Note added on 4/5: Some readers missed the point of this post very badly, which means that it could have been written more clearly. Here is a brief attempt to clarify.
______________________________________-
Here are three dilemmas about public policy:
Farnsworth McCrankypants just hates the idea that someone, somewhere might be looking at pornography. It’s not that he thinks porn causes bad behavior; it’s just the idea of other people’s viewing habits that causes him deep psychic distress. Ought Farnsworth’s preferences be weighed in the balance when we make public policy? In other words, is the psychic harm to Farnsworth an argument for discouraging pornography through, say, taxation or regulation?
Granola McMustardseed just hates the idea that someone, somewhere might be altering the natural state of a wilderness area. It’s not that Granola ever plans to visit that area or to derive any other direct benefits from it; it’s just the idea of wilderness desecration that causes her deep psychic distress. Ought Granola’s preferences be weighed in the balance when we make public policy? In other words, is the psychic harm to Granola an argument for discouraging, say, oil drilling in Alaska, either through taxes or regulation?
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. (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.) 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 such acts of rape? Should they be illegal?
If your answers to questions 1, 2 and 3 were not all identical, what is the key difference among them?
A. I have a strong visceral sense that Bob McCrankypants’s issues are his own and ought not impinge on public policy. This makes it incumbent on me to think about where I draw the line — why should one sort of harm (e.g. a punch in the nose) be legally actionable and another (e.g. psychic distess over someone else’s reading habits) not be? I’ve mused on this before (e.g. in the final chapter of More Sex is Safer Sex), but I think I’ve failed to draw a compelling bright line. That said, some clearly relevant issues are:
- We have only Bob’s word for the magnitude of his distress.
- We don’t want to encourage others to dredge up their own feelings of psychic harm, which might have lain safely buried in their unconsciousness until they noticed that conscious expressions of such feelings tend to get rewarded.
B. It seems crystal clear to me that there is no substantive difference between Bob and Granola. If Granola plans to hike the Alaskan wilderness, and if those plans are likely to be disrupted by oil drilling, that’s a legitimate reason to discourage oil drilling (though of course there might be countervailing reasons to encourage it). But as long as she’s sitting in her own living room fuming about other people’s drilling habits, even as Bob sits in his living room fuming about other people’s viewing habits, I see no reason why her fumes should get more public policy weight than his.
C. I’m having trouble articulating any good reason why Question 3 is substantially different from Questions 1 and 2. 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? We’re still talking about strictly psychic harm, right?
D. It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies. Every time someone on my street turns on a porch light, trillions of photons penetrate my body. They cause me no physical harm and therefore the law does nothing to restrain them. Even if those trillions of tiny penetrations caused me deep psychic distress, the law would continue to ignore them, and I think there’s a case for that (it’s the same as the case for ignoring Bob McCrankypants’s porn aversion). So for the issues we’re discussing here, bodily penetration does not seem to be in some sort of special protected category.
E. One could of course raise a variety of practical issues. If we legalize the rape of unconscious people, we will create an incentive to render people unconscious. If you answered Question 3 differently than you answered Questions 1 and 2, was it because of this sort of thing? Or do you see some more fundamental difference among the three cases?
F. Followup question: If your answer depends on the (perfectly plausible) assertion that the trauma from learning you’ve been raped is of a different order of magnitude from the trauma suffered by Bob and Granola, would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?
Edited to add: Some commenters have suggested that Question 3, unlike Questions 1 and 2, involves a violation of property rights. This seems entirely wrong to me; 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.
I answer “Yes” to all three, so at least I’m consistent.
Now, what’s the substantive difference between
2a) Granola, who is upset that the wilderness was destroyed, even though she never planned to visit it, and
2b) Oreo, whose dreams of visiting the wilderness were canned when he learned that it had been destroyed? Both have suffered no physical harm, only emotional distress, surely?
I’m inclined to think that while there may be a few good reasons for why we should punish rape when the victim never knows it happened, our common inability to detangle categories (X is rape, therefore X is bad) from the reasons we originally opposed the action (rape is bad because of the physical and psychological trauma, the risk of STDs and pregnancy), leads us to think it is worse than it is. See The Worst Argument in the World.
“would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?”
How would the perpetrator even be caught if the victim was unaware? This seems like an impossible scenario. If the criminal justice system is aware of it, then the victim certainly is, and hence the perpetrator has inflicted grave psychic distress and should be punished accordingly.
The only plausible scenario I could envision is if the perpetrator has evidence of the crime, say a video, but the victim is anonymized.
