[I want to suggest that if anyone would like to group-study this long and very nuanced essay by Pateman, a pedagogical device might be watching Dirty Pretty Things after reading it. This excellent little indie film brings these questions of “alienability” into very sharp relief. -SG]

Self-Ownership and Property in the Person:

Democratization and a Tale of Two Concepts

Carole Pateman*

(Forthcoming: Journal of Political Philosophy)

Democracy is at war with the renting of human beings, not with private property. David Ellerman

During the 1990s a number of political philosophers turned their attention to the concept of self-ownership. Much of the discussion is critical of libertarianism, [1] a political theory that goes hand-in-hand with neo-liberal economic doctrines, and global policies of structural adjustment and privatization. Attracta Ingram’s A Political Theory of Rights (1994) and G. A. Cohen’s Self-Ownership, Freedom, and Equality (1995) are devoted to such criticism (and I shall focus much of my argument on their books). The consensus among most participants in the debate is that self-ownership is merely a way of talking about autonomy, but Ingram and Cohen go against the tide by arguing that the idea is inimical to autonomy and that an alternative is needed.

In The Sexual Contract (1988) I am also critical of libertarianism, and my conclusion is similar to Ingram’s and Cohen’s. I argue that the idea of property in the person must be relinquished if a more free and democratic social and political order is to be created. However, despite some common concerns, there are very few points at which my work and that of Cohen and Ingram, or of most contributors to the current debates about self-ownership, come together.

In large part this is because property in the person, not self-ownership, is central to my analysis. It might seem that the choice of concept – self-ownership or property in the person - is inconsequential. Self-ownership has become accepted as standard terminology, so there is no reason to make an issue of usage when, on the face of it, the two concepts are so similar, perhaps even synonymous. I shall argue not only that, if libertarianism is the target, a good deal hangs on the choice of concept, but that “property in the person” is central to an understanding of some important contemporary institutions and practices.

How “self-ownership” is interpreted is related to the interpretation of rights. If rights are seen in proprietary (libertarian) terms – the standard view of rights, Ingram argues – then it follows that rights can be alienated, in whole or in part. A major mark of (private) property, including property in the person, is that it is alienable. If property is alienable it can be subject to contract, and in The Sexual Contract I used the label “contractarianism” in order to highlight the central place of the practice of contract in libertarian theory. To be sure, attention is directed to these features of property if self-ownership is emphasized, but, curiously, in the debates about the concept little attention is given to ownership and what follows from owning. This means that the implications of alienability, inalienability, and contract are not pursued. Criticism of libertarianism is truncated, and aspects of the doctrine seem puzzling. Cohen, for instance, worries over Robert Nozick’s willingness to endorse voluntary slavery (Self-Ownership, Freedom, and Equality is an extended criticism of Nozick).

The puzzlement is exacerbated by the focus on exploitation and neglect of subordination in discussions of self-ownership, an odd oversight in arguments that are about autonomy and rights. Thus the exploitation of workers is analyzed but not the alienation of autonomy or right of self-government – the subordination - involved in the employment contract. Of course, wage labor is usually seen as free labor because an individual voluntarily enters into a contract of employment. This justification of employment, as I argued in The Sexual Contract, depends on the idea of property in the person – a political fiction, but a fiction with a powerful political force.

Criticism of libertarianism by most participants in the debate about self-ownership is also limited by their approach to political philosophy. They tend to take in each other’s intellectual washing and rely on a limited range of reference points and intellectual authorities. Nozick’s influence in setting the agenda is indicated by Ingram’s summary in A Political Theory of Rights (p.3) [2] of the major issues in the discussion of self-ownership; “exploitation, redistribution, and talent-pooling”. John Rawls is also influential, and one indication is that justice is assumed to be the key concept. Except for Ingram, few of the contributors have much to say about democracy.

