A Philosopher's Blog

What Can be Owned?

Posted in Business, Ethics, Law, Philosophy, Politics by Michael LaBossiere on August 4, 2017

One rather interesting philosophical question is that of what can, and perhaps more importantly cannot, be owned. There is, as one might imagine, considerable dispute over this matter. One major historical example of such a dispute is the debate over whether people can be owned. A more recent example is the debate over the ownership of genes. While each specific dispute needs to be addressed on its own merits, it is certainly worth considering the broader question of what can and what cannot be property.

Addressing this matter begins with the foundation of ownership—that is, what justifies the claim that one owns something, whatever that something might be. This is, of course, the philosophical problem of property. Many are not even aware there is such a philosophical problem—they uncritically accept the current system, though they might have some complaints about its particulars. But, to simply assume that the existing system of property is correct (or incorrect) is to beg the question. As such, the problem of property needs to be addressed without simply assuming it has been solved.

One practical solution to the problem of property is to contend that property is a matter of convention. This can be formalized convention (such as laws) or informal convention (such as traditions) or a combination of both. One reasonable view is property legalism—that ownership is defined by the law. On this view, whatever the law defines as property is property. Another reasonable view is that of property relativism—that ownership is defined by the cultural practices (which can include the laws). Roughly put, whatever the culture accepts as property is property. These approaches, obviously enough, correspond to the moral theories of legalism (that the law determines morality) and ethical relativism (that culture determines morality).

The conventionalist approach to property does seem to have the virtue of being practical and of avoiding mucking about in philosophical disputes. If there is a dispute about what (or who) can be owned, the matter is settled by the courts, by force of arms or by force of persuasion. There is no question of what view is right—winning makes the view right. While this approach does have its appeal, it is not without its problems.

Trying to solve the problem of property with the conventionalist approach does lead to a dilemma: the conventions are either based on some foundation or they are not. If the conventions are not based on a foundation other than force (of arms or persuasion), then they would seem to be utterly arbitrary. In such a case, the only reasons to accept such conventions would be practical—to avoid trouble with armed people (typically the police) or to gain in some manner.

If the conventions have some foundation, then the problem is determining what it (or they) might be. One easy and obvious approach is to argue that people have a moral obligation to obey the law or follow cultural conventions. While this would provide a basis for a moral obligation to accept the property conventions of a society, these conventions would still be arbitrary. Roughly put, those under the conventions would have a reason to accept whatever conventions were accepted, but no reason to accept one specific convention over another. This is analogous to the ethics of divine command theory, the view that what God commands is good because He commands it and what He forbids is evil because He forbids it. As should be expected, the “convention command” view of property suffers from problems analogous to those suffered by divine command theory, such as the arbitrariness of the commands and the lack of justification beyond obedience to authority.

One classic moral solution to the problem of property is that offered by utilitarianism. On this view, the practice of property that creates more positive value than negative value for the morally relevant beings would be the morally correct practice. It does make property a contingent matter—as the balance of positive against negative shifted, radically different conceptions of property can be thus justified. So, for example, while a capitalistic conception of property might be justified at a certain place and time, that might shift in favor of state ownership of the means of production. As always, utilitarianism leaves the door open for intuitively horrifying practices that manage to fulfill that condition. However, this approach also has an intuitive appeal in that the view of property that creates the greatest good would be the morally correct view of property.

One very interesting attempt to solve the problem of property is offered by John Locke. He begins with the view that God created everyone and gave everyone the earth in common. While God does own us, He is cool about it and effectively lets each person own themselves. As such, I own myself and you own yourself. From this, as Locke sees it, it follows that each of us owns our labor.

For Locke, property is created by mixing one’s labor with the common goods of the earth. To illustrate, suppose we are washed up on an island owned by no one. If I collect wood and make a shelter, I have mixed my labor with the wood that can be used by any of us, thus making the shelter my own. If you make a shelter with your labor, it is thus yours. On Locke’s view, it would be theft for me to take your shelter and theft for you to take mine.

