Blog Notes

Note added on 4/5: Readers who want the short version can skip down to where it says “Edited to Add”.

I’m somewhat hesitant to post this, since I believe my regular readers will find it all to be entirely obvious and hence entirely unnecessary. But we’ve had more than the usual number of non-regular readers here the past few days, largely in response to my post on psychic harm, and more than a few of them have made the mistake of plunging into a conversation they didn’t understand (often, apparently, without even reading the post they were responding to). Per my usual policy in long threads, I’ve deleted comments that failed to advance the discussion, either because they were off topic or did no more than repeat things that had already been said. In most, but not all, such cases, I drop short notes to the commenters, explaining why their posts were deleted and inviting them to come back with something more germane. Often (and this week has been no exception), I get notes back from these people saying they’ve learned something, which is gratifying enough that I keep on sending those explanatory notes. (If your post was deleted and you didn’t get a note, you probably just had the bad luck to post at a time when I was unusually busy or distracted.) But since certain points come up repeatedly, it might be more efficient to mention them here.

1. This was not a post about censorship, or about the environment, or about rape. It was a post about where to draw lines between purely psychic harm that should receive policy weight and purely psychic harm that shouldn’t. This is an issue I raise from time to time, because I find it both perplexing and important. And it interacts with lot of other standard issues in public policy in ways that make it impossible (for those of us who care about such things) to ignore.

2. The post was laden with unrealistic hypotheticals. That’s the only way I know of to approach these questions. Take rape, for example. Rape frequently has ghastly physical and psychological consequences for the victim. We all know that, which is precisely why it’s important (in this kind of discussion) to assume those consequences away. The whole point is to focus on the stuff we’re not sure of, such as: Should my distress over someone else‘s rape receive policy weight? To focus on that question, it helps to imagine a scenario where that’s the only distress. In other words, we assume away all the usual harm to the victim precisely because we’re already know that this harm is dreadful and merits policy weight. To focus on examples where the victim sustains damage would be to say, in effect, that we’re not sure how to feel about that damage. (Otherwise, why investigate those examples?)

Or to put this yet another way: In this business, the way one acknowledges that an issue is settled is to assume it away. It is settled that damage to rape victims is real, great, important, and deserves the attention of the law. Thus we assume it away.

Edited to add: Two extremely thoughtful commenters have pointed out that the first post dealt both with psychic harm to the victim and with psychic harm to the general public, and that these are two different issues. Indeed they are, but both are difficult in the same way, and both of them are clarified by hypothetical examples.

3. If you think it’s obvious that my distress over someone else’s rape should receive policy weight, you’ve got to explain why my distress over someone else’s Sabbath violation should not (or allow that it should). To people who haven’t confronted these questions before, it might seem like there’s some sort of obvious bright line between the two. To people who have thought hard about these questions, it’s pretty clear that drawing that line is a lot harder than it looks. (And again — this has nothing to do with the question of whether rape is horrible for the victim.)

4. The use of hypotheticals as attention-focusers is not unique to economics or to policy analysis. Physicists, for example, frequently assume away friction in order to focus on other forces they’re more interested in. That doesn’t mean that physicists deny the reality of friction. Imagine being a physicist who writes a paper about frictionless billiard tables and then gets a flurry of email beginning “You insensitive lout! My father lost an arm and a leg to friction in an industrial accident. And you dare to just dismiss that experience?” That’s how I’ve felt from time to time over the past couple of days.

5. I’m struck by the number of commenters who thought it was some sort of contribution to say “What if you were the victim?” First of all, I’d think it should be obvious that, for the kind of analysis we’re doing, it doesn’t make a bit of difference who the victim is. Second, as it happens, in this particular case I did (for no particular reason) start off by assuming I was the victim. This makes me suspicious that maybe some of these people did not read the post too carefully.

6. Occasionally I post about topics I’m passionate about, and I’m glad when those posts get a lot of attention. This was not one of those occasions. This post was more idle noodling than anything else, with no good arguments and no conclusions; the whole point is that I can’t seem to figure out what the good arguments are on this subject, and I was hoping for a little help from my readers. In particular, I have no horse in this race. I don’t know the right answers, and that was the point of the post. I was struck by the number of new commenters who thought they were disagreeing with me. But since I’d done nothing more than raise questions without answers, there was nothing to disagree with. Really; if you want to read provocative arguments with actual conclusions, go back through the archives.

7. A few posters have asked if there’s anything I regret saying in this post. Of course there is. There are things I regret about every blog post I’ve ever made. These things are dashed off pretty quickly, not pored over for months the way a journal article might be. They’re meant as fodder for thought, and sometimes they work better than other times. This particular post seems to me to be a somewhat subpar effort, primarily because it consists only of questions with no useful answers. And of course there are parts where the wording could have been better or clearer, but again, that’s always the case.

8. I care about abstract policy analysis using contrived hypotheticals to focus attention on difficult issues. So do many of my readers. I also care about the foundations of mathematics, the fabric of the universe, applied price theory, American musical theater and high modern poetry. Those are some of the topics that are likely to arise on this blog. If any of them suit your fancy, I hope you’ll pull up a chair and join us. If they’re not to your taste, there are lots of other things to read on the Internet.

PS As always with long posts, when you comment, it will be helpful to other readers if you mention which numbered point you’re responding to.

_________________________________________________________________________________

Edited to add: Perhaps the above was too long-winded for some. Here is the point in a nutshell:

We’re looking for a rule about what should be legal.

First Attempt: You can do anything you want as long as you’re not hurting anybody. This doesn’t work very well, because anything you do is liable to hurt someone. You can enrage, sadden and depress people by driving on the Sabbath, reading Karl Marx or loving someone of the same gender. Those are all forms of harm, but most of us believe they’re the sort of harms that the law should ignore. So “as long as you’re not hurting anybody” is the wrong way to put this.

Second Attempt: You can do anything you want as long as you’re not causing anybody direct physical harm. This allows you violate the Sabbath and read Marx, but it would also allow you to rape an unconscious victim if there were no physical consequences. That seems grotesque, so this rule seems wrong too.

Therefore the second attempt fails, and we’re left flailing around looking for a better rule.

The reason rape gets mentioned here is because rape is particularly bad, so we can be quite sure we don’t want to adopt a rule that might allow it, even in the extreme hypothetical case with no physical damage. In other words, it’s mentioned because it’s horrible.

The whole point here is that the second attempt seems to allow rape. Some readers might have thought that was an argument for rape. It wasn’t; it was an argument against the second attempt.

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117 Responses to “Blog Notes”


  1. 1 1 AMTbuff

    “The post was laden with unrealistic hypotheticals. That’s the only way I know of to approach these questions. Take rape, for example.”

    That was a bad choice of hypothetical. A highly emotional or highly political hypothetical distracts non-Vulcan readers and impairs their logical reasoning abilities.

    Live long and prosper. \\//

  2. 2 2 Max

    Entirely obvious to some, perhaps, but I think the reaction generated demonstrates that clarifying these points was indeed necessary. A sad commentary on the intellectual abilities of those who found themselves confused, perhaps, but one deals with the world as one finds it.

  3. 3 3 Crip Dyke

    Look, you did a really crappy job at the work you’re supposed to be good at. The hypothetical as originally outlined couldn’t decide if it was supposed to be the psychic distress of the victim or of a bystander – read it again if you don’t believe me.

    Later, in your “thoughts” you make it plain that you are contemplating that it is the psychic costs to the victim that are at play here, and are unsure if these are sufficient to justify making law against rape. Read those thoughts again if you don’t believe me:
    As long as I’m safely unconsious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits? And if the thought of those benefits makes me shudder, why should my shuddering be accorded any more public policy weight than Bob’s or Granola’s?
    ==================
    Note that “I am safely unconscious…” “if the thought of those benefits makes ME shudder, why should MY shuddering…”

    Finally, after making it clear you’re talking about the victim’s distress, you assert that you can’t make a distinction between 1, 2, & 3. This is made as a general statement AND a statement specific to the property rights argument.

    I’ll remind you of that here:
    in each case, there is a disputed property right — a dispute over who controls my computer, a dispute over who controls the wilderness, a dispute about who controls my body. To appeal to a “respect for property rights” solves nothing, since in each case the entire dispute is about what the property rights should be in the first place.
    =========

    If this is the victim’s distress, then it is the victim’s right to control his body that is at issue here.

    in example #1, any psychic harm comes from McCrankypants’ voluntary ruminations. The computer is owned by me, but McCrankypants is asserting a contested property right sufficient to prevent my use in such a way as his voluntary contemplation of my use causes him no distress.

    In example #2, any psychic harm comes from McMustardseed’s voluntary ruminations. The land is owned in common by the people, and thus is partially McMustardseed’s, but only in the sense that the government holds it in trust for all people in her society. it does not belong to her specifically. She has no individual rights to determine use. Her psychic harm comes from her voluntary contemplation of an oil company’s authorized use.

    In example #3, any psychic harm comes from the victim’s (in your example you were non-specific as to who it was, your clarification in “thoughts C” was that it was you) rumination – which, while a hypothetical could stipulate was voluntary, yours did not, and it was unreasonable to assume that given the lack of a distinction your readers would not bring in obvious life experience which includes the fact that after being made aware of such an event involuntary rumination is likely [indeed almost certain] to occur – of the victim’s body owned entirely by the victim.

    The 3 property rights are thus very, very different. Outrage naturally ensued because you could not as an author of the hypotheticals keep straight that you had changed though your “thoughts C” your hypothetical 3 from a focus on the distress of an ambiguous person, possibly a bystander, to a focus on the distress of the person actually violated.

    You want to say that you assumed away the distress of the victim b/c we all know what we think about that. But that’s not what happened: you specifically made the distress of the victim the issue by your “thoughts C” extension.

    Further, you reduced my interest in my own body (I wouldn’t actually call it a “property” right) to be the equivalent to McCrankypants’ interest in the computer of someone McCrankypants has never met in a town McCrankypants may not know exists.

    You did that b/c you had clearly made the victim the focus of your hypothetical, and then compared the interests of the victim, the porn user, and the corporation.

    The outrage was genuine and well reasoned. They could have assumed that you were not competent to write your own hypothetical with care. Instead, they assumed that you were competent, but that your views were abhorrent.

    Is it less kind to you to assume that as a professor you can’t keep your own hypotheticals straight, and thus wouldn’t be able to judge whether or not your students are succeeding or failing at making coherent arguments when this is your chosen calling and profession? or to assume that you as a person have very little empathy for victims of rape?

    More to the point, is it more common in our society for rape victims to encounter persons with little empathy or students to encounter professors of little competence.

    I think that there’s no question that few people are going to make that distinction based on sound scientific research: they are going to make a decision as to which is more likely based on personal experience. Thus some persons thought, “oh, #3 clearly isn’t anything remotely parallel to #1 or 2, therefore Landsburg has clearly made an error that he seems to be unable to notice, even when there’s lots of evidence that people are reading him as he does not intend”.

    Other persons thought, “oh, yet another jerk who could care less about whether a rape victim is actually in the room when that jerk wants to use rape victims’ experiences to have an entertainingly intellectual discussion that conveniently pretends that those experiences, while useful in a hypothetical, have no human import”.

    You may not like that people thought the latter about you. I think it says more about society than about you that confronted with the choice necessitated by your mistake that they – hell, I – thought the latter.

    Nonetheless, it’s your writing that necessitated that. It would be quite easy to construct a hypothetical that assumes the suffering of the victim while negating its importance in answering a particular question of the kind detailed in #1 & #2.

    To wit:
    Someone is raped. Horrible consequences ensue. Fortunately, the perpetrator is caught and convicted. You do not know the victim or the perpetrator, but read about it in the paper and decide to attend the sentencing hearing. Taking into account the totality of the victim’s suffering and many other factors, the court is ready to pronounce of sentence of x months – say 100 – and a fine of $x -say $25000. You feel great distress having heard of this rape through the paper and ask for, and are granted, an opportunity to address the court at the last moment. Should your distress be recognized through an increase in the fine and or the sentencing?
    =============

    See, this gets much closer to the issue you wanted to explore without running a risk of assuming the suffering of rape victims to be irrelevant.

    I think it’s great that you take it as a given that what happens to rape victims is horrible and that for the sake of rape victims, rape should be discouraged with the coercion of government policy.