Moreover, “methodological Rawlsianism” (Norman 1998) has been shaping much mainstream political theory for over two decades. Methodological Rawlsianism has become sufficiently dominant to be seen not merely as the standard way of proceeding, but as “inevitable”, at least “insofar as it amounts to little more than a codification of common sense” (Norman, 1998, p.279). Ingram’s argument lies squarely within methodological Rawlsianism, which hampers her critical confrontation with libertarianism. Cohen’s approach is different, but also leads to a narrow view of political and moral philosophy which he sees, as he states on the first page of Self-Ownership, Freedom, and Equality, in the “standardly academic” way as “ahistorical disciplines” using “abstract philosophical reflection”. But historical understanding is necessary for an appreciation of the political importance of the concept of property in the person.

Both Cohen’s and Ingram’s approaches reflect another prominent contemporary trend, the depoliticization of political theory. In recent years political philosophers have turned away from politics to moral argument and moral reasoning. Norman states that not only methodological Rawlsians but “just about everyone else” sees political philosophy as “a branch of moral philosophy” (Norman, 1998, p.279). Charles Mills (1997, p.91) writes that political theory “is nowadays conceived of as basically an application of ethics to the social and political realm”. Ethics and politics should not be divorced from each other, but that does not imply support for the imperialism of moral philosophy. The problem of democratization - of reducing subordination and creating a more democratic society - is, first and foremost, a political problem. But the discussion of self-ownership has, as Elizabeth Anderson (1999, p.288) recently remarked about egalitarian arguments that involve many of the same scholars, “lost sight of . . . distinctively political aims”.

Why “Self-Ownership”?

I have found no discussion of why “self-ownership” should be preferred to “property in the person”. One line of argument dismisses self-ownership on the grounds that “it is founded on an attempt to derive normative implications from the possessive pronoun” (Barry, 1996, p.28) [3] , but this is far too quick a dismissal. It is usually assumed that self-ownership is a central part of morality in liberal democratic societies. Thus Ingram states that self-ownership is “well entrenched in our moral thinking” (p.39), a statement echoed by Gorr (1995, p.291; p.285,), who believes that self-ownership is “deeply rooted in our shared moral consciousness”, and is “among the foremost” of the values of liberal democracy. It is also claimed that in “liberalism” the “most plausible set of rights . . . is rights of self-ownership” (Lloyd Thomas, 1998, p.8). Use of the language of self-ownership now seems so obviously appropriate that, in Real Freedom for All, Van Parijs (1995, p.3) merely stipulates that self-ownership “in some sense” is a basis for his argument. This turns out to be a sense in which self-ownership is “closely associated” with basic human rights (Van Parijs, 1995, p.235, note 8).

If rights are so closely associated with ownership, then neglect of the concept of property in the person is all the more surprising. The category of the “person” has been fundamental to the very lengthy and bitterly contested process of democratization, and the universalization of rights and political standing, in Anglo-American countries. The concept of the “self”, while central to moral argument, has not had the same legal and political significance as “person”. Slaves in the Southern states of America were deemed mere property, non-persons, and so denied all civil or political status or rights. Wives under the common law doctrine of coverture were not persons, and had no independent legal standing. They could not own property or their earnings, enter contracts, have custody of their children, practice professions, vote, or enjoy bodily integrity. Wives were under the legal jurisdiction of their husbands who represented them in public as the “person” of the conjugal couple. Slavery was ended only in the aftermath of a civil war, and women had to fight a very long political battle to be recognized as “persons”; for example, the last vestiges of coverture were eliminated in England only in 1992. [4]

On the other hand, the set of relationships that constituted another body central to economic development was deemed a person. For several centuries corporations have been regarded as legal persons in English law, and from 1886 onward in the United States (long before women won the vote), corporations became “persons” within the meaning of the term in the Fourteenth Amendment (see Bowman, 1996; Corcoran, 1997; Spender 1999).

