Can a body part be lawfully repossesed as any other property?
I don't think organic connectedness has anything to do with it at all. In fact, I plan to use a similar line of argumentation to refute left-libertarian arguments against self-ownership. Here is the outline:
Assume that self-ownership cannot be ultimately violated (ie, you can't sell your entire self). Now, both right and left libs agree that personal property exists. Furthermore, I think we both agree that selling organs is legitimate. However, to sell something (rather, to transfer title to it), you have to have owned it (had title to it) in the first place. Since we are legally allowed (even under the restriction of no voluntary slavery) to sell any given part of our body separately (separately - not all together), then we must therefore actually own every single part of our body.
So I think that if title is transferred to any given body part, it can be repossessed.
Of course, I expect such transfers to be rare, if not nonexistent.
@dude: I know you didn't make this post about voluntary slavery, however, I want to take the opportunity to answer the VS question as well as the repossession question here.
First, let's set some terminology:
Mere promise: "Tomorrow, I will give you this lawnmower". Rothbard shows why such promises cannot be enforceable in Ethics of Liberty ch 19. For brevity's sake, I will abbreviate this to MP(give lawnmower).
Title transfer: "I hereby give you this lawnmower and you may receive it tomorrow." I will abrreviate this as TT(lawnmower). The difference between TT(lawnmower) and MP(give lawnmower) is that MP() may be repudiated at any point up to transfer of possession, whereas TT() may not.
Conditional transfer of title: "I hereby give you this lawnmower on condition that you pay me $100 by Friday." I will abbreviate this as CTT(lawnmower). If the condition is fulfilled, the lawnmower is transferred, else, it is not. This is the essence of a performance bond.
Now, we should all agree that MP(be your slave) can be repudiated at any time. Just because I have promised to be your slave doesn't mean I have to fulfill this promise. The key assertion of Rothbard/Hoppe on this point is that TT(myself to you) = MP(be your slave) ... in other words, there is no logically conceivable way to transfer title to myself in a way that is different from a mere promise. Any attempt I make to transfer title to myself to you is just a mere promise dressed up in fancy language. This follows from the inalienability of the will (which follows from the uneforceability of mere promises). A CTT(myself to you) is weaker than a TT(myself to you), so if TT(myself to you)=MP(be your slave), then also CTT(myself to you)=MP(be your slave).
In response to this argument, you have attempted to make an end-run around it: "OK, a person can't sign himself over en toto to be a slave, but he can form a performance bond that specifies bodily harm to himself in the event he repudiates the contract, so that he will be motivated to remain a slave rather than pay the penalty of breaking the contract. For example, he might write a contract 'I am hereby the slave of Mr. X. In the event that I disobey Mr. X's any command, I hereby transfer title to my hand to be separated from my body and respossessed by Mr. X forthwith." On the surface, this looks a well-written contract.
The problem here is diagnosed by Hoppe:
Hence, one would have to conclude that the norm implied in argumen tation is that everybody has the right of exclusive control over his own body as his instrument of action and cognition. Only if there is at least an implicit recognition of each individual’s property right in his own body can argumentation take place.9 Only as long as this right is recognized is it possible for [p. 133] someone to agree to what has been said in an argument and hence can what has been said be validated, or is it possible to say “no” and to agree only on the fact that there is disagreement. Indeed, anyone who would try to justify any norm would already have to presuppose the property right in his body as a valid norm, simply in order to say, “This is what I claim to be true and objective.” Any person who would try to dispute the property right in his own body would become caught up in a contradiction, as arguing in this way and claiming his argument to be true, would already implicitly accept precisely this norm as being valid. Thus it can be stated that whenever a person claims that some statement can be justified, he at least implicitly assumes the following norm to be justified: “Nobody has the right to uninvitedly aggress against the body of any other person and thus delimit or restrict anyone’s control over his own body.” This rule is implied in the concept of justification as argumentative justification. Justifying means justifying without having to rely on coercion. In fact, if one formulates the opposite of this rule, i.e., “everybody has the right to uninvitedly aggress against other people” (a rule, by the way, that would pass the formal test of the universalization principle!), then it is easy to see that this rule is not, and never could be, defended in argumentation. To do so would in fact have to presuppose the validity of precisely its opposite, i.e., the aforementioned principle of nonaggression. (Chapter 7)
Thus it can be stated that whenever a person claims that some statement can be justified, he at least implicitly assumes the following norm to be justified: “Nobody has the right to uninvitedly aggress against the body of any other person and thus delimit or restrict anyone’s control over his own body.” This rule is implied in the concept of justification as argumentative justification. Justifying means justifying without having to rely on coercion. In fact, if one formulates the opposite of this rule, i.e., “everybody has the right to uninvitedly aggress against other people” (a rule, by the way, that would pass the formal test of the universalization principle!), then it is easy to see that this rule is not, and never could be, defended in argumentation. To do so would in fact have to presuppose the validity of precisely its opposite, i.e., the aforementioned principle of nonaggression. (Chapter 7)
The very core assumption of argumentation is self-ownership to at least such a minimum degree as is required for the argument to go forward. To deny this is to equivocate between war and negotiation, battle and bargaining. If we're bargaining, then we have each - as a matter of fact - tentatively agreed to grant one another provisional self-ownership to a degree sufficient to engage in the bargaining process. And this toehold of self-ownership is all that is required in order to show that valid title-transfers of body-parts or even the whole body itself are not lawfully enforceable against the person (you cannot effect repossession). To enforce such a title over the objection of the intended victim necessarily entails the resumption of war between the disputants! Thus, no lawful settlement of such a matter is possible.