    What I don’t think is great is that you seem to be aware of Steubenville and yet unaware that there were many bystanders who thought nothing of what happened to the victim, who didn’t think it was worth preventing, who saw it as a source of amusement, who did not take it as a given that what happens to rape victims is horrible and that for the sake of rape victims the rapists should face the sanctions typically brought to bear by applying govenrment policy.

    There were Freuding death threats towards the victim from people who thought the punishment was undeserved. There were articles all over about CNN sympathizing with the perps and Steubenville not wanting to prosecute and the football team and blah, blah, blah. You really have no idea that your attitude toward rape victims’ suffering is not universal?

    I see the value in the discussion you tried to create. But you wrote badly, and you assumed things that aren’t true. And it was inevitable that, given the choice between assuming that a college teach can’t construct his intended hypothetical and that some guy on the internet has no sympathy for victims, some perceived the latter as much, much more likely.

    At least that opinion of higher ed can hearten you as you have to deal with the implications that your given, default, so universal we can assume they are not questioned or questionable values are not, in fact, universal.

  4. 4 4 blink

    Re 4, I agree hypotheticals are indispensable. Sometimes, though, substituting a less emotional scenario helps us imperfect humans to stay focused.

    For example, instead of leaping to a rape scenario, how about asking whether one person should be prohibited from watching someone else sleep? Since there is no need to assume away STDs, pregnancy, etc., it is easier for me to isolate my feelings. To me, it is still sounds creepy and I want it to be forbidden. Why I feel that way and — what I take as the point of the original post — whether those feelings are justified seems worth investigating.

  5. 5 5 Nate W.

    I’m having a difficult time reconciling this:

    The post was laden with unrealistic hypotheticals…

    and this:

    we assume away all the usual harm to the victim…

    with this:

    (Note: The Steubenville rape victim, according to all the accounts I’ve read, was not even aware that she’d been sexually assaulted until she learned about it from the Internet some days later.)

    It seems pretty clear to me that folks could easily conclude that you said the victim in the Steubenville case suffered no more than “psychic injury.”
    And while you now say that you were focused on the question of

    Should my distress over someone else‘s rape receive policy weight?

    this is not what you said in the initial question:

    Let’s suppose that you, or I, or someone we love, or someone we care about from afar, is raped while unconscious in a way that causes no direct physical harm — no injury, no pregnancy, no disease transmission.

    Before you talk about people not reading you clearly, it would behoove you to review what you wrote first.

  6. 6 6 Steve Landsburg

    blink: I agree that the “watching someone else sleep” example would have worked perfectly well.

  7. 7 7 Steve Landsburg

    Crip Dyke: You are absolutely right that we need to distinguish between psychic harm to the rape victim and psychic harm to the rest of the public. Those are two different issues, and I touched on both of them in the original post. I think it’s pretty clear there that I’m musing about different (but related) issues in different parts of the post, but I agree with you that it would have been better to call more attention to this distinction.

  8. 8 8 Steve Landsburg

    Nate W: See my reply to CripDyke; psychic harm to the victim and psychic harm to the rest of us are two different things, and I touched on both of them in the original post. I still think the transition in the post was reasonably clear (and I was inviting readers to think about both issues) but I’m sure it could have been clearer. I do not think that *either* issue is easy to deal with in terms of drawing bright lines between psychic-harm-that-counts and psychic-harm-that-doesn’t.

  9. 9 9 Crip Dyke

    In reply to #8 –

    Okay, but you can’t see a property interest in one’s own body that differs from McCrankpants’ interest in the computer of an unknown, unrelated person?

    If you were talking about both, then that statement applies to both. You say in this clarification that you think it’s not a good idea to investigate whether the harm done to the victim would be able to justify current policy, that it obviously does. Now you’re saying you don’t know.

    I’m honestly very confused. Do you or don’t you see this as a clear issue from the point of view of harm to the victim? Do you or don’t you see a difference in right/interest between me in my body and McC in someone else’s computer?

    But really, I’m most interested in figuring out why you think that it’s universally accepted that the suffering of rape victims mandates a coercive policy response when the point of so much of the Steubenville coverage was outrage at how prevalent is the disagreement with justifying current rape-disuasion & punishment policy on the basis of victim suffering.

    Do you really not see that this is a highly contested issue? Why oh why if you are familiar with Steubenville did you assume it’s unreasonable to think that someone might think an unconscious victim doesn’t suffer enough for rapists to be given consequences?

    I’m not trying to be overly harsh here. I’m really trying to understand why you think this is a universal value that is uninteresting to explore in the same post that references Steubenville.

  10. 10 10 Steve Landsburg

    CripDyke:

    Your comments range from very helpful to brilliant and I thank you for them (though I disagree with several details, especially in your first).

    Responding to your second:

    We have three kinds of harm: Physical harm to the victim, psychic harm to the victim, psychic harm to the general public. I think we have clear good reason to give policy weight to the first, much less clear good reason to give policy weight to the second, and even less clear good reason to give policy weight to the third. My gut tells me that the second should be weighted heavily; my gut doesn’t give me a clear answer re the third.

    But I still don’t see the clear bright line between the second and the case of Farnsworth McCrankypants. I don’t see the general principle that says “psychic harm counts if and only if X, Y, and Z”, where X, Y and Z are sufficiently abstract and sufficiently unambiguous to be able to settle unforeseen cases of psychic harm.

    I hope that answers your “I’m honestly very confused” paragraph. I’m honestly very confused too.

    PS: As regards Steubenville and the universality of these values — maybe it would be better to say not that *everyone* considers these matters settled, but that *I* consider them settled, so for me it makes sense to assume them away.

  11. 11 11 Nate W.

    I still think the transition in the post was reasonably clear…

    I will never understand the thought process that would compel a person, after he has stirred up a furore by failing to express his ideas with the appropriate degree of care and judgment, to doggedly defend his communication choices rather than unreservedly apologizing. People have a great deal of understanding for miscommunication, as we all have miscommunicated, and we’re generally willing to forgive any transgression that can be explained by that.

    Prof. Landsburg, you are on the horns of a fairly lop-sided dilemma: either you honestly think that rape of an unconscious victim is no big deal, or you didn’t choose your words wisely. I know which of these offenses I’d choose to be guilty of. While there is a right and wrong in ethics, there is no right or wrong in communication, just effective and ineffective. When a great deal of people are not understanding your point, you communicated in effectively, no matter how well you think you expressed yourself. Every time you defend your clarity in these situations, you are reopening the possibility in your audience’s minds that you are the horrible person you seemed to be in their reading of your words.

  12. 12 12 Crip Dyke

    First, I’m glad my comments are helpful and it bothers me not at all that we disagree about some things: that is the nature of being 2 different humans.

    If you want a general principle to separate the policy weight we put on your new case 2 (the rape victim’s own psychic harm) from that we attach to McCrankypants’ psychic harm, how about something like:

    Society has an interest in making sure that rights that are taken for granted by a vast majority of persons – for whatever reasons – are respected.

    We can justify that interest in a number of ways.
    …1 economic efficiency: if people don’t know what their rights are, they will not act efficiently because they will spend unnecessary resources trying to shift their rights into a zone of certainty, even when the government secretly knows that the rights were never in jeopardy. [this seems callous in the extreme if we *need* to resort to it, but I am not asserting it as the only possible justification of interest]
    …2 psychic harm: the mere public assertion that one’s highly valued rights [to determine the uses of one's property or which persons shall or shall not interact with one's intimate body parts] are no longer to be taken as rights would cause public harm to many persons, especially but not only those who already have a worry that their rights are less secure than others. This is a case of the policy makers *causing* harm, which they should not do. If the only way to prevent that harm is to refrain from withdrawing long-accepted protections currently in place, then policy makers should so refrain.
    …3 direct economic and physical harm: if society does not assert itself to protect us when our rights are vulnerable, then we will take in-the-moment measures for such protection. Such in the moment measures are certain to be less well thought out, leading them to be sometimes ineffective and sometimes effective but disproportionate to the intended violation and sometimes mistargeting someone who did not intend violation. Curtailing the need for self-defense of rights curtails the number of incidents of failed or injurious attempts at self defense of rights.

    McCrankypants is asserting a right to control content on the computer of someone else. This is not a right that we take for granted. In fact, far from it. It is unusual for us to assume that we can control content on someone else’s computer. We take up that control only for things like hacking or child porn, where the activity necessitates victimization – and then we do it not in the name of ourselves, and not primarily because we are psychicly distressed. We do it because child porn victimizes real children and hacking injures the real property interests of individuals and corporations. If my psychic distress was a measure of societal interest in making sure teen hackers are arrested for exposing the Steubenville tweets, there wouldn’t be much interest in such prosecutions.

    However, it is taken for granted that one has the right to determine who touches one’s own private parts. In this sense, the asserted right is so validated as to be taken as a given in the rape case, while being highly contested to the point that only a minority thinks such a right exists in the case of McCrankypants.

    Society can safely disregard the property interest McCrankypants claims in my computer, but cannot safely disregard the property interest I claim in a computer that I purchased with legal tender from the manufacturer. Disregarding the first raises no risk of the dangers 1, 2 & 3 that I list above. Disregarding the second does.

    Society can safely disregard the property interest a rapist claims in my body, but cannot safely disregard the interest [expressed as a property interest or otherwise] I claim in my body. Disregarding the first raises no risk of the dangers 1, 2 & 3 that I list above. Disregarding the second causes all hell to break loose.

    If you go to your theory of property – economic efficiency, human self-actualization, labor, etc. – none of them are all that convincing.

    However, when one considers the consequences of ripping out the foundation of property rights and installing a new regime with new supporting principles that would presumably call for different decisions on certain difficult cases of rights in conflict, it becomes obvious that without a plan to manage such a transition and a knowledge of what the damage will be and whether it will be outweighed by the benefits and whether it can be mitigated, it is immoral *and* against the interests of society to sweep away property rights as we know them.

    Likewise, it is immoral and against the interest of society to sweep away the rights of the rape victim and computer user, and to replace them with new rights for the rapist and McCrankypants.

    The 2nd example is more difficult because Granola *does* have a property interest, whether she visits alaska or not, but that interest is held in trust for her and all citizens by the government. It is literally the duty of the government to consider that effect on Granola, but it alone is insufficient to act: the government is called upon to act for the collective good. This can weigh the harm to Granola heavily or lightly, but at whatever weight, it must be balanced with literally millions of others’ interests. It seems impossible that this alone could form a tipping point, but I suppose you could structure the hypothetical so that the government official responsible for such decisions has weighed all the factors and come down so close to the middle as to make the magnitude of this weight relevant. Small enough and oil development takes place. Large enough and development doesn’t take place. What are the factors that would cause us to take Granola’s psychic harm more or less seriously? Weight it more or less heavily?

    That’s enough for now.

  13. 13 13 Crip Dyke

    Oh, I guess I should have said that we must imagine the psychic harm arising from a violation of right, and if the psychic harm arises from a right that must be protected, then that harm is valuable in determining a policy response. If the psychic harm arises from a right that is speculative, and especially if the speculative right would be enforced at the cost of a right that must be protected, then that harm is dismissed or treated as at most trivial when forming a policy response.

    Does that provide the test you want? Is it convincing? Which parts aren’t?

  14. 14 14 Roger

    Here is a less inflammatory issue. The publication of the HeLa genome has re-ignited discussion that HeLa research does some sort of psychic harm to Henrietta Lacks. She died in 1951, and the research is very valuable.

  15. 15 15 A Paul D

    I’m appalled.

    When I first heard the headlines about Steubervillia I was appalled that the jocks would get off and not get charged for drugging, raping, filming and humiliating a person.

    Then I was appalled that the city would back their jocks and help them get off – and not be charged.

    Too many conflicting reports for me to follow or care about but if the last one is true and factual – ie. “A person drank too much and got fingered” …. if that’s the whole story, I’m appalled that anyone would belittle true rape victims by throwing some moron, like said person, into the discussion.

    EVERYONE who took pictures / video and posted them instead of helping someone who was passed out should be punished and called out for their lack of humanity / civility.

    No one is guilty of rape at all.

    Everyone is guilty of bad judgment and not having the common sense to help a person in distress.

    Posting humiliating photos should be a crime – punishable by heavy fines and community service. Aka. We have a budget crisis and we need to help our neighbors out and no one would do it willingly so might as well force them.

    A Paul D

  16. 16 16 A Paul D

    PS. Call up India, I think they could help your average whiny American with an accurate and appropriate definition of rape – it’s not something you’re likely to forget.