But even in this scenario the existence of the video will create a class of people who must assign some non-negative probability to them being the specific victim. Believing yourself to have a .01% chance of being violated must certainly cause at least .01% of the psychic distress of being 100% sure. Probably much higher in fact, since people systematically overestimate the likelihood that low-probability events will happen to them.
In aggregate telling a million people that they’re a member of a group, of which at least one was raped while unconscious will cause at least as much aggregate psychic distress as telling one person. So just the same such a person should be punished accordingly, and probably be compelled to reveal the identity of the victim.
1. No
2. No
3. Yes
My answer for (3) is based on the idea of ownership. If we assume we own our own bodies (on the admittedly shaky grounds that we would not accept that anyone else owns them), then the issue is that the attackers have used something without the consent of the owner.
It’s the same answer I would give for someone stealing a car, driving to the shops, filling up the tank, rotating the tires, and putting it back where they found it. While this is less harmful than stealing the car and selling it, it’s still illegal: the car is being used without the consent of the owner.
As to *why* private property should be protected even when the use of it without consent does not cause obvious harm… that’s a longer discussion! Incentives, who decides what harm is, contention in time (I want to use my property but someone else has taken it to use without “causing me harm”), etc, probably all figure into it.
Neither Farnsworth nor Granola are objecting to the use of something they own. They are objecting to the use of an abstract category of things (Farnsworth, with the added benefit of it being very difficult to determine what concrete things belong to this abstract category) or to the use of state-owned property (Granola, with the added complication that if it is state-owned, does this imply she owns some share of it, and is that share adequately represented by her vote).
What’s so special about the particular case where the rape victim never finds out about the rape and has zero perceived psychic cost? What if they do find out about it — or are even conscious during the rape — but the perceived cost to them is less than the enjoyment the attacker got out of it? Then by the economic logic you’re advocating, isn’t that an argument in favor of legalizing rape? (Regardless of whether you define “perceive cost” as the amount the victim would pay to avoid it, or the amount the victim would demand as compensation for undergoing it.)
Of course normally if the cost to one party is less than the benefit to the other party, the second party would just pay the first one in order to engage in the transaction. But maybe the rapist only enjoys the sex if it’s nonconsensual, so that rules out a consensual transaction as a solution.
(This argument is straight out of “More Sex Is Safer Sex”, asking whether one person ought to be allowed to torture another person, if the benefit to torturer is greater than the cost to the victim, but the first party’s enjoyment depends on torturing the other person *nonconsensually*.)
Case 3: Assuming that the girl was unconscious, rather than merely using a few beers as a rationale for banging the cool guys, then this is a clear case of trespass. Trespassers need to be deterred, regardless of whether they do harm. They threaten harm, they make harm possible, they are apt to do harm. If they do not do harm on one occasion, will probably do harm the next occasion.
Case 1: Old religion, no longer in theocratic power. Thus the state delights in offending those old fashioned people who still adhere to it.
Case 2: New religion, now in theocratic power, thus the religion is enforced.
Should that religion be overthrown, after the fashion of General Monck overthrowing the puritans, then people will doubtless delight in offending those old fashioned believers. Any polar bears that endanger humans by wandering too close to inhabited areas will be shot, and the rich and fashionable will decorate their homes with polar bear rugs.
I beg you potential witnesses: if I am ever raped by beautiful women while being unconscious, I want to learn every detail about it.
I think the issue is largely one of property rights. Someone’s emotional distress is precisely relevant to the extent that they have a property right regarding the cause of that distress. Farnsworth McCrankypants does not have a property right over other people’s viewing habits, Granola (presumably) does not have a property right over Alaskan oil, and the rape victim does have a property right over her body.
Of course that then leads to the question of who gets what property rights. Fortunately we have Ronald Coase to tell us that it doesn’t really matter. As long as property rights are well defined, the optimal outcome will occur. So if the rape victim dislikes being raped less than the rapist enjoys raping her then the logical outcome is for him to pay her a mutually acceptable amount to waive her right (i.e. prostitution – assuming here that it is the sex that is desirable rather than specifically the unwillingness of the victim).
Similarly, if Granola and her ilk REALLY don’t want Alaska drilled, they could buy it. If they’re not willing to do that, it’s a fair indication that the oil company and its consumers are going to derive more benefit from getting that oil out of the ground than Granola and Co. are going to derive from keeping it in. And of course the same applies to McCrankypants. If he really wants people to not watch porn, he can pay them.
Of course to minimise transaction costs, the property rights should ideally originate where they are most likely to stay. Most women prefer not having sex with strangers to money (at least at the market price for sex), so it’s sensible that they start off with the right of refusal.