Let me say a bit more on the "necessarily entails" part, because this is crucial. Let's say you have a valid claim of $1M against me. I absolutely refuse to repay - perhaps I'm unable! No matter my refusal to settle (my choice to remain at war with you), my refusal is not logically necessary, it's merely a matter of choice. In the case of the body, however, it is not mere refusal that makes lawful repossession impossible, it is necessarily the case that acting against my body without my consent is an act of war because - from the point of view of the law - my body is an indivisible, organic whole. "John Doe" means the glob of matter sitting in a chair at the arbitrator's table and answering to the name "John Doe".
The arbitrator may concur with you that my utter refusal to repay the $1M that I clearly owe you is an unlawful and unjustifiable act of stubborn refusal to peacefully cooperate in returning your property to you. But the arbitrator can never agree that my refusal to allow you to chop my hand or cut out my kidney - no matter how valid the title you have in hand may be - is unlawful because it is a precondition of the arbitration hearing in the first place that we have each tentatively granted each other self-ownership to at least a degree sufficient to engage in the argument. Medical arguments about the theoretical separability of body parts are irrelevant as the arbitrator is not a doctor and, as far as he is concerned, "John Doe" means simply the whole blob of matter answering to the name "John Doe."
So the "Ship of Theseus" approach to justifying voluntary slavery also fails. I cannot sign myself over to you as a slave because any such contract is a mere promise dressed up as a title-transfer. I cannot write a performance bond that specifies bodily injury as a penalty for non-performance... I mean, I can, but you cannot lawfully enforce this bond. Hence, any such perf. bond or other contract (including VS contract) based on such a bond is worthless.
Clayton -
1. Sure why not? It is private property and if people have private property rights then they can enter into contract on the use of that property.
2. I agree. You could claim the kidney back under two conditions: You contracted ahead of time with a withdraw clause or the receiver failed to uphold their end of the contract. Otherwise the legitimacy of your claim would be up to arbitration where you would probably lose.
3. If you are saying that the purchaser/receiver honors the contract with the grower of the kidney but failes to honor to the contract with someone else. Then I agree, the someone else would have a claim on the kidney and the grower would not.
4. In theory, since the grower of the property owns it then that individual can contract with others to give it away. That individual if they fail to honor a contract would be liable for damages to include their body parts. Keep in mind that there may be social conventions against this so the ability of the party to collect may be limited.
5. Yes you can claim stolen property no-matter where it is. Again there could be social conventions against this as well.
However, there are other positive norms implied in argumentation aside from the universalization principle. In order to recognize them, it is only necessary to call three interrelated facts to attention. First, that argumentation is not only a cognitive but also a practical affair. Second, that argumentation, as a form of action, implies the use of the scarce resource of one’s body. And third, that argumentation is a conflict-free way of interacting.
And this is to say nothing else than that a mutual recognition of each person’s exclusive control over his own body must be presupposed as long as there is argumentation (note again, that it is impossible to deny this and claim this denial to be true without implicitly having to admit its truth).