As would be imagined, the labor theory of ownership quickly runs into problems, such as working out a proper account of mixing of labor and what to do when people are born on a planet on which everything is already claimed and owned. However, the idea that the foundation of property is that each person owns themselves is an intriguing one and does have some interesting implications about what can (and cannot) be owned. One implication would seem to be that people are owners and cannot be owned. For Locke, this would be because each person is owned by themselves and ownership of other things is conferred by mixing one’s labor with what is common to all.

It could be contended that people create other people by their labor literally in the case of the mother) and thus parents own their children. A counter to this is that although people do engage in sexual activity that results in the production of other people, this should not be considered labor in the sense required for ownership. After all, the parents just have sex and then the biological processes do all the work of constructing the new person. One might also play the metaphysical card and contend that what makes the person a person is not manufactured by the parents, but is something metaphysical like the soul or consciousness (for Locke, a person is their consciousness and the consciousness is within a soul).

Even if it is accepted that parents do not own their children, there is the obvious question about manufactured beings that are like people such as intelligent robots or biological constructs. These beings would be created by mixing labor with other property (or unowned materials) and thus would seem to be things that could be owned. Unless, of course, they are owners.

One approach is to consider them analogous to children—it is not how children are made that makes them unsuitable for ownership, it is what they are. On this view, people-like constructs would be owners rather than things to be owned. The intuitive counter is that people-like manufactured beings would be property like anything else that is manufactured. The challenge is, of course, to show that this would not entail that children are property—after all, considerable resources and work can be expended to create a child (such as IVF, surrogacy, and perhaps someday artificial wombs), yet intuitively they would not be property. This does point to a rather important question: is it what something is that makes it unsuitable to be owned or how it is created?


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17 Responses

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  1. TJB said, on August 5, 2017 at 11:07 am

    Mike, before deciding whether something can be owned, shouldn’t you first define what you mean by ownership?

  2. DH said, on August 5, 2017 at 11:22 am

    Pretty good questions. Throughout history, children have been treated as property in some way or another – exploited by parents and/or “employers” for the cheap labor they could provide. Even in unspoken ways, children were regarded as property or assets – large families were “bred” for survival both in terms of the amount of work required to maintain a household and to have large numbers simply to increase the odds of survival to the next generation.

    Today there are child labor laws, of course, which mitigates the problem substantially, but with regard to children, there is still that pesky abortion issue – which expands to a larger question encompassing other issues as well.

    “It’s my body and you have no right to dictate to me what I can and cannot do with it” is a common theme among pro-abortion activists. Of course, the broader view of this would necessitate addressing issues such as prostitution, drug use, suicide and perhaps euthanasia.

    In all of the above cases, there is an implied state interest in the “ownership” of one’s body, presumably from a utilitarian point of view. At some point, the singular good of one’s personal decisions (pleasure, convenience, existence) is outweighed by the larger good provided by state intervention.

    Written into the law of the land regarding abortion is language regarding the point at which the state must take an interest in the life growing within the womb,and has placed this point at viability – the ability of the fetus to survive on its own. This can also be interpreted as “ownership” – when the mother’s “ownership” of her own body is subordinate to the helpless child’s ownership of his or her own life – in the same way that child labor laws protect the innocent from labor exploitation.

    Another current question regarding ownership is the idea of eminent domain as it pertains to land ownership. Private property rights exist in this country up until that point at which the state determines that its needs exceed those of the individual, and reserves the right to seize that property for its own use.

  3. TJB said, on August 5, 2017 at 1:18 pm

    “Private property rights exist in this country up until that point at which the state determines that its needs exceed those of the individual, and reserves the right to seize that property for its own use.”

    Exactly. So in what sense do you actually “own” it? At some level you just get to use it until the government decides otherwise.

    • WTP said, on August 5, 2017 at 4:37 pm

      While thia applies to real estate/land, it does not apply to anything moveable nor abstract.