  17. 17 17 Harold

    SL: “But I still don’t see the clear bright line between the second and the case of Farnsworth McCrankypants. I don’t see the general principle that says “psychic harm counts if and only if X, Y, and Z”, where X, Y and Z are sufficiently abstract and sufficiently unambiguous to be able to settle unforeseen cases of psychic harm.”

    Crip Dyke: “Society has an interest in making sure that rights that are taken for granted by a vast majority of persons – for whatever reasons – are respected.”

    I do not think “taken for granted by the vast majority” provides a bright line. I do think it gives us a practical approach- it is really the only way to actually proceed, but it does not say why certain acts should be accepatable. It only provides an arbitrary societal norm. I earlier gave a hypothetical example of a society where some form of “untouchable” existed. As long as the vast majority accepted that being touched by such a one were psychologically distressing, then by applying the above criterion, the law should punish offenders. I do not believe that such a law would be “right” or “just”. Therefore I believe that there is some “higher” reason than just what the majority wants.

    If we try to pin down the justification in the form of “actual harm”, then we run up against the (hypothetical) unconscious rape victim. We can’t use property rights to distinguish between touched and raped, because both are offences against the person.

    So what is it that distinguishes between these two cases?

  18. 18 18 DRDR

    I am also a social scientist who respects the value of simplifying assumptions, but you seem to be failing to understand that your original post (Mar. 20) implied that your simplified world was practically relevant to Steubenville and similar cases of unconscious rape, so your critics do have a legitimate reason to be upset.

    When social scientists lay out a theoretical model of the world and then describe how this model relates to a real-world example, most readers will reasonably infer (1) that the model is attempting to capture the most important features of that real-world example and (2) that the results from the model will then be relevant to the real-world example. Most readers would not assume, without further clarification, that the discussion is merely a hypothetical exercise that has intentionally abstacted from an important feature of reality that would result in an absurd policy implication.

    So in your original post, you chose the title “…, …, and Steubenville.” You then initially laid out (in Question 3) a hypothetical where there’s no physical harm to the victim, and you ask whether such rape should be legal without even considering psychic harm to the victim, and you claim that there was no harm to the Steubenville rape victim for the few days prior to her discovery of the rape. Then (in Thought C), you explicitly assume away psychic harm to the victim (HT: CripDyke). Given all of the above, most readers are reasonably going to assume that the answer to your hypothetical question about unconscious rape with no physical or psychic harm to the victim is relevant to Steubenville and unconscious rapes more generally.

    Now in this follow-up post, you’ve defended your original post by claiming (in Point 2) that rape with no psychic harm to the victim was merely an unrealistic hypothetical, and (in the first sentence) that your “regular readers would find” that point “to be entirely obvious.” I find it hard to believe that regular readers would find it obvious that you were describing a hypothetical whose answer had no relevance to the legality of unconscious rape. I concede that you know your regular readers better than I do, so I won’t argue further about whether you’re right that your supportive regular readers recognized that your post titled “…Steubenville” was a mere hypothetical that yielded no policy implications relevant to Steubenville, though I suspect many of your supportive readers are merely self-interested men who are broadly sympathetic to any argument empowering men and demeaning women.

    But regardless of what’s true for your regular readers, you should have anticipated that many readers would reasonably believe that you had described a hypothetical whose answer had relevance to the legality of unconscious rape, rather than “merely an unrealistic hypothetical.” So while I don’t agree with every argument made by your critics, I agree with their primary claim that your Mar. 20 post ultimately serves “to normalize and minimize the effects of rape,” so that post does contribute to a hostile learning environment at Rochester, and you do owe your campus community an apology.

  19. 19 19 The_L

    Let’s look at your 3 scenarios again.

    Person 1 wants to control other people’s computers. We all agree that this is bad, and that Person 1 is not affected in any way, directly or indirectly, by what other people choose to view on the Internet (unless porn or other compromising images of Person 1 got uploaded without Person 1′s consent).

    Person 2 wants to control other people’s access to oil. Granted, harming the environment harms us all, but this is not a case of direct harm to Person 2.

    Person 3 wants to control what goes into his/her own body. To argue that Scenario 3 is in any way, on any level, similar to Scenarios 1 and 2 is to argue that we only have the right to keep things out of our bodies if we know about it. In The Help, a maidservant defecates into a chocolate pie she’s making for her abusive boss. Said employer doesn’t know when she eats the pie that it contains feces. Would that make this scenario OK? In the 19th century, truly disgusting things made it into people’s food. Until Upton Sinclair published The Jungle, most people were unaware. Does this make it OK that rats and their droppings were routinely ground in with the sausage? When Mark Foley texted sexually-explicit messages to his interns, was the problem that he got caught?

    Not to mention the well-known defamation of character suffered by the Steubenville rape victim, not only because a video of her rape was posted on the Internet for the whole world to see, but also because Fox, CNN, and other news stations constantly portrayed the rapists as the “real” victims, and named the victim–but not the perpetrators!–on the TV news nationwide.

    Yet you brought up that particular rape case as an example wherein no harm was done? SERIOUSLY? If somebody Photoshopped a convincing image of you having sex with a mule and posted it all over the Internet, wouldn’t that harm you? You’ve never had sex with a mule, that you or I are aware of. Yet clearly harm is being done to you if people post said mule-sex photomanipulations on the Internet.

  20. 20 20 Steve Landsburg

    The_L:

    Thanks for your thoughtful comment. Much of what you say was already addressed in the long comments thread on the original post, but I realize not everyone is going to wade through all that.

    Re the posting to the Internet, this, it seems to me, is a clear case of harm that goes beyond the psychic, since it’s likely to affect the way one is viewed and treated by others.

  21. 21 21 Crip Dyke

    @Harold

    I quote you:
    I do not think “taken for granted by the vast majority” provides a bright line. I do think it gives us a practical approach- it is really the only way to actually proceed, but it does not say why certain acts should be accepatable. It only provides an arbitrary societal norm. I earlier gave a hypothetical example of a society where some form of “untouchable” existed. As long as the vast majority accepted that being touched by such a one were psychologically distressing, then by applying the above criterion, the law should punish offenders. I do not believe that such a law would be “right” or “just”. Therefore I believe that there is some “higher” reason than just what the majority wants.
    ===========================

    You’re missing the question. The question is not: when does psychic harm justify outlawing a behavior. The question is, when should psychic harm be taken into account in public policy.

    the **weight** that harm receives and whether such harm exceeds the reasons to do something other than discourage the behavior, those things are still up for grabs.

    In your example, the real psychic horror of those folks would be given public policy weight, by my formula.

    But this would be balanced against the real harm done to the untouchables by using government coercion to maintain untouchable status. If the society operated largely over the internet and used single-occupancy vehicles for transport (enclosed, unlike most bicycles, but they could be pedal powered), etc, etc, the lives of untouchables would be relatively less affected and thus public policy could give less weight to the harm done to the freedom of the untouchable class.

    It’s hard to imagine a society where I would feel that it would be justified to implement punishments for untouchable persons in public policy – I certainly don’t think there would be an example of one in real life.

    However, I think this shows the basics of how you missed the question. It’s not “Does psychic harm of form X justify outlawing Y”.

    It’s “Does psychic harm of form Y merit public policy consideration when thinking about the range of possible public policy responses to X”.

  22. 22 22 Femmy McButterballs

    Steve, your thought experiment–and my inability to recognize thought experiments because I’m blinded by my raging ideology–caused me psychic harm. Just reading thought experiments like yours makes my blood pressure rise and my acne get worse. YOU, sir, are the cause of my psychic harm.

    Therefore, you deserve to be fired!

  23. 23 23 Ron

    Crip Dyke: However, it is taken for granted that one has the
    right to determine who touches one’s own private parts.

    I don’t believe that rises to the level of a given. If this
    were so, there would be way more fuss about TSA people groping the
    private parts of strangers where the sole probable cause consists of
    the gropees wishing to go from one place to another.

  24. 24 24 Hugo

    Regarding 22:

    I would say unfortunately that an emotional response does not warrant someone to be fired or an argument to be illegitimate. There are times when it is most useful to feel such things and then to analyze what may be the root cause for them, and whether they are based upon intellectual fallacies or indisputable truth.

    This being said, I have read the original intellectual experiment. I am by no means an academic, but there was a gross miscommunication in it’s authoring. I cannot tell if it was intentional, but we were talking about damage being done to a victim whether or not this is a terrible act. If We were unconscious so that an agency could perform surgery and install a microchip into our bodies, this indeed would be a great personal violation. If it were not to happen to us personally, it is still a great concern that must be dealt with so that it does not happen to another. Until sexual gratification through the use of another’s body is thought as a ‘right’ we are arguing the rights of another versus a preference.

    Regarding the rest of the thoughts presented I would not comment unless it was deemed necessary.

  25. 25 25 Al V.

    In the original discussion, I thought that @Derrick (#95) had nailed it, with:

    In Question 1: Person A is distressed with what Person B is doing with Person B’s property.

    In Question 2: Person A is distressed with what Person B is doing with Person C’s property.

    In Question 3: Person A is distressed with what Person B is doing with Person A’s property.

    In another discussion elsewhere with a group of horrified observers I commented that this was really a discussion about property rights (in consideration of Derrick’s points) and was immediately shouted down that my body is not my property – it’s my body. I was puzzled by this. If I don’t own my body, who does? Nobody? Or is the point that a body cannot be owned? I’m not a lawyer, but I would think that from a legal perspective, we must be considered to own our bodies.

    Also, one point that I haven’t seen raised is the psychic harm that the hypothetical rape causes to the perpetrators, and to society in general. Doesn’t getting away with a crime cause the perpetrator(s) to be more likely to commit a crime later?

  26. 26 26 RowanVT

    These were my first thoughts with regards to reason why the ‘unconscious rape’ thing should still be illegal that were not from a moral standpoint.

    First- It sets a poor precedent for violation of bodily autonomy. What is the difference between the unconscious rape being legal, and taking organs while someone is having abdominal surgery for use as donations for others? Especially the liver, which regenerates.

    Second- It injures societal cohesion. Knowing that any individual might choose to drug and rape me would injure my chances of finding/making friends and a life partner should I so choose due to the level of caution required to prevent being raped.

    Third- It would cause incredible psychic harm to know that some person might choose to drug and rape me.

    Fourth- It would cause incredible psychic harm to wake up from an abnormal period of unconsciousness and thereby know that I might have just been raped.

    Fifth- It would have financial costs as I would go to the hospital after any such abnormal period of unconsciousness to be tested for DNA from a rapist.

  27. 27 27 Eli Rabett

    We need only look at the cases (many actually) of staff raping patients in institutions for those with far gone Alzheimers. The same is true for statutory rape. The principle is that if you take advantage of those who cannot defend themselves there will be retribution. The alternative is tooth and fang and those with brains do not assume that they will always be the givers rather than the receivers.

    You post is a perfect example of this principle. Enjoy the retribution

  28. 28 28 Mark

    As a fellow Vulcan, I appreciated your first post and was shocked to see this one — why would people think it was provocative? Then I remembered the only thing we’re supposed to say about rape is that it is horrible. End sentence. Move on. Or at least that’s the advice people have given me. Which is a pity because it makes such great hypotheticals precisely because it is so horrible.

    I’ve had a working rule that no matter how much something disgusts or angers system one, if you can’t explain why its bad using system two, it’s probably not bad. But your first post made me question that rule (because the obvious answers also applied to Farnsworth McCrankypants). Any other examples of where that rule might fail?

  29. 29 29 Harold

    OK- point taken – even if psychic harm is considered, it must still be balanced against harms of any policy. But if psychic harm is considered, then in principle it could be enough to justify policy, and must certainly “tip the balance” in other cases.

    It seems you are part way to saying all psychic harm should be considered and balanced – but then you say “If the psychic harm arises from a right that is speculative…then that harm is dismissed…”

    So psychic harm is given full weight if most people in a population think it should be, but is ignored if most do not? This gives us a practical solution, bur fails to draw the bright line requested.

  30. 30 30 Ken B

    Mark: “Then I remembered the only thing we’re supposed to say about rape is that it is horrible. End sentence. Move on.”

    Be grateful you are young. I remember when you also had to say “it has nothing to do with sex” and “women never lie about it.”

  31. 31 31 123

    Psychic costs should have a policy weight. Law enforcement has costs. If there are no transaction costs, people with psychic costs would subsidize the law enforcement costs for these crimes where the psychic costs are present.
    Psychic costs do no affect the estimate of the harm of the crime. However, harm is only one of the inputs in the calculation. Psychic costs enter in the debate through the cost of enforcement side.