Let’s propose another scenario: Chantelle McChastity is an attractive female student at a North American university. She learns that some of her fellow students have been engaging in sexual fantasies about her, and is outraged.
This seems like an appropriate analogue to Farnsworth and Granola’s position. The harm is not only purely psychic, but it’s *bound* to be purely psychic. There is no risk of harm to Chantelle unless she is informed about it.
Compare this to the real-world situation of sexual assault, which runs risk of non-psychic outcomes (physical trauma, pregnancy, STDs, etc.) On this occasion the perpetrators (and victim) got lucky, but the law is about agency and action, not outcomes.
Those who break the speed limit are still violating a law, even if they’re not caught, or if their actions don’t result in the negative consequences that speed limits are meant to reduce. The perpetrators in the rape case violated a law, and a serious one at that. Even if we completely discount the victim’s psychic distress, saying “ah well, no harm done on this occasion” is not an appropriate response if that law is to function as an effective prohibitory mechanism.
The porn watchers and the Alaskan drillers are watching and drilling continuously and over time, whereas the rapists in Ohio, it seems, were not raping continuously and over time. Society has observed that raping unconscious women might be a good predictor of raping conscious women in the future and takes action to prevent that, but the porn watching and drilling “offenses” are already being perpetrated repeatedly over time.
As for the line about when someone’s psychic preferences should be accounted for, the classic Millsian test is whether there’s clear, assignable harm being done to them. In a vacuum, it’s pretty unclear where 3 falls in this test.
“Would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?”
Have you watched Joss Whedon’s “Dollhouse”? The over-arching premise is, in fact, not dissimilar to this. The obvious problem, in Whedon’s world as in ours, is that there is no way to guarantee either lack of harm or lasting amnesia.
Should we have laws against instances of drunk driving in which nobody is injured? I believe we should because of the increased chances of actual harm. So, for example 3, one of the reasons we need to discourage it, is that the fact that there was no physical harm or knowledge of the assault was a fortunate happenstance. The assault certainly increased the chances of physical harm (probably moreso than in the case of a drunk driver) and increased the chances of knowledge of the assault enormously (without an assault there was no chance of the victim finding out about the assault!)
I see no problem. In all three cases there is psychic cost. Why should the preferences of any of the aforementioned individuals not be considered for public policy? I would add that in all cases they are. The economic (political) issue is whether the psychic costs are big enough for enough people that a regulatory policy or criminal law passes a benefit-cost test (an electoral test).
Leah has it spot on. Many laws are made to insure that people don’t near a graver law being broken. The law against raping a conscious individual is extended into the law against raping someone who may/may not be necessarily conscious as well as witnesses/other means for the victim to find out and know psychological harm.
As for #s 1 and 2, the laws in the form of utilitarianism are important to note. To reject the freedoms of many over a rare distress is not a trade-off worth considering, though #2 does hint at an ecological consideration, which affects many (though not important because of Granola herself)
Should it be legal to fire a gun over the back of the head of a deaf person who would not consent if they were aware of your plans as long as you miss?
We’re resigned to a restricting personal choices when it comes to public goods (and public bads). Turning on a lamp on your own property invariably will result in photons leaving your property but society determines whether that is actually a public bad. Rape, however “safe”, only directly affects the victim, which means that individuals can have their own preferences about whether to press charges. We presume that people don’t want to be raped while asleep but if someone really doesn’t feel harmed by it, they don’t have to press charges.
I’m struggling here too, obviously. I hope you don’t mind my incomplete answer.
We have jumped the shark. I will never understand why so many libertarians gravitate toward hypothetical examples involving rape. Note to libertarians everywhere: stop using hypothetical rape to argue a point. It only serves to turn people off of the entire discussion.
Think about it: Is it really even necessary to make a logical case against – or, worse, in favor of – rape?
To answer the questions:
1) No, because Farnsworth is being harmed by his own thoughts, not by anyone’s actions.
2) This is not really a fair telling of how Granola actually feels. How she actually feels is that the destruction of a far-away environment causes her harm that can be directly attributable to the environmental damage. If she can prove this conclusively, I don’t think any change is public policy is necessary; she may simply sue for damages. The fact that she cannot prove her case is why she resorts to public policy changes. This is unreasonable.
3) Being raped while unconscious is not even REMOTELY comparable to being bombarded with photons. This is obviously different from Question #1 because in the first case, the person was being psychologically harmed by his own thoughts, and in this case the victim is being physically assaulted and abused by someone else, irrespective of her psychological awareness of it.