Such political issues are mostly avoided in recent discussions of self-ownership. The concept is typically interpreted in a general, weak sense as a way of talking about (a certain view of) individual autonomy. Gorr (1995, p.271) for example, offers a “moderate self-ownership principle”, equivalent to the “fundamental” right of a person “to have a significantly stronger say than anyone else in how she chooses to live her life and in what may be done to her”. Kymlicka (1990, p.112) writes that self-ownership “protects our ability to pursue our own goals”, and people’s “ability to act on their conception of themselves”. Ingram (p.39) states that self-ownership is very attractive if interpreted as the view that each individual should be free from interference by others, with a right to the fruits of the exercise of her capacities. Cohen, too, argues that the attractiveness of self-ownership lies in its perceived connection to autonomy, to “the range of choice you have in leading your life” (p.237). He presents the “thesis” of self-ownership (which he distinguishes from the “concept” of self-ownership) [5] as providing an answer to the question of who should control “persons and their powers” (capacities). The answer is that those persons themselves should do so (p.210).

Interpreted in this fashion self-ownership is obviously attractive. Who does not want a significant say in their own life, to be able to pursue their own goals, to have freedom from interference, and control over their actions? Interpreted blandly enough, “self-ownership” appears uncontroversial and as synonymous with autonomy. The problem is that the concept then has little or no theoretical purchase; it becomes “so indeterminate that anything or nothing follows from it” (Barry, 1996, p.28). Significantly, neither Cohen (to whom I shall turn shortly) nor Ingram works with such an interpretation of self-ownership. Ingram sees self-ownership in libertarian terms, so that an individual is “the morally rightful owner of her person and powers” (p.17). She owns “all of herself and no part of anyone else” (p.5), and is “an absolute sovereign with respect to the dominion of her own person” (p.34). It seems that Ingram could easily use the language of property in the person.

The oddity of the consensus about the terminology of self-ownership can be seen if Locke, often mentioned in connection with self-ownership, is considered. Locke provides the locus classicus of the concept of property in the person. In a very well-known, often quoted, brief passage, Locke (1988, II, §27) states that “every Man has a Property in his own Person. This no Body has any Right to but himself”. The most natural language, following Locke, is that of “property in the person” rather than a translation into “self-ownership”. Now it might be objected that there is no reason for Locke’s words to be reproduced literally. Little or nothing hinges on the terminology. My argument is precisely that there is something important at stake in the choice of terminology when interpretations and discussions of “self-ownership” obscure the political implications of “ownership”.

The passage from Locke continues as follows: “the Labour of his Body, and the Work of his Hands, we may say, are properly his”. There has been a great deal of argument over the years about these words, particularly in two debates. First, there is a long-standing controversy about the acquisition of private property through the mixing of labor with the earth or other materials. Recent discussions of self-ownership, particularly Cohen’s arguments about world ownership, have contributed to this debate. Second, a tradition of moral argument has maintained that an injustice is committed if workers are not rewarded for the whole of the fruits of their labor. The arguments about exploitation and self-ownership, and over self-ownership and libertarianism, fall within this second debate.

These familiar arguments typically overlook that Locke is making a political claim and so miss two crucial points. First, Locke establishes political standing and rights for the person who owns the property. Only the owner has the right to dispose of his property, for instance, to alienate all or part of it. Libertarianism relies very heavily on this political point, but this is not sufficiently acknowledged in discussions of self-ownership. Libertarians argue that if the owner voluntarily contracts for part of the property in his person, say, his labor power, to be used on behalf of another over a certain period for agreed recompense, there is no question of injustice. The owner’s labor, the work of his hands, is his to do with as he will, either to use for himself, or to put at the disposal of another.

Second, an owner temporarily relinquishes ownership when he alienates part of the property in his person. Thus he has no right to a claim on anything that may be produced through its use by another. This is illustrated by another of Locke’s famous passages: “the Grass my Horse has bit; the Turfs my Servant has cut;. . . become my Property, . . . The labour that was mine, . . . hath fixed my Property in them (1988, II, § 28). The servant has labored but the labor and the turf is the master’s, not the servant’s. David Ellerman (1992, pp.51-54) offers a crucial insight here. Locke is commonly read as referring to labor that has been performed (cutting the turf), and then it becomes a contentious matter why the labor is treated as if the master and not the servant was at work, and why the master owns the product (the turf). But, as Ellerman argues, Locke is talking about labor that is owned, not performed. The master has contracted for use of a piece of property in the person (the servant’s labor power which has been temporarily alienated), and, therefore, the master (temporarily) owns the property, can put it to use as he desires, and owns the product. [6]

Cohen’s interpretation of “self-ownership” illustrates why these implications of ownership are overlooked in current debates about the concept. At first sight, Cohen’s interpretation follows the logic of libertarianism, since the ownership enjoyed is exclusive, and gives absolute control to the owner. He uses the figure of the slave-owner to show what is involved.