Hoppe's assertion is flawed in that it presupposes what it attempts to prove. I would refine it to the following: Second, that argumentation, as a form of action, implies the use of the scarce resources of a body (rather than the loaded phrase "one's body"). So, my refinement of Hoppe continues: And this is to say nothing else than that a mutual recognition of each person’s control over said bodies must be presupposed as long as there is argumentation. This makes his claim more accurate, but just because one has control of a thing does not mean it is legitimate ownership. To pull a bit of structure from Hoppe himself - This argument is disingenuous because it is question-begging: it presupposes the legitimacy of use (or control) as ownership, in order to prove it. But exclusive use or control is not sufficient for ownership. Ownership is original exclusive control absent an act of subsequent abandonment. Transfer of title is such an abandonment. So as the original controller of my previously unowned body, and since I have not abandoned my body in any way, I own it. The matter in my body was previously owned by my mother and father, but they have abandoned that matter and I have homesteaded it. This is not to imply necessarily willful abandonment. Abandonment can we willful (as a title transfer) or de facto (irretrievable loss of control, e.g. a sunken ship). And the remainder of Hoppe's work on homesteading would seem to remain well-founded regardless of a rejection of his presupposition of simple control ownership in the body. A separate justification for body ownership is redundant anyway. If the mind can homestead property, it can homestead the body. The body does not homestead property, since it has no rights in itself. All rights are to the mind itself, since it is the source of argumentation. The vessel is simply a tool of expression. And Wheylous, I accept the piecemeal, "Ship of Theseus" argument. And others would have to accept it as well if they agree to the lawful transfer of title to parts of the body and the lawful enforcement thereof.
Let me tackle some preliminary conceptual problems that are going to keep coming up:
"The body does not homestead property, since it has no rights in itself."
This is unintelligible - when a man homesteads something (by virtue of using a previously unused resource), it is his body which must do this act of homesteading. As Mises says in HA, action is not mere wishing, it is the application of means to bring about a desired end. Angels dancing on a pinhead do not affect the world one way or another, neither does a hypothesized immaterial "mind" wholly divorced from the body.
"All rights are to the mind itself, since it is the source of argumentation. The vessel is simply a tool of expression."
This violates Ockham's razor as you are multiplying entities beyond necessity. Communication (expression) is a bodily act - your vocal cords must vibrate or you must sign or you must blink (if you're Stephen Hawking), etc. Even the "trapped consciousness" PVS patient must alter the physical world in a measurable way (blood flow in his brain) in order to communicate.
For the purposes of law, a person is an undivided whole - body and soul taken together. You are the thing we all see and hear when interacting with you: your body.
"This argument is disingenuous because it is question-begging: it presupposes the legitimacy of use (or control) as ownership, in order to prove it. But exclusive use or control is not sufficient for ownership."
But that's precisely Hoppe's point... you've already jumped way ahead and assumed there is this "space" in which we can already know what is legitimate/illegitimate. Hoppe is saying that until such a space has been created - a space where legitimacy can be discussed/debated - there is absolutely no concept of legitimacy whatsoever. Hence, there are a certain minimal set of legitimacy assumptions which are required to create a space where legitimacy can be debated. You and I are only able to have this very debate right now because we are not shooting Hellfire missiles at each other's houses. This de facto peace treaty is one of the preconditions of any discussion, let alone a discussion over legitimacy.
As to circularity, there is a difference between making a circular argument in the course of justifying something (i.e. "It's mine because it's mine") versus pointing out that certain things are assumed in the very structure of arguing. The former is special pleading, the latter is simply a dispassionate description of the states of affairs that pertain to argumentation. Hoppe is not "assuming" the legitimacy of self-ownership (you can call it "self-possession" if you prefer)... he's simply pointing out that the very meaning of an argument is that it is a state of affairs where a tentative grant of self-ownership has been mutually conferred on the arguing parties. If this grant had not been given, it would not be an argument, it would be a war. As he says, "Justifying means justifying without having to rely on coercion." It's not an assumption (axiom), it's a definition.
I am going to pause on the above arguments for a moment because I am losing grasp of what lawful enforcement even is.
Can you describe a legal repossession and point out precisely where a bodily repossession departs from a legal case of repossession?
Sure.
I use the term "lawful" - and I think this term is underemployed in libertarian literature - because there is an extra-legal context (action without reference to its lawfulness) and this context is particularly crucial in establishing the "cost-benefit" analysis of lawful vs. unlawful action. As I see it, libertarian law is meant to be broken... it's up to the individual to calculate whether observing or violating the law is in his or her interests. And no, I don't mean the serial-killer trying to decide whether slicing open another victim is worth the jail time if caught... I mean something more mundane like, say, speeding on a private freeway and risking being trespassed or taking back property that was stolen from you even though you can't prove it was stolen and, thus, justify your repossessive actions.
So, lawful repossession is just that repossession which can be justified in arbitration should the "victim" of the repo try to sue. If I steal your TV, you may have a right to simply enter my property and physically recover it if I refuse to voluntarily turn it over to you - so long as you abide by the customary limitations on what property damage, if any, you may inflict in the process (e.g. cutting the TV cable, scratching the doorposts or whatever).
