9.4.4 |
THE EXCLUSIVITY AND INCLUSIVITY
OF EXTRINSIC PROPERTY |
As noted before —in
9.1.3— property is an active,
discretionary right if, or insofar as, it is
extrinsic.
Hence, it is the right to use or not to use a thing, and the right to
exclude or not to exclude people who are not co-owners from this thing;
or to include or not to include them.
For example, every person has a property right in
'er own body. This means that
'e can refuse everyone else's use of
'er body, or of parts thereof, so long as 'e lives, regardless of the law
of the land.
But the right is discretionary: 'e does not have to refuse such use.
'E —should sex or gender be relevant in the context concerned,
she or he— may allow others to touch
'im —her or him—; 'e may
even invite them to touch 'im.
'E may allow others to remove one of 'er organs for a transplantation;
'e may even offer such an organ for transplantation without being asked
to do so.
This is the 'exclusivity' of the extrinsic property right in one's body,
namely that one may exclude everyone from one's bodily sphere;
and this is the 'inclusivity' of this same right, namely that one may
include anyone into one's bodily sphere.
What applies to the bodies of people, applies to all things
of which a person is the sole owner. Thus, if someone has the
extrinsic right in a small piece of land, 'e can refuse entry to
anyone, but 'e can also admit anyone 'e likes. This, again, is
both the 'exclusivity' and 'inclusivity' of the discretionary
property right. It shows why the constellation of extrinsic
property rights and duties is a mere institutional skeleton
still waiting to be fleshed up with genuine moral content.
From the purely
metadoctrinal standpoint one may
refuse to help a drowning person only because one does not want to have
one's body used by that person; one may allow another person to be very
intimate even
tho one knows, and
does not tell, that one has a contageous disease; one may send away
hungry people who ask for a little bit of food, even tho one has plenty
of cultivated vegetables and fruits; and one may share one's property
with a person who lies all the time, and who spreads the most appalling
prejudices.
All these things can only be rejected on
doctrinal grounds.
Yet, we must not say that the metadoctrinal foundation is insufficient
and should be replaced by a doctrinal system, because then we would
infringe upon everyone's
right to personhood.
This infringement would itself be immoral.
What we need is a doctrine to provide the substantive
normative content.
People should, then, choose this doctrine as theirs and act accordingly,
but no-one has the right to force them to choose this doctrine, just as
no-one has the right to force them to satisfy the requirements of
another doctrine, or of a different ideology.
As we have seen, the metadoctrinal principle underlying the
right to personhood is a past-regarding one, and not a nontemporal
end-state principle. This means that it can give rise to gross
inequalities at one particular moment in time (something that
is not possible when equality itself is the or an end-state
strived for on the basis of a consequentialistic principle.) The
reason is that on a past-regarding principle past actions of
people may create differences in rights to things, for example,
when people give things away, when they produce valuable things
or when they inherit person-made things.
To force a certain exclusively future-regarding distributional pattern
upon people would require a continuous interference with their lives,
and would violate their rights to personhood (provided that they do
not interfere with other people, for example, by denying them their
equal share in the natural resources).
It has been argued that any favored pattern will degenerate
into an unfavored one by people freely choosing how to use some
of the resources allocated to them, unless such acts between
consenting people are bluntly forbidden, something that violates
their rights again. The flaw in this argument is not
that such a situation can degenerate, but that it would have
to.
People do not derive their extrinsic rights from being mere users of
resources; they derive these rights from having their own moral
convictions, from choosing and having chosen their own normative
doctrines or ideologies.
In the same way as they are free to opt for money or for a doctrine of
infinite capital accumulation, they are free to join egalitarian
communities, or voluntary associations united in solidarity of moral
purpose. From the metadoctrinal standpoint people may be free to
spoil others, they are also free to commence the task of morally
reeducating others, so long as it is on a voluntary basis. The
liberty of choosing may be a prerequisite for being a moral
agent, the choice of solidarity or equality is, then,
a prerequisite for being moral.
Equality (both present- and non-present-regarding) is merely one aspect
of an adequate normative doctrine. Another important
aspect is, whether people who have the extrinsic property right
to exclude or include others, do also have the intrinsic right
to exclude others from their property, or to include them; and
more importantly, whether they have such a right in general.
When dealing with this question we will have to distinguish
exclusion and exclusivity in an indifferent,
goal-independent sense, from the same terms used to refer to some
kind of irrelevant exclusion or exclusivity, just as we had to
differentiate two meanings of discrimination (namely making a
distinction and making an irrelevant distinction).
We possess the tools to start doing this.
