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«The Journal of Political Philosophy: Volume 10, Number 1, 2002, pp. 20±53 Self-Ownership and Property in the Person: Democratization and a Tale of ...»

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The Journal of Political Philosophy: Volume 10, Number 1, 2002, pp. 20±53

Self-Ownership and Property in the Person:

Democratization and a Tale of Two Concepts*

CAROLE PATEMAN

Political Science, University of California at Los Angeles

Democracy is at war with the renting of human

beings, not with private property.

David Ellerman

D URING the 1990s a number of political philosophers turned their attention to the concept of self-ownership. Much of the discussion is critical of libertarianism,1 a political theory that goes hand-in-hand with neo-liberal economic doctrines and global policies of structural adjustment and privatization.

Attracta Ingram's A Political Theory of Rights and G. A. Cohen's Self-Ownership, Freedom, and Equality are devoted to such criticism (and I shall focus much of my argument on their books2). The consensus among most participants in the debate is that self-ownership is merely a way of talking about autonomy, but Ingram and Cohen go against the tide by arguing that the idea is inimical to autonomy and that an alternative is needed.

In The Sexual Contract I am also critical of libertarianism, and my conclusion is similar to Ingram's and Cohen's. I argue that the idea of property in the person must be relinquished if a more free and democratic social and political order is to be created. However, despite some common concerns, there are very few points at which my work and that of Cohen and Ingram, or of most contributors to the current debates about self-ownership, come together.

In large part this is because property in the person, not self-ownership, is central to my analysis. It might seem that the choice of conceptÐself-ownership or property in the personÐis inconsequential. Self-ownership has become accepted as standard terminology, so there is no reason to make an issue of usage when, on the face of it, the two concepts are so similar, perhaps even synonymous. I shall argue not only that, if libertarianism is the target, a good deal hangs on the choice of concept, but that ``property in the person'' is central to an understanding of some important contemporary institutions and practices.

How ``self-ownership'' is interpreted is related to the interpretation of rights. If rights are seen in proprietary (libertarian) termsÐthe standard view of rights, *I presented some early ideas on this topic to a seminar at the Research School of Social Sciences, Australian National University, in 1998 and I thank the participants in the discussion. I am grateful to Jason Caro for his careful reading and criticism of my argument. Thanks, too, to Richard Moushegian and Mary McThomas for their assistance.

Steiner (1994) is a notable exception.

Page references to Ingram (1994) and Cohen (1995) will be in parentheses in the text.

–  –  –

Ingram arguesÐthen it follows that rights can be alienated, in whole or in part. A major mark of (private) property, including property in the person, is that it is alienable. If property is alienable it can be subject to contract, and in The Sexual Contract I used the label ``contractarianism'' in order to highlight the central place of the practice of contract in libertarian theory. To be sure, attention is directed to these features of property if self-ownership is emphasized, but, curiously, in the debates about the concept little attention is given to ownership and what follows from owning. This means that the implications of alienability, inalienability, and contract are not pursued. Criticism of libertarianism is truncated, and aspects of the doctrine seem puzzling. Cohen, for instance, worries over Robert Nozick's willingness to endorse voluntary slavery (SelfOwnership, Freedom, and Equality is an extended criticism of Nozick).

The puzzlement is exacerbated by the focus on exploitation and neglect of subordination in discussions of self-ownership, an odd oversight in arguments that are about autonomy and rights. Thus the exploitation of workers is analyzed but not the alienation of autonomy or right of self-governmentÐthe subordinationÐinvolved in the employment contract. Of course, wage labor is usually seen as free labor because an individual voluntarily enters into a contract of employment. This justi®cation of employment, as I argued in The Sexual Contract, depends on the idea of property in the personÐa political ®ction, but a ®ction with a powerful political force.

