Selling Yourself Short: The body, property and markets

26 February 2013   Selling Yourself Short: The Body, Property and Markets   Lord Plant     To recapitulate very briefly about where I think we are, the aim of the whole course over the three years is to look at the role of religion in general, and Christianity in particular, in a liberal society, and this year, we are looking at the relationship between religious values and a market economy, which is an essential part of a liberal society.     In the first week, I talked about some of the moral issues to do with markets, some to do with what are the moral underpinnings of markets, some to do with the moral boundaries of markets, and some issues to do with the moral consequences of markets, because, clearly, people from faith standpoints can contribute towards a debate about morality from a faith point of view, but they cannot really contribute to a technical issue in economics or whatever, and the aim has been therefore to try to identify a whole series of moral issues that churches, for example, could reasonably have a contribution to make towards shedding some light on these moral issues.   The second lecture was about freedom and markets and sought to undermine the idea that freedom was just the absence of coercion and that, in the view I was arguing for, freedom does have to make some assessment of human flourishing and human purposes and so forth. It is not just a criterion-less choice between alternatives, that the idea of freedom, does commit us to some idea of what are the significant choices in human life that might be made and so forth, and also that it is impossible to understand the idea of coercion without having a clear idea of the values that are threatened by a coercive act.   The third lecture was about justice. The churches particularly, and particularly the Roman Catholic Church, have made the idea of social justice central to their teaching about social and economic life, and yet, there is a whole stand of liberal economic thought which regards the idea of social justice as a complete illusion, and I tried to explain why those who take that view do in fact take that view and also to try to undermine some of the assumptions that they make in holding the view that social justice is, in Friedrich von Hayek words, “a mirage”.   Today, what I want to do is to look at something that is also pretty central to the debate about the nature of markets and the nature of belief. If you got into a conversation with someone about liberalism, it would not be very long before there was a discussion of individualism. Individualism is a kind of element of the liberal case about markets, and part of individualism has to do with the sort of control and so forth that you can exercise over your own body, and are there any limits to that and how are we to understand the relationship between self, body, and the community in which we are situated, which is a market kind of society. So, what I want us to do today is to try to concentrate on some issues to do with the body and the idea of my controlling my body.     The core idea that I am taking as central to individualism is the idea that has come to be called, particularly in the United States, self-ownership, that if I own anything, I own myself, in the sense that I own my body, I own my body parts, I own my bodily secretions, and so on and so forth, that if I own anything, I must be regarded as owning my own body. By owning my own body, we mean have unlimited control over one’s own body, so that it is not legitimate for other people to interfere with my body without my express consent. Interference might mean assaulting me or something like that – it is a fairly obvious kind of interference; but equally, it could be interference of a legislative sort, for example, prohibiting something like the sale of organs or prohibiting euthanasia, if that is what I want to engage in, and so on, that the idea of the control of one’s body and individualism are pretty central to the idea of a liberal market order, particularly, as I say, as it is understood in the United States, and in economic and philosophical writings. It is this idea of self-ownership that I want us to explore for a bit this morning.   As I said a minute ago, the core idea here is that the sort of control that I have, means that you have the strict duty not to interfere with my body, either physically or legislatively, if you like, to put it that way, except where there is a strong reason to do so, and the strong reason, the only strong reason that is legitimate, is that when my use of my body interferes with you, where my right to control my own body is absolute, except in circumstances in which my exercising that control harms your similar right to control your body. Any attempt other than that to exercise control over someone else’s body means imposing your values on this other person.     So, the obvious example to take, which I will not dwell on for the moment, but we will come back to, is that of euthanasia, that if I control my body, and if things can only be done against me with my consent, then I ought to have control about how my body should die, or how I should die, to be a bit more idiomatic, and that your preventing that through legislation is an illegitimate imposition on me of your preferences. Now, the core idea behind this is that, on a liberal, individualist model, values are subjective. Values are a matter of subjective preference. I choose my own values and I live my life according to my own values. You, however, have your values, and if you want to prevent me from doing something like engaging in an act of euthanasia, in my own suicide effectively, if you want to prevent that, then all you are doing is imposing your subjective values on me, and this is illegitimate – there are no values which transcend choice.  