Anarchy or matriarchy - utopia or dystopia Reading a feminist critique of libertarianism

Isak Thomas Gerson January 19, 2014

I conclude that his theory is reduced to absurdity when women are taken into account. Instead of the minimal state that he argues for in Anarchy, State and Utopia, what results is a bizarre combination of matriarchy and slavery that all would probably agree is better described as dystopia. (Okin, 1991:75) Susan Moller Okin draws pretty extreme conclusions from Nozicks proviso for appropriation. If her conclusions hold, the theory of entitlement of property Nozick present would probably be unpopular, because of its consequences. The utopia of freedom the supporters believe libertarianism would be is replaced with a picture of a dystopian society where we all live and work as slaves for our mothers. How would Nozick and Locke respond to this? How serious is this critique? Is it just a shallow critique to which the theory can be adapted, or is it a more serious critique against the foundations of libertarianism? I will present the critique in more depth and try to clarify how a libertarian in the tradition of Nozick might respond.

The theory of entitlement being criticized

The proviso Okin criticizes is Nozicks theory of entitlement from Anarchy, state and utopia. I wont go into detail, but Ill present the theory briey. The theory of entitlement consists of three parts: a theory of justice in acquisition, a theory of justice in transfer and a theory of rectication of injustice. In short, an entitlement to property is just if it is a justly acquired or the result of a just transfer of a just acquisition. We acquire property justly by making things without unjustly using others property. This is often referred to as mixing labour into natural resources. Nozick, being inspired by the Lockean proviso of appropriation, claims we not only have to mix our labour into currently unappropriated resources, but also claims that when we do this, we have to leave as good and enough for others of the resource when we appropriate the resource. (Nozick, 1974:105-3,281-7) The theory of justice in transfer is quite simple. A transfer of ownership is just when it respects the rights of everyone involved and the ownership being transferred was justly acquired or justly transferred to the person transferring it. The theory of rectication of injustice describes what to do when rights are violated, how compensation and punishment for these violations should work. But it is not even remotely relevant for Okins critique. (Nozick, 1974:178-82) 1

The argumentation of Okin

I will in this section briey summarize Okins argumentation. People are products of hard work, Okin argues. First of all, there are nine months needed to produce the child to the world at all. Then, there is somewhere between a couple of months to a couple of years of caring and raising before the child is a rational, self-conscious being. And then several years of caring and raising before the child can take care of itself. But the most important part of this process for Okins argumentation is the nine months of pregnancy. Women produce people, Okin argues. Only women have the natural capacity produce people. The natural capacity might be understood as the body needed to produce people. Until we have the medical capacities to either change the male body enough to give it the capacity to produce people or the medical capacity to produce people outside of bodies (one alternative is in labs) women will be the only ones who have the capacity to produce people, according to Okin. Should people not be owned by their creators like all other products, Okin asks? Are these people not always the products of women? A Nozickian need to answer how a products of labour, like persons, can own themselves. (Okin, 1991:76, 79-80) If Nozickian libertarianism is unable to answer these questions, Okin argues, their utopia will not be a utopia of freedom anymore. Everyone will be the just property of their mothers, who gave birth to them. Their mothers will have the right to control them, sell them, force them to work and use them as they want. It will be a dystopia of matriarchal slavery.

The response to Okin

Here, I will discuss ve kinds of responses a libertarian might raise against Okins argument, the argument that children are special and can not be understood as property, the argument that mothers do not make their children alone, the argument that mothers can not hold a monopoly of their children, the argument that mothers do not make (and own) all of children, but only their bodies, and the argument that we should alter the principle of acquisition to maximize freedom.

2.1

Children have a special status. They have rights!

