**I posted on this topic before, but now believe i have a worthy paper/article. I'm waiting to hear back from my editor to polish up some of the sentences but would like to have any opinions both on the material and where you think a topic like this should be published** Jeremiah Dyke [email protected] Explorations in Private Property: Conjoined Twins
The purpose of this article is to survey the question of property rights within the framework of conjoined twins. The questions entertained, though not fully developed, include, who owns the body if it is under the control of two wills? Is it even intelligible to consider property under duel ownership of two wills? Are there limits of a dominant twin based on the demands of the other twin? Could a twin commit a crime while the other is innocent? What, if any, are the limits of restitution and punishment within conjoined twins? Could one twin end their life if it meant the end of both of their lives? Could one twin enter into a contract without the consent of the other twin? Again, it must be mentioned that this article serves more as a thought experiment for the provocative questions than that of a platform for formalized answers
Before plunging into the subject of conjoined twins we must first disclose the variety of conjoined forms that exist within this birth defect. There seems to be 15 distinct classifications of conjoined twins (see here), though many twins don’t fit perfectly within any of the classifications. Therefore, to even condense the subject of conjoined twins within one heading is to oversimplify the topic, thus we will only survey questions within limited scope
Speaking from the framework of the nonaggression principle, that is, the ideal that aggression is inherently illegitimate, we must conclude that, aside from an inability that leaves you under the willing care of another individual, there is no negation of liberty that comes from a birth defect. Meaning, a birth defect does not, in itself, negate an individual’s ability to live free from aggression. However, such scenarios where an individual is left to the willing care of another individual, meaning such individuals cannot directly maintain their existence by way of direct or indirect means without the intervention of another individual are difficult for the libertarian theoretician. Naturally, we want to grant all individuals the freedom afforded to them by fact that they are human. The problem we quickly run into is that, individuals do not have rights per se, but negative rights. For example, an individual and their property, has the right to not be aggressed against, yet, these rights are different when applied to questions of positive obligations. Thus, though an individual has the right to not be physically aggressed against, they do not have the right to demand someone help them or save them if they are being physically aggressed against. For that matter, an individual does not have the right to demand to be fed when hungry or clothed when naked or even doused with water if under the weight of flames[1]. The reason for such disregard of positive rights is rooted in the fact that one cannot force another’s charity by definition that charity is free from force[2]. With this outline in mind, we may return to our topic of conjoined twins
Within the state of affairs where our conjoined twins are under the rightful will of another individual, given that they are unable to maintain their own preservation without the direct charity of another, there exists no convolution of libertarian property rights. In the scenario outlined above, the twin, like a child, is under the will of their caretaker. Though unpopular in terminology, for intents and purposes, such conjoined twins, like children, may be defined legally as property of their caretaker. Any purposeful actions take place within the domain and legal responsibility of their caretaker. However, if we venture outside such a position of custodianship and survey conjoined twins as two fully independent wills governing their own actions, we may begin our thought experiment.
Foremost, we must conclude that if one twin has no control over the body’s muscular movements, than he or she is left only with verbal persuasion to limit the actions of the other twin. Persuasion, however, is limited to one’s ability to influence and thus guarantees no action or nonaction. Therefore, if one dominant twin wishes to eat ice-cream with no regards to the body mass index of the other conjoined twin, the submissive twin is physically at a loss. Yet, are they legally at a loss? Can the dominant twin legally be made to oblige the considerations of the submissive twin?
Thus, the question becomes, if one twin is doing harm to another twin by way of personal action is there a negative rights violation or is there simply the disavowing of a positive obligation? Such a scenario may be paralleled to that of a pregnant woman who disregards the health of her unborn child, though not necessarily her personal health, by smoking, drinking, consuming too much or not enough calories or even over/under exercising. In such a situation, the question must be asked, is the mother infringing on any negative rights of her fetus or is she simply disobeying positive obligations? For example, does the baby have a right to not ingest smoke, alcohol, too few calories, too many calories, etc, or is it simply in the babies’ interest to not necessitate these acts[3]? Likewise, are the negative rights of the submissive twin being violated or is the dominant twin simply ignoring positive obligation to act?
To phrase this question in terms of homesteading rights, it may help to consider bodily ownership as simply that of the will as homesteader of the body, and thus the body is property of the will. Though I blieve there is a lot to unpack in such an analogy it may help us through some of the logic of property rights. Thus, to homestead is to gain ownership of a natural object, without a present owner, by way of putting the object to use[4]. For some, property rights of one’s body is realized once the individual is no longer parasitic, that is, when they are independent of others actions. Yet, what about the scenario of our conjoined twins, that is, when an individual body is homesteaded by two opposing wills? Are we than to say that there is a division of ownership? Hoppe, in “The Economics and Ethics of Private Property” makes the argument that ownership cannot be divided, or more clearly that,
“Two individuals cannot be the exclusive owner of one and the same thing at the same time”.