But why stop here? Should we be allowed to sexually assault people who are in comas? How about people in a vegetative state? If someone had the inability to remember things beyond 5 minutes ago, could we cut his arms off and later inform him that he was born that way?
My main criticism against The Big Questions (the book) was its extreme take on Consequentialism. If the ends are the only things we care about, then any means will seem valid. Hence, Landsburg reaches clearly objectionable conclusions such as that it would be reasonable to kill one man in order to prevent the rest of the human population from getting a headache. Landsburg contrasts consequentialism to deontology and usefully demonstrates the former’s superiority. But there are other options, such as utilitarianism or virtuistic eudaimonism, which resolve many of the apparent conflicts that are created by relying too heavily on consequentialism.
In my opinion, of course.
That’s just mind wanking. Disgusting & immoral.
You are -purposely- not clear about the third point, just to do this provocative post.
Hey, if you rape a girl and never she or anyone is aware of it, yep basically 3 is the same as 1 or 2. But a perfectly unnoticeable rape is impossible.
“If we legalize the rape of unconscious people, we will create an incentive to render people unconscious.”
Bravo you discover human is a rational creature. By the why that’s why (good) laws sanction acts and only acts.
“would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?”
You are out of your mind !! Making such complex loopholes are destroying the law itself. How the judges are going to apply it? Oh, the aggressors made sure she did not notice the rape. But someone else noticed and told her. Too bad. Let’s sue the guy who informed her.
In fact laws have been destroyed by people like you, trying to adding useless and contrived special cases. The effect is always bad, as human are rational and adapt, and as law became to big and complex to be known completely by anyone.
Whenever some guy propose a stupid law, I just ask one thing, that it should be applied on him first. So you can enjoy being raped (by a man of course) and struggle in court because the rapist uses your own loopholes.
Not very analytical or economic, but three doesn’t pass the My Daughter Test. Which would be shortly followed by the Shotgun Spray Pattern vs. Head Test.
I would say “Yes” to all three, but for different reasons.
On #1 and #2, I think that polite consideration of irrelevant but expressed preferences is part of the grease that makes democracy function and reflects epistemological humility. That is: neither Granola nor McCrankypants is likely to express their desire as merely a psychic cost, but as reflecting some higher principle. The humility comes in giving some (small) weight to these principles, because of the governing principle of republicanism itself: that every citizen’s voice matters.
Functionally, we do this. Nobody’s completely happy with environmental law at any given time.
However, I think that if one were to argue me out of #1 & #2, there are deeper principles that apply to #3.
I think the implicit mistake one might be tempted to make on #3 is to assume that Benthamite ethics are the only ones to consider. But that’s begging the question. Personally, I’m no utilitarian, so the utility derived from raping someone really has no bearing at all on my ethical views. Given that we individually & socially have some degree of choice over our governing ethics, dilemmas like this can be used to accept or reject particular theories. I see this as a good reason to reject pure utilitarianism.
Other versions of the same question that might be even thornier:
(4) Should sexual relationships between consenting minor siblings be illegal? Should sexual relationships between consenting adult siblings be abhorred (whether legal or not)?
(5) Should Koreans stop publicly consuming dog meat when large numbers of foreigners with psychic attachment to dogs are likely to observe it?
The last question comes up when South Korea hosts international competitions (FIFA, Olympics): through a mixture of cajoling and legislating, the government tries to keep dog meat consumption out of sight. In this case, there’s a financial interest in play: grossing out dog-loving sports fans will hurt the country’s image.
And if we really want to get nasty, how about:
(6) Unpleasant homeless people should be euthanized.
If you take the virtues of democracy as a given (which I don’t thanks to your first book), then I think taking everyone’s psychic preferences into account. That includes those that get psychic pleasure from knowing that porn is available freely, that people are drill baby drilling, and that rapists under any circumstances spend time in jail.
Society will probably (guessing here) end up deciding:
1) Adult porn should be freely available to every adult always
2) Drilling for oil should be done selectively with as little damage to the environment as possible and while we’re at it, let’s find alternatives (possibly nuclear)
3) All rapists should go to jail
I am generally in agreement with those who are advocating a private property argument for saying 1. No 2. No 3. Yes
You did bring about one challenge to that argument though your porch light example. So what is different between photons penetrating your body and someone raping you without bodily harm?
I believe it is consent. Use of your property always requires consent, whether implied or expressed. In the area of lighting, the photons traveling beyond your property and onto someone else’s would be considered an easement.
http://en.wikipedia.org/wiki/Easement#Implied_easement
I’m certainly not a lawyer, so there might be other factors that allow lighting to an automatic easement, but I think in this case it is prior use.