Is the production of children not a specic kind of production? Should not women be aware when they make children, that it is children they produce and that the production of children comes with a special kind of responsibility? If we think that, we have to show that children or the production of children is in a morally signicant way dierent from other kinds of production. One way to argue is to argue that children are special. Children are the only products we make that are persons. Persons are self-conscious and rational beings, that hold rights. Other objects does not hold rights. Creating persons come with restrictions the creation of other things have not. This is, of course, since children have the right to self-ownership. Therefore, we do not become owners when we create children. We become parents. This means that the

labour-mixing argument can not be applied here. (This view is represented by, amongst others, Murray in 2012:166) The idea of full self-ownership that Nozick and most other libertarians hold means that one have the full right to sell themselves into slavery. So slavery in itself is not a problem for libertarianism. But when people sell themselves into slavery, they voluntarily choose to sell themselves into slavery. They make a legitimate transfer of the ownership of themselves from themselves to another person. Can this be said for children? Probably not. Children were never asked whether they want to submit themselves into slavery or not. They never agreed to be born at all. We might even imagine a libertarian society where the children, when born, are asked whether they would want to keep living as slaves to their mothers (as their rightful property) or if they would want to undo their mothers work by having themselves killed by the doctors, therefore relieved of their slavery. Even if this society would exist, the children would probably not be able to make an informed decision. Not only because of their limited language skills, but also because of their lack of knowledge about life, the world and how cool it is to live there.

2.2

Do parents not make their children together?

Anna-Karin Andersson claims that parents make their children together. For a child to be born, a man or a doctor must impregnate the woman with semen coming from a man. Therefore, both a man and a woman is needed to produce a child. Can we really claim that the man should hold no ownership of the child his sperm produces? Of course, Andersson addresses to Okin, pregnancy is a female condition, but it requires no action on the part of the mother and therefore fails to qualify as labour. (2007:108) An observation that seems to support Anderssons claim is that it seems that we cannot imagine a world without men but with children (with the level of technology we have today). So to say that mothers alone own their children, one must clarify how the fathers work become irrelevant for their entitlement claims.

2.3

Women wont leave enough children for men

To be entitled to ownership over things, one must leave enough and as good for others. It seems very doubtful if mothers in this interpretation of a Nozickian society would do that. If every mother is entitled to all persons they produce, it would be no persons left outside of their control. So how come mothers can have this monopoly?

2.4

Mothers only own the human beings, not the persons

Roy W. Perett claims in Libertarianism, Feminism, and Relative Identity. He refers to Locke, who claims to have used this distinction to sort out what part of people God (who, according to Locke, has created everyone) owns. Locke claims that if two people would switch bodies, they would still be the same persons, but they would be dierent human beings. Perett claims that the contradiction 3

Okin claims to have found in Nozicks theories can be solved with this distinction, claiming that mothers could own the human beings of their children (that they have created) but not the persons (that they have not created). (2000:387-90)

2.5

Mothers ownership would not maximize liberty

According to Murray in Liberty, Games and Contracts, Nozick wants to make sure everyone has the maximum liberty compatible with a similar liberty to all. This alone should tell us that we can not give mothers the right to own their children. Excluding children from being object to the principles of acquisition will both maximize the liberty, and give mothers and children similar rights. (2012:159)

The critique of the response to Okin

I will address the ve concerns a libertarian might have about Okins argument, claiming that with a Nozickian theory, childrens special status can not be justied (and would not make any dierence regardless), that mothers do alone make their children, that mothers would hold a legitimate monopoly over children, that the metaphysics of separating persons from human beings would not make any dierence and that we have to worry about utiitarianism of rights.

3.1

Why should we care about the childrens rights?

There are two issues to deal with here. First, do children have a special status compared to other produced things? Second, what does this special status mean in terms of rights? I will discuss if this could mean that they can not be born into slavery, because their special status make the labour mixing-argument unusable. Do children have a special status? Of course, a libertarian can claim that children have a special status. As Andersson says, one can even read Nozick in a way that tells us he specically claims that. But it is not enough to claim that children have special status. I agree with Andersson that one also has to provide a justication for why children are special. Claiming that children are rights-bearers, without showing how this claim follows from his discussion on what properties distinguish rights-bearers seems ad-hoc. (Andersson, 2007:105) What is a person? Nozick discusses this in Anarchy, state and utopia. His conditions are that someone is: sentient and self-conscious; rational (capable of using abstract concepts, not tied to responses in immediate stimuli); possessing free will; being a moral agent capable of guiding its behaviour by moral principles and capable of engaging in mutual limitation of contact; having a soul. (48-50) When we doubt about how to understand a condition, or do not understand to what degree a condition must be fullled, we can always look back at Nozicks chapter on animal right, where he does not see non-human animals as persons.(1974:35-42) I think it seems that children, when born, do not ll many of these conditions. They might be sentient. If they have a soul is probably a too complicated discussion to be held here. But the rest of the conditions does not seem to 4