--The Economics and Ethics of Private Property page 197
If we accept this argument, it would seem to follow that ownership cannot be partitioned without an original owner. Therefore, who is the original owner of the conjoined body? By our definition outlined above, a homesteader only gains ownership of a natural object (like a body) by way of putting the object to use. Therefore, we must ask, how a submissive twin, one that has limited control over muscular movements, could ever be described as putting such body parts to use. Only the dominant twin would be, in a sense, controlling its muscular movements and thus it may follow that via the homesteading principle, only the dominant twin owns the body from which it operates and thus needs not proceed under any positive obligation to that of his twin. If the analysis offered above is true, than the dominant twin may proceed to act in accordance to their own will without legal obligation to the consequences of the effects of their action on their twin.
However, it may be within the realm of probability that the caretaker, though not the original homesteader of the body, but the independent force that meets the needs of the dependent twins, has a say in the division of ownership. Thus, it may be possible that the caretaker only releases custody of the twins by drawing a contract between the caretaker and the dominant twin for outsourcing the division of decision making power to a third party decision maker. It may therefore be possible for the dominant twin to be forced to yield a portion of their decision making power by agreeing to the terms set forth by the caretaker, while under the will of the caretaker. These are some of the possible ways in which to approach ownership under conjoined twins, yet I will leave it for further research to decide which, if either, approach is legitimate. We now proceed to various questions and scenarios.
To the question of why we can’t simply accept there is a 50/50 division of ownership within the body of a conjoined twin? Sidestepping the arbitrariness of 50/50 as the division of choice, we must first ask how such a partition comes to be. Before something can be divided it must first be completely owned. Therefore, the root question is who had the original ownership to settle on such division?
It may also be worthy to note that if for some reason the second twin were to have no means of making his or her opinions known, than their desires are not in need of scrutiny. Thus, if an outsider were to make the complaint that the actions of the dominant twin are in opposition to the submissive twin, they would thus be implicitly assuming they know what is in opposition to the submissive twin. Indeed, it is a moot point to believe an outside party can predict the desires of the mute twin since any opinion would be based on predisposed biases. In this case, the mute twin would simply be at the mercy of their dominant twin[5].
Let us propose that the dominant twin commits a theft. How should an arbitration company reach a verdict on punishment or restitution when such a conclusion involves the penalty of an innocent party? At first, the legal theoretician may ask the question of whether the submissive twin is guilty of aid and bedding. Yet, even if such a verdict is held, how could such punishment or restitution be divided among the two parties? It may possible for the conjoined twins to pay in proportion to the crime? For example, such monetary penalty may be divided among various monetary accounts but the question may become how a submissive twin could have access to their own monetary account if they are physically unable to provide information and sign documentation. Under the realm of physical punishment, it may be possible for punishment to be constructed in such a way that it is aimed at the dominant twin while providing as much comfort as possible to the innocent, submissive twin.
Questions like these may likely proceed ad infinitum, or we may accept that the division of restitution and punishment cannot be adequately resolved with arbitration services. Therefore, it may likely be the outcome that conjoined twins, though not more aggressive than other individuals, may carry a higher probability of restitution risk. In other words, though conjoined twins may not be anymore aggressive than most individuals, the sheer fact that situations involving conjoined twins and aggression are murky and thus carry more risk, conjoined twins may be obligated to carry with them added property insurance before entering onto others private property. Since the motive of all restitution is to make the victim whole again, we cannot accept that aggression involving conjoined twins be overlooked or discarded based solely upon on their birth defect (like that of appeals made in defense of insanity). Such private arbitration companies do not have this luxury unless they are willing compensate the victim for their loss. Likewise, private arbitration companies may not subsidize the victim via aggression against the taxpayer. Thus, we should most likely accept that conjoined twins, by fact that legal cases involving them are resource-consuming and foggy, they must therefore compensate any potential victims by carrying with them added property insurance[6].
The reader will by now agree with the author that property rights of conjoined twins are extremely complicated. Such complication is why cases like these usually remain outside our courtrooms and legal scholarship. It is the author’s hope that this article leads to additional commentary within these loopes of private property theory.
[1]Though one may certainly contract such demands and hold those who break such contracts accountable
[2]For most libertarians, the previous outline of negative rights is maintained, yet, for others, such philosophy breaks down at the feet of children or the handicapped. Though the author does not subscribe to such a system of polylogism, it is not within the scope of this paper to confront the idea.
[3]If the latter, we would assume that the burden of proof falls upon the unborn child.
[4]The phrase “to use” has always been a question of libertarian legal theory and thus won’t be examined in detail here.
[5]For many, such conclusions are too much to accept. After all it is within the realm of science to perceive when another is in pain. The problem with such recourse is not that of science, it is that if interpreting the science. As with many cases of individuals in a state of vegetation whom offer certain signs of life, like blinking, smiling, twitching of fingers, etc, whenever they are exposed to stimuli. The authors point is that ‘sign of life’ must be interpreted by someone and that someone is not without their predisposed biases
[6]It may also be possible for conjoined twins to contract with arbitration companies involving their cases in order to avoid higher premiums of property insurance.
Read until you have something to write...Write until you have nothing to write...when you have nothing to write, read...read until you have something to write...Jeremiah