Each person possesses over himself, as a matter of moral right, all those rights that a slaveholder has over a complete chattel slave as a matter of legal right, and he is entitled, morally speaking, to dispose over himself in the way such a slaveholder is entitled, legally speaking, to dispose over his slave (p.68).

However, in a footnote, Cohen states that if “ownership requires separability of what owns from what is owned, then self-ownership is impossible” (p.69, note 4). His interpretation of the “self” invoked by the thesis of self-ownership is that the term is reflexive; the “self” signifies that “what owns and what is owned are one and the same, namely, the whole person” (p.69). Thus to say that “A enjoys self-ownership is just to say that A owns A”. There is no “deeply inner thing” that is owned (p.211). If “self-ownership” refers to a whole person in the sense that there is no distinction between the owner and his property, so that what is owned cannot be separated from the owner, it follows that the property cannot be alienated.

My understanding of property in the person entails nothing about the existence of a deeply inner thing. Rather, the “person” is “owner-occupied” - to use Steiner’s (1994, p.232) evocative phrase - and is seen as a bundle of property, one part of which makes judgments about the disposition of the rest, but the part that makes the judgements is no deeper and has a status no different from the rest. My analysis of property in the person in The Sexual Contract traced some of the implications of the logic of contractarianism (libertarianism). As an owner of property in the person, an individual stands in exactly the same relation to that property - to capacities, powers, abilities, talents, labor power, bodily parts, etc. - as to material property. The owner makes the same kinds of decisions about all forms of property. Only the owner can make these judgments and there can be no restrictions on his right of decision making. The individual’s right of disposition over himself is unlimited and all property is alienable. If it is advantageous to sell, exchange, or rent out, any part of the property owned in the person, then the owner would be rational to do so. Property in the person can be contracted out for use by another without any detriment to the owner; indeed, the owner necessarily benefits from such a transaction.

Why might Cohen claim that my interpretation of property in the person is “impossible”? There are two senses in which this could be the case.

First, Cohen may mean that property in the person is “impossible” in the sense of being an incoherent or nonsensical concept. My interpretation might appear strange at first sight, but there is nothing incoherent or nonsensical about it. If that were the case, then major institutions, such as employment, could not have developed, and nor could the idea be frequently (if sometimes implicitly) appealed to in popular controversies about, for example, sale of bodily organs, or what is called surrogate motherhood (on the latter see Pateman, 1988, pp.209-18).

Second, Cohen may be referring to anthropological accuracy. If so, then, in one sense, I fully agree with him. The owner cannot be separated from some crucial pieces of property in the person. For this reason I have argued that property in the person is a political fiction.

“Property in the person” includes two major categories of property, one alienable and one inalienable from the owner. Technological advances mean that many more bits of property can now be separated from their owners than used to be the case. Sperm, for example, has always been separable, but now kidneys and other organs are alienable (and an underground market has developed for them), and, in the case of some indigenous peoples and individuals, genetic material has been separated and patented by others. The major questions about these practices concern the social desirability and consequences of seeing bodily parts and material as alienable commodities, instituting markets for their sale, and allowing them to be patented. However, this is not the property in which I am interested either here or in The Sexual Contract.