be fullled. Especially not in comparison to a lot of non-human animals (like primates or other larger mammals) who are clearly not persons. With the Nozickian motto utilitarianism for animals, Kantianism for people, we learn that we should treat animals well, but never at the expense of persons rights. (1974:40-41) Following Nozicks argumentation, I think the same should probably be said about newborn children. It is good to treat children well, but we must never force this on the owner of the child. Sure, children will become people with right, but is that enough to give them right? Newborn children are not persons. They might become persons with rights when they are older, but a mother should have full ownership rights over the child until then, having the right to do what she wants with it (eat it, kill it, use it as a toy). Libertarianism is a theory of historical justice, not future justice. I do not get the right to appropriate things because of what might happen in the future. Would a special status give the children rights? Suppose that the children do have a special status. What dierence would that make? Could a child be born into slavery? According to Nozick, the slave owner does not have any responsibilities to the slave (unless so were specied when the slave sold himself or herself to slavery). So what is the dierence between the slave and the child? One dierence might be that the slave has gone into a mutually agreed contract that the child has not. But this is a dierence for the child, not for the mother. The mother has still put several months work in producing the child. Nozick often seems to see the right to legitimately acquired property as superior to many other things, as the right to freedom and life. If a child would claim its self-ownership, that claim would be in conict with the legitimate claim of ownership the mother already posed upon the child. How come children can have the right to claim rights that conict with others rights? (Nozick, 1974:77,82) Children is not only clearly made by women. Children are one of the few things that persons clearly make themselves. They dont need any natural resources besides sperm (a question I will discuss in a future section). They use their bodies and their bodies only. If this is not clearly owned property according to the right to self-ownership, then what is? (Okin, 1991:82-3) If we return to the libertarian society where children were given the choice whether to be killed or keep living as their mothers rightful property. Would this be in accordance with the moral right of self-ownership? No, the mother would still be deprived of the property she has been working hard to create. The child did not even exist when the mother created it, so no self-ownership or freedom was taken away. The childs situation was never worsened by the mother. Sure, the child never has a reasonable choice to something else than slavery. But is that the mothers responsibility to x? Nozick himself states that A persons choice among diering degrees of unpalatable alternatives is not rendered non-voluntary by the fact that others voluntarily chose and acted within their rights in a way that did not provide him with a more palatable alternative. (Nozick, 1974:263-4) It would be nice with a society that gives children ownership rights over 5

themselves. But this ownership needs to be given from the ones that have it. Since children are produced, the ownership of them is not just manna from heaven (to paraphrase Nozick in 1974:198) we can redistribute as we see t. They are products of human labour belonging to someone.