  32. 32 32 Crip Dyke

    @ Al V, #25:
    from a legal perspective, we must be considered to own our bodies.

    No. Property rights are very specific rights. One of the essential rights of property in the modern context is that of alienation. Many of the rights of property don’t make sense if we can’t sell or otherwise dispose of our property.

    We cannot sell or dispose of our bodies, therefore considering them “property” in the legal sense leads to not merely nonsense, but harm. If we “own” our bodies as property rights, then there is nothing to stop slavery or the selling of one’s own live body for parts to be used in saving others’ lives so that one can negate debts or otherwise help one’s family monetarily.

    While I hedged earlier about body as property, I do not hedge at all in the legal context. In abstract discussion when property doesn’t have its specific legal meaning, perhaps we can say that we own our bodies. But for the legal context, and for anyone concerned with the legal implications, asserting that body=property is offensive in the extreme.

  33. 33 33 Bearce

    I have a new and profound disgust for disgust for women’s rights groups now. Seems like you made front page for now, or at least here.

    Apparently, the mere mention of the word ‘rape’ or ‘slut’ around women shuts off their logical faculties. I seriously cannot see how the original post caused so much outrage or how little people understand of the purpose or concept of using simplified hypotheticals to answer difficult questions.

  34. 34 34 Twofer

    I have a great many problems with the original post , but the part I most wish to highlight (and commented upon at the time) is this:

    When you write “As long as I’m safely unconsious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits?” it is very clear that the victim has been assumed out of the calculus, and the benefit is entirely accrued by the rapist.

    Why would you assume the rapist benefits? You’ve laid no groundwork to assume any such thing. There is a long history of literature and thought, starting at least as early as Book 2 of Plato’s Republic, that reaches the exact opposite conclusion. The rapist does not benefit from the act, the rapist is harmed by it.

    As a self proclaimed consequentialist, you can appreciate that if even one sociopath reads your blog post, can find no flaw in the logic, sees only a benefit, and begins to plan how to slip roofies to someone so that the victim shall not be aware and therefore not harmed (or picks on a child or an alzheimers patient), you are somewhat responsible.

    It’s pretty easy for me to see why the post is offensive. Such a post demands a whole lot more care than “This post was more idle noodling than anything else.”

  35. 35 35 Steve Landsburg

    Twofer:

    Why would you assume the rapist benefits?

    http://en.wikipedia.org/wiki/Revealed_preference

    And:

    if even one sociopath reads your blog post, can find no flaw in the logic, sees only a benefit, and begins to plan how to slip roofies to someone

    Well, I suppose a sociopath can interpret pretty much anything pretty much any way. But whatever ambiguities you might have seen in the post, surely it was crystal clear that this was a post about public policy, not a guide to personal behavior.

  36. 36 36 Ken B

    Bearce +1
    Twofer -1

  37. 37 37 Crip Dyke

    @Harold, #29, who said:

    So psychic harm is given full weight if most people in a population think it should be, but is ignored if most do not? This gives us a practical solution, bur fails to draw the bright line requested.

    =====
    I’m not at all sure that I’m giving a bright line, but I’m making an attempt. I welcome your criticism.

    But let me also say that your paraphrase doesn’t do justice to my proposal, I think.

    It’s not about what people think about the harm. It’s about what people think about the source of the harm. And it’s not randomly about what people think: the sense of certainty that people have about their rights is itself a good, given that destabilization of that certainty leads to harms I’ve listed above.

    The psychic harm can be weighed anytime, and of course is weighed by each individual in any given election on an issue, but at the level of elected or appointed makers of public policy, we have to decide which psychic harm is useful in our discussions.

    We want to preserve rights. We note that in violating otherwise secure rights, psychic harm is caused. We use the quantity and nature of that psychic harm to judge how important it is to prevent rights violations of that kind.

    However, if there were no underlying right, it would be unnecessary to weigh the psychic harm – whether great or small it would be irrelevant.

    So if you have a right that is sufficiently secure that failing to address a violation of that right would lead to further harm, THEN we have a societal interest in protecting that right.

    Having a societal interest in protecting that right, we consider different public policy options. In that consideration, the consequences of violating that right are considered. Psychic harm is one consequence of those violations, and as such is properly considered at that stage.

    Whether or not a right is sufficiently important and secure that failure to address violations would lead to new harms, that is as close to a bright line test as I think we can get in the real world.

  38. 38 38 Nate W.

    PS: As regards Steubenville and the universality of these values — maybe it would be better to say not that *everyone* considers these matters settled, but that *I* consider them settled, so for me it makes sense to assume them away.

    This seems like a problematic statement, as it indicates a real lack of regard for your audience.

  39. 39 39 Twofer

    Twofer: Why would you assume the rapist benefits?

    SL Reply: http://en.wikipedia.org/wiki/Revealed_preference

    By definition there is no market for rape, so revealed preferences through prices do not apply.

  40. 40 40 Steve Landsburg

    Twofer: It is standard practice to assume that if people choose to engage in an activity, it’s because they prefer doing so to not doing so. I try not to be a slave to standard practice, but in this instance I think the practice is a good one.

  41. 41 41 Ken B

    @Twofer: Why do doorknobs form loud mobs and protest against hypothetical questions on blogs to disrupt other students’ classes? Can we use revealed preference to understand why? There is no market for that kind of thing after all. Still people do it because they seem to prefer it to reading carefully or to thinking. I’m confident you understand the dynamic.

  42. 42 42 Raging Bee

    I’m going to re-paste a comment from someone else that sums up the total wrongness of your little “exercise:”
    ————–
    I think the rape example is misguided on a number of level[s], most of which have already been mentioned up-thread, but most important of these, I think the choice of example and some of the statements really imply some worrying attitudes on the part of the professor.

    It really is tiring how often people feel the need to use rape as an example in cases where other things would do as well, or even be more appropriate. [The commenter had cited a better example of siphoning blood from people in their sleep.] It’s as if they derive some weird pleasure from the discussion itself; as if they’re constantly on the lookout for a way to mention it, while maintaining plausible denial.

    It’s just plain creepy.

  43. 43 43 Steve Landsburg

    Raging Bee: I used this example because I happen to have heard a snippet about Steubenville on the radio and that’s what got me thinking about these issues (though the train of thought strayed far from the news story). Could I just as easily have used an example about someone who steals your car and returns it with no harm done? Sure, but that’s not what happened to be floating around in my brain at that moment.

  44. 44 44 Raging Bee

    That’s not a good excuse — especially since your earlier examples were chock-full of false premises. (I tried to point that out earlier, but you deleted my comment.) You’re a professor — you should be able to come up with better exercises than that — especially if you’ve been thinking about such issues for a long time.

  45. 45 45 Alive

    Returning to topic,

    CripDyke: “…we must imagine the psychic harm arising from a violation of right, and if the psychic harm arises from a right that must be protected, then that harm is valuable in determining a policy response. If the psychic harm arises from a right that is speculative, and especially if the speculative right would be enforced at the cost of a right that must be protected, then that harm is dismissed or treated as at most trivial when forming a policy response.

    So if you have a right that is sufficiently secure that failing to address a violation of that right would lead to further harm, THEN we have a societal interest in protecting that right.”

    Seems to me that CripDyke has come the closest to finding an answer to the questions posed by SL. Only we have to accept that this formula is limited, especially if what is deemed a sufficiently secure right does not have a societal consensus.

    As an example that clarifies the difficulty to determine psychic harm that should or should not receive policy weight, let us substitute another public issue like abortion rights (or gay marriage.) There is not always a clear cut, bright line that defines what society agrees is a right to be protected and thus valuable in receiving policy weight to determine public policy.

    Example:
    Abortion = a woman’s sufficiently important and secure right.
    Not addressing the prevention of abortion = causes further, new harms to the woman (psychic and physical.)
    …THEN we have a societal interest in protecting a woman’s right to an abortion.

    Works for me, but obviously won’t work for everyone.

  46. 46 46 Martin-2

    In just about any other situation I’m glad to take property rights for granted, but this post was a good opportunity to step back and think about why we care about them. How do they relate to wellbeing? Do they matter over and above wellbeing? How would you explain them to a hive-minded alien race with no concept of individual property ownership?

    Raging Bee(42): You claim that Professor Landsburg (and his ilk I suppose) have a predisposition to talk about rape “as if they derive some weird pleasure from the discussion itself.” But what seems to be the case is that you have a predisposition to not talk about rape because you derive displeasure from the discussion itself. All else being equal (including your discomfort) rape was a more relevant topic that day than siphoning blood.

  47. 47 47 Alex

    DRDR (and others):

    The core of the original post was the “Meta-Question”: “If your answers to questions 1, 2 and 3 were not all identical, what is the key difference among them?” I call it the core because this question marks the end of the hypotheticals (all of which it involves), and is followed by a discussion toward answers for the meta-question.

    Any implication of the existence of Question 3 must be taken in this context, which you (and other protestors that I can find) do not. Here is my own expression of the context:

    “OF COURSE you don’t want unconscious rape to be legal, but you might very well want actions suggested by cases 1 and 2 to be legal. However all three cases can be stated similarly in terms of psychic harm. Please explain how they are different.”

    I imagined that it was precisely the point of the exercise that case 3 involved a repugnant act.

  48. 48 48 Steve Landsburg

    Raging Bee: The email address you provided does not work. If you’d like to post further comments, please provide a working email address.

  49. 49 49 Steve Landsburg

    Alex:

    “OF COURSE you don’t want unconscious rape to be legal, but you might very well want actions suggested by cases 1 and 2 to be legal. However all three cases can be stated similarly in terms of psychic harm. Please explain how they are different.”

    Yes, exactly.

  50. 50 50 Ken B

    “That’s not a good excuse.”

    The premise of this remark is that asking a question or attempting to clarify an issue requires an excuse. What I think requires an excuse is mau-mauing people because you don’t like their politics.

  51. 51 51 Al V.

    @Crip Dyke #32, I understand your broad points, and yet I’m not sure that we all benefit from such absolute rules as you describe. Why shouldn’t I be allowed to trade one of my organs to gain one for my child? This happens today on a limited basis with the chaining of kidney transplants – I donate my kidney to person X, and person X’s spouse or sibling donates one to my child.

    If we allow this in a simple case, what is wrong with extending it to more complex examples: I donate part of my liver to someone to get a kidney for my child in return? Or I sell an organ for cash, and in turn use the cash to pay for an organ transplant for a loved one? You say this is morally repugnant, but why do you get to decide what is worth it to me? This feels like we are back in the realm of Steve’s hypothetical #1: you prevent me from using my body in a way that I deem beneficial, because you disapprove. I assume this implies you disapprove of prostitution too – you disapprove of what someone chooses to do with their own body, on moral grounds.

    Extening my example of selling an organ for cash, if you disapprove of that case, what if I had a terminal disease, and knew I was going to die in 4 months – would that change your perspective?

    You state, “… then there is nothing to stop … the selling of one’s own live body for parts to be used in saving others’ lives so that one can negate debts or otherwise help one’s family monetarily.” This happens today. Person A’s child needs a organ transplant, and while A is not a suitable donor, A’s sibling B is. Should B be required to donate? What if kidney disease runs in their family, and B wants to keep his or her kidney in case B’s child needs a kidney down the road? You may scoff at the scenario, but this is a real example from a Dear Abby or Ann Landers of several years ago.

  52. 52 52 Lisa R

    Suppose that someone goes to the hospital to have surgery, and is unknowingly operated on by an unqualified and inexperienced intern once unconscious. Through mere luck the surgery is successful and there are no adverse physical effects. Despite the lack of physical damage, we are shocked, appalled and horrified at the thought of being treated in this way, and suffer deep trauma as a result. Ought the law discourage hospitals from acting in this manner? Should it be illegal?

    The difference between the above question and the 3rd question of the blog post and the first 2 questions in the post is the POTENTIAL for personal physical harm. Although we are assuming away any actual harm, laws deal with what is possible and in this case probable, not just what is guaranteed.

  53. 53 53 Martin-2

    Just to clarify (46) so it’s not a reversed-stupidity argument; going out of your way to talk about rape implies what Raging Bee said. Going out of your way to not talk about rape implies what I said. In case Bee has decided not to return I’ll leave it at that.

  54. 54 54 Pandora

    Ken #50, I think you and the good professor are insulated from the question, it’s certainly his right to pose hypotheticals but his points 4 and 5 are reflective of that insulation. Men who lose limbs from an industrial accident are not subject to taunting facebook posts on how they were asking for the friction.