      • TJB said, on August 5, 2017 at 6:15 pm

        Abstract like a Kindle book? Do you really own it?

        • WTP said, on August 5, 2017 at 9:28 pm

          Did you buy it or did you license it? Did you read that agreement or did you just click the ok button? Be careful with those things or you could end up as the ass end of a human centipede.

          Also, once it’s in your head, can anyone take it away from you?

  4. TJB said, on August 5, 2017 at 3:57 pm

    Likewise, there are zoning rules and regulations, housing permits, and even homeowners association covenants, all restricting what you can do with “your” property.

    • WTP said, on August 5, 2017 at 4:42 pm

      As above, you cannot really own land except by force. Effectively the government is licensing you to use that land as defined. Now it is most certainly in the government’s best interest to keep you producing as much as possible from that land, and thus a big part of the success of most of western civilization. You will produce more, invest more in that land if you have good reason to believe that it for the most part belongs to you. Governments who fail to understand/acknowledge this do so at their own peril.

  5. TJB said, on August 7, 2017 at 7:44 am

    Ownership in general comes with all kinds of restrictions. You can’t beat your dog, you can’t reverse engineer your phone, and you can’t remove the tag on your mattress (just kidding on the last one).

    • WTP said, on August 7, 2017 at 9:17 am

      Well, actually you can reverse engineer your phone, provided you know how. You just can’t use that knowledge to create a competing product.

      You can’t beat your dog only because society has determined that the dog, unlike an inanimate object, has certain limited rights. You can’t kill and eat your dog either, however you can kill and eat your chicken, cow, pig, etc. But these are more social customs that have been codified. This is a dangerous area where the moral and legal start to mingle. Many things are immoral but should not necessarily be illegal. Cheating on one’s wife (or husband) used to be illegal when we recognized that such immoral behaviors had significant impact to social cohesion. Especially where children were involved. But we’ve let that go, for better or for worse.

      And to be clear, property that you create does belong to you. Your business is entirely yours, regardless of what laws socialists choose to enforce on you. When the socialist overhead becomes too onerous, you simply destroy what is yours by going out of business….or moving to another town/state/country.

      Any thoughts on the poverty subject?

  6. TJB said, on August 7, 2017 at 10:12 am

    More and more, your devices come embedded with software. From phones to cars to refrigerators to farm equipment, software is helping your stuff work better and smarter, with awesome new features. Cool, right?

    Yep… until it breaks and you want to fix it yourself (or take it to a local repair shop you trust). Or you think of a way to make it work better that requires tinkering with the software (or some third party does). Or you want to give it to a friend or re-sell it. Then, you have a problem. Why? Copyright.

    Software is subject to copyright, and than means that, as a rule, you might own your device but you only license the software in it. And that license (often called an “End User License Agreement”) is likely to come with any number of restrictions on your ability to tinker with your stuff. Typical clauses forbid reverse-engineering (i.e., figuring out how the software works so you can adapt it), transfer (i.e., giving it to a friend), and even using unauthorized repair sources at all.

    Further complication: the software may come with digital locks (aka Digital Rights Management [DRM] or Technical Protection Measures [TPMs]) supposedly designed to prevent unauthorized copying. And breaking those locks, even to do something simple and otherwise legal like tinkering with or fixing your own devices, means breaking the law, thanks to Section 1201 of the Digital Millennium Copyright Act.

    And then there’s manual lockdown, which happens when manufacturers refuse to publish crucial repair information (including the manuals themselves, but also things like diagnostic codes for cars)—and then threaten to sue anyone else who tries to do so with a lawsuit for copyright infringement.

    The end result: users are disempowered, trained to go hat in hand to the Apple store just to change a battery (rather than doing it themselves). Medical clinics must waste scarce resources on expensive repair contracts rather than patient care. Independent repair shops are driven out of business. And the electronic waste piles up, as users discard their devices rather then fixing them or donating them for re-use.

    If you can’t fix it, you don’t own it.