3.2

No, parents dont make their children together

Yes, sperm from men are needed to produce children. But this is the case with much production. When I sew a coat, I will need to get my linen from somewhere. If I buy my linen from a farmer instead of growing it for myself, will the farmer have ownership rights to my coat? No, not if the linen was justly transferred to me. This is regularly the case with mothers and their children too, and I will explain why. It seems that most of the heterosexual sexual intercourses today are between men and women where at least the man (and often the woman too) is consenting and well-informed of how children are made. A lot of couples even have access to dierent kinds of contraceptives. Still, men choose to have sex. Under these circumstances, we cannot consider the transfer of ownership of sperm from a man to a woman anything else than a just and legitimate transfer of ownership. The men that voluntarily have sex with and transfer their sperm to women whilst being conscious of the risk or chance that they might impregnate the woman cannot claim that he had his sperm stolen. Of course, the couple might have had an agreement on what to do with an eventual child. But if this is not the case, the transfer of ownership must be considered just. A more clear case that is becoming increasingly common is that of women buying sperm. Here, more than in the example of sexual intercourse, is the transfer clearly just and legitimate. Both parties are informed of the consequences by doctors before they enter into the procedure. And they both are sober and reective of their decisions (in contrast to a lot of sexual intercourses, that can be performed when the parties are drunk or just to sexually aroused to make good decisions). Is pregnancy not real work? It seems counter-intuitive it me to claim that it is not. Women get paid leave during parts of their pregnancy because they need to focus on being pregnant instead. Pregnancy is a paid job in some parts of the world where surrogacy is not prohibited. It is not a legal job everywhere, but it denitely seems to be a good amount of labour. But even if pregnancy would be a pleasure cruise, it would probably still be work. If we do not consider pregnancy being real work, why should we consider less hard forms of procreation - like growing low-maintenance crops or breeding livestock - work? We might not want to exclude procreation from forms of work if we want farmers to own the fruits of their labour (close to how Andersson argues in 2007:112.)

3.3

Women actually do leave enough for men

Is it fair that mothers should have the sole right to their children? Is it not unfair that men cant own babies, since they lack the means to produce them? A Nozickian cant really complain, since he himself strongly criticizes the intuition that, amongst others, egalitarians often have, that personal advantages like

talents and abilities given at birth are irrelevant for distribution of ownership, since they are arbitrary from a moral point of view. (Nozick, 1974:224-7) Would women in a Nozickian society have a monopoly on children (and persons)? In theory, yes. If women does not choose to sell persons to men (but what men?), women will have a monopoly on children, and there wont be any persons to go around for men (or non-mothers). But this is not a legitimate problem for a Nozickian. Monopolies are only illegitimate when you acquire it by taking something from the common without leaving enough and as good for others. Children are not taken from the commons. If there would be no women, there would be no new people. So men and non-mothers never had their situation worsened. They would be just as good o without any mothers as with mothers with monopolies.

3.4

Who makes the persons?

This objection depends on a metaphysics of identity that for me seems pretty counter-intuitive. I could stop with just claiming that this objection is incompatible with my metaphysic views on identity and the production of people. But since Perett claims that Okins claim that Nozicks libertarianism is contradictionary falls not only if this objection and its metaphysics is right, but if it possibly could be right, I will try to show that this objection can not make Okin fall. My basic argumentation is this: even if human beings and persons are separate, mothers still make the persons. Who else would? Would the person itself make the person? It can not. The person exists as soon as it is created. Something has to create the person, before it can create things. It could either be the mother, creating the human being at the same time as the person. Or it could be the human being creating the person (by creating a person as soon as the brain develops). But the mother has created the human being. So why would the mother not be entitled to the person, which is the fruits of labour of her fruits of labour?

3.5

Is this rights utilitarianism really justiable?

This objection is probably the one I nd most convincing. It attacks the problem from a dierent direction than most other objections. Many of the other objections criticize Okin for what might be her using the Nozickian theory or logic in a faulty way. But this objection instead tries to understand what the problem with Nozicks theory as it is spelled out today, and tries to gerrymander its way out the problem. The question is, will it work? What Okin criticizes is not the underlying values of Nozicks theory of entitlement, but the practical principle that is constructed from the underlying values. So the question is, will the gerrymandering in this case respect the underlying values of Nozicks theory of entitlement? Murray probably makes a good case of referring to the goal of striving towards maximizing the amount of liberty compatible with a similar liberty to all. But that does not can not justify any restraint on rights. I have tried to show that taking the fruits of labor away from mothers is stealing. Children does not own themselves and can not just be given that ownership if it belongs to someone else. We should be careful of restraining the 7

ownership rights over children just to maximize the freedom of all, since this might as well lead to the kind of utilitarianism of rights that Nozicks warns us for in Anarchy, State and Utopia (1971:28). If we take that ownership right from mothers in the name of maximizing liberty, what stops us from taxing income in the name of maximizing liberty (if we tax everyone equally)?

