains plausibility as that which provides through its articulation
a unifying explanation for the independently plausible view that to be rational
in the pursuit of ends is to be genuinely prudent and for the independently plausible
view that it is reasonable for individuals to constrain their conduct towards other
persons independent of that constraint being conducive to their rational pursuit of
122 Eric Mack
ends. It seeks to provide a unifying picture of the rationality of the promotion of
goals and the reasonableness of constraint in the course of that promotion – a reasonableness
of constraint that does not reduce to the expediency of that constraint.
Since the rationality of prudence is the most minimal and uncontroversial claim
about practical rationality, it is the natural starting-point for moral theory. Normative
theorizing naturally begins with the principle of choice for the individual according
to which “A person quite properly acts, at least when others are not affected, to achieve
his own greatest good, to advance his rational ends as far as possible.”3
Much theorizing
then proceeds by arguing that the rationality of prudential action is merely a
special case of the rationality of promoting the general social good. The rationality
of an individual imposing some sacrifice upon herself for the sake of a greater gain
for herself is, according to such theorizing, merely a special case of the rationality
of an individual imposing such a sacrifice upon herself for the sake of a greater gain
for members of society at large. The goal of rational action is the common social
good; and this common social good provides the standard for adjudicating disputes
among individuals who champion conflicting actions. If individual A favors scratching
her nose with her right index finger and B favors seasoning a stew with that
finger, the interpersonally sound resolution of their dispute will be supplied by a
determination of which action (or set of rules for picking among conflicting actions)
will directly (or indirectly) more enhance the common social good.
Moral individualism, however, fully joins John Rawls and Robert Nozick in their
contention that the attempt to construe the rationality of prudence as a special case
of the rationality of social optimization fails to take seriously the separateness of
persons.4
Yet this reaffirmation of the rationality of prudence may be thought to leave
us without any principles capable of providing interpersonally sound resolutions of
disputes among the champions of conflicting actions. Or, at best, such principles
will be ungrounded and unconnected with the salient starting-point for normative
theorizing, the rationality of prudence. The defense of rights and rights-correlative
restrictions that will be offered here traverses a different route from the rationality
of prudence to the affirmation of interpersonally forceful norms – a route that does
not abandon its own starting-point. The first leg of the route is from the rationality
of prudence and the associated prerogative of each individual to eschew imposing
sacrifices upon herself for the sake of advancing the ends of others to the separate,
freestanding importance of each individual; in the language we shall soon employ,
this leg takes us to the rationale for the affirmation of this prudence and this prerogative.
The second leg is from this root idea – or rationale – to the affirmation of
rights-correlative restrictions. The route begins with a move from prudence and the
prerogative of eschewing sacrifice to the root idea or rationale that has prudence
and this prerogative as its first directive import; it then proceeds to the rights and
constraints that are the second – and different in kind – directive import of that root
idea or rationale.
I traverse this route by responding to a challenge that Samuel Scheffler issues in
The Rejection of Consequentialism.5
Scheffler agrees that the separateness of persons
– which he casts as the natural independence of the personal point of view – has the
first kind of directive import. The natural independence of each individual’s viewpoint
allows her to give at least some special weight to her own interests in her decisions
about whether she will sacrifice her interests in service to the external impersonal
Individualism and Libertarian Rights 123
standpoint. But, Scheffler, in effect, denies that the separateness of persons has the
second kind of directive import; the natural independence of the personal point of
view is not a rationale for affirming rights-correlative restrictions. Scheffler challenges
those who think that the separate importance of individuals has both kinds
of directive import to show that a morality that incorporates the first kind of directive
import – a prerogative of giving at least some special weight to one’s own interests
– is unacceptable if it does not also incorporate the second kind of directive import
– constraints on the means that individuals may use in their pursuit of valued ends.
In the sections that follow, I further explain and meet this challenge.6
I show how
meeting it supports individualism’s linkage of the goal-oriented rationality of prudence
with the means-eschewing reasonableness of compliance with rights. Indeed,
the conjunction of (i) the recognition that a morality that incorporates a prerogative
to eschew imposing costs on oneself must also incorporate rights-correlative
restrictions against interferences with the exercise of that prerogative and (ii) the
affirmation of an appropriate robust prerogative yields the core libertarian rights to
self-ownership and the practice of private property. Further, the fact that the argument
offered here for the right of self-ownership also supports the right to the practice of
private property undermines the left libertarian contention that one can coherently
endorse the first of these rights without endorsing the second.
II. Prerogatives, Rationales, and Restrictions
While the natural independence of the personal point of view is manifested in each
individual’s tendency to be moved by her own core desires or commitments “out of
proportion” to their significance from any impersonal perspective, what is crucial is
that, for each individual, “[h]is own projects and commitments have a distinctive
claim on his attention.7
Thus, the natural independence of the personal point of view
provides a rationale for the inclusion within morality of a personal prerogative according
to which it is at least morally permissible for each individual to give special
weight to her own separate system of ends in her determination of how she shall
act. The inclusion of such a prerogative in morality amounts to the recognition that
the attainment of an individual’s good has agent-relative value and that agent’s prospective
good provides her with reason to go for that good quite aside from any
agent-neutral reason that agent may have to go for or to forego that good.