  7. TJB said, on August 8, 2017 at 11:33 pm

    Guns are something else that you don’t really own. Democrats at work.

    • WTP said, on August 13, 2017 at 11:20 am

      Didn’t see this until now. Your arguments on this subject of ownership seem to descend from the law, and US law specifically. When I discuss above, etc. regarding ownership I am speaking philosophically. In the context of a natural law. Note, not necessarily Natural Law as expressed by many Libertarians. Just natural as in a recognition of reality.

      I believe that the freedoms and such that we enjoy in this country, as long as they last, are truly simply a recognition of reality. As the seemingly rediscovered understanding goes, our constitution recognizes that we have these rights (the ones sophists have come to refer to as “negative” rights) because such is the nature of the world. Our founding fathers recognized this. Outlawing things, be they guns, alcohol, pot, etc. is a very difficult thing to do in an otherwise free society. Attempts to do so will only result in an underground economy/society evolving. Which then require more draconian laws in a slow spiral into tyranny. You do own your gun. Unlike your land, you can possess your gun, move it around, hide it, even destroy it because it does, by nature, by possession, belong to you.

      Something else suddenly being rediscovered is a corporation’s ownership of its ideals such that it can fire people based on beliefs expressed outside of the context of their employment. Can’t wait until this extends to the firing of socialists and such.

      • TJB said, on August 13, 2017 at 8:51 pm

        WTP, is this what your are referring to:

        The labor theory of property (also called the labor theory of appropriation, labor theory of ownership, labor theory of entitlement, or principle of first appropriation) is a theory of natural law that holds that property originally comes about by the exertion of labor upon natural resources. The theory has been used to justify the homestead principle, which holds that one may gain whole permanent ownership of an unowned natural resource by performing an act of original appropriation.

        In his Second Treatise on Government, the philosopher John Locke asked by what right an individual can claim to own one part of the world, when, according to the Bible, God gave the world to all humanity in common. He answered that persons own themselves and therefore their own labor. When a person works, that labor enters into the object. Thus, the object becomes the property of that person.


        • WTP said, on August 14, 2017 at 12:56 pm

          Well, no. Not really. There are aspects of that with which I agree. If you create something you own it. But no matter how much work and effort you put into “possession” of a geographical location. First of all, you didn’t create the land. An act of original appropriation is its own can of worms. Again, unless you have some belligerent means, or access to belligerent means, of keeping intruders off of land, you do not really “own” it. Pretty much anything else can be possessed by relocation. It can even be destroyed. But a specific area of the earth’s surface is not going anywhere. If you dig into real estate law, you can see in many places where this applies. Not saying the law defines this reality, but this reality defines the limits of the law. Where the law, or especially the citizens subject to that law, fails to recognize this, you get problems. See also, adverse possession.

          Somewhat similar are public goods (https://en.wikipedia.org/wiki/Public_good…not to be confused with The Public Good) regarding fish in the sea, water rights, etc. This is another dangerous area that certain socialistic sophists, I think you know the type to which I refer, use as an excuse to expand government power by declaring damn near anything a public good. Especially when they like to play on the term by surreptitiously inserting a for in front.

          I’m uncomfortable with the idea of labor being the underlying justification. The labor involved is somewhat irrelevant. The labor is only worth what the governing/taxing authority can reasonably expect to derive from it.
          Or what someone else is willing to pay for it based on the ability to generate wealth from it beyond what the government can tax from it. See again, adverse possession. This is definitely a dangerous area for the citizen when he has no voice or standing with the government. Modern democratic leaning governments understand this, are sensitive to this, and where the citizens have power, if not by vote then by revolt, governments understand that they can be replaced. Thus, they tread lightly here. If they’re smart.

  8. WTP said, on August 14, 2017 at 1:02 pm

    Heh…part of sentence got cropped off…

    “But no matter how much work and effort you put into “possession” of a geographical location if you have to pay taxes on it to maintain possession of it, you do not really own it

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