    For most women the idea of rape while unconscious is not a hypothetical tool for thought experiments, it’s all too possible in real life. So I’m not sympathetic to a man complaining rape is such a nifty scenario for intellectual discussions and it’s awful it can’t be used for his rumination without negative repercussion.

    Unfortunately the same conclusion of “no harm, no foul” has probably been reached by students sitting in this man’s classes. Thus the outrage.

    Not everything should be a topic for hypotheticals, particularly when the hypothetical scenario recalls a common injury to a particular group to which you do not belong. One man’s idle rumination is a real woman’s actual rape. And like the victim in the Steubenville case she may have to endure discussion afterwards about whether the man did anything wrong, blah,blah,blah. This does real psychic injury to real women. But your cluelessness and outright dismissal of such harm is noted.

  55. 55 55 Twofer

    SL: “Twofer: It is standard practice to assume that if people choose to engage in an activity, it’s because they prefer doing so to not doing so. I try not to be a slave to standard practice, but in this instance I think the practice is a good one.”

    Well, I’m glad we can now agree there is no such thing as a market for rape, and therefor no market discipline to be imposed.

    Where we still disagree is if whether or not in this case the “standard practice” of assuming a person engages in rape because they prefer to rape, and therefore “benefits.” I suggest not. I suggest your argument, based on what you’ve written so far, is about as deep as “I have an impulse and it’s a net benefit to satisfy it as long as nobody else finds out about it.” There is so much wrong with that assumption, it’s impossible to list all the issues, but some would include that you assume that a rapist is rational, a rapist’s impulses are consistent from minute to minute, that the rapist’s cost benefit calculus remains persistent after the crime and never changes etc.. Based on what you’ve written so far you’ve considered none of it.

    And, as so much of your argument hinges on the correctness of the assumption that the rapist “benefits”, I suggest exploring it some more. Some great thinkers throughout history have thought about it much more deeply (and responsibly) than you have here and they have suggested the opposite is true. The rapist is harmed simply by being a rapist. I recommend starting with Book 2 of The Republic – After that there is 2500 years of follow on commentary.

  56. 56 56 Crip Dyke

    Al V:

    Perhaps I wasn’t sufficiently clear. When I said that it leads to one selling off one’s body for parts.

    I did not say or mean that I was contemplating selling a part of one’s body. You cannot get rid of your body without getting rid of you. If you sell your body so that a chop shop can send your liver off to one person, your heart/lung system to another, a pair of cornea to save someone’s sight, 2 kidneys to different folks, and maybe a random transplantable or 3 of whose transplantable nature I’m not aware … there isn’t a me.

    If i can literally sell my body – not portions of my body, my body – then your bookie can take title of your body, granting you right of redemption if you pay back the debt in sufficient time, and then sell you to be killed and your organs harvested with no legal repercussions if you breach the contract or your right to redeem title to your body expires.

    Volunteering to donate a kidney isn’t inherently problematic, morally.

    Keeping a title registry of human bodies which can be traded, sold, mortgaged and redeemed sure as F is inherently problematic.

    Having your body as property doesn’t give you the rights you think it does and none other. Having your body as property gives the government the right to harvest both kidneys and leave you to die if you’re late on your taxes. And if you’re not morally outraged by such a system, I can’t help you.

  57. 57 57 Samantha

    Landsburg — why even use a rape scenario to get your point across? Surely there are other scenarios you could have used.

  58. 58 58 Scott H.

    Just want to say that I support Landsburg’s thought experiment 100% against these ridiculous assertions. I’m too busy at present to get into it with the would-be thought police, but silence in the face of such an onslaught wasn’t an option.

  59. 59 59 DRDR

    Alex & Steve,

    I understand that the meta-question was the core of the original post, but my critique of the original post is not that the meta-question was asked. I understand that you find it interesting to discuss the difference between Question 1, Question 2, and Question 3, where Question 3 involves a rape victim who experiences no harm (It’s explicitly stated that there’s no physical harm, while the subsequent discussion implies that Steve intended for psychic harm to be absent, which is understandable, since unless all harm to the rape victim is assumed away in Question 3, then the obvious difference is that the Question 3 rape victim experiences harm).

    My critique is not that the meta-question was asked, but that a connection was made between the Question 3 hypothetical and the reality of Steubenville. Question 3 was effectively labelled “Steubenville” in the post title. A fact from Steubenville was used to motivate Question 3, with no qualification that the Steubenville rape was significantly different from the hypothetical world. The subsequent discussion then assumed away psychic harm in the world of Question 3, which had already been connected to Steubenville. So it’s unreasonable to claim that “obvious[ly]” Question 3 was an “unrealistic hypothetical” and that Question 3 answers would be irrelevant to the reality of Steubenville. So it’s perfectly reasonable to critique the connection made between the hypothetical of Question 3 and the reality of Steubenville without considering the whole meta-question, and that’s what many of Steve’s critics are doing.

    Now I suspect you’d both still find my argument unconvincing: if you’re right that the answer to Question 3 is “OF COURSE you still don’t want unconscious rape to be legal” then who cares if a connection is made between Question 3 and Steubenville? The problem is that when you go from a real world where unconscious rape victims suffer harm to one where no unconscious rape victims suffer harm, then the case for outlawing unconscious rape does in fact become less clear-cut. (I disagree with Alex’s claim that such unconscious rape obviously must be outlawed, even if no victims suffer harm, simply because it’s “repugnant.”) Steve’s critics have every reason to be offended that Steve has connected Steubenville to a hypothetical world where the case for outlawing unconscious rape is not so clear-cut.

  60. 60 60 Neil

    I think it was George Stigler who once told me “If there is a way for someone to maliciously misconstrue your words, you should count on it happening.”

  61. 61 61 Zyan

    If “no psychic harm” is the standard, why limit it to women’s bodies? Why shouldn’t homeless people reap the benefit of your nice, cozy home during the day? As long as they don’t eat the food and pick up after themsleves, you may never know they were there, so they haven’t done any wrong. The same holds with many of our laws, which are equally wrong-headed and archaic. If the kids who boosted your ride fill it with gas at the end and leave it back in your driveway, no harm done. I mean sheesh, young lives are being ruined and promising young men branded as car thieves over nothing.

    Let’s look too at the ultimate victimless crime: academic plagiarism. If the person whose work was “borrowed” doesn’t know, and if no economic loss was incurred, then nothing happened. I would invite Prof. Landsburg, if he believes “no psychic harm” should be the standard, to abandon any penalty for students in his classes who copy on exams or use the work of others without attribution. They are merely reaping benefits to which they are entitled.

  62. 62 62 Ken B

    Pandora: No-one here has suggested “no harm no foul” as regards the Steubenville rape, or any hypothetical rape. No-one has dismissed any harm or suffering. The question is, was, and remains how does that fit with a consequentialist view that dismisses the concerns in 1 and 2. Your mau-mauing on this is disgraceful facist bullying.

  63. 63 63 Steve Landsburg

    Zyan: Your questions are no better or worse than mine, but piling on additional questions (unless they have some new relevant twist) is not a path toward finding answers.

    So: Suppose someone comes and uses my home when I’m not here, and I’m not aware of it — but the prospect that this might be happening, or the after-the-fact discovery that it’s happened, causes me distress. How do we draw a line between that distress and the distress of Farnsworth McCrankypants?

    I still don’t have a good answer for this, but I’m unclear on how creating additional variants of the same question is going to get us any closer to an answer.

  64. 64 64 Steve Landsburg

    Samantha:

    why even use a rape scenario to get your point across? Surely there are other scenarios you could have used.

    I think I’ve addressed this. Had I written the post an hour earlier or later, I might well have used a different scenario; as it was, something about Steubenville came on the radio and I riffed off that. I don’t think this example is any better or worse than the example of someone who inhabits your house while you’re away at work. In retrospect, I wish I’d used that example, not because it’s any better or worse but because it would have gathered a little less attention from the yahoos.

    Added later: Actually, I take it back. Alex’s comment reminds me that the repugnance of the rape is part of what makes the point. I want an example where everyone will say “Yes, that is clearly something we want the law to discourage”, with no ifs, ands or buts, so that we are forced to face the issue of exactly where we draw the line between that and other examples in which pretty much everyone says the opposite.

  65. 65 65 Alex

    DRDR,

    I mentioned the meta-question structure of the thought experiment because without it–if a blog post consisted solely of Question 3–I think I’d have been quite offended at the implication, taking it as speaking directly to the Steubenville case. (Actually, here on this blog, rather than being offended, I’d first have assumed I was missing something.)

    True, when I responded to you I was conscious of less nuanced protestors elsewhere who have quoted only that passage.

    But I would still answer you that Question 3 wasn’t alone; it was one of a series of hypotheticals toward a clear end, and in that context the fact that it shared an aspect with a real-world case didn’t imply that an answer to the hypothetical would be immediately applicable to the real world. Questions 1 and 2 were obviously constructed to lead up to 3 and then the meta-question, and to limit the experiment to a consideration of how the idea of psychic harm should figure in one’s principles, and policy, which would naturally address many other questions as well.

    Therefore I read 3′s specific reference, in contrast to 1′s and 2′s invented names, to reflect nothing more than the thought experiment’s topical inspiration.

    To me–admittedly I am speculating–the repugnance of Question 3 (as opposed to the lesser repugnance of someone being forced to know about pornography) was vital to that inspiration. Not that repugnance itself necessarily justifies anything, but it demonstrates a hypothetical contradiction that we would do well do explain.

  66. 66 66 Alex

    TL;DR for DRDR:

    Since the post as a whole had the structure of a thought experiment, I didn’t require a disclaimer about connections to the real world. I take the point that others do.

  67. 67 67 Krishnan

    I did not find the original hypotheticals to be worthy of such vitriolic responses – I did not get the impression that “rape” was being excused or such – …

    I imagine someone will call for a “Law” against “people using certain hypotheticals” – that “freedom of speech is limited to hypotheticals that do not offend” or … that “Mathematicians and others like that will be required to get a license to formulate hypotheticals in fields of study not their own or in fields of study that the majority decide is not theirs”

    Geez …

  68. 68 68 123

    Crime is a transaction, albeit an involuntary one. It is rational and Pareto-enhancing for the victim to pre-commit to exert an above-average effort to secure a punishment when the psychic costs are present. Higher penalties for crimes where additional psychic costs are present is just a codification of this obvious principle in law.

    All those anti-porn people should contribute to charity that bribes people not to watch porn.

  69. 69 69 Crip Dyke

    @Al V again:

    BTW, I didn’t address the following directly – it will probably be clear in my previous post from context anyway, but just to make it absolutely clear, let me add something. You say:

    “I assume this implies you disapprove of prostitution too – you disapprove of what someone chooses to do with their own body, on moral grounds.”

    I don’t disapprove of any of the arragnements or transactions you describe.

    I disapprove of bodies being legal property. If you aren’t a lawyer, this may not mean much to you, but property can be taken by the government, for instance, with hardly more than a by-your-leave. Your life, however, is protected rather more carefully in most constitutions.

    If bodies were mere property, those protections would be meaningless. You have the right to live, but not to use your body to do so In the US the protections would be particularly bad since, a la Kelo v New London, if the local town can make a profit off of your property, they are entitled to take it.

    Bodies as property is an obscene system. The rights of bodily autonomy are much better suited toward creating systems and societies that both of us would like better than bodies as property.

  70. 70 70 Conor

    Men find it extremely difficult to believe that a man who is obviously uprooting mountains and dividing seas, tearing down temples and stretching out hands to the stars, is really a quiet old gentleman who only asks to be allowed to indulge his harmless old hobby and follow his harmless old nose. When a man splits a grain of sand and the universe is turned upside down in consequence, it is difficult to realize that to the man who did it, the splitting of the grain is the great affair, and the capsizing of the cosmos quite a small one. It is hard to enter into the feelings of a man who regards a new heaven and a new earth in the light of a byproduct. – GK Chesterton

  71. 71 71 Mike H

    Steve rightly pointed out that the multiplication of questions doesn’t provide answers. Nonetheless, I’m going to plow ahead with a zillion questions about “rights of bodily autonomy”

    If I accidentally lose hair from my head, and someone vacuums it up without my permission, have they violated this right?

    What if they extract my DNA from it? And clone me? Or patent some of my genes?

    What if they steal my prosthetic limb? When I’m wearing it? When I’m not? What if they steal my spare instead? My wheelchair? My car?