On Scheffler’s view, the recognition of the independence of the personal viewpoint
and the associated recognition of agent-relative values and reasons for action
provide a rationale for a modest prerogative; one that merely allows each individual
to give some special weight to her own good in the determination of how she shall
act. Each agent must still first identify which action available to her would be socially
optimal, i.e., would most advance the overall agent-neutrally valuable social good.
Only then may an individual determine whether her prerogative allows her to forego
this socially optimal action. A Scheffler-style prerogative will specify some M such
that, if the personal cost to A of the socially optimal action multiplied by M is equal
to or greater than the impersonal gain to the world if A were to perform the socially
optimal action, then it is permissible for A to eschew that socially optimal act. So,
e.g., if all lives have equal weight in this calculus and M = 4, then A may decline
124 Eric Mack
to donate her vital organs to save three otherwise doomed strangers; for the personal
cost to A (1) multiplied by M (4) exceeds the net loss to the world (2) of her
eschewing the socially optimal act. If, instead, six strangers could be saved by A’s
donation, then A would remain obligated to perform that socially optimal act. In
effect, a Scheffler-style prerogative provides individuals with a limited dispensation
from compliance with the demands for personal sacrifice that are issued from the
impersonal standpoint.
Scheffler recognizes that theorists who favor the incorporation of a prerogative
into morality are also likely to favor the incorporation of deontic restrictions that
protect individuals against interference with their chosen actions even if those actions
are not optimal from some standpoint external to their own. Indeed, such theorists
– among whom moral individualists are the most ardent – tend to think that the
basis for the incorporation of a prerogative into morality is also the basis for the
introduction into morality of deontic restrictions and the rights that are correlative
to those restrictions. They tend to think that the separate, freestanding importance
of each individual or the separateness of persons or the natural independence of the
personal point of view underwrites both a personal prerogative and rights-correlative
deontic restrictions. Scheffler issues a general challenge to theorists to show that a
morality with a prerogative but without rights-correlative restrictions is unacceptable.
And he issues the more specific challenge to those who tend to think that the basis
for the incorporation of a prerogative into morality is also the basis for the introduction
into morality of deontic restrictions to show that the rationale for the
former is also a rationale for the latter. Meeting this more specific challenge would,
of course, also nicely meets the more general challenge. To meet Scheffler’s specific
challenge, I shall defend the following central claim:
“The rationale for the incorporation of a personal prerogative into morality will not be
satisfied unless that prerogative is accompanied by rights-correlative restrictions that
protect individuals against interference with the exercise of that prerogative.”
The introduction of a naked prerogative will not satisfy the rationale for its introduction;
the rationale will be satisfied only if the prerogative is protectively clothed
in rights-correlative restrictions. That is why a prerogative without accompanying
restrictions is unacceptable. And that is why, if it is reasonable to incorporate a prerogative
into morality, it is also reasonable to incorporate rights-correlative restrictions
against interference with the exercise of that prerogative.
A modest Scheffler-style prerogative reflects the view that there are some agentrelative
values and value-oriented reasons for action and that these provide a bit of
counter-weight for each individual against the requirement that she devote herself
as much as is possible to the service of agent-neutrally best outcomes. Accordingly,
the rationale that Scheffler locates for this prerogative is comparably modest. That
rationale is the partial (perhaps quite marginal) liberation of the individual qua agent
of her own system of ends from the authoritative external demands of the impersonal
point of view – the impersonal standpoint being, for Scheffler, the salient external
standpoint. In contrast, what we might label the “individualist prerogative” reflects the
view that all values and all value-oriented reasons for action are agent-relative;
the idea that the agent-neutral value of (purportedly) optimal social outcomes summon
Individualism and Libertarian Rights 125
the individual to their promotion so that, at least sometimes, the individual has allthings-considered
reason to sacrifice her good for the sake of the social good, is entirely
repudiated. The much more robust rationale for this much more robust prerogative
is the total liberation of the individual qua agent of her own system of ends from
the demands of standpoints external to the agent. This includes liberation from the
supposed, but specious, demands of the impersonal standpoint and liberation from
the now emancipated standpoints of other individuals. The more robust a prerogative
is, the greater the range of actions that will be at least morally permissible for individuals.
For this reason, if the central claim is correct, the more robust the prerogative
is, the more extensive will be the range of moral immunity that individuals enjoy
in virtue of the rights-correlative restrictions to which others are subject.
So what is the argument for the central claim and, a fortiori, for the instance of
it that concerns the individualist prerogative and its robust rationale? The argument
is that there are two distinct crucial dimensions along which the rationale of liberation
from external viewpoints can be satisfied or left unsatisfied and that a prerogative
can only provide satisfaction of this rationale along one of those dimensions. A prerogative
without accompanying rights-correlative restrictions against interference with
exercises of that prerogative will, therefore, leave the rationale for the prerogative
entirely unsatisfied along a crucial second dimension and, thus, will fail to satisfy
the rationale for that prerogative. Those two dimensions can be designated as the
“self imposed subjugation” dimension and the “other imposed subjugation” dimension.
