By Jason Brennan
For any particular good X, is morally permissible for you to sell X?
Note that this question doesn’t ask whether selling X ought to be legal. Rather, it asks whether selling X would be morally wrong.
Some libertarians think these questions are easy. If X belongs to you, of course you can sell it. For example, “it’s my body” so of course I sell sex or organs. Right?
Not so fast. In Markets without Limits, Peter Jaworski and I explain why this kind of argument doesn’t do the work some libertarians think it does. An excerpt:
To own something is to have a property right in it. But, as most philosophers of property rights have noted, a property right is not just one right, but a bundle of separate rights. As David Schmidtz explains:
Today, the term ‘property rights’ generally is understood to refer to a bundle of rights that could include rights to sell, lend, bequeath, use as collateral, or even destroy. (John Lewis generally is regarded as the first person to use the ‘bundle of sticks’ metaphor, in 1888.) The fact remains, though, that at the heart of any property right is a right to say no: a right to exclude non-owners. In other words, a right to exclude is not just one stick in a bundle. Rather, property is a tree. Other sticks are branches; the right to exclude is the trunk.
A property right is really a collection of separate rights, which generally include the right to sell, to buy, to lease or rent, to destroy, to modify, and to use…
We want to be clear that we are not arguing that it follows, as a matter of logic (from the meaning of the concept of “property right”) that if something is permissibly someone’s property, that she may then sell it. Certain libertarian thinkers might be tempted to make this argument, but we reject it, for three reasons.
First, if we did try to ground our thesis on property rights, it would not really settle the debate. It would just shift the debate to a related debate. If we did insist that to have the right to own something meant a right to sell it, then at best, the question for debate would just become what people have the right to own. Nothing would change. For instance, it wouldn’t settle the debate about whether you can sell sex or kidneys. Instead, the debate would shift to a debate about whether you really own your body.
Second, we think this argument rests on a conceptual mistake in its analysis of property rights. After all, we have the rightful power to determine what happens to different things in different ways—and the bundle of rights that attaches to this rightful power varies. The strength of our rights also varies. I can have property in a cat and a car, but my power over the cat—which may be better understood as “guardianship” rather than ownership—doesn’t allow me to do as much with it as my ownership of the car does. Th
e way I have a property in a cat is different from how I own a car, which is different from how I own a guitar, which is different from how I own a plot of land, etc. So, for instance, my ownership right to my guitar includes the right to destroy it at will for any capricious reason, but my right to my cat does not include such a right. My right to my house includes the right to sell it, but, because of a restricted covenant, it does not include the right to paint it neon orange with neon pink polka-dots.
Now consider the right to sell. Certain property rights come with restricted covenants—you can buy some things, but lack the corresponding right to sell them, or have only limited rights to sell. So, for instance, I (Jason) have a property right to a pool club membership, but I may sell my membership only to someone who buys my house, and only at a price set by the pool club. My ownership over the membership is not the same as my ownership over my guitars, which I have the right to sell at will on any mutually agreeable terms. Another example: you probably own a license to use many forms of software, but you agreed, as part of the purchase, that this ownership did not include the right to resell the software when you are finished with it.
Third, and most importantly, we think this argument makes a further conceptual mistake in that it conflates two separate questions:
- What do you have the right to do with your property?
- What is right for you to do with your property?
A and B are distinct. In general, if you have the right to do something, this does not presuppose that it is morally right for you to do it. Rights are not about what’s morally permissible for the right-holder to do. Instead, they are more about what’s morally permissible for other people to do to the rights-holder. So, for instance, suppose my wife lovingly gives me a new guitar for my birthday. The guitar is mine, and I have the right to destroy it—no one should stop me from doing so. But, if I were to destroy it, I’d act badly, as I would hurt my wife’s feelings. Or, as another example, I have the right to join a Neo-Nazi political rally and express hatred of Jews, but it would be immoral to do so. No one should stop me from being a Nazi, but I also shouldn’t be a Nazi.
Thus, an anti-commodification theorist could simply agree that people have the right to sell certain things (line-standing services, sex, organs, etc.) but then claim that it remains immoral and wrong to buy and sell those things, even though it is within people’s rights. The anti-commodification theorists would then conclude that certain markets should be legal, even if they are deeply immoral. Our goal here is to challenge the moral condemnation of these markets. We want to argue that markets in contested commodities like organs and sex are not merely within people’s rights, but are morally permissible.
There is no entailment from “You own X” to “It’s morally permissible for you to sell X.” At best, sometimes, “You own X” implies “You have the right to sell X,” and even that is only generally true. So, the commodification debate is not easily settled by invoking libertarian self-ownership or anything like that.
*This article was previously published on Bleeding Heart Libertarians.
Jason Brennan is Assistant Professor of Business and Philosophy at Georgetown University. He is the author of The Ethics of Voting (Princeton University Press, 2011), and A Brief History of Liberty (Wiley-Blackwell, 2010), co-authored with David Schmidtz. He has published scholarly articles in journals such Philosophy and Phenomenological Research, Philosophical Quarterly, the Australasian Journal of Philosophy, Ratio, and Social Philosophy and Policy.He was formerly Assistant Professor of Philosophy, Research, at Brown University. He earned his PhD in philosophy from the University of Arizona. Brennan writes primarily on competence and political power, democratic theory, voting ethics, and civic virtue.