There are no objective values that can be used to constrain my own use of my body and my own decisions about the future of my body. So, crucial to the argument here is that values are of a subjective sort and we cannot invoke other people’s values as a reason for preventing my doing what I want to do with my own body.     Quite a useful distinction that is employed here, which was first proposed many years ago now by Professor Ronald Dworkin, who sadly died last week, a legal philosopher, was that we can distinguish between personal or internal preferences, and external preferences, that I might have a very clear idea for myself about what my values are, about what my preferences are, how I want to live my life and so on. You might be in exactly the same position: you have preferences how you want to live your life. But in addition, you have preferences about how you think I should live my life as well, and these are external preferences. External preferences are about trying to impose on other people your own values, as opposed to someone who has only internal or personal preferences, and it is illegitimate to try to impose external preferences on other people. It is illegitimate for two reasons.   First of all, if values are subjective, then your values do not count as being superior to mine – we just have conflicting and different values, and I should be able to live by the values that I think are important to me, and you should live by the values that are important to you, but that does not mean you can impose them on me.   The second reason why this is so is that, in a sense, the person who seeks, perhaps successfully, to impose his values on others, through legislation, the person who does that is being counted as being more than one person in a sense. Because I only have preferences about how I should live my life; you have these double preferences about how you should live your life and how I should live my life as well. Now, why should your preferences be counted twice and mine only once? Because, in your case, the State is counting your personal preference and your external preference; in my case, it is only counting my personal preference because I do not have any external preferences about how you should live your life. So, the argument here is that that would be a fundamental civic inequality to count people’s preferences about how other people should live their lives. This is pretty central to the liberal position, and it is part of what we mean by liberal individualism, that other people should not seek to impose their preferences on you, and the kind of fundamental reason here is that, in imposing my values on you, I am just imposing my subjective choices, and that is an illegitimate thing to do. So, it depends partly upon the idea of justifying the idea that values are of a subjective sort, and if they are subjective, then there is no strong argument in favour of trying to impose your own values on other people.   What are the potential consequences of any such view that we should not impose our values on other people? Well, that would give the space for this idea of personal control or self-ownership, that I should be free, both in my mind and in my body, to think and do what I like, so long as, in doing so, I do not prevent you from doing what you like. That is what is meant by self-ownership or self-control in this kind of context, and it is worthwhile just looking at two or three of the implications of this idea because they are quite complex, and also quite startling in some respects if you take the idea of personal control or self-ownership really seriously.   The first one has to do with taxation, and this is an argument propounded by a famous American thinker called Robert Nozick, in a book published in the early 1970s called “Anarchy, State and Utopia”. In that book, Nozick argues that, if my body cannot be controlled legitimately by another person or group of persons, without my consent, then what about my labour? Because my labour is my physical labour - it is the movement of my body, whatever I am doing. Whether I am a surgeon operating on your brain or whether I am a lumberjack cutting down a tree, labour is a set of physical movements. I do not mean by that that you could not have someone who laboured by doing mental arithmetic or something like that, only that a good deal of labour is purely physical or necessarily involves physical movements.   If labour involves physical movements and I am in control of my body, then I am in control of the physical movements that constitute my labour, but from that, we have a problem, according to Nozick. We have the problem of taxation, because if the State taxes your labour at 30%, 40%, 50%, whatever it might be, then for part of the time that you are exercising your right to use your body as you like, the State is in fact taking the product of that labour and the fact that you have laboured as a basis for interfering in your life. So, this is what Nozick says and it is a pretty trenchant view: if people force you to do certain work, or unrewarded work for a certain period of time, they decide what you are to do and what purposes your work is to serve apart from your own decisions. This process whereby they take this decision from you makes them a part-owner of you, just as having such potential control and power of decision by right over an animal or an inanimate object would be to have a property right in it. So, what Nozick, and indeed many libertarians in the United States argue, is that taxation in fact gives the State property rights in other people’s labour and in their bodies, and that this is wholly illegitimate, unless you have consented in each case to that.     