Consider individual A who is faced with the choice between action E that most
serves an external viewpoint – either the impersonal standpoint insofar as that standpoint
is still in play or the personal standpoint of another individual insofar as this
has come into play – and action P that better serves A’s interests. Suppose also that
A possesses a prerogative that allows A to choose P rather than E. This is to say
that, given the costs from that external viewpoint of A choosing P and the personal
costs to A of her choosing E, A’s prerogative protects A from the requirement that
she herself subjugate herself to the external viewpoint that E best serves. Any prerogative
will, in this way, provide A with some degree of liberation from self-imposed
sacrifice in service to some external viewpoint. Nevertheless, however robust A’s
prerogative is, however extensive is A’s liberation along this self-imposed subjugation
dimension, A’s bare prerogative leaves A entirely subject to other-imposed
subjugation in the service of the relevant external standpoint.
Suppose that A, in the exercise of her prerogative, chooses action P over action
E; but suppose, further, that B, an agent for the relevant external standpoint, can
intervene without significant cost from that external standpoint to override A’s choice
and get A to perform E. Nothing about A’s prerogative protects her against such
intervention by B; and everything about the external standpoint that agent B serves
calls upon B to subjugate A to that external standpoint. Although it is within A’s
prerogative to do P rather than E – if A can get away with doing P under the
watchful eye of the relevant external viewpoint – nothing precludes agents of that
external viewpoint from suppressing A’s choice and subjugating A to the demand
that she optimally serve that external viewpoint. Although A’s prerogative liberates
A to some degree from the requirement that she impose sacrifices on herself for the
sake of the relevant external viewpoint, it does nothing to limit the sacrifices that
others may impose upon her in the name of the external viewpoint.
126 Eric Mack
Of course, if the intervention to override A’s choice itself has significant costs from
the external standpoint that is in play, it may be that the agent of that standpoint ought
not to intervene. But, in such cases, the reason for non-interference with A’s exercise
of her prerogative is simply that interference is not optimal from that external viewpoint.
The fact that sometimes, from some external viewpoint, it will not pay to suppress A’s
exercise of her prerogative does not indicate any degree of liberation of A from otherimposed
subordination to that external viewpoint. The absence of restrictions against
interference with the exercise of that prerogative leaves A totally unliberated from the
relevant external standpoint along the other-imposed subjugation dimension. Given that
the rationale for the prerogative is the liberation of the individual from external standpoints,
a prerogative without accompanying restrictions fails to satisfy that rationale.
A morality provides A with little liberation from the demands of an external standpoint
if, as agents of that standpoint drag her off to the sacrificial altar, it at most requires
those agents to assure A that she was not morally required to volunteer for this fate.
These points can be made more concretely and vividly by considering for a moment
Scheffler’s modest prerogative and the sort of liberation it would provide or fail to
provide for individual A from the impersonal standpoint (which remains the relevant
external standpoint within Scheffler’s moral scheme). Suppose that the socially optimal
action E is A’s surrender of four of her vital bodily organs the transplantation of which
into four dying strangers will save those four persons, and that the personally less costly
action P is A’s retention of those organs. Suppose further that through its specification
of M a Scheffler-style prerogative makes it morally permissible for A to chose
P over E. The crucial point is that the permissibility of A’s declining to sacrifice
herself for the four strangers is entirely consistent with its being permissible or even
obligatory for an agent of social optimization (e.g., the government) to impose that
sacrifice upon A. Indeed, it will be permissible and obligatory for this agent to impose
that sacrifice upon A unless there are very substantial peripheral social costs – costs
from the impersonal standpoint – associated with the imposed organ transfer.8
So A’s Scheffler-style prerogative does not at all liberate her from other-imposed
subjugation to the external viewpoint that remains salient within Scheffler’s scheme.
And being subject to other-imposed subjugation to this external viewpoint pretty much
makes a mockery of A’s modest liberation from the requirement that she herself choose
that subjugation. This should be no surprise, as Scheffler repeatedly emphasizes that,
within a code that includes a prerogative but no restrictions, it always remains
permissible to engage in socially optimal action.9
My sense is that, when Scheffler says this, he is thinking of individual A remaining
morally free, despite her prerogative, to choose to engage in the personally sacrificial
and socially optimal action. Yet the more striking implication of everyone remaining
morally free to engage in socially optimal action is that B, the agent of the impersonal
standpoint, remains morally free (and usually obligated) to engage in socially
optimal action by imposing socially optimizing sacrifices upon A. It is because of
this absence of restrictions against interference with A’s exercise of her prerogative
that the liberationist rationale for a Scheffler-style prerogative is unsatisfied along
the other-imposed subjugation dimension.
The moral individualist is, of course, particularly interested in the instance of the
central claim that concerns the individualist prerogative and its rationale. This is the
more specific claim that:
Individualism and Libertarian Rights 127
“The rationale for the incorporation of the individualist prerogative into morality will
not be satisfied unless that prerogative is accompanied by rights-correlative restrictions
that protect individuals against interference with the exercise of this prerogative.”
To affirm this instance of the central claim is to affirm that, if it is reasonable to
endorse the individualist prerogative, it is also reasonable to endorse individual rights
against interference with the exercise of that prerogative. Given the moral individualist’s
endorsement of the antecedent in this conditional proposition, the individualist
arrives at the reasonableness of endorsing those rights. Furthermore, to affirm this
more specific claim is to affirm individualism’s contention that what underwrites the
teleological directive import of the separate importance of individuals – an import
that appears within the present argument as the individualist prerogative – also underwrites
the deontic directive import of the separate importance of individuals – an
import that appears within the present argument as those rights-correlative restrictions
against interference with the exercise of that prerogative.