The second category of property in the person is “impossible” because an individual’s powers, capacities, abilities, skills, and talents are inseparable from their “owner”. But the fiction of separability is maintained and property in the person is treated as if it were alienable, and so can become the subject of contract and marketed as “services”. As I emphasized in The Sexual Contract, contracts involving this category - the political fiction - of property in the person create relationships (such as that between worker and employer, or wife and husband, for example). The significant aspect of contracts that constitute such relationships is not an exchange, but the alienation of a particular piece of property in the person; namely, the right of self-government [7] . When “rights” are seen in proprietary terms they can be alienated, but in a democracy the right of self-government is only partially alienable.

Self-ownership, Contract, and Alienable Rights

Cohen became preoccupied with Nozick’s argument when he saw that libertarians and Marxists were both committed to the idea of self-ownership. Marxists rely on the idea of self-ownership to attack the exploitation of workers, and libertarians rely on it to reject the redistributive taxation required for the welfare state.

Cohen argues that the “crucial right” entailed by the idea of self-ownership is the right not to be forced to provide a service, or product, to anyone else (p.215). Marxists claim that workers are exploited because capitalists steal from workers. Capitalists pay the market price for use of the workers’ labor power, the worker then produces commodities of much greater value than the wages received, and the product, and hence the value, is appropriated (stolen) by the capitalist. The parallel libertarian claim is that individuals are compelled without their agreement to hand over to the state part of what they have earned by use of their labor power or capacities. The stolen product is then redistributed to others who have no valid claim to receive it. In both cases, the crucial right of individuals is violated.

The problem with Cohen’s argument is that the right not to be forced to provide a service or product is derivative of the right to alienate property in the person at will. Only if a piece of property in the person has been contracted out voluntarily for use by another can a valid claim be made to that “service” or the product that results. For libertarians, legitimate relationships are always and only generated through contract.

Cohen devotes a good deal of attention to Nozick’s claim that to have a non-contractual obligation to serve another is tantamount to slavery. As he shows, such a claim does not stand up to close scrutiny. Yet Cohen remains puzzled why Nozick endorses a contract to become a slave, while rejecting non-contractual obligations that fall far short of this complete abrogation of freedom. Cohen then puts the puzzle to one side by making a very odd move. He denies that self-ownership is basic to libertarianism. According to Cohen, “the libertarian bottom line in political philosophy is not, indeed, that we are self-owners but that the state has no right to impose or enforce non-contractual obligations on us” (p.233). [8]

Cohen’s interpretation of “self-ownership” renders what is owned inalienable, and so he attributes his own bottom line to libertarians and finds Nozick’s position perplexing. The importance of contract for libertarians, and their worries about non-contractual obligations, now seems mysterious and arbitrary. Moreover, it means that there is no good reason for my own choice in The Sexual Contract of “contractarianism” as a label for the same doctrine. Cohen’s attention is thus diverted from the meaning of “slavery” in contractarian argument. Nor does Ingram consider this. She points out that full self-ownership is necessary for libertarians “to rebut slavery, serfdom, and exploitation”, yet full self-ownership “embraces the most important claim of slavery: that people can be the objects of private property rules” (p.38). Libertarians oppose only involuntary slavery, which illustrates that “the case for self-ownership is grossly oversold”. But instead of exploring what is endorsed by the logic of libertarianism, she argues that an alternative to the libertarian view of self-ownership must “start from an established settlement on issues such as slavery and forced labour” (p.88). Since slavery is not a “clear and present danger” in constitutional democracies it can be left aside (p.39). [9]

The logic of contractarianism rules out real, coerced slavery. Rather, what is at issue is voluntary, contractual “slavery” in the form of an employment contract that lasts for a life-time (see Philmore 1982 [Ellerman 1995]) [10] . If wage labor is to stand at the opposite pole from (real) slavery, and be set apart from other unfree labor, the following argument is required, an argument that rests on the (contractarian) idea of property in the person.