If I transfer title to you but refuse to allow you to retrieve the property, the same logic applies. If I conditionally transfer title to you (perf. bond), the condition is fulfilled, and refuse to allow you to retrieve the property, the same logic again applies.
An unlawful repossess might be as follows. You have purchased a television from me online. I have said you may show up to receive it on Friday. You show up a day early on Thursday. I inform you I am not ready to allow you to retrieve the TV can you please leave my premises. At this point, if you remain, you are simply trespassing and your title to the TV is no justification to remain on my property because the title was transferred on condition that receipt of the goods would not occur before Friday. If you shove past me and take the TV anyway, you have not only committed trespass, you have committed assault, as well. This repossession cannot be justified at law and your actions would not only be outright criminal acts in themselves but would likely void the very title transfer on which you had originally presumed to act because you had violated the conditions of the title transfer (show up on Friday, not Thursday).
OK, now we need to turn up the contrast a bit because the above illustration is only to sketch the outline of what a "real life" unlawful (extra-legal) repossession looks like. Let's say you loan me a very valuable, small object... let's say a diamond. When the term of the loan is up, I refuse to return the diamond. Incensed, you vow to repossess the diamond. However, there's a problem... I have had the diamond surgically implanted into my body. To repossess it, you will need to cut me open. Let's say I hid the diamond in my liver... you can't just casually cut into my liver as I will likely die. Or perhaps I stashed it in between the hemispheres of my brain. Either way, you can't just cut open and take it without grave risk of killing me.
Side note: We had a thread regarding this topic some time back and I can't find it... it had to do with libertarian law regarding cavity searches.
Rewind to the mundane case of TV repossession. Let's say I've laid myself on top of the TV and affixed a steel blade descending from the ceiling to my neck in such a way that lifting the TV by even one centimeter will instantly kill me. Can you just lift the TV, my life be damned? No you cannot because you couldn't stab me and kill me unless I was attacking you in the process of repossession. The geometrical configuration of the objects in the room is immaterial to the question of aggression. Hence, if you lift the TV, it's no different than if you had walked in, slit my throat with a knfe and took the TV as two, separate acts.
But we can weaken this scenario as far as necessary: even if I merely lay myself on top of the TV, you may not beat me up in order to throw me off of it, as this would still constitute an act of assault. My laying on top of your television is not aggression against your person and, thus, cannot justify the use of violence against my person, which is only justifiable in self-defense.
Returning to the case of the diamond, let's imagine that instead of having it surgically implanted, I'm merely grasping it in my fist. This is like a really tiny TV (above) and the same limitations apply... you can't kill me to repossess it, you can't beat me up to repossess it, etc. Do you have the right to cut my hand off to repossess the diamond? No, because this woudl be an act of assault. Can you force my fingers open with whatever force is required? Perhaps but I think that forcing my hand open is an "at your own risk" proposition... should you damage one of my fingers, I can't see any reason why you wouldn't be liable for those damages.
So this brings us back to the implanted diamond. In the case of an implanted diamond, you must necessarily damage my body in order to recover it. There is no justification you can give for this damage... the repossession of stolen property is a separate matter that can be settled at any time with a money award. The geometrical configuration of objects - that the diamond happens to be inside of me - is immaterial to the question of aggression. If you cut me open, you are using violence against my person, not in self-defense... this is aggression. Hence, you cannot lawfully repossess the diamond over my refusal to have it voluntarily, surgically removed by my own choice.
This is all the more true of body parts themselves, all of which - unlike the diamond - actually play a role in the proper function of my body, which is the vehicle of my action within the world.
I think the whole mistake in a lot of thinking regarding loan repayment (indentured servitude) or contract enforcement (voluntary slavery) is this presumption that it is the role of law to make certain activities - extending loans or enforcing contract terms - risk-free or as nearly so as the law can make them. The fact is that the law really cannot remove risk, anyway, and even to whatever extent it can redistribute risk from one actor to another, it has no justifiable role in this. It is just central-planning and legal activism.
@Clayton - You might be thinking of our discussion on the VR forum regarding the cavity searches.
So, lawful repossession is just that repossession which can be justified in arbitration should the "victim" of the repo try to sue.
Ok.
Can you just lift the TV, my life be damned? No you cannot because you couldn't stab me and kill me unless I was attacking you in the process of repossession.
So this would seem to rule out deadly force in defense of property. If I see a thief out in my field attempting to steal a horse, it is unjustifiable to shoot him to prevent the theft since he is not attacking me?