The more fundamental critique

There seems to be no doubt that, by all the canons of Nozicks entitlement theory of justice, children are the property of those who make them. /.../ The immediate problem of this analysis for Nozick, however, is that it leaves the core of his theorythe principle of acquisitionmired in self-contradiction. If persons do not even own themselves, in the sense of being entitled to their persons, bodies, natural talents, abilities, and so on, then there would appear to be no basis for anyones owning anything else. Nozicks theory of entitlement is clearly premised on the notion that each person owns himself. But as I have shown, when we consider womens reproductive capacities and labour, the notion of self-ownership that is so central to the principle of acqusition turns out to be completely undermined by that very principle. (Okin, 1991:85-6)

This is the conclusion that Okin draws from her arguments. With Nozicks theory of ownership, self-ownership is completely undermined. Left is an elite of grandmothers, who own everyone and everything. Truly an aristocratic society that would make most aristocracies jealous. The question we are left with is: is there a deeper critique to be found here, or does Okins critique work only as a reductio ad absurdum ? What should we learn from the critique. Okin herself thinks there is more to be learned. I will discuss what Okin thinks we can learn.

4.1

The family is tactitly assumed

The fact that Nozick can construct a complete theory of entitlement and ownership without caring to include women and get away with it is, according to Okin, because womens uncontracted and unpaid reproductive work and the gender-structured family is - as in a lot of other political theories - tacitly assumed. We think of (or rather, do not think of) the family as something that just is there, regardless of our theories. When a Nozickian think of children as potentially self-conscious and rational moral agents, they seldom speak about who should help them reach that potential. Raising children is a work of its own that takes several years, and it is often done by unpaid women (though welfare states often do a part of that job in the publicly owned welfare system). (Okin, 1991:87) As a matter of fact, we as persons are not rational moral agents, we are produced into rational moral agents. Ex ante, we are nothing. We are rst produced by conception and nine months of pregnancy, and we are then raised into rational moral agents. Any theory of self-ownership must explain who are to pay for that work to be donewho are to pay for us. By not explaining how we rational moral agents come to be produced, Nozick tacitly assumes a system will be there to produce us (for free). (Okin, 1991:87) 8

4.2

Womens labour is ignored

Okin raises a critique of how Nozick (and Locke) uses gender in their language several times. They both switch back and forth between a male language (using word like he and man ) and a more neutral language (using words like individuals and persons. (Okin, 1991:76) It might not seem important at rst, but the use of language becomes more of a problem later. The issues of production of children is a good example. If Locke and Nozick would use their male language when speaking of the production of children, the claims they make would be too strange. Men dont make children. Women make children. So Locke and Nozick uses a gender neutral language that disguises the womens role in the production. (Okin, 1991:80)

The conclusion

I do believe that Okins argument against Nozick holds. I was unable to nd any concerns that could not be answered. Okin herself answers why the Nozick were unable to see such big problems with his theory (in short, because of patriarchal thinking). I do, however, think that the theory can be saved with some major adjustments. A libertarian needs to explain why we get rights even though we are produced products. This requires a three step solution. First, a denition of persons that actually includes children. The easiest way is probably to widen the denition, for example by including all beings with a central and autonomous nerve system (all sentient animals). Second, include restrictions that restrict persons from owning others at all. Third, make sure mothers get a hefty compensation for producing children even though their ownership rights are taken away by the restriction.

Bibliography
Andersson, A., 2007. Libertarianism and Potential Agents: A Libertarian View of the Moral Rights of Foetuses and Children. Stockholm: Acta Universitatis Stockholmiensis. Murray, M., 2012. Liberty, Games and Contracts: Jan Narveson and the Defence of Libertarianism. Farnham: Ashgate Publishing. Nozick, R., 1974. Anarchy, state and utopia. Oxford: Blackwell Publishers Ltd. Okin, S. M., 1991. Justice, gender and the family. New York: Basic Books. Perett, R. W., 2000. Libertarianism, Feminism, and Relative Identity. The Journal of Value Inquiry. 34(4). Available through: Springer Link http://link.springer.com.ezproxy.its.uu.se/ [Accessed 17 January 2014]