But the problem is that you cannot leave taxation to be a matter of individual consent because at least part of taxation is to finance what are called public goods, what economists called public goods, that is to say goods that we all want but which will not be provided by the market, and they will not be provided by the market because they require cooperative production, and yet you cannot exclude those who do not contribute to the productive process. Something like clean air or defence would be a public good. It has to be produced cooperatively. You cannot produce your own defence system. You cannot produce clean air just for yourself. It has to involve others. But you cannot exclude people who do not contribute to the creation of that public good. There are public types of goods that you can exclude non-contributors from. If you have a public park, you could put a fence round it and charge admission for going in, and unless you have subscribed to the park, you are not eligible to go in, but of course, defence and clean air, things like that, lighthouses, to use another classic example, are public goods in this sense, that they require cooperative production and their production is not excludable.   Now, because of that, you cannot leave taxation, even just for public goods, as a matter of choice, that you have got to, for the production of goods that we all want of this sort, you have to act coercively – that is to say you all have to pay the tax to produce the outcome, because if you do not pay the tax, you cannot be excluded from the good that is produced.   On this view then, you cannot make taxation purely a matter of individual choice. It is not a voluntary thing. It has to be something that is imposed on people. But that imposition, in Nozick’s view is just the State taking control of you and meaning by that you are partly owned by the State. Most people think this argument is absurd, but it is actually quite difficult to produce good reasons for thinking that it is absurd. I mean, what Nozick’s position is, is that, if you can only work in this society, if you can only exercise your bodily functions in labour in this society by paying a tax rate of some sort, then this is control over your body, and that control over your body is the equivalent of forced labour. You are being forced to do something which you do not directly benefit from and have not yourself directly chosen. So, quite a big issue there about how we are to understand the body, labour, taxation and the rights of the State. As I say, not many people are convinced about this, but nevertheless, it is quite difficult to formulate a subtle argument to explain what is wrong with it.   The second thing I wanted to focus on in relation to the body is that of property rights in the body. The market is an exchange of property rights. I own something, I sell it to you, you acquire that thing, and I acquire your money – it is an exchange of property rights. So, it is pretty important to have some understanding of the legitimacy of property – what is legitimate about the ownership of property? What is it that makes it morally important?   Well, we have to look at the issue of the body because individual exchanges are only legitimate if what we are exchanging we rightfully own, and we ultimately – acts of free exchange depend upon the justice of our acquisition of the property in the first place. I can only exchange something that is my property if I acquired it legitimately in the first place. So, we have to focus on justice in acquisition, the legitimacy of acquisition, and this is where the body comes in, and, again, it is an argument from Nozick and, again, quite a difficult argument to refute.   Let me just take one step back there. If you look at what the churches have said about property over the years, and people like Aquinas and so forth, in the Catholic tradition, have said quite a lot about it, as did a famous, not very well-known now, but a famous English theologian called Hastings Rashdall, who was the Dean of Carlisle. He wrote a big book about Christianity and property rights. One of the themes of Christian thinking about property has been that property comes with duties attached to it, that property is morally alright, so long as we recognise there are a range of duties attached to it. I mean, we, in a sense, should see that what we own is a matter of stewardship or trust, that we own things on trust – we do not have an absolutely unlimited property right, that property must serve some kind of social purpose that is itself a legitimate kind of good. A relatively modern view of that sort would be R.H. Tawney’s arguments about property in his various books in the early part of the twentieth century, that property is not just an individual right – it is something that is enmeshed in a whole range of obligations.   Nozick, and people who think like him, reject this kind of idea. Because values are subjective, I can only have obligations that I freely choose to enter into, that the institution of property does not, as and of itself as it were, create obligations. I can only have those obligations that I freely choose as a personal preference.   If you take that kind of view, does it mean that you have an absolutely unlimited right to acquire anything you like, in any amount that you like? Well, the answer here, for the libertarian position, is “not really” – perhaps that would be the best way of putting it.     Take the following analogy. I go down to the beach with my son, and I have a bucket and spade with me, just a toy bucket. This is a huge beach, and no one is going to be disadvantaged by my son filling his bucket up and taking a bucket of sand home with him to play with. That is a kind of my acquisition of that property, my acquisition of that bucket of sand, is not disadvantaging anybody at all because there is a more or less unlimited supply of it. So, I do have a right to own property and to acquire property when that ownership does not diminish the opportunity for another person equally to acquire property. But most cases are not like that. Most cases do involve acquiring property and, in so doing, denying somebody else the opportunity or the reality of having that same property.   