    What if I, bedridden, interact with the world via a robot avatar – is my right to bodily autonomy violated by someone who switches the robot off? After I log out? Is this different from a prosthetic limb? What if my internet line drops out due to a DDoS attack? Have the hackers violated my right of bodily autonomy?

    Can people pick me up unconcious from the road and put me in an ambulance without violating my right to bodily autonomy? Can they operate to stop the bleeding before I wake up? Can they give me a blood transfusion?

    Can people cause light to fall on me without violating my right to bodily autonomy? On my eyes? In patterns I might recognise and be offended by? Persuaded by? Persuaded to do things I would not have otherwise have done, such as buy large sugary drinks that increase my risk of diabetes and heart disease?

  72. 72 72 Mike H
  73. 73 73 Mike H

    (at risk of boring everyone)

    is my right of autonomy violated if someone fills my lungs with noxious gases? If they fill all the air around me with noxious gases? If they fill some of the air near me, so I need to be on constant guard to avoid breathing it? If lots of people do this, so I can’t be vigilant enough? Are my rights to bodily autonomy violated if someone smokes nearby? If lots of people drive past my house? When they don’t know if I’m at home or not? If the smoker doesn’t know whether or not I’m nearby, can they still smoke? Must they be 100% sure I’m not here and won’t turn up or is 99% good enough?

    My point with these questions is not to get answers ot them all. Rather, I think I’m trying to point out that if we try to draw a dividing line between OK and NOT OK, it will always seem arbitrary – there will be things just on each side of the line that seem very similar, but the line puts them in different bins.

    People’s gut feelings about situations near the line are sufficiently varied that they’ll argue until they’re blue in the face about which side of the line the situation falls – without recognising that there’s actually no good place to draw the line at all

  74. 74 74 DRDR

    Alex, I do understand better how a regular reader of this blog would focus on the overall thought experiment and recognize that Question 3 was “topically inspired” by Steubenville, rather than an attempt to approximate the reality of Steubenville. I still stand by my claim that Question 3 could be reasonably construed by readers as an attempt to approximate of the reality of Steubenville, and I gather you at least recognize Question 3 could have been construed as such.

    So I am disappointed that when Steve express regrets, the only regret relevant to my concern is “there are parts where the wording could have been better or clearer, but again, that’s always the case.” But the consequences of being unclear are more harmful than usual in this case. A lack of clarity here leads some readers to a depiction of reality where the morality of unconscious rape is ambiguous rather than outright wrong. Such readers are not dunces who have missed the “entirely obvious” truth that this was an “unrealistic hypothetical” but reasonable people worthy of respect, not condescension. The post should have been written so as to prevent any possibility that Question 3 could be reasonably construed as an attempt to approximate the reality of Steubenville, and that failure in judgment deserves a specific expression of regret.

  75. 75 75 Geoff

    Point D of the original post is where I feel your reasoning falls apart. Photons penetrating the body do not act with intent, are not potentially detrimental to the health of the body, and cannot be restrained by law in the first place. It’s for these three reasons that the law would not care if the thought of it happening caused you physical distress.

    A more apt parallel would be if a person were to break into their neighbor’s water supply and release some naturally sterile bodily fluid, such as urine or ejaculate, into it, taking some sort of pleasure from the knowledge that part of them is passing through their neighbor’s body. The neighbor is unaware of this, and thus caused no psychological distress. Of course, there’s a potential health risk if the perpetrator has some sort of communicable disease, but this problem could be solved with a mandate that, in order for this activity to be legal, the perpetrator needs monthly health screenings to ensure that he’s safe.

    Now, were this law on the record books, or were a person to get caught doing this and bring attention to the activity, it’s reasonable to assume that people would be caused some degree of psychic stress from the knowledge that their neighbor could, if he wanted to, be doing this. Furthermore the law would do nothing to stop him so long as he takes reasonable care not to make his activities known to his victim. In this case, as in the case of unconscious rape, I think lawmakers would heed the fact that the behaviour makes people, including potential victims, uncomfortable, and illegalize it on those grounds. The difference from photons being that the law would be able to stop the perpetrator’s actions, and prosecute him for acting with malicious or selfish intent (“Mens Rea,” a necessity in finding a suspect guilty).

    I do think the question of property rights is an interesting one though. Why do we assume that we should own our bodies? Technically speaking, the mind is the only part of us that is actually “US,” while the body is a tool that it uses. At the moment, we are attached to our bodies, unable to share them in any meaningful way. Thus, we are their defacto owners. However, in the future, if we’re able to transfer our minds into machines and other bodies, the question of ownership suddenly becomes a lot more muddy. Can the body we occupy really be our property, any more than the land we live on? Definitely food for thought.

  76. 76 76 Eristae

    This “clarification” doesn’t even make sense. No one, and I mean no one, is arguing that rape should be illegal because it makes the uninvolved bystander uncomfortable. No one is putting forth legislation because they are of the opinion that their own discomfort at watching someone be raped needs to be minimized. This is why you don’t find things like, “In order to ensure the mental well-being of those who may be witness to a rape, rape shall be made illegal. . . ” Running around removing the victim’s pain, the victim’s suffering, the victim’s damage removes the whole reason that rape is wrong. Rape is wrong because of the impact that it has on the victim.

    It’s like trying to talk about whether or not genocide is wrong while explicitly ignoring the fact that genocide kills people. It doesn’t make any sense.

  77. 77 77 123

    If you support liberty and property rights, the only harm that is punished by law should be the objective harm to your liberty or your property. As the crime is an involuntary transaction, there is a pricing problem, but as in voluntary transactions, the pricing is affected by the subjective disutility of the harm done to your liberty or property.
    What about those subjective psychic costs that do not arise from the violation of liberty or property? Pre-crime bargaining mechanism between potential victims and criminals would make it sure that these costs are taken into account too. Such a mechanism is Pareto-enhancing, the current law has got some elements that are related to it.

  78. 78 78 Harold

    CripDyke #37: “But let me also say that your paraphrase doesn’t do justice to my proposal, I think.” You are probably right, I was over-simplifying for effect. Psychic harm should be counted, you suggest, where the justification for doing so is that some underlying “right” that most people believe in is breached. This gives us a better handle on why some psychic harms may be considered for policy and not others.

    Twofer #55.
    Your comment overlaps very much with many of mine – attempting to evaluate the difference between preference and value. You suggest that peoples preference may lead to harm, and I agree with you in principle. However, for the policy to discourage certain acts I think it is the preference we need to deal with. Whether or not this preference ultimately leads to a gain is a separate issue. Whether or not they actually benefit is secondary in this instance to whether they believe they have benefitted.

  79. 79 79 Eristae

    I think I’ve addressed this. Had I written the post an hour earlier or later, I might well have used a different scenario; as it was, something about Steubenville came on the radio and I riffed off that. I don’t think this example is any better or worse than the example of someone who inhabits your house while you’re away at work. In retrospect, I wish I’d used that example, not because it’s any better or worse but because it would have gathered a little less attention from the yahoos.

    Added later: Actually, I take it back. Alex’s comment reminds me that the repugnance of the rape is part of what makes the point. I want an example where everyone will say “Yes, that is clearly something we want the law to discourage”, with no ifs, ands or buts, so that we are forced to face the issue of exactly where we draw the line between that and other examples in which pretty much everyone says the opposite.
    If someone had broken into your house to use it without your permission and then you were found guilty of a crime, how many death threats would you receive? How many people would threaten to break into your house again? How many people would get all teary eyed that these young men’s lives were ruined by being convicted? How many judges would indicate that the problem was recording and then sharing videos of breaking into your house? How many people would have blamed you for not being home, and insisted that the remedy was for you to not leave home?

    Your analogy is inappropriate. Rape is already minimized and dismissed. Rape victims are already villainized, threatened, and punished for reporting the crime that was committed against them. The pain and welfare of rape victims is already ignored in favor of the welfare of the assailants. Rape victims already have people turn their bodies into objects (to be compared with things like houses) to be used without regard for the human being that is the body being violated. Rape victims are already told that they must have wanted it. Rape victims are already told that if they hadn’t wanted it, they shouldn’t have somehow “caused” their own rape by being drunk or wearing a skirt or whatever. It is not helpful to have more people encouraging these kinds of behaviors and attitudes.

  80. 80 80 Steve Landsburg

    Eristae (#75): See Mike H (#72) for why this kind of question is important.

  81. 81 81 123

    Eristae(#75):”No one, and I mean no one, is arguing that rape should be illegal because it makes the uninvolved bystander uncomfortable.”

    I argue that you are too soft on rape. The punishment for rape that you recommend should be 3% harsher precisely because rape makes uninvolved bystanders uncomfortable. And I am happy to pay my share of taxes that funds this 3% extra punishment.

  82. 82 82 Eristae

    @79/Steve Landsburg

    I see nothing in post #72 that negates, or even addresses, any of what I said in #75.

  83. 83 83 Steve Landsburg

    Eristae (#75): Expanding on my earlier response—you wrote:

    No one, and I mean no one, is arguing that rape should be illegal because it makes the uninvolved bystander uncomfortable.

    No, but plenty of people are arguing that psychic harm should always receive policy weight and others are arguing that it shouldn’t. Maybe nobody among your circle of friends is making those arguments, but plenty of other people are. That’s why it’s important to consider examples that let us explore the consequences of those principles.

    I understand that you’re probably not interested in these issues; most people aren’t. But some are, and those who aren’t are free to ignore these discussions.

  84. 84 84 Eristae

    @123
    Ha ha.

  85. 85 85 Eristae

    @Steve Landsburg/82
    Alright, point me at a real life example of someone arguing that rape should be punished, not because it harms the victim, but because people don’t like watching it.

    And I am profoundly interested in the minimization and normalization of rape. That makes it difficult to ignore your discussion. You said it earlier: you don’t have a horse in this race.

    I do.

  86. 86 86 Steve Landsburg

    Eristae: The public policy literature is crammed with arguments about whether distress to bystanders should receive policy weight. I have no idea how many of these papers specifically mention rape, but that doesn’t matter, because the same issues arise whether it’s rape or oil drilling or the reading of subversive tracts. I didn’t invent these questions; they come up all the time — again, maybe not in the circles you happen to travel in, but the world is a wider place than that, and you might open your mind to the possibility that some people are interested in issues that don’t happen to interest you.

    Incidentally, it strikes me as odd that you’d say you have a horse in this race when you haven’t told us which horse you’re backing. What is your proposed general rule for when psychic harm should or should not receive policy weight? The horses in this race are the various possible answers to that question. You seem to watching an entirely different race, which is fine, but it’s way off topic here.

    PS: You asked for a specific example; here is one of hundreds. You could have Googled this yourself.

  87. 87 87 Kristo Miettinen

    To some, but not all, of your numbered points in this post:

    #1 You claim here that “This was not a post about censorship, or about the environment, or about rape. It was a post about where to draw lines between purely psychic harm that should receive policy weight and purely psychic harm that shouldn’t.” You would have done well to state that up front in your original post. Instead, you just launched into the scenarios, with predictable mayhem to follow.

    There is an old saying that you must first tell your audience what you have to say, then say your piece, and finally summarize what you’ve said. You neglected this rule, and left it to the readers to make what they will of your questions. Don’t be surprised that messages you did not intend were imputed to you since you never stated what your message was.

    #2 You acknowledge that the post was laden with unrealistic hypotheticals, as that’s the only way you know of to approach some questions. I implore you to learn realism, as it will make you more effective, and it is professionally and pedagogically safer too. As the lawyers say, bad cases make bad law, and the extension to pedagogy is that extreme hypotheticals lead to extreme discourse (and miscommunication, and wasted time and energy…)

    Business schools, law schools, engineering schools, they all teach through real case studies. It works, it exposes all the hard questions, and it keeps the discussion on topic.

    #3 I haven’t seen anyone in the threads (maybe I’ve overlooked something) who thinks that third-party distress over rape should receive policy weight. That’s precisely why using the extreme hypothetical spoils the broth. People think that rape is wrong as a metaphysical fact of life and are therefore not interested in claiming victim status as third-party sufferers. What is worse from a pedagogical perspective, they cannot imagine that this is what you wanted them to consider, therefore they wander off to secondary or tertiary theories about what it is you were trying to say.

    #4 I think that you miss an important point about the use of hypotheticals in physics and elsewhere. Physicists generally do not analyze frictionless billiard ball interactions unless they think that they can then approximately confirm their speculations with an actual low-friction laboratory experiment. If an experiment cannot be conducted even approximately for physical or ethical reasons then it is generally not analyzed either, at least not as science or for teaching. There are exceptions, but I don’t think your example qualifies.

