Saturday, 9 November 2013

Property rights vs Bodily rights

 Kevin Vallier writes- 'I think that all coercive claims must be justified for each person subject to them in terms she can reasonably be expected to accept.'

 What if she believes
 1) rights are 'essentially contestable concepts' and infinitely defeasible for that reason.
2) she makes a positive contribution- a 'paradigm shifting' one- to Ethics or Public Justification theory by always finding a reasonable argument not to accept any given coercive claim.
In this case, no coercive claim can be justified for this lady no matter the quantum of sweet reason used.
Indeed this sort of idionomia or even antagonomia might crop up more frequently in those who would otherwise stipulate for a personalized justification of any coercive claim.
Kevin claims that 'the reasons that speak against extensive property rights do not speak against other liberal rights... because political practices that protect highly articulated, extensive property rights in external objects require more deference from others than less controversial liberal rights. That is, property rights place relatively more restrictions on the actions of others in contrast to other rights'
Is this true? Surely, less deference is exercised and only the threat of an action in tort prevents wholesale appropriation? We gaily trespass on another's field while we would hesitate to take a similar liberty with their genitals except, obviously, on a DTC bus at rush hour.
A second point re. the difference between property and 'bodily' rights- what about things like the 'Right to Publicity' which is assignable and survivable and thus like a property right though arising from the state of being embodied?
As a matter of fact, with a little ingenuity, we could always find a structural analogue between a bodily and a property type right. What would be difficult is to find a counter-example.


  1. Prof Gaus has tackled the question of contested concepts in Public justification theory. 'Deference' has a technical meaning in this context. We are morally obliged to defer to certain sorts of judgements because either they are a solution to a Co-ordination problem or have been arrived at by some procedure we recognize to be legal or democratic or procedurally correct- see 'the order of public reason' and Justifactory liberalism.

  2. Why do property rights require more deference and acknowledgment of a greater range of authority? Surely anything that can be achieved with respect to the enforcement of a property right could be just as well be achieved by the upholding of a bodily right?
    Take two different 'bodily rights'- viz. the right to privacy, which is not assignable in most jurisidictions, and the right to publicity, which is and thus behaves like a property right. Clearly they can have exactly the same effect.
    I don't see why a greater range of authority arises- Sure the same Court can chose to preserve privity by expanding the scope of torts and vice versa, as well as either decree sanctions against bodies or property?
    One other point- justificatory liberalism, in the context of things which are Schelling focal points (i.e. solve a Co-ordination or Concurrency or other such problem), simply isn't going to have the sort of properties that Gaus thinks. Indeed, the idionomic holdout with impredicative views- i.e. the person who feels it her duty to refute very justification of the Schelling focal point- is correct to do so because we know in advance that it is bound to be sub-optimal.