A wage laborer is an owner who voluntarily enters into a contract to alienate part of the property in his person (his services or labor power) for use by an employer for a specified period, during specified hours, in a specified place (the “workplace”). The owner of the property has the right to decide whether or not the property will be available, and whether or not the terms of the contract are acceptable. A worker’s decision to enter into a contract to rent out labor power for use by another in exchange for remuneration can thus be seen as an exercise of autonomy, as an example of freedom in action. But why should the duration of the contract be limited? Contractarians argue that any limitation on the right of an owner to alienate the property in his person is unwarranted, an illegitimate curtailment of autonomy. The prohibition of life-time employment contracts is unjustified. Thus contractarians justify “slavery”, or what I called civil slavery in The Sexual Contract.

Cohen’s interpretation of self-ownership and his “bottom line” fail to capture the logic of libertarianism, and thus have no intrinsic connection to his critical target – and nor to the institution of employment, wage labor or the traffic in labor power (to use Stanley’s (1996) apt phrase). But Cohen’s is not the only analysis of self-ownership to uncouple the concept from wage labor. James Tully (1993) arrives at a similar position in his reassessment of C. B. Macpherson’s (1962) The Political Theory of Possessive Individualism.

Macpherson’s famous argument about possessive individualism, Tully (1993, p.72) writes, “is one of the most challenging and successful hypotheses to be advanced in the history of European political thought over the last thirty years”. [11] Tully translates Macpherson’s own terminology of property in the person into self-ownership. (My understanding of property in the person was influenced by Macpherson’s work). For Macpherson (1962, p.3), “possessive individualism” means that the individual is proprietor of “his own person and capacities”, and, for that reason, is free. A vital assumption of Macpherson’s (1962, p.264) argument is that the individual “cannot alienate the whole of his property in his own person, [but] he may alienate his capacity to labour”.

Macpherson (1973, p.199) argued that possessive individualism “was the predominant assumption of English political thinking from Locke until, say, James Mill. This was the period . . . when the whole society was recast in market relations”. In light of more recent scholarship, Tully takes issue with Macpherson’s thesis on two main grounds. First, he questions Macpherson’s claim that the conceptual basis for a “market society” had appeared by the seventeenth century. A necessary component of a market society - the idea of an independent “economy”, in which “work is allocated in accordance with the law of supply and demand”, instead of by government - became dominant only in the eighteenth century (Tully, 1993, p.93). Locke’s theories were couched in different terms from arguments about the virtues and vices of commercial society of eighteenth century political economists. Nothing in my own argument depends on Macpherson’s reading of Locke. What is important is that the existence of a capitalist “economy” becomes a widely accepted “fact”, and that the institution of employment is central to this economy. [12]

Second, Tully argues that Macpherson was mistaken in claiming that possessive individualism was primarily of economic significance. Tully (1993, p.84) states that “the conceptual scheme was first developed to explain political power and state formation and then, from Smith to Marx, transferred to labour power”. Macpherson took the application to labor power for granted and read it back into Locke. But, as I have already emphasized, Locke makes a political claim about ownership, about the standing and rights of individuals (owners) that follows from the idea of property in the person – and idea and a claim required for the justification of the traffic in labor power.

Tully points out that the historical antecedents of Locke’s famous formulation go back a long way. He refers, for example, to Roman ideas of mastery of oneself, or self-proprietorship, that signified that a man was not a slave, subject to the will of a master. Nederman (1996) argues that a turning point for ideas about self-ownership occurred in the thirteenth century with the erosion of a legal distinction between usufruct and limited rights to property, and the more complete rights of dominium or “lordship”. Men began to be seen as having a right to property as individuals, irrespective of their circumstances, and a right to decide what they would do with their own. In late medieval argument, he suggests, it is possible to discern ideas about consent and resistance to kings and governments who violate their subjects’ rights that anticipate later arguments. But Nederman (1996, p.344) concedes that it was not until theories of consent in the seventeenth century that the “full flowering” of the earlier “conceptual transformation” took place.

Such full flowering, however, required a particular conception of property and self-proprietorship. As has often been pointed out, Locke, like other theorists in the seventeenth and eighteenth centuries (Ingram refers to Madison, for example) understood “property” in a very broad sense. Lives and liberties, as well as estates and other material goods, were seen as property. Hence the idea of property in the person, including capacities, powers, and rights, followed easily. But what is the political implication of this idea? Tully (1993, p.81) points out that the idea of self-ownership - interpreted as “exercising some form of jurisdiction over the self free from the control of others” - has been turned to a number of different political purposes depending on the conception of rights that is adopted. The vital point here is whether rights are seen as alienable, or inalienable, or as some mixture of the two.