    #6 I’ll try to help you answer your questions and respond to some of your thoughts from the other post, since that is what you ask for here in #6. Looking back on your other post:

    Q1 the psychic distress (I choose not to call it harm in order not to invoke the accusatory particle “to”) of Farnsworth is irrelevant. We must distinguish morality from legality and public policy; pornography may be wrong yet compatible with the proper functioning of civil society. Farnsworth is not harmed in any way that is incompatible with norm-based interactions, which is what civil society is about. Farnsworth is concerned with norms of non-interactive conduct, which is a matter of morality but not of public policy.

    Q2 same answer as Q1.

    Q3 here, of course, is where you ask the wrong question, even by the standards of your own experiment. You fail to put the ultimate question in terms of psychic distress. But to answer: yes, the law should prohibit rape, but no, not because of third-party psychic distress. Here, and in the equivalent case of voyeurism, we have a case of interaction, at least in the sense of means/ends and the use of one person by another. For such interactions it is appropriate for public policy to establish norms, and the norms we have quite reasonably chosen include conscious and competent consent.

    MQ answers were the same on the irrelevance of psychic distress.

    T.A.1 the magnitude of Bob’s stress is irrelevant. It is the fact of, or absence of, harm done to Bob by others, or in the general interaction of civil society, that matters. If Bob is genuinely and grievously distressed by the possibility that someone somewhere might look at pornography then a compassionate society should impose proper psychiatric care on Bob (a non-compassionate free society might allow Bob to self-medicate). But society should not impose a restriction on the (possibly non-existent) pornography consumption of others on that basis.

    T.A.2 your point is too squeamish. Public policy should not be based on feelings but on harms, and harm has to be imputable to others or to social interaction in general; self-harm and no-fault-harm (which I maintain is a contradiction and where I therefore prefer the term “distress”) are fair topics in their own right, but not cause for restriction of others.

    T.C here again you could have saved yourself anguish by not publishing until you could see why Q3 is substantially different. Your admission here that you are having trouble articulating a good reason opens upon yourself the floodgates of ad hominem. Q3 is different because it involves interaction, at least as means and end, and therefore it is properly in the domain of public policy, which is concerned with norms of civil society. Note that harm or victimhood is not the essential feature, merely use without consent, like borrowing your neighbor’s lawnmower without permission and returning it before he notices, with no appreciable damage or wear and tear.

    T.D I think you misdiagnose why the neighbor’s porch light is inoffensive. The relevant feature is not that you are not harmed, it is that you are not used. I think you would feel differently (at least on my analysis it would be reasonable for you to feel differently) if your neighbor was using a projector to project a movie onto the side of your house for his viewing pleasure without first asking your permission, even though the photons are equally harmless. Consent is key when being used.

  88. 88 88 Ken B

    87: “You would have done well to state that up front in your original post.”

    You want Steve to insert redundant disclaimers — as a form of genuflection it seems — to prevent fools from misreading him.
    Here at TBQ we sometimes skip steps.

    I note by the way that in your comment you do not begin with abjuring the devil and all his works. So I guess it’s OK for some people to skip steps. Odd that.

  89. 89 89 Kristo Miettinen

    Actually, Ken, apart from the snark I agree with you – I am, indeed, recommending that Steve write in a manner that prevents fools from misreading him.

    If you think that is bad advice, then you are free to advise Steve to the contrary, tell him to damn the torpedoes and inflame the masses. But I think that would be unwise, ineffective, and professionally unsafe.

    I’m trying to help. Are you?

  90. 90 90 Super-Fly

    @Landsburg: Regarding point #3 “And again — this has nothing to do with the question of whether rape is horrible for the victim.”

    This is just a quick thought, but I’m not sure that’s necessarily the case. I feel psychic harm over rape and it’s pretty much entirely because the *victim* suffered physical/psychological harm. I suspect that most (possibly all) situations where my gut says psychic costs are relevant, it’s when the psychic costs arise from empathy.

    I think this is a key difference between the rape case and Farnsworth and Granola. Millions of people endure psychic costs over the idea of people selling their organs, listening to rap, or marrying someone of the same sex. I don’t think those costs are relevant for policy analysis, because I can’t see how anyone is victimized.

    In that case, we can’t really assume away the cost to the victim. To borrow the analogy, if we assume friction away, it doesn’t make a lot of sense to talk about the heat generated by friction. I think this is what has generated a lot of the discord that has resulted from this post. If you told me your car was stolen, I would feel bad for you. If you later found out that your wife borrowed it to run an errand, I wouldn’t feel bad anymore. As far as policy goes though, I don’t see how my feelings are relevant there.

    (I’m not sure if someone else has brought up this point somewhere, but I don’t think I saw it. I apologize in advance if it’s redundant.)

  91. 91 91 Ted Levy

    Professor Landsburg should consider himself fortunate that he did not, in one of his hypotheticals, use the word “niggardly”…

  92. 92 92 Ken B

    @89:
    I amend. Not fools, knaves.

    These are not mutually exclusive of course.

  93. 93 93 Greg W

    I’d argue that policy is frequently made on the basis of mitigating externalities that manifest largely or solely as repugnance or other psychic harm.

    That’s why, for instance, the oldest wooden house in New York City is an historical landmark–tearing it down would cause significant psychic harm to myself and many other New Yorkers.

    That’s also why battery cages are being phased out, by law, in the EU. Or, closer to home, why I’m not legally allowed to strangle a stray dog or have sex with a horse, neither of whom (in the US legal system) has property rights over his own body that need to be protected.

  94. 94 94 suckmydictum

    @91. True. Last year, Landsburg really wrote about “contractive lunges” but everyone read “contraceptive sponges”.

  95. 95 95 David

    @85 “And I am profoundly interested in the minimization and normalization of rape. That makes it difficult to ignore your discussion”

    I suspect much of the disagreement here is between those that understand that SL’s post had nothing whatever to do with “the minimization and normalization of rape” and those who do not. Which is why Ted’s analogy (#91) is absolutely perfect.

  96. 96 96 Hazel Meade

    Sadly, your response fails to address the source of the problem. The inability of some readers to distinguish a position taken for the sake of argument, or to pose a question to the reader, from a position held with all sincerity.

    The bulk of the flaming is the result of a large number of people incorrectly reading your post as a serious argument in favor of legalizing rape-while-unconscious.

  97. 97 97 Scott F

    Not to get off topic, but here is a crack at when psychich harms should matter (or not):
    Let’s start with the extreme example where absolutely no harm (physical or monetary) is done in the course of act x but, everyone in the world incurs psychic harm when it is done.
    I would say that in less the benefits to the world (or an individual) were exceedingly large, that act should be illegal. If the benefit(s) were evenly distributed and larger than our collective psychic harm we’d likely all want this to happen and would never discuss its legality in the first place.
    This a very simple utilitarian argument for taking into account psychic harms, but what it points towards is the possibility that we may incur psychic harm yet still allow act x or find act x too onerous to not make it illegal. What it may also point to is that whether or not something is made illegal according to psychic harm it produces (assuming everyones level of psychic harm is at least roughly the same and no one persons is off the scales) would be ammenable to the democratic process. If we were worried about magnitude of psychic harm we might be able to use FMRI or the # of college students willing to protest an economics professor when he uses act x as a hypothetical as surrogate measures of psychic harm. If we’ve reached the limit of where logic can take us on deciding somethings illegality, this seems like a viable alternative.
    Of course, we might be worried about very emotionally fragile populations dictating policy or minorities harms being consistently trampled over, but we already deal with those problems so that’s probably not a complex enough answer to negate this proposal.

  98. 98 98 Scott F

    As a follow up to my above comment I would say:
    A) Sorry about all the typos.
    B) This policy would likely get us to an outcome that distinguishes A and B from C in that the amount of psychic harm that would be caused by the first two as compared to the number of us who would benefit from the action would probably be much smaller than with C. This, at face value, doesn’t seem like too bad of a criterion to go on. It doesn’t really reconcile the question on strictly logical grounds, but it’s a step in the right direction.

  99. 99 99 Guest 1c

    Eristae(#75):”No one, and I mean no one, is arguing that rape should be illegal because it makes the uninvolved bystander uncomfortable.”

    Do you mean no-one on this thread, or no-one in society?

    I would argue that within a democratic society, making things illegal because it makes an uninvolved bystander uncomfortable is exactly what legislators do every day. It’s not unusual for significant events to cause a public outcry and demands that “the government” do something. The government – our elected officials who represent us as constituents – may act by creating new laws, updating existing laws and/or changing the penalties.

  100. 100 100 Neil

    Wow–SL made The Chronicle of Higher Ed.

    http://chronicle.com/article/Professors-Rhetorical/138357/?cid=at

    You know, I’ve long argued that tenure is not necessary in today’s universities and should be abolished. I think I might have to re-evaluate that position. Obviously the mob with the pitchforks and torches is ready to rock about this.

  101. 101 101 Al V

    @Crip Dyke, Thanks for your clarification. I don’t disagree with you, now that I understand.

  102. 102 102 Nepeta

    Here’s a third attempt at a rule about what should be legal:

    You can do anything you want provided your actions do not create greater overall harm to the society than the happiness they yield the society.

    My reasoning:

    1. The purpose of a law is to ensure that a society’s total happiness is maximized as much as possible given the wants of the individuals in the society. Calculating the happiness resulting from a law requires determining the amount of happiness resulting from the law minus the amount of pain caused by the law.

    This is why the first attempt didn’t work. We create just laws by taking both happiness and harm into account. If a law causes a single individual pain, the law might still be, on the whole, a good thing. “Don’t hurt anybody” is not a precise enough criterion.

    2. When we attempt to calculate the pain resulting from a law, we have to take both psychic and physical harm into account. That’s because really, all harm is psychic harm. Pain is a phenomenon of the human brain. Sure, we can differentiate between what caused the harm (damage done to the body or done through non-physical means) but that’s hairsplitting (see http://pss.sagepub.com/content/21/7/931.short or http://carterlab.ucdavis.edu/courses/psc261/eisenberger_lieberman_williams_S2003.pdf for neuroscientific evidence of this.)

    This is why the second attempt didn’t work. There isn’t enough evidence for a categorical distinction between psychic and physical harm. When we make such distinctions, we are really using them as a shorthand to talk about the severity of the harm.

    3. Therefore, psychic harm IS valid–but only up to a point. We reject the idea that Farnsworth McCrankypants’s psychic harm should have any say on whether pornography is legal, not because we reject the use of psychic harm in calculating a law’s validity, but because we intuit that Farnsworth’s propensity to have acute psychological distress at imagining other people watching porn is unusual. Therefore, he does not diminish the sum happiness of allowing people to watch porn enough to make the law illegal.

    4. This is what makes the rape case different. The idea of someone being raped causes a lot of people a lot of pain, because as a society, we feel rape is disturbing. Not only that, we live in a society where over 100,000 people are raped per year; we can assume that these people feel particularly acute psychic distress at the idea of rape. Therefore, we can estimate that the sum of the psychic harm done to the society by allowing one person to be raped is greater than the pleasure of the rapist.
    (Obviously, if no word gets out about the rape, it gets murkier, although it’s possible that the psychic distress of the victim might be greater than the happiness of the perpetrator. But it would be hard to determine that exactly).

    Anyway, that’s what I’ve got. I’d be interested to hear your thoughts.

  103. 103 103 ZT

    Nate W wrote (and I’ve seen this sentiment expressed a lot):

    “Prof. Landsburg, you are on the horns of a fairly lop-sided dilemma: either you honestly think that rape of an unconscious victim is no big deal, or you didn’t choose your words wisely. I know which of these offenses I’d choose to be guilty of. While there is a right and wrong in ethics, there is no right or wrong in communication, just effective and ineffective. When a great deal of people are not understanding your point, you communicated in effectively, no matter how well you think you expressed yourself. Every time you defend your clarity in these situations, you are reopening the possibility in your audience’s minds that you are the horrible person you seemed to be in their reading of your words.”

    What commentators like Nate seem to be forgetting is that communication is a two-way street. Every reader will interpret words based on certain assumptions about the author, and every author has to second-guess that based on assumptions about readership. What happened here is Prof. Landsburg wrote something that was mediocre by the readership standards he was accustomed to, but as condemnation spread throughout the internet, those words were both intentionally twisted (I’ve seen proof of this) and interpreted in a worse light by a non-accustomed audience that was already predisposed against what Landsburg wrote. So, there’s room for Landsburg to apologize for being unclear *and* for pointing out the mistakes that some of his critics were making. There is no contradiction.