As I have just said, the conjunction of the reasonableness of the individualist prerogative
and the claim that the rationale for the prerogative will be satisfied only if
that prerogative is accompanied by rights-correlative restrictions yields the reasonableness
of affirming those restrictions and the rights that are correlative to them.
Yet we can seek and should be pleased to find further explanation for the reasonableness
of this affirmation. The further explanation proposed by moral individualism
is that the root phenomenon of the separate, freestanding importance of each
individual’s life does have both kinds of directive import. While the directive import
for individual A of the separate importance of her life is the rationality of her promotion
of her good, the directive import for others of the separate importance of
A’s life and well-being is the reasonableness of their being circumspect in their
treatment of A in the course of their respective pursuit of valued ends.
III. The Individualist Prerogative and Self-Ownership
What is included within the individualist prerogative and a fortiori protected by rightscorrelative
restrictions against interference with the exercise of that prerogative? Personal
prerogatives are incorporated into morality to liberate individuals at least to some
degree from the requirement that they impose sacrifices on themselves to make the
world better from some external standpoint. This is why a prerogative is always cast
as making it at least morally allowable for the individual to decline to surrender her
good for the sake of advancing the ends of others. There is no reason to understand
any such prerogative as including the permissibility of the individual imposing sacrifices
upon others in order to achieve gains for herself. (To say that such prerogative does
not include the permissibility of imposing sacrifices on others is not to say that it
includes the impermissibility of imposing such sacrifices.) Indeed, a prerogative’s
non-inclusion of the permissibility of the imposition of losses on others is an implicit
condition of our taking its incorporation into morality to be reasonable.
Shelly Kagan nicely points out that Scheffler’s explicit formulation of his prerogative
has symmetrical implications for the permissibility of A’s declining to impose
sacrifices upon herself and the permissibility of A’s attaining gains through imposing
128 Eric Mack
sacrifices on others.10
As far as the explicit formulation goes, a Scheffler-style prerogative
in which M = 4 allows healthy A to decline to surrender three of her vital
organs even if this would save the lives of three strangers; but it equally allows sick
A to extract organs from three healthy strangers in order to save herself. My point
is that Kagan’s point is nicely surprising precisely because, given the liberationist
role of a prerogative, we implicitly take a reasonable prerogative to allow individuals
to eschew sacrifice and not symmetrically to allow their imposition of sacrifices.
Here is another way of making this point about the role of personal prerogatives.
Prerogatives are incorporated into morality to allow each individual to devote herself
to their own valued ends and not the valued ends of others; they are not incorporated
into morality to make it permissible for each individual to devote others to her valued
ends. If we think in terms of who, according to a specific prerogative, each individual
may especially devote to the service of her separate system of ends, we presume that
this prerogative says that each individual may especially devote herself (not others)
to that end. Upon inspection, this implicit presumption is evident even in Scheffler’s
own discussion of his proposed prerogative. Scheffler repeatedly casts his prerogative
in terms of the permissibility of A devoting “attention and energy” to her own
favored ends out of proportion to the impersonal importance of those ends. Scheffler
never explicitly says whose attention and energy A may especially devote to her own
ends. However, anyone who reads these passages in Scheffler with the question in
mind, “Whose attention and energy may A especially devote to her own ends?” will
take Scheffler to be saying that it is A’s attention and energy that A may especially
devote to advancing her ends. Had Scheffler meant that A’s prerogative also operates
over others’ attention and energy, he would have seen immediately that ceteris paribus
his proposed prerogative just as much allows A to extract vital organs from each of
three healthy strangers to save her life as it allows her to decline to surrender three
of her vital organs to save the lives of three (otherwise) fatally ill strangers.
We should note a further argument for why a prerogative – in particular, the individualist
prerogative – should not be understood as encompassing the permissibility
of the individual’s imposition of sacrifices upon others to achieve gains for herself. If
the individualist prerogative did include the permissibility of the individual imposing
such sacrifices, then given the unacceptability of a prerogative without accompanying
rights-correlative restrictions against interference with the exercise of that prerogative,
we would arrive at rights against interference with the eschewing of such sacrifices
and rights against interference with the imposition of such sacrifices. B would have
a right against interference with his exercise of his prerogative to decline to be subject
to sacrifices imposed by A and A would have a right against interference with her
exercise of her prerogative to impose sacrifices upon B to advance A’s good. We
would, then, arrive at a set of deeply incompossible rights. To avoid this theoretically
unattractive conclusion, we need to avoid the misstep that consists in taking the individualist
prerogative to include the permissibility of imposing sacrifices on others.
Let us continue to think of the individualist prerogative as a specification, for each
individual, of whom that individual may devote to the attainment of her own good.
Unlike less robust prerogatives, the individualist prerogative says that each individual
may always devote her own person to the attainment of her greater advantage.
If we cast matters this way, we arrive at an alternative statement of the rights that
are correlative to the restrictions that must accompany the individual prerogative if
Individualism and Libertarian Rights 129
the rationale for that prerogative is to be satisfied. The rights that are correlative to
the restrictions against interference with individuals’ respective exercise of this prerogative
are their respective rights over their own person. If one (i) incorporates the
individualist prerogative into morality; (ii) specifies the range of actions that are rendered
permissible by that prerogative in terms of whom each individual may always
deploy as she sees fit in service of her ends; (iii) recognizes that it is unacceptable
to incorporate this prerogative without also incorporating restrictions against interference
with its exercise, one will arrive at each individual’s rights over her own
person, i.e., over personal resources that constitute her person. That is, one arrives
at the familiar libertarian right of self-ownership.