Well, in the seventeenth century, the English philosopher, John Locke, who also wrote a lot about religion and was a strong advocate of the idea of natural law. Locke argued that, in acquiring property, in coming to own something that is currently unowned, I can only legitimately acquire it as property for me if I leave what he called “as much and as good for others”, that I have to be concerned with the effect of my property acquisition on other people, and essentially, what it means is I cannot lower the living standard, if you like, of someone else by my coming to own this property. I must leave as much and as good for others.   However, in the defence of the modern liberal market and its reliance, as I have said, on the idea of property, given that a market is an exchange of property, this argument has come to mean the following. I have a right to acquire property and to exchange property, subject to the overall system of production and exchange being in the interests of the worst-off people, who are those who would be made worse off by not having as much of this good, that if the system benefits them better than any other alternative, then my acquisition, or my exercise of my property rights, in that economy, is legitimate. There is, therefore, a constraint on property, but it is that the market itself improves the situation of the poor better than any other alternative.   As I said in one of the earlier lectures, we have to be very careful about this, because it is one thing to say the market improves the absolute position of the poor, namely am I better off this year than I was last year on my own terms, or does it improve the relative position of the poor, that is to say, does it diminish inequality between the poor person and the richer person? Now, I am sure that Nozick means the former, that the market improves the absolute position of the poor, and therefore, insofar as the market does that, the exercise of property rights in a market is entirely legitimate because the overall system, through the trickledown effect, as it is called, which I talked about last time, the overall system improves the position of the poor in absolute terms. It may actually make their position worse in relative terms – that is to say, it increases inequality, but that does not matter. What matters is that it improves their absolute position.   On this view, the acquisition and exchange of property is perfectly morally legitimate because the outcome of all of that in a market is to improve the absolute position of the worst-off. It is not intended to do that, but it does that, and insofar as it does that, then property ownership is entirely fair and legitimate, and this is the only obligation that attaches to property, namely that I participate in a market that is free and fair and that, in being free, it improves the absolute position of the worst-off. So, there would be no justification, say, for a faith group to criticise the market order because it involves inequalities of property or because property is somehow immoral or whatever it might be, so long as the overall effect of the market is to improve the absolute position of the worst-off members of society. If it does that, then property is fair and legitimate, and any attempt to impose other obligations on property, that you should only have so much or whatever, would be part of this business of other people imposing their subjective values on you, and that this is illegitimate because it involves double-counting, as I explained earlier, and also there is no ground for imposing your preferences on me. We can forget about the moral critique of capitalist ownership, so long as the position of the worst-off, in absolute terms, is improving. That is the only moral constraint on property ownership.   The third thing that I want to look at is the idea of self-ownership in relation to the buying and selling of bodily parts, if you like. The sale of bodily parts, well, anything to do with the body, whether it is blood or whatever, is illegal in Britain, under the various human tissue acts from over the years, and it is illegal to buy and sell organs or blood and so on. Now, for a strong liberal individualist, this is utterly illegitimate because, if I own anything, I own my body, and if I own my body, I should be the person who determines what I want to do with it, and if I want to turn it, or parts of it, into a kind of commodity to buy and sell, my blood for example, then I should be free to do so, and to have laws that prevent that, as we have here, is an illegitimate restraint on trade.     There is a rather famous article titled “The Production and Exchange of Used Body Parts” written by Simon Rottenberg. The title of that essay tells you all you need to know really – “The Production and Exchange of Used Body Parts” – that if I own anything, I own my body, and I should be able to use what is undoubtedly my property in the way that I want. You may regard that as being immoral or whatever, but that is just your preference, and there is no reason why you should seek to impose your preferences on me. This is an interesting argument to try to probe a bit further because there is a certain amount of empirical evidence that is also relevant to it, and it is not just about moral argument.     There was a famous book published in the 1970s by Professor Richard Titmuss, called “The Gift Relationship”, which was about the blood donor system. As I say, it is illegal to buy and sell blood in the United Kingdom, and the blood donor system is of course voluntary – it is a donor system.  