I don’t see how inserting a part of your body into another person without their consent would ever be considered an easement.
And yes, rape is not a special law, this is about the ownership of your body. But I guess the ownership concept is too simple and efficient for “smart” people.
All of the arguments here rely heavily on a number of flawed assumptions. Perhaps #2 doesn’t intend to go hiking, but is sympathetic to the many that would. #3 assumes that the victim wasn’t traumatized simply because she didnt know about it while it was happening-I think her morning panic and questioning of her assaultors evidences that she was very negatively impacted, even before she learned of the assault. And I agree with the other commenters that using hypothetical rape to make an argument is a cheap ploy, and not likely to be convincing even without the logical flaws.
1. No
2. No
3. Yes
I think the difference is practical. The condition you’ve specified in the questions (that the only harm is psychic) is harder to ensure for Question 3 than for the other two. Therefore, people deciding to engage in the rape of the unconscious are more likely to mistakenly harm someone (non-psychically) than are people deciding to, say, watch porn in the same universe as Mr. McCrankypants. And that’s why there oughtta be a law against raping unconscious people. I think.
Of course, if potential rapists read your suggestion in E, that could mitigate the problem…
A more extreme example of Question 1 is the case of the “Cannibal Cop” here in New York. He was convicted a fantasizing about cannibalism, even though he never took steps to harm anyone, and even added comments to his fantasies that they were just that.
It appears that in the U.S., some things are just so icky that Farnsworth’s concerns are paramount.
“It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies. Every time someone on my street turns on a porch light, trillions of photons penetrate my body. They cause me no physical harm and therefore the law does nothing to restrain them. Even if those trillions of tiny penetrations caused me deep psychic distress, the law would continue to ignore them…”
Much of our law (that is, unwritten and written law or social norm) is derived from one simple rule, the Golden Rule. That, I believe, is a key source of the property rights that we recognize and respect.
Because the vast majority of people in our society respect this rule, that, thankfully, keeps us from accepting rape — no matter the consequences — as a social standard.
I don’t believe that is true for all societies. In fact, there are sub-segments of our own society that do not recognize this. I learned a few years ago about a family/cult where it was accepted for decades for the men to rape the women in the family. It eventually stopped when one of the women got out and appealed to the norms of greater society.
Also, since nobody (or at most very few) recognize light reflection as a harm, it has not ever been considered as part of the golden rule and has never made it into our social norms. Anybody who considered reflecting light as a harm would like be thought to have mental problems. Also, they could easily avoid this harm by staying in a dark room.
1) Farnsworth suffers only psychological harm.
2) As well as psychological harm, Granola is deprived of the opportunuty to visit the pristine environment, or to see recent pictures of it. The future is unknown, so we cannot know whether this opportunity will be realised or not. Therefore case 2 is different form case 1.
3a) If the victim were to remain totally unaware, and suffer no physical harm in any way, then the victim has suffered no harm.
3b) Once the victim becomes aware, then they suffer harm in a similar way they would have done if they were aware during the rape. It “feels” obvious that this is different from case 1, but why is this?
The issue has similarities to how we treat the wishes (and bodies) of the dead. The logical reason is because if we do not uphold the wishes of the dead, this distresses the living who want their wishes to be respected after death. I think most people respect the wishes even if nobody else would ever know.
It seems unlikely that rape victims will usually remain ignorant and suffer no physical harm. Thus in the real world it remains a good policy to punish rapists whatever the status of their victim. But that still leaves the question open.
If I were a high caste indian from 100 years ago, perhaps I would feel disgust at being touched by an untouchable, perhaps in a similar way to the rape victim. Most people now would put that in the same catagory as case 1, but put the rape in a different catagory. Possibly, most Indian citizens 100 years ago would put it in the same catagory as case 3. I am not saying this would actually be the case, but this sort of example illustrates how cultural norms of this type can be deceiving. We think of some things as intrinsically wrong, but the reasons for this may be uncertain.
I think RPLong has it just about exactly right, particularly as concerns the strawman comparison with photons.
A more interesting (and difficult question) might be the comparison of involuntary criminal assault (including rape) and the involuntary application of an invasive medical procedure (e.g. an unconscious person after an accident must be given a pacemaker which is in contravention of their religious or moral beliefs about how life should be). What makes these two cases more similar, and what makes your rape case incomparable to the others is that it ignores issues of personal autonomy.
If I accept your hypotheticals then I find it hard to draw a case where Farnsworth and Granola are denied their personal autonomy and self-determination. A rape victim is denied such a thing, whether or not she is aware or conscious of the assault