IV. The Individualist Prerogative and the Right to the
Practice of Private Property
Rights-oriented libertarian theorists commonly first go for self-ownership and then
employ the premiss of self-ownership within a further and discrete argument for individual
rights over extra-personal objects. Locke, qua proto-libertarian theorist, first
establishes each individual’s property in his own person, infers from this that each
has a property in his own labor, and affirms property in extra-personal objects on
the basis of each individual retaining his rights over the labor that he has invested
in extra-personal objects. Nozick, while seeking to avoid Locke’s mixing of labor
metaphor, grounds his Lockean entitlement doctrine of property rights in the claim
that all alternatives to entitlement doctrine require the violation of individuals’ rights
of self-ownership. In contrast, I want to explore the possibility that the argument
that I have presented as yielding a right of self-ownership will, if more broadly construed,
also yield rights with respect to extra-personal objects. I say “rights with respect
to extra-personal objects” because the rights I have in mind are not particular rights
to actual holdings but rather the abstract right possessed by each individual that
others abide by norms under which that individual is protected in her acquisition,
transformation, deployment, and consumption of extra-personal objects. I refer to
this abstract right as the right to the practice of private property.11
Particular rights
to actual holdings will obtain in virtue of individuals acquiring those actual extrapersonal
objects in accordance with the norms compliance with which fulfills individuals’
rights to the practice of private property.12
As I have presented it, the argument from the individualist prerogative to rights
takes that which the individual may devote to her valued ends to be the mental and
physical components and capacities that constitute her person. But, on reflection, we
should see that this construes too narrowly and too statically the ambit of what,
under that prerogative, each individual may dedicate to the service of her system of
ends. Few actions and no extended course of action involve only the agent’s deployment
of components or capacities of her person. Almost all actions and all extended
courses of action involve also the deployment of extra-personal resources. Action
rarely is performed entirely within the space defined by the outer surface of the agent’s
skin; and even when such action is performed, it is almost always made possible by
other performances of the agent that require the deployment of extra-personal
resources and is almost always in service of yet further action that involves the
130 Eric Mack
deployment of extra-personal resources. It would be much closer to the mark to say
that, under the individualist prerogative, each individual may devote her life – as
it develops through her ongoing purposive engagement of her person with diverse
extra-personal material – to her valued ends.
So, rather than explicating the individualist prerogative merely in terms of who
each individual may devote to the attainment of her good, we should explicate it
more broadly in terms of what each individual may devote to the attainment of her
good – where, for each individual, the specified resources for permissible action will
include her person. What is also within the ambit of any given individual’s prerogative
are the extra-personal materials that she has purposively incorporated into her
life or that she can purposively incorporate into her life without thereby interfering
with any other individuals’ disposition of extra-personal materials that they have incorporated
into their own lives. What is not within the ambit of a given individual’s
prerogative are other persons and the extra-personal materials they have respectively
incorporated into their own lives. The individualist prerogative permits her to direct
her life – not merely to direct her person – to her own ends. She need not diminish
that life in order to enhance the lives of others. But, since the prerogative does not
encompass the permissibility of any individual diminishing the lives of others in order
to enhance her own, the ambit of the prerogative does not include other persons and
the extra-personal material that they have integrated into their respective lives.
Intuitively, the picture is simply that of the permissibility of individuals out there in
the world, living their lives as they see fit in large measure through the acquisition,
use, transformation, retention, exchange, consumption, and disposal of extra-personal
material. It should, on reflection, be no surprise that a personal prerogative – especially
a robust personal prerogative – will affirm not just the moral liberty of each to dispose
of her person as she sees fit but will, more broadly, affirm the moral liberty of
each to live her world-interactive life as she sees fit.
Although each actual person is within the ambit of her prerogative to live her life
as she sees fit, what particular extra-personal material will come under the ambit of
her prerogative will depend upon what extra-personal material that agent actually
permissibly incorporates within her developing life. The prerogative is a prerogative
to acquire, use, transform, retain, exchange, consume, and otherwise dispose of extrapersonal
material that is not already – or not until the point of some voluntary exchange
– within the ambit of any other’s like prerogative. There is no pre-ordained share of
extra-personal material – not even any preordained share of natural extra-personal
material – that defines the scope of each individual’s permissible endeavors. There
is no more some antecedent rule about the proper or fair or rightful distribution of
extra-personal material – even natural extra-personal material – than there is an
antecedent rule about the proper or fair distribution of personal resources.13
Recall, however, that even as we construe the individualist prerogative as liberating
not merely persons but persons’ world-interactive lives, that liberation is only
from the moral requirement that they themselves forego gains in their lives in order
to promote gains in the lives of others. As we have seen, by itself this liberation from
self-imposed losses, leaves each individual entirely subject to the same or similar
other-imposed losses. The bare prerogative leaves each individual entirely subject to
interferences with the exercise of her prerogative. So, the prerogative by itself fails
to satisfy its rationale of thoroughly liberating the individual from subordination to
Individualism and Libertarian Rights 131
external viewpoints. What is also needed for that rationale to be satisfied are rightscorrelative
restrictions against interference with the exercise of that prerogative. What
is needed is a structure of rights that immunizes the individual in her chosen lifeconstituting
world-interactive endeavors. Such a structure of rights will include both
the right of self-ownership and the right to the practice of private property. The former
protects the person – from the outer surface of her skin inward – in the course
of her endeavors. The latter protects her life endeavors by morally securing for her
the results of her prerogative-sanctioned acquisitions, transformations, retentions,
exchanges, and dispositions. So, e.g., A need not keep that gathered acorn within
her sweaty grasp in order for others to be required not to seize it, and B need not
introduce his body between the object he has traded for and those who covet it in
order for them to be required to respect his dominion over it. This moral protection
of agents’ world-interactive endeavors is accomplished through a system of rules that
specify just what processes of acquisition, transformation, exchange, and so on confer
ownership on the part of the agent to the resulting holdings. The right that individuals
have which accomplishes their moral liberation as world-interactive agents
from subordination to external viewpoints is the right to others’ respect for the
entitlements that the rules comprising such a practice of private property confer.