Criticism of libertarianism by most participants in the debate about selfownership is also limited by their approach to political philosophy. They tend to take in each other's intellectual washing and rely on a limited range of reference points and intellectual authorities. Nozick's in¯uence in setting the agenda is indicated by Ingram's summary in A Political Theory of Rights (p. 3) of the major issues in the discussion of self-ownership: ``exploitation, redistribution, and talent-pooling.'' John Rawls is also in¯uential, and one indication is that justice is assumed to be the key concept. Except for Ingram, few of the contributors have much to say about democracy.

Moreover, ``methodological Rawlsianism'' (Norman 1998) has been shaping much mainstream political theory for over two decades. Methodological Rawlsianism has become suf®ciently dominant to be seen not merely as the standard way of proceeding, but as ``inevitable,'' at least ``insofar as it amounts to little more than a codi®cation of common sense.''3 Ingram's argument lies squarely within methodological Rawlsianism, which hampers her critical confrontation with libertarianism. Cohen's approach is different, but also leads to a narrow view of political and moral philosophy which he sees, as he states on the ®rst page of Self-Ownership, Freedom, and Equality, in the ``standardly academic'' way as ``ahistorical disciplines'' using ``





Abstract

philosophical

Norman 1998, p. 279.22 CAROLE PATEMAN

re¯ection.'' But historical understanding is necessary for an appreciation of the political importance of the concept of property in the person.

Both Cohen's and Ingram's approaches re¯ect another prominent contemporary trend, the depoliticization of political theory. In recent years political philosophers have turned away from politics to moral argument and moral reasoning. Norman states that not only methodological Rawlsians but ``just about everyone else'' sees political philosophy as ``a branch of moral philosophy.''4 Charles Mills writes that political theory ``is nowadays conceived of as basically an application of ethics to the social and political realm.''5 Ethics and politics should not be divorced from each other, but that does not imply support for the imperialism of moral philosophy. The problem of democratizationÐof reducing subordination and creating a more democratic societyÐis, ®rst and foremost, a political problem. But the discussion of selfownership has, as Elizabeth Anderson recently remarked about egalitarian arguments that involve many of the same scholars, ``lost sight of... distinctively political aims.''6

I. WHY ``SELF-OWNERSHIP''?

I have found no discussion of why ``self-ownership'' should be preferred to ``property in the person.'' One line of argument dismisses self-ownership on the grounds that ``it is founded on an attempt to derive normative implications from the possessive pronoun,'' but this is far too quick a dismissal.7 It is usually assumed that self-ownership is a central part of morality in liberal democratic societies. Thus Ingram states that self-ownership is ``well entrenched in our moral thinking'' (p.39), a statement echoed by Gorr, who believes that self-ownership is ``deeply rooted in our shared moral consciousness,'' and is ``among the foremost'' of the values of liberal democracy.8 It is also claimed that in ``liberalism'' the ``most plausible set of rights... is rights of selfownership.''9 Use of the language of self-ownership now seems so obviously appropriate that, in Real Freedom for All, Van Parijs merely stipulates that self-ownership ``in some sense'' is a basis for his argument. This turns out to be a sense in which self-ownership is ``closely associated'' with basic human rights.10 Ibid.

Mills 1997, p. 91.

Anderson 1999, p. 288.

Barry (1996a, p. 28) makes this argument in a review of Cohen's book. For the subsequent exchange see Cohen (1996) and Barry (1996b). For an account of the implications of personal pronouns for self-ownership, and an argument that constitutive ownership is not a right but an ontological relation that places objects within the boundaries of the self, see Dan-Cohen (forthcoming).

Gorr 1995, pp. 291, 285.

Lloyd Thomas 1998, p. 8.

Van Parijs 1995, pp. 3, 235 n. 8.

