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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Owning Asteroids

Posted in Ethics, Law, Philosophy, Politics, Science by Michael LaBossiere on December 25, 2015

While asteroid mining is still just science fiction, companies such as Planetary Resources are already preparing to mine the sky. While space mining sounds awesome, lawyers are already hard at work murdering the awesomeness with legalize. President Obama recently signed the U.S. Commercial Space Launch Competitiveness Act which seems to make asteroid mining legal. The key part of the law is that “Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations.” More concisely, the law makes it so that asteroid mining by U.S. citizens would not violate U.S. law.

While this would seem to open up the legal doors to asteroid mining, there are still legal barriers. The various space treaties, such as the Outer Space Treaty of 1967, do not give states sovereign rights in space. As such, there is no legal foundation for a state conferring space property rights to its citizens on the basis of its sovereignty. However, the treaties do not forbid private ownership in space—as such, any other nation could pass a similar law that allows its citizens to own property in space without violating the laws of that nation.

One obvious concern is that if multiple nations pass such laws and citizens from these nations start mining asteroids, then there will be the very real possibility of conflict over valuable resources. In some ways this will be a repeat of the past: the more technological advanced nations engaged in a struggle to acquire resources in an area where they lack sovereignty. These past conflicts tended to escalate into actual wars, which is something that must be considered in the final frontier.

One way to try to avoid war over asteroid resources is to work out new treaties governing the use of space resources. This is, obviously enough, a matter that will be handled by space lawyers, governments, and corporations. Unless, of course, the automated killing machines resolve it first.

While the legal aspects of space ownership are interesting, the moral aspects of ownership in space are also of considerable concern. While it might be believed that property rights in space is something entirely new, this is clearly not the case. While the location is clearly different than in the original, the matter of space property matches the state of nature scenarios envisioned by thinkers like Hobbes and Locke. To be specific, there is an abundance of resources and an absence of authority. As it now stands, while no one can hear you scream in space, there is also no one who can arrest you for space thievery.

Using the state of nature model, it can be claimed that there are currently no rightful owners of the asteroids or it could be claimed that we are all the rightful owners (the asteroids are the common property of all of humanity).

If there are currently no rightful owners, then it would seem that the asteroids are there for the taking: an asteroid belongs to whoever can take and hold it. This is on par with Hobbes’ state of nature—practical ownership is a matter of possession. As Hobbes saw it, everyone has the right to all things, but this is effectively a right to nothing—other than what a person can defend from others. As Hobbes noted, in such a scenario profit is the measure of right and who is right is to be settled by the sword.

While this is practical, brutal and realistic, it does seem a bit morally problematic in that it would, as Hobbes also noted, lead to war. His solution, which would presumably work as well in space as on earth, would be to have sovereignty in space. This would shift the war of all against all in space (of the sort that is common in science fiction about asteroid mining) to a war of nations in space (which is also common in science fiction). The war could, of course, be a cold one fought economically and technologically rather than a hot one fought with mass drivers and lasers.

If the asteroids are regarded as the common property of humanity, then Locke’s approach could be taken. As Locke saw it, God gave everything to humans in common, but people have to acquire things from the common property to make use of it. Locke gives the terrestrial example of how a person needs to make an apple her own before she can benefit from it. In the case of space, a person would need to make an asteroid her own in order to benefit from the materials it contains.

Locke sketched out a basic labor theory of ownership—whatever a person mixes her labor with becomes her property. As such, if asteroid miners located an asteroid and started mining it, then the asteroid would belong to them.  This does have some appeal: before the miners start extracting the minerals from the asteroid, it is just a rock drifting in space. Now it is a productive mine, improved from is natural state by the labor of the miners. If mining is profitable, then the miners would have a clear incentive to grab as many asteroids as they can, which leads to a rather important moral problem—the limits of ownership.

Locke does set limits on what people can take in his proviso.: those who take from the common resources must leave as much and as good for others. When describing this to my students, I always use the analogy to food at a party: since the food is for everyone, everyone has a right to the food. However, taking it all or taking the very best would be wrong (and rude). While this proviso is ignored on earth, the asteroids provide us with a fresh start in regards to dividing up the common property of humanity. After all, no one has any special right to claim the asteroids—so we all have equal good claims to the resources they contain.

As with earth resources, some will probably contend that there is no obligation to leave as much and as good for others in space. Instead, those who get there first will contend that ownership should be on the principle of whoever grabs it first and can keep it is the “rightful” owner.

Those who take this view would probably argue that those who get their equipment into space would have done the work (or put up the money) and hence (as argued above) would be entitled to all they can grab and use or sell. Other people are free to grab what they can, provided that they have access to the resources needed to mine the asteroids. Naturally, the folks who lack the resources to compete will remain poor—their poverty will, in fact, disqualify them from owning any of the space resources much in the way poverty disqualifies people on earth from owning earth resources.

While the selfish approach is certainly appealing, arguments can be made for sharing asteroid resources. One reason is that those who will mine the asteroids did not create the means to do so from nothing on their own. Reaching the asteroids will be the result of centuries of human civilization that made such technology possible. As such, there would seem to be a general debt owed to human civilization and paying this off would involve also contributing to the general good of humanity. Naturally, this line of reasoning can be countered by arguing that the successful miners will benefit humanity when their profits “trickle down” from space.

Another way to argue for sharing the resources is to use an analogy to a buffet line. Suppose I am first in line at a buffet. This does not give me the right to devour everything I can with no regard for the people behind me. It also does not give me the right to grab whatever I cannot eat myself in order to sell it to those who had the misfortune to be behind me in line. As such, these resources should be treated in a similar manner, namely fairly and with some concern for those who are behind the first people in line.

Naturally, these arguments for sharing can be countered by the usual arguments in favor of selfishness. While it is tempting to think that the vastness of space will overcome selfishness (that is, there will be so much that people will realize that not sharing would be absurd and petty), this seems unlikely—the more there is, the greater the disparity between those who have and those who have not. On this pessimistic view we already have all the moral and legal tools we need for space—it is just a matter of changing the wording a bit to include “space.”



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