The argument heretofore has focused on the need to include such a right to the
practice of private property for morality to accomplish the liberation of individuals
from other-imposed subordination to external viewpoints. In addition to this moral
liberation, there are the excellent consequences of general recognition and compliance
with the rules constitutive of such a practice. That general recognition and compliance
provides individuals with actual, predictable liberation from other-imposed
subordination. It thereby provides individuals with the incentive to engage in the
protected endeavors of acquisition, transformation, exchange, and so on. Further, this
structure of private rights extends the liberty to determine how any particular
resource will be used to the agent who has the most specific information about the
useful properties of that resource – or enables the agent with that information to
become the party with the protected liberty of choosing its disposition. This is good
for the individual whose world-interactive endeavors are protected; and it is good
for those comparably shielded individuals who interact directly or indirectly with the
protected individual. To put it as contentiously as possible, it is good for the agents
to have their capitalist acts protected; and it is also good for those similarly shielded
individuals who interact with those capitalists as, e.g., employees or customers or
suppliers or imitators. The contention is that the protection of capitalist acts releases
a rising tide that at least strongly tends to elevate all (who are willing to swim with
it or whom swimmers are willing to tow along).
It is worth mentioning one additional connection between the teleological and
deontic facets of moral individualism. The teleological facet with its focus on the
agent-relativity of value and its endorsement of the individualist prerogative
involves the rejection of any agent-neutralist measure of alternative social states. It
thereby undercuts any attempt to adjudicate disputes about which of two or more
incompatible actions – e.g., A scratching her nose with her right index finger and B
using that finger to season a stew – by determining which of those actions yields
(or is expected to yield) the agent-neutrally better overall outcome. In the absence
of such a teleological adjudication of such disputes, how can there be any public,
132 Eric Mack
interpersonally sound adjudication? The answer is, by determining who has the right
over and, hence, the right to dispose as she or he sees fit of the resource at the root
of the dispute – e.g., who as the right over A’s right index finger. A comprehensive
structure of individual rights provides a comprehensive alternative approach to the
adjudication of such disputes by disaggregating the decision-making authority over
the resources over which there is contention. Under this disaggregation of decisionmaking
authority, one particular deployment of a given resource can be said to be
favored by morality – but only in the sense that it is the deployment chosen by the
agent who has title over that resource. A dispute between A and B about which of
them should have authority over some currently unowned object will, of course, not
be resolvable by appeal to existing titles. Such a dispute can only be resolved by
one of the parties acquiring (through initial acquisition or exchange) the sought
after object in accordance with the rules of the applicable practice – which will
include rules against acquisition through conduct that violates the already existing
rights of others.
Circumventing of the need for a shared social evaluation of contentious action by
this disaggregation of decision-making authority defuses social conflict by allowing
each to dispose of himself and his own without the presumption that all endorse the
chosen dispositions. B can concede that A has the right to determine by her choice
how A’s finger will be used without at all betraying his belief that it would be far
better for the finger to be used in seasoning that stew than in scratching A’s nose.
B can concede that A has the right to determine by her choice how any of her
bodily parts are employed without at all traducing his conviction that A’s chosen
employment is wicked. B can concede that A has the right to sacrifice her calves –
the bovine sort – in the course of her religious rites without at all betraying his belief
that God abhors such sacrificial rites.14
An abiding feature of liberal individualism –
and more specifically of moral individualism – is the deep-seated rejection of the
idea of a shared substantive social end or hierarchy of ends to which all members
of society are to be devoted. The more serious this rejection of a shared social end
that is supposed to order and coordinate our lives, the more serious must be the turn
to a structure of rights that protects individuals in the pursuit of their own valued
ends, of their own conceptions of the good, and – not accidentally – that provides
a framework within which individuals can non-sacrificially coordinate their own
chosen endeavors.15
V. A Self-Ownership Proviso
Locke and Nozick following Locke attach a Lockean Provsio to their doctrines of selfownership
and private entitlements. Such a proviso renders impermissible some actions
that would otherwise count as legitimate exercises of rights, e.g., certain instances
of owner A excluding individual B from drinking from A’s waterhole. Such a
proviso takes some of the sharp edge off of libertarian doctrine. I believe that Locke
and Nozick are correct to adopt such a proviso, but that they do not properly tie
their provisos to the claims of self-ownership. The adoption of a proviso with a specific
grounding and character is an important issue for libertarian theory – and for the
relationship between “right” and “left” libertarianism. For this reason, I pause before
Individualism and Libertarian Rights 133
my concluding section to indicate briefly how a proviso may be founded upon the
same recognition of individuals as world-interactive agents that grounds the right to
the practice of private property.16
Here I will consider only the most obvious and
simple application of a proviso, viz., its application to the exercise of property rights
that have arisen through the initial acquisition of natural material.