You do not need me to spell it out – it is a voluntary system. It also produces enough blood to meet needs, and it does so in an efficient way. This is quite a remarkable thing, in a sense, because many economists would say a donor system cannot really be efficient. So why is it compared with a system in which blood is bought and sold, as the liberal individualist might want it to be? Well, remember, when Titmuss was writing, Titmuss’ argument is that it is efficient partly because people voluntarily give their blood in the quantities that are needed, but also because individuals who are giving their blood do it on an altruistic basis, and therefore you can in a sense trust their donation, and you do not need to conduct extensive tests on the quality of the blood that is donated because it is an altruistic act and therefore why would someone try to provide contaminated blood as part of an altruistic act, whether it is contaminated by drugs or whether it is contaminated by things like Hepatitis C and so on and so forth.   In the alternative system, where blood is bought and sold, Titmuss argued, this would not be so because, if you were buying and selling blood, particularly if you were selling it, you would have quite a strong incentive to disguise any kind of contamination in your blood because you want the money – you are doing it for the money. You are not doing it as an altruistic act. So, in Titmuss’ view, in the United States, where this system works, the costs of testing blood are far higher than they are in the United Kingdom because you cannot trust the donation. This made the voluntary gift of blood, on a national basis, a more efficient system than a market. So, the liberal individualist then might shift his ground and say, “Okay, Professor Titmuss, I accept that you are right about that, but you should not preclude the idea of having a market for those who want to buy and sell their blood.”   Well, Titmuss’ argument was this, which I think is a much weaker argument, but his argument was that if you brought in a market alongside a donor system, then people would be less inclined to give blood, even though they might also be not inclined at all to sell blood, because they would take the view that the State, in organising this kind of dual source of supply, had downgraded the value of the gift, that they had said, well, it is just like an economic exchange, and you can either sell it or you can give it, and that this is to downgrade the value of altruism in society because you are providing an alternative for which there is a payment. His conjecture, which of course nobody knows the answer to, is that a lot of people who currently give blood would stop giving it, but equally, they would not sell it. We do not know the answer to that, but the interesting point is that, in the Titmuss case, it is quite difficult to know how far the argument about efficiency still works because, with the advent of HIV. Because of HIV, and the need to test it for HIV, you now have a system where all blood is tested pretty rigorously, and that donated blood does not now have the competitive advantage, as it were, that it had over sold blood in the earlier system, where you could trust the donation because you would not give on the basis that the blood was contaminated – it would be a very strange act of altruism to do that.   From the point of view of the liberal individualist, if the voluntary market does not have the advantages of efficiency that Titmuss claimed for it now, because of HIV, then there is absolutely no reason not to have a market in blood and blood products, and equally, there is no reason not to have a market in organs, particularly given the shortfall of organs like kidneys and so forth, and they can be donations by living donors, as in the case of kidneys and so on, or a market in the organs of dead people, and the beneficiaries of their estate would benefit from the sale of these organs.     On this view, there is absolutely no reason why we should not turn our own bodies into a source of commodities and to treat our organs and our things like blood as property that can be traded in a market.   Now, I want to come onto the issue of what a commodity is and the whole thrust of what is sometimes called commodification in a later lecture, but let us just concentrate on this particular issue for the moment, without getting too hooked up on whether we should think of the body and its parts as a commodity or not.   What are the arguments against a market in bodily parts? This is why I said earlier the argument of the liberal individualist, although quite extreme, is interesting because it tests out a lot of your ordinary assumptions and intuitions. What are the strong arguments against having a market in bodily parts? After all, it is an exercise in choice, it is an exercise in autonomy, and the fact that you find it distasteful has got absolutely nothing to do with it because you have your values, I have mine, there are no objective transcendental values to impose on you, and so on, and the voluntary system is still there if that is what you want to do. Nobody is preventing you giving blood, but I just want to sell mine, and to prevent me from selling it is an infringement of my rights, my right of ownership over my body. If I own my body, I should be able to order how its parts are exchanged, whether through gift, through exchange, or through economic exchange.   I think there are two or three arguments here, which we will come back to a bit when we look at the issue of commodities. I think it is perhaps in the next lecture.   