I think that we can draw some meaningful distinctions between at least three different kinds of scenarios:
a) Operational self-defense (including property-defense) scenario
b) Operational repossession scenario (I'm in the act of taking back something you've stolen)
c) Contemplational argumentative environment (arbitration, dispute-resolution)
Recall that this all started with trying to clarify the conditions pertaining to (c)... can a master actually "muzzle" his slave in the legal context? Is there such a thing as a lawful revocation of one's own will? etc.
I think that the level of force that can justifiably be used in (a) is greater than in (b) and - by definition - no force can be used in (c). One reason why we might want to say that greater levels of force can be used in (a) than in (b) is that (a) is "preventive"... once the property has been stolen, now the costs rise much higher as now we have to talk about repossession and legal processes. Another reason is the context... repossessions usually occur on the thief's property ... thus, the possible ways in which new torts might be committed against the thief himself are much greater than in the situation where the thief is on the victim's property trying to steal his stuff. Also, "procedural thefts" - such as defaulting on a loan or a performance bond - did not involve any invasion of property to begin with, which makes these property crimes categorically less menacing, even while the nominal property amounts involved might be much greater.
You seem to imply that potentially deadly force can be legitimately used to stop a physical theft in progress, but that it cannot be used to stop a "procedural theft" that is ongoing.
Yeah, I don't think you can justify the use of deadly force against someone who has defaulted on a loan, for example. As a creditor, you entered the loan market "eyes wide open" knowing full well you could lose your capital in a risky market. You are not lawfully entitled to resort to "any means necessary" to make yourself whole.
Either forceful defense of property is justified or it isn't.
But you're simply imposing an artificial simplification on the law - (a), (b) and (c) are easily distinguished from one another.
And repossession is a defense of property since a thief is capable of destroying that which he steals.
It is a fundamentally defensive action, yes. But preventing repossession is a new and separate tort. Tort does not automatically entitle you to the use of deadly force.
The cost of such actions are not relevant to justifiability.
True - I'm only making a "meta-argument" to speculate on reasons why the law might eventually result in this or that particular outcome... I don't think costs can be invoked to establish justifiability.
And the coincidence of the stolen property being on the thief's property is irrelevant since the owner of the property is entitled to an easement against the thief necessary for repossession.
Perhaps. The point is that the thief does not "lose all rights" by virtue of being a thief... in fact, all his rights remain completely intact. It's just that keeping your TV on his property is not among his rights. Being on someone else's property is always a risky situation because you are on "their turf"... if you so much as tip over a potted plant, you are committing the crime of vandalism, for example. Western law tends to have a "winner takes all" mentality where the loser has basically lost all his rights but those few that the court - out of the goodness of its heart - continuates. This is particularly pronounced in criminal law where police and other public and private parties are permitted to abuse "convicted" criminals in all sorts of ways they could never get away with against non-criminals.
I think our key remaining disagreement is whether use of deadly force is justified for reasons other than defense of person. I think the correct answer to this is "no" - it's not justified... I think you have to first exhaust all legal recourse until the individual has placed himself outside the purview of law itself... has become an outcast, an outlaw. At that point, you may be justified in taking direct action... simply killing the offender. But I don't think the shopowner who has had a pack of gum stolen off the counter can just shout "give that gum back!" and then - once the thief fails to comply - blow him away. This goes back to the theory of punishment... what exactly is punishment. And that's a separate thread... lol.
It's actually a very easy answer and I expect this to end the thread, because it's what would be done in real life.
No one would buy a body part without the principle in place that it's a one-way deal no matter what. Legally, we don't mess with people's very body, debtors don't get their pound of flesh. Even though a kidney's worth tens of thousands let's say, we don't let debtors extract one.
And chances are, creditors wouldn't want to live under such a system themselves either, as fortunes can change.
So, both parties are likely to contract in an agreed-upon environment in which implanted organs are one-way and cannot be taken back.
Can they be repossessed? They can, physically, yes.
Will a person who receives one accept a situation where they could have a body part repossessed? Unlikely.
Is this whole question moot in an age of 3D printed organs? I think so.
I think our key remaining disagreement is whether use of deadly force is justified for reasons other than defense of person. I think the correct answer to this is "no" - it's not justified... I think you have to first exhaust all legal recourse until the individual has placed himself outside the purview of law itself... has become an outcast, an outlaw. At that point, you may be justified in taking direct action... simply killing the offender. But I don't think the shopowner who has had a pack of gum stolen off the counter can just shout "give that gum back!" and then - once the thief fails to comply - blow him away.
This goes back to the theory of punishment... what exactly is punishment. And that's a separate thread... lol.
No one would buy a body part without the principle in place that it's a one-way deal no matter what.