The crucial intuitive idea is that, because individuals are world-interactive agents,
their self-ownership rights can be contravened not only by trespasses upon their
persons but also by some actions that block them from purposively bringing their
self-owned powers to bear on the extra-personal world. If A gently encases sleeping
B within a capsule composed of A’s moldable plastic and refuses to release B, A
nullifies B’s self-owned world-interactive powers and contravenes B’s self-ownership.
The question is, what other dispositions of rightful holdings by some individuals
similarly contravene the self-ownership rights of other individuals? I think the
roughshod, but correct, libertarian answer is, dispositions that on net leave individuals
with an environment less open to their bringing their powers to bear in
pursuit of their ends than those individuals would face were individuals unable to
establish private property rights. Solely as a rough illustration, consider the case of
first arrivers to a previously unowned region and their subsequent disposition of the
property they obtain through initial acquisition.
The first arrivers’ establishment of property rights blocks later arrivers from
bringing their powers to bear by way of initial acquisition. However, that initial
establishment of property may well, in other ways, increase the later arrivers’
opportunities to bring their powers to bear in the service of their ends over what
those opportunities would have been had first arrivers and later arrivers not been
morally empowered to establish property rights over those natural materials. Without
their intending their actions to have this result, the pioneers and their establishment
of initial entitlements may well create a world that is on net more hospitable to the
endeavors of the individuals in the subsequent wave than those individuals would
encounter were individuals in all waves pecluded from establishing private titles. It
is very misleading to think that those who arrive first and engage in initial acquisition
do well in their pioneering endeavors at the expense of those who get to follow in the
paths they have blazed. Surely all (or almost all) of we path-followers are better
off than we would have been had we – not others – had to be the first acquiring
pioneers.17
(Think of how much more hospitable Hong Kong was in the last decades
of the twentieth century to innumerable waves of later arrivers than it would have
been had earlier arrivers not been able to establish private property rights.)
Nevertheless, still focusing on the easy cases of first versus subsequent arrivers,
the first arrivers might so act as to render the world they have entered less hospitable
on net to later arrivers bringing their powers to bear in the service of their ends. The
first arrivers might, e.g., devote much of their time and energy to building barriers
to prevent the landing of second and third waves. If they do so, they would act in
violation of the self-ownership proviso; the blocked immigrants would have a case
on the basis of their libertarian rights against such blocking actions. A well-developed
rights-oriented libertarian theory would spell out how such a proviso would apply
to the historically complex world in which we live – as it would address all those
questions about what sort of political and legal institutions that worked out theory
would legitimate.18
134 Eric Mack
VI. Conclusion
I have maintained that the rationality and moral permissibility of individuals pursuing
their own distinct ends in their own chosen ways and the possession by individuals
of the rights of self-ownership and private property that characteristically protect individuals
in their chosen pursuits are two distinct directive imports of the root idea of
the separate, freestanding importance of each individual’s life and well-being. The
linkage between the first (teleological) import and the second (deontic) import has
been supported by showing why a normative code that includes a robust prerogative
that allows the individual to eschew imposing sacrifices on herself must be
also include broad restrictions on others that forbid them from interfering with the
individual’s exercise of that prerogative. The rights that are correlative to those restrictions
are the libertarian rights of self-ownership and private property. Moreover, the
linkage between that robust prerogative and those rights is their shared rationale –
which is nothing but the separate importance of each individual’s life and well-being.
Finally, I have gestured toward a complication within libertarian rights doctrine
– the self-ownership proviso – which allows the libertarian theorist to explain the
impermissibility of certain dispositions of holdings that otherwise appear to be
permissible on libertarian grounds.
Notes
1 I gratefully acknowledge support for portions of the work on this essay that I have received
through grants from the Earhart Foundation and the Murphy Institute of Political
Economy at Tulane University.
2 Of course, for some As and some Bs, enhancements of B’s good are instrumentally or
even constitutively conducive to A’s good. The good of particular individuals does not
obtain in atomic isolation.
3 John Rawls, A Theory of Justice, 1st edn (Cambridge, MA: Harvard University Press, 1971),
p. 23.
4 See A Theory of Justice, 22–7 and Robert Nozick, Anarchy, State and Utopia (New York:
Basic Books, 1974), pp. 32–3.
5. Samuel Scheffler, The Rejection of Consequentialism (Oxford: Clarendon Press, 1982).
6. My response to Scheffler appears in more lengthy form in Eric Mack, “Prerogatives,
Restrictions, and Rights,” Social Philosophy and Policy 22 (1) (Winter 2005): 357–93. For
an earlier and similar criticism of Scheffler, see Lawrence Alexander, “Scheffler on the
Independence Agent-Centered Prerogatives from Agent-Centered Restrictions,” Journal of
Philosophy 84 (1987): 277–83.