First of all, and this is the weakest argument, I think, although it is perhaps the most popular, that ideas like the integrity of the body provide a basis, so it is argued, for not wanting to turn the body into a commodity. Because we cannot really distinguish between a person and their body, if you turn their body into a commodity or parts of their body into a commodity, then, in a sense, you are commodifying the whole person, that this, in a sense, undermines the integrity of a human life. The answer to that is fairly straightforward, from the liberal individualistic point of view, namely, well, that is fine, that is your preference – you go and sell bits of your body then, but do not try and prevent me from selling bits of mine. That is your subjective preference. I have got my subjective preference, and we should have the alternative of doing one or the other, and if you want to persist with altruism and giving and voluntary giving and so forth, that is fine. I want to make some money out of my bodily parts, and you should not impose your preference on me.  Well, we have looked at that argument already.   The second argument – and as I say, we will come back to these a bit – the second argument is derived from Immanuel Kant, the German philosopher, lived at the end of the eighteenth century, died in the early nineteenth century, who did consider some rather primitive examples of selling your bodily parts. One that he was rather horrified by the castrato singers in Italy, particularly those who were castrated to join – I mean with their consent - the Sistine Chapel choir, and he felt that it was quite wrong for people to mutilate their bodies, or have them mutilated, in order to enhance a career, and indeed income. One or two of these castrati were extremely wealthy men because they were not that many of them and they were in great demand as singers. Kant also thought about selling your hair and he thought that was alright because it is a part of your body that renews itself. He also talked about selling your teeth - I mean, Victor Hugo’s Les Miserables, you know this rather awful passage in which a young girl’s teeth were extracted to make dentures for the better-off, and what is wrong with selling your teeth. Well, for Kant, this comes somewhere between the castrati and the hair because your teeth will not grow again, but, on the other hand, it is not such a kind of imposition on your body as castrating somebody. Kant’s argument here, having looked at these examples, was that the fundamental moral principle, in Kant’s view, is that we should treat individuals as ends in themselves, and not as means to other people’s ends, and this is an argument that resonates a lot with the Christian moral point of view. In Kant’s view, if you are selling part of yourself, then you are treating yourself as a means to the ends of others, that you are not respecting the person that is yourself, as it were, and that in doing this, you are just treating yourself as an instrument to someone else’s will. Well, we will come back to that later.   One argument that is put forward – there was a big case about this in about 1989, when the Humana Hospital in London was found to be buying kidneys from rather poverty-stricken peasants in Turkey to transplant into rich clients. The argument there was you should not be doing this, even though it would transform the peasant’s life to have a few thousand pounds out of this, you should not be doing this because it is actually exploitative of poor people, that they do not really have a choice if you offer them a transformative amount of money.     Well, the liberal individualists will not at all be impressed by this argument because the liberal argument is that the possession of resources has absolutely nothing to do with freedom, or to quote Sir Keith Joseph, as I did at the time, in his book on equality, “Poverty is not unfreedom; the lack of resources is not a restriction on liberty.” Therefore, the lack of resources is not the basis of a form of exploitation either. So, in making this transformative offer to a poor person, you know, “We’ll give you £5,000 for your kidney,” that is not a form of exploitation – it is a perfectly legitimate form of freedom of exchange.   The challenge is, if you want to take it up, is to try to think of good reasons why I should not regard myself as the sort of proprietor of my own body and seek to do with it whatever will make me better off if that is what I want to do. It is quite tricky to think of reasons that are compelling to stop that view in its tracks on grounds other than, “Well, my preference is that you should not do it and my preference is going to win over you.”  So what we need to do, if we want to look at this from a faith-based point of view, is to try to figure out what are good reasons for not thinking of the body as a kind of an economic resource.     It is easy to say, if you want to talk in terms of rights, as liberals often do, that we have a right to life. Many critics of liberalism will then say, “Ah, but we also have a right to the means to life.” But what if my means to life, to which I have the right, are part of your body, your blood or your kidney or whatever it might be? You might think this is terribly fanciful, but it is not. There was a case quite a few years ago now, in Allegheny in the United States, McFall v. Shrimp, where Mr McFall was dying of leukaemia, and his cousin, Mr Shrimp, was the only known potential bone marrow donor. Mr Shrimp refused to donate bone marrow, and Mr McFall took him to court to try to get the court to coerce him into giving bone marrow because he thought his right to life involved a right to part of somebody else’s body, and of course, the court, not surprisingly, refused to do this, and Mr McFall duly died. But there is this question of: what are we to do when the right to life involves a right to part of some other person’s body? Do you say, well, that is where it stops, or would a market be better in those sorts of circumstances?  

 

© Lord Plant, 2013