Tully distinguishes two political paths from the idea of self-ownership. The first path, when all rights are alienable, leads to dominium, or absolutism. If a man owns himself he has the right to do as he wills with his own. He can thus legitimately yield up his right of ownership in its totality, for example, to an absolute monarch or a slave master. The outcome in these examples is not democratic, but it is voluntarily created. To make this argument in my language of property in the person, all pieces of property, including the piece that makes determinations about the disposition of property, can be alienated - libertarianism follows this direction.

Tully calls the second path delegation, but I shall label it constitutionalism. To follow the constitutional direction some rights have to be seen as inalienable and others as alienable. Or, to put this in terms of my own argument, only some pieces of property in the person are available to be the subject of contract. The right of self-preservation, for instance, is held by a number of famous theorists to be inalienable. Van Parijs (1995, p.234, note 4), presents a libertarian argument, but nonetheless takes it for granted that some rights are not alienable. Thus he argues that self-ownership “must be defined in such a way that it does not allow people to sell themselves into slavery”. Self-ownership in a free society will thus fall short of the rights that, as he sees it, make up “standard ownership”. The constitutional path must be taken to justify employment and wage labor, and Macpherson’s conception of possessive individualism moves along this path. As indicated in my earlier quotation, he assumes that there are limits to alienation of property in the person, but that the capacity to labor can be alienated. The constitutional view entails that complete alienation, and thus voluntary entry into slavery or absolute monarchy, is blocked. The way is then open for arguments about consent to government and limits on governmental power. This path leads to democracy in the polity but not in the economy.

There is also third alternative, not mentioned by Tully; all rights can be seen as inalienable. I shall return to this possibility later when I examine Ingram’s arguments about self-ownership.

Tully (1993, p.88) argues that when capitalists became controllers of the production process they “inherited the concept of the worker as a repository of abilities”. This was the view of mercantilist theorists in the seventeenth century, who saw the laborer as a “mere repository of productive capacities”, or a “utilizable self”. The same view can also be found in Locke’s plan for workhouses (1993, p.86). The individual is held to be a repository of capacities that can be directed, trained, and used to perform repetitive operations. [13] Tully argues that the repository view entails that the individual has no proprietorship over capacities. Macpherson was mistaken about property in the person and capitalism. Tully (1993, pp.88-9) argues that the

labourer in the capitalist wage contract must totally alienate the rights he has over his capacities in the workplace. Therefore, the wage-relationship under capitalism must consist in the junction of the ‘alienation’ conception of rights associated with absolutism and slavery, . . . and the conception of the labourer as a repository of capacities.

In the Lockean “non-absolutist tradition”, according to Tully (1993, p.89), the laborer cannot alienate “sovereignty over his abilities”. Rather, the worker “sells a complete ‘service’ to a master, as in the pre-capitalist putting-out system”. Thus this tradition, in which the individual is “proprietor and master of his own labour”, is “incompatible with wage labour under capitalism”.

The problem is that Tully’s argument misunderstands of the institution of employment. Wage labor stands firmly in the constitutional path. Unless both limited alienation and individual sovereignty over capacities are presupposed, employment would be merely another example of unfree labor. If total alienation took place, wage labor would be no different from the labor of a slave or of a domestic servant on call for twenty four hours. Both are at the bidding of a master at all times - but there are no masters in the old sense in employment.

A capitalist economy and the institution of employment require the practice of contract. In turn, contract presupposes juridical equality and rights, and the idea of property in the person. By arguing that self-ownership is not the bottom line for libertarians, Cohen misunderstands the place of contract in libertarian arguments about freedom. By arguing that self-ownership is incompatible with wage labor, Tully misunderstands the importance of contract for the institution of employment.