  104. 104 104 RichardR

    I think the reason people strongly dislike the example is the assumption that you can have a rape with no physical harm. Even if the victim is unaware they were raped it could have caused physical damage to the person’s body. I don’t think it is possible to rape someone without causing any damage and the fact that some people do is disgusting.

    A different example, is it wrong to murder someone if the victim survives? This is a stupid hypothetical because by definition a murder victim can not survive.
    It is wrong to rape someone if there is no physical damage, this is a stupid example because it is impossible to rape someone without physical damage.

  105. 105 105 Guest 1c

    “Second Attempt: You can do anything you want as long as you’re not causing anybody direct physical harm. This allows you violate the Sabbath and read Marx, but it would also allow you to rape an unconscious victim if there were no physical consequences. That seems grotesque, so this rule seems wrong too.”

    I’m not sure this explanation really helps. While you may think the rape scenario seems grotesque (and I’m pleased you state this), the view is unfortunately not generalizable to society at large or law. In the Steubenville case, the defense argued that victim wasn’t raped – that she had consented because she had remained silent, even though she was silent because she was unconscious.

    Some jurisdictions (and lawyers and lawmakers) use the concept of ‘forcible rape’, where presence of physical injury is required to prove a person did not consent. An absence of physical injury is assumed to be evidence of consent, i.e. there was no rape. In the hypothetical you described, an unconscious victim who suffered no physical harm would unfortunately be viewed by many as having not been raped at all.

  106. 106 106 Ken B

    @RichardR 104:
    Lets assume ad arguendo you are right and the example is flawed. How does that warrant reading the example as advocacy or minimization of unconscious rape? In no way at all.

  107. 107 107 Steve Landsburg

    Nepeta:

    Thanks for one of the most helpful and thoughtful comments in any of these threads. I hope I find time to respond in kind.

  108. 108 108 twofer

    @ Harold #78
    “Twofer #55. Your comment overlaps very much with many of mine – attempting to evaluate the difference between preference and value. You suggest that peoples preference may lead to harm, and I agree with you in principle. However, for the policy to discourage certain acts I think it is the preference we need to deal with. Whether or not this preference ultimately leads to a gain is a separate issue. Whether or not they actually benefit is secondary in this instance to whether they believe they have benefitted.”

    Harold, I’m a sometimes reader of this blog, but I’ve read enough of your writing to know that you are about as patient, thoughtful, and intelligent a writer as one could hope for. The spirit of inquiry runs deep in you, and I wish I was as good at is as you are.

    My response to your point about the difference between a rapist believing he is going to benefit vs. actually benefitting is: Then we need to have much more dialog about why a person may not actually benefit from the act. People need better language and tools to understand if they really do benefit from an act so they can make better decisions. If we don’t test the assumption of benefit, giving a more complete account of what preferences might or ought to include, how can we possibly make good laws? Where would we even find the inspiration to try to rise above our current station?

    It’s a vast subject. In my first post I wrote I had many complaints about the original argument, but would only pick on one aspect of it, but in reality, it’s hard to narrow it down to just one thing: My objection to the claim that the rapist “benefits.” First, by definition of rape, we vacated the sphere of the marketplace, entered instead into something more like moral and political philosophy, and therefore there is no reason to believe the tools of marketplace thinking are at all useful. The idea that people “engage in an activity because they prefer doing so,” might be a good approximation in aggregate when modeling an economy (i.e. the original reference to revealed preferences), there really is not all that much evidence that this is how an individual human being actually functions (I know you know this from other posts you’ve written). The reality is, as I know you know, most of what we do is quite unconscious.

    Second, philosophers have been thinking about the question, right down to the rape without consequences example, for literally thousands of years. It’s really hard to both claim to be a philosopher and to claim to have not given it much thought. I’ve already mentioned Plato. Mill, one of the two patron saints of utilitarianism wrote extensively about how actions and consequences are not all that matter. Character also counts. For Mill, individuality mattered less for the pleasure it brings than for the character it reflects: “One whose desires and impulses are not his own, has no character, no more than a steam engine has character.” Mill understood that utilitarianism needed to be more than a crude calculus of pleasure and pain.

    Kant rejected utilitarianism entirely. By resting rights on a calculation about what will produce the greatest happiness, utilitarianism leaves rights vulnerable (ie all humans are worthy of respect, not as mere instruments of the collective happiness). Kant knew there is a deeper problem: Trying to derive moral principles from the desires we happen to have is the wrong way to think about morality. Kant argued that morality can’t be based on merely empirical considerations, such as the interests, wants, desires, and preferences people have at any given time. These factors are variable and contingent, he points out, so they could hardly serve as a basis for moral principles (or laws). Kant reasons when we, like animals, seek pleasure (or the avoidance of pain) we aren’t acting freely. We are acting as slaves of our appetites and desires. Casual sex is objectionable, Kant wrote, because it is all about the satisfaction of sexual desire, not about respect for the humanity of one’s partner. “They make of humanity an instrument for the satisfaction of their lusts and inclinations.”

    Nozick the high priest of libertarian philosophers objects for reasons many on this blog have already pointed out. The list of great thinkers who have explored this goes on and on and on. The original post itself takes almost none of this into account, instead blithely assuming the rapist benefits. If I’m right, the act of rape debases onself, then I’ve rescued the utilitarian calculus and in the context of this case we can be done. If I’m wrong, then there are at least a whole lot of other ways to think about this question. As for me, I think utilitarian calculus is an important tool, but not the be all and end all, and as such not the only reason we have laws. Psychic harm matters, and should count, but so do a lot of other things.

  109. 109 109 Max

    Has anyone linked to David Friedman’s posts on this subject yet? I can’t recommend them highly enough.

    http://daviddfriedman.blogspot.com/2013/04/landsburg-v-bork-what-counts-as-injury.html

    http://daviddfriedman.blogspot.com/2013/04/response-to-bork-and-landsburg.html

  110. 110 110 Peter Tennenbaum

    Is the Bill of Rights causing psychic harm to anyone (consciously or “otherwise”!)? If so, isn’t this an ongoing CONCRETE issue of “public policy”?

  111. 111 111 Crip Dyke

    Of course the BoR is causing psychic harm. Under what rock do you live that you haven’t seen this:

    http://www.washingtonpost.com/national/on-faith/on-religion-north-carolina-bodly-goes-where-the-constitution-forbids/2013/04/04/653c10be-9d18-11e2-9a79-eb5280c81c63_story.html

    As for whether or not that psychic harm should be taken into consideration during public policy discussions, that’s exactly what the question is supposed to be here, though some are simply taking it as “should X be illegal” or “when should X be illegal” [usually x = rape], the actual question under discussion is:

    Under what conditions should psychic harm be given policy weight?

    Read my posts above to see my answer to this question and how it directly undercuts the nonsense of your suggestion that NC’s psychic harm should be considered a “CONCRETE issue of ‘public policy’”.

  112. 112 112 RichardR

    @ Ken B 106
    Firstly I don’t think it is an assumption that I am right. It has to be the case. The only way you could possibly know if a woman has not been harmed would be to give a medical examination. This is intrusive (harm-causing) and means the woman is no longer unaware she was raped. Therefore you can never prove that a woman is not harmed. Therefore it can not be falsified and is unscientific.

    Secondly the erroneous belief that it is possible to rape without causing harm can affect behaviour. It is a simple utilitarian calculation: A rapist enjoys the pleasure of raping a woman. The woman is completely unaware and suffers zero harm. The world benefits if the woman is raped in this instance. If the rapist believes that raping always causes the victim harm he can not be sure that his pleasure is greater than the victim’s suffering and might not rape.

  113. 113 113 Ken B

    @RichardR 112
    Nothing there answers my questions or addresses my point. Your comment is based on the assumption someone is suggesting that real rapes won’t involve real harm AND NOONE HAS SUGGESTED ANYTHING LIKE THAT. Just the opposite in fact, as has been noted repeatedly. The repeated attempts to pretend otherwise are exactly what I am objecting to.

  114. 114 114 dave

    114th! grats doc. youve hit the big time. is ‘psychic harm’ like ‘social harm’ why do people cry out in pain or anguish? to garner social support? were trying to create a policy about the boy who cries wolf? when do we listen to him and when do we ignore his plea? im pretty sure youve got that licked already with some sort of math. my brain says just go with 50/50 slighty weighted in the direction you want to the outcome to fall.
    you can do anything you want as long as youre prepared for the consequences.

  115. 115 115 Peter Tennenbaum

    Cryp Dyke:

    No need for attacks, that I can see–although IF I am TRULY living under a rock, I cannot see much! I certainly did not previously read the item you linked to but am aware of my environment or so some bright people around me are kind enough to humor me into entertaining the thought.

    Landsburg once wrote that he thought the human mind was a machine. My recent post was a kind of reply (for my own amusement, mostly–I’ll let God decide if I should be punished for wasting other people’s time or inflicting harm). Note, however, that if the mind is a machine, then unconsciousness–IN HIS EXAMPLE–would be akin to turning off the electricity to the machine’s circuitry–assuming the the conscious part mostly resided in flash memory and that basic functioning of the mind/machine (including the power-up to consciousness) required real-time current flow to an array of support components (dynamic memory, diodes, resistors, etc) required to get the basic program (consciousness) up and running.

    Yes, when the machine was off, one could mangle various components (RAPE!!!), replace them, and the machine would probably not know the difference when turned on again. I viewed Landsburg’s example/argument as being, at root, this banal/interesting–and ONLY because the issue of unconsciousness “appeared” (to me) to be presented as a matter of turning off a machine. But I now spend my life working on nontoxic electromagnetic devices that I use to kill or “arrest” the growth of a particularly deadly cancer in my wife, so my general focus is rather narrow.

    That said, I find the following scenario/question (or “hypothetical”) far more interesting than all of the original ones:

    A patient goes to his doctor for his yearly physical. At the end of the visit, he asks/tells the doc a standard joke (put in the form of a question): Doc, am I going to make it?

    The doctor responds quite seriously and states that he is NOT going to make it–that he is going to die–but he can’t say when, exactly. He does, however, present the patient with a probability distribution (future time is on the x axis). The doc says that this is the best answer he can offer the man as to when the man will die.

    Assume now that the man is “average” for his age and that ALL the doctor presented to the man was a standard actuarial table in some appropriate graphical form. The doctor goes one step further, however, and points out (the obvious) that the man could die at ANY instant!

    Now, what is the psychic harm done to the man ASSUMING that he wasn’t told that the probability distribution applied to the average man his age–that it applied to him? Clearly, one can expand on this, but the main question is whether the doctor, presenting such statistical data, is harming the patient–even, for example, when the data IS valid and the patient knows it?

    One can certainly imagine that if the patient was NOT trained in statistics, that he might become quite alarmed by such a graph–perhaps even become desperate, though the data was completely truthful in terms of “statistics”. Nothing phony, simply “statistical truth” (if one believes in such a concept and all the assumptions that underlie the theory).

    The interplay of science, sociology, psychiatry, psychology, EDUCATION, medical ethics, public policy, etc., in the above example is, to me, quite interesting. Why? Because the “hypothetical” presented is exceedingly simple AND it applies to “most” people. It is not some fancy Ivory Tower-type concoction/conundrum and, although I may be deceiving myself, it does not involve hot-button topics that garner great attention and put peoples’ panties in a bunch, yet the general issue (life/death) applies to everyone, every second of every day/night.

  116. 116 116 Guest 1c

    @KenB
    “Your comment is based on the assumption someone is suggesting that real rapes won’t involve real harm AND NOONE HAS SUGGESTED ANYTHING LIKE THAT.”

    The original post explicitly stated that a real rape – the Steubenville case – didn’t cause physical harm. This was the basis for a hypothetical case in which a rape victim suffers no physical injury or harm.

    My personal view is that this misrepresented the Steubenville case – it assumed the lack of physical (forensic) evidence presented in court meant the victim suffered no physical harm. As a health worker, I have doubts that an unconscious person could be carried between locations and placed on various surfaces without causing some sort of physical injury.

  117. 117 117 D9

    Just wanted to let you know that I got your intended message the first time. I am sorry that you are taking heat from so many nit-pickers. You have certainly made it clearer since but in doing so you had to do some of the thinking for your readers. Sad…

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