Continued from Elementary Errors of Anarchism (1 of 2):
As central as self-ownership is for R.’s argument, the term remains undefined. Why? The term is undefinable, because the notion of ownership in a legal (as opposed to its anthropological) sense cannot be unconditional, it cannot be absolute.
As a legal category ownership becomes discernible only thanks to a boundary line that separates mine and thine. In this sense, ownership is a mine that restricts the thine, and a thine that restricts the mine. For ownership implies claims against other human beings (“I am the boss on these premises,” “you may not enter this property without my consent”); these claims in turn are not unrestricted. They are circumscribed by the valid/enforceable claims of others (” You are not entitled to slapping me in the face just because I am visiting you at YOUR apartment, i.e. your claim of ownership does not override my claim of inviolacy, but is restricted by it”).
The legal category of ownership is not a quality that inheres in the isolated individual, but a feature of interpersonal relations. Ownership in the legal sense is a relational concept, an institution for the regulation of social relations.
By deriving the meaning of absolute self-ownership from a context – a Robinson Crusoe world – void of, in fact, consciously cleared of social relations, R. has dug a pit for himself to fall into.
Taken as a concept referring to features of personal autonomy – an anthropological category -, self ownership may arguably be regarded as pointing to something “absolute” . After all, such features represent conditions and qualities of human existence that are essentially invariant. That is to say: in order to survive man must do certain things that absolutely only he can do, things no one can do for him and cannot happen to another person in his stead (you cannot yourself drink so as to quench another person’s thirst; my stomach cannot digest food for another human being to be nourished etc).
R. falls into the ditch he has dug for himself, the moment he begins to interpret the anthropological concept of absolute self-ownership in a legal sense.
Absolute self-ownership and its alternatives
Stuck in this pit, R. is bound to go wrong in proposing the only possible alternatives (see Elementary Errors of Anarchism (1 of 2) to absolute self-ownership.
He fails to take account of the pulsating, ever changing nexus of mutually constraining relations of ownership that are constantly being negotiated and fought over amongst human beings. The mesh of personal rights is a living organism that man is incessantly in the process of bringing about in ever new shapes, not only but often consciously and to a purpose; by no means is it true that each compromise, each stipulation of mutual restrictions brought about in the process of negotiating rights is perceived as an unbearable imposition, a case of scandalous defiance of some absolute rights.
What is true of the economic dealings of man, namely that there are no solutions, there are only trade-offs, as Thomas Sowell puts it, also holds good for law and other manifestations of moral conduct: perfect and final solutions are hardly to be expected, one may rather hope for a give and take leading to compromises that are generally or preponderantly viewed as admissible and reasonable.
Ultimately, R. rejects the two alternatives to his ethics of self-ownership on the grounds that they are incompatible with a legal system supported by universalisable rules.
Universalisability, Relational Law and Monadic Law
Yet, it is R.’s ethics that is not universalisable:
Living on my own on a remote island, my right of absolute self-ownership may entail that I play tennis at midnight using a ball serving machine. However, the right of absolute self-ownership evaporates the moment I am joined by a neighbour – who himself once lived alone on a remote island, enjoying as part of his absolute right of self-ownership the ability to sleep soundly and undisturbed at midnight.
At least one of the two will have to put up with restrictions to his rights that used to be uncontested by anyone and absolute; perhaps even both will accept restraints, if they agree to a trade-off of mutual concessions.
This concessional law – as I prefer to call it in contradistinction to the law of absolute self-ownership -, this concept of law as an instrument for regulating social relations, this relational law (rather than R.’s monadic law) that R. quite simply ignores is in fact perfectly amenable to universalisable principles of law.
Viewed in this light, it is helpful to distinguish two types of legal propositions – those capable of universalisation and those that cannot be universalised. The former serve the purpose of furthering predictability in human interaction and creating a framework within which specific, non-universalisable contractual arrangements can be pursued in a legal environment that protects the players against arbitrariness.
If, for argument’s sake, tennis player A and B, his neighbour in need of sleep, conclude a contract such that B agrees to A’s tennis playing at midnight, provided that A pays for the fitting of soundproof windows, then, of course, this specific stipulation is not a legal proposition of the universalisable kind, while at the same time universalisable legal principles are nonetheless involved in that for instance the agreement is based on the understanding that contracts are to be honoured.
At the end of the day, R.’s justification of anarchism reveals itself as eyewash. It is his being given to hyperrationalistic ambitions that gets R. distracted from the real conditions under which the processes of law unfold. He is entirely focused on aspects that seem to him to show promise for a dogmatic entrenchment of anarchism in a foundation of irrevocable truths capable of supporting a theory and an order of law that are believed by him to be consummate and irrefutable.
It appears that R. has sacrificed truth for an urge to achieve unassailable certainty, a criterion of valid knowledge obsolete long-since.