Self-Ownership, Wage Labor, and Subordination

If a capitalist bought a complete service from a worker who alienated all of his rights over his capacities, wage labor could not be defended as free labor and the wage laborer could not stand at the opposite pole from the slave. However, the justification of employment that I presented above rests on a political fiction, the fiction that capacities can be treated as separable from the person.

A worker cannot send along capacities or services by themselves to an employer. The worker has to be present in the workplace if the capacities are to be “employed”, to be put to use. A disembodied piece of property is not what is required. The employer must also have access to the knowledge, skills, and experience, of the worker if the capacities are to be used as the employer desires. In short, employers hire persons, not a piece of property. Capitalists become controllers of the production process and gain the right to direct, regulate, and train, the “repository” of capacities hired. The wage laborer does not decide how the property contracted out is to be used. When workers enter an employment contract they agree that the employer should direct them in the use of their capacities. Thus employers become masters and workers become subordinates but in a new – constitutional - sense. Unlike the relationship between lord and serf, master and slave, or master and servant, a distinctively modern form of subordination is created through (the employment) contract. Employment is constituted through a voluntary contract between juridical equals and self-governing owners. Yet the consequence of contracting out part of property in the person is that a diminution of autonomy or self-government occurs. I called this curtailment of freedom civil subordination in The Sexual Contract.

Recent discussions of self-ownership focus on exploitation not subordination, notwithstanding the interpretation of self-ownership as a way of talking about autonomy. No attention is paid to the connection between relations of civil subordination and problems about autonomy and democratization. In part, the neglect arises from the turn away from politics to moral philosophy and the preoccupation with justice. Employment is not seen as a problem, and so wage labor appears in the debates as a question of exploitation (theft of labor time, or value); that is, as a market exchange that raises a moral problem of injustice. Another reason for the silence about subordination is that an ahistorical conception of political theory erases a long tradition of suspicion and criticism of employment. It is not easy today, when labor markets and employment are seen as central to democratization, to remember that employment has not always been seen as involving free labor.

Throughout most of the nineteenth century in the United States wage labor was controversial. An autonomous individual was understood to be independent; that is, neither dependent on another for subsistence, nor subject to the will of a master. Wage labor was widely seen as restricting or denying autonomy. A laborer was directed by an employer in his work, and depended solely on wages for his livelihood. The view that employment was free labor because it involved voluntary entry into a contract became predominant only from the 1890s onward (and the courts began to enforce “freedom of contract”). The widespread view earlier in the century was that wage labor was, at best, a temporary condition on the way to a man becoming his own master. Employment was seen to be too close for comfort to the denial of freedom and total subordination of slavery (on these matters see Sandel, 1996; and Shklar, 1991).

In the twentieth century, some critics of wage labor were concerned with its effects on the character and capacities of workers. They argued that subordination fostered servility and stunted capacities, thus creating individuals who were not fitted for free citizenship. Theorists of different political allegiances highlighted the problem (though they disagreed about the solution). Hayek (1960, p.119), for example, a champion of free markets and minimal government, writes that the employed are “in many respects alien and often inimical to much that constitutes the driving force of a free society”, and their dependence fosters an “outlook” incompatible with freedom. G. D. H. Cole, a guild socialist, whom I discussed many years ago in Participation and Democratic Theory, argued for the democratization of workplaces in order to develop the individual attributes required for active citizenship.

These criticisms suffered from a serious limitation. Hayek (1960, p.6) remarked that we cannot “fully appreciate the value of freedom until we know how a society of free men as a whole differs from one in which unfreedom prevails”. The presence of free men was sufficient. Attacks on the subordination of male wage laborers typically rested on acceptance of subordination and servility in marriage. The employment contract developed in tandem with the marriage contract, and the subordination of wives was presupposed by the institution of employment (see Pateman, 1998, ch.5). [14]

I have been referring to the owner as “he”, since this is historically accurate. Independence, along with personhood and self-ownership, were masculine attributes, and the “owner” was not quite what he seems in current debates over self-ownership. The man who was a husband and… full essay