SELF OWNERSHIP AND PROPERTY IN THE PERSON 23

If rights are so closely associated with ownership, then neglect of the concept of property in the person is all the more surprising. The category of the ``person'' has been fundamental to the very lengthy and bitterly contested process of democratization, and the universalization of rights and political standing, in Anglo-American countries. The concept of the ``self,'' while central to moral argument, has not had the same legal and political signi®cance as ``person.'' Slaves in the Southern states of America were deemed mere property, nonpersons, and so denied all civil or political status or rights. Wives under the common law doctrine of coverture were not persons, and had no independent legal standing. They could not own property or their earnings, enter contracts, have custody of their children, practice professions, vote, or enjoy bodily integrity. Wives were under the legal jurisdiction of their husbands who represented them in public as the ``person'' of the conjugal couple. Slavery was ended only in the aftermath of a civil war, and women had to ®ght a very long political battle to be recognized as ``persons''; for example, the last vestiges of coverture were eliminated in England only in 1992.11 On the other hand, the set of relationships that constituted another body central to economic development was deemed a person. For several centuries corporations have been regarded as legal persons in English law, and from 1886 onward in the United States (long before women won the vote), corporations became ``persons'' within the meaning of the term in the Fourteenth Amendment.12 Such political issues are mostly avoided in recent discussions of self-ownership.

The concept is typically interpreted in a general, weak sense as a way of talking about (a certain view of) individual autonomy. Gorr, for example, offers a ``moderate self-ownership principle,'' equivalent to the ``fundamental'' right of a person ``to have a signi®cantly stronger say than anyone else in how she chooses to live her life and in what may be done to her.''13 Kymlicka writes that selfownership ``protects our ability to pursue our own goals,'' and people's ``ability to act on their conception of themselves.''14 Ingram (p. 39) states that selfownership is very attractive if interpreted as the view that each individual should be free from interference by others, with a right to the fruits of the exercise of her capacities. Cohen, too, argues that the attractiveness of self-ownership lies in its perceived connection to autonomy, to ``the range of choice you have in leading your life'' (p. 237). He presents the ``thesis'' of self-ownership (which he That a wife does not forfeit her right of bodily integrity upon marriage was ®nally acknowledged in law when rape within marriage became an offence. In practice, women's status as ``persons'' is still not fully secured. Yet political philosophers now generally write ``she'' and ``her'', even when this is inappropriate or obscures continuing problems about women's standing as citizens.

See Bowman 1996; Corcoran 1997; Spender 1999.

Gorr 1995, p. 271.

Kymlicka 1990, p. 112.

24 CAROLE PATEMAN distinguishes from the ``concept'' of self-ownership)15 as providing an answer to the question of who should control ``persons and their powers'' (capacities). The answer is that those persons themselves should do so (p. 210).

Interpreted in this fashion self-ownership is obviously attractive. Who does not want a signi®cant say in their own life, to be able to pursue their own goals, to have freedom from interference, and control over their actions? Interpreted blandly enough, ``self-ownership'' appears uncontroversial and as synonymous with autonomy. The problem is that the concept then has little or no theoretical purchase; it becomes ``so indeterminate that anything or nothing follows from it.''16 Signi®cantly, neither Cohen (to whom I shall turn shortly) nor Ingram works with such an interpretation of self-ownership. Ingram sees self-ownership in libertarian terms, so that an individual is ``the morally rightful owner of her person and powers'' (p. 17). She owns ``all of herself and no part of anyone else'' (p. 5), and is ``an absolute sovereign with respect to the dominion of her own person'' (p. 34).

It seems that Ingram could easily use the language of property in the person.

The oddity of the consensus about the terminology of self-ownership can be seen if Locke, often mentioned in connection with self-ownership, is considered. Locke provides the locus classicus of the concept of property in the person. In a very wellknown, often quoted, brief passage, Locke states that ``every Man has a Property in his own Person. This no Body has any Right to but himself.'' The most natural language, following Locke, is that of ``property in the person'' rather than a translation into ``self-ownership.'' Now it might be objected that there is no reason for Locke's words to be reproduced literally. Little or nothing hinges on the terminology. My argument is precisely that there is something important at stake in the choice of terminology when interpretations and discussions of ``selfownership'' obscure the political implications of ``ownership'' (II, } 27).



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