7. The Rejection of Consequentialism, p. 57, emphasis added.
8. If there are significant personal costs for agent B who would be imposing the sacrifice
upon A, then B’s prerogative will render it permissible for B to eschew imposing the sacrifice
upon A. However, it still could easily be the case that agent C, the back-up agent for
social optimization, should step in and impose upon B the costly (to B) act of imposing
costs upon A.
9. Aside from his denial that the rationale for any prerogative would also be a rationale for
accompanying restrictions, Scheffler offers a number of grounds for disbelief in rightscorrelative
restrictions. One is his unshakeable conviction that it is always at least
permissible to engage in socially optimal action. From this it follows that there can be
Individualism and Libertarian Rights 135
no right against being subject to such action. Another ground for Scheffler is his belief
that deontic rights are paradoxical because – as every friend of deontic rights insists –
they forbid acts that violate those rights even if those acts would minimize the overall
violation of rights.
10. Shelly Kagan, “Does Consequentialism Demand Too Much?,” Philosophy and Public
Affairs 13 (1984): 239–54.
11. See Eric Mack, “Self-Ownership and the Right of Property,” The Monist 73 (4) (October
1990): 519–43.
12. When I say that individuals have a right to the practice of private property I do not mean
that individuals have a right that such a practice be invented and delivered to them. Rather,
I mean that, should such a practice have come to exist within an individual’s social order,
that (lucky) individual will have a right to others’ compliance with its constitutive norms.
Furthermore, had a somewhat different set of norms evolved in that social order – but
still a set that qualifies as a practice of private property – the individuals inhabiting that
order would have rights to others’ compliance with the norms constituting that practice.
13. Here I mark my opposition to the “left-libertarian” attempt to combine a doctrine of selfownership
with a doctrine of original rights to equal shares – or equal joint ownership
of – natural extra-personal objects. For advocacy of this view see Peter Vallentyne’s contribution
to this volume. For some criticism of it, as it has been advanced by Hillel Steiner,
see the section “Against Left-Wing Liberalism” (pp. 12–20) in Eric Mack, “Right-Wing
Liberalism, Left-Wing Liberalism, and the Self-Ownership Proviso” in Karl-Heinz Ladeur,
ed., Liberal Institutions, Economic Constitutional Rights, and the Role of Organizations
(Baden-Baden: Nomos Verlagsgesellschaft, 1997), pp. 9–29.
14. John Locke, A Letter Concerning Toleration (Indianapolis, IN: Hackett Publishing, 1983),
p. 42.
15. On how a system of “rules of just conduct” that largely operates to specify what is mine
and what is thine is the culturally evolved solution to the problem of how individuals
who radically differ from one another in their values, preferences, beliefs, skills, and
circumstances can live together to mutual advantage, see the first two volumes of F. A.
Hayek’s Law, Legislation, and Liberty – “Rules and Order” (Chicago: University of Chicago
Press, 1973) and “The Mirage of Social Justice” (Chicago: University of Chicago Press,
1976), esp. pp. 107–13 of the latter.
16. A case for this self-ownership proviso is developed in Eric Mack, “The Self-Ownership
Proviso: A New and Improved Lockean Proviso,” Social Philosophy and Policy 12 (1) (Winter
1995), 186–218 and further developed in Eric Mack, “Self-Ownership, Marxism, and
Egalitarianism: Part II” Politics, Philosophy, and Economics 1 (2) (June 2002): 237–76,
esp pp. 243–51.
17. See David Schmidtz, The Limits of Government (Boulder, CO:Westview Press, 1991),
Ch. 2.
18. Rights-based libertarian theory must also address the issue of the absoluteness of rights.
For one preliminary discussion, see Eric Mack, “Non-Absolute Rights and Libertarian
Taxation,” Social Philosophy and Policy 23 (2) (Jul. 2006): 109–41.
136 Eric Mack
CHAPTER
E I G H T
Left-Libertarianism and Liberty
Peter Vallentyne
I shall formulate and motivate a left-libertarian theory of justice. Like the more familiar
right-libertarianism, it holds that agents initially fully own themselves. Unlike rightlibertarianism,
it holds that natural resources belong to everyone in some egalitarian
manner. Left-libertarianism is, I claim, a plausible version of liberal egalitarianism
because it is suitably sensitive to considerations of liberty, security, and equality.
1. Justice
I shall be formulating a left-libertarianism theory of justice, but the term “justice” is
used in several different ways. Here I shall understand duties of justice to be duties
that we morally owe someone. Justice in this sense is concerned with avoiding interpersonal
wrongs (i.e., actions that violate someone’s rights), but not with impersonal
wrongs (i.e., actions that are wrong whether or not they wrong anyone; e.g., perhaps,
destroying cultural relics when no one is harmed and everyone consents). As long
as rights are understood broadly as perhaps pro tanto and highly conditional constraints
protecting the holder’s interest or her will, justice in this sense is a broad
topic. It is sensitive to all moral issues affecting the moral permissibility of actions,
except those issues that are relevant only to impersonal duties (which, by definition,
are not sensitive to the interests or wills of individuals).
In what follows, references to what is permitted should be understood as references
to what is permitted by justice. An action is so permitted if and only if it violates
no one’s rights.
2. Libertarianism
Libertarianism is sometimes advocated as a derivative set of rules (e.g., on the basis
of rule utilitarianism or contractarianism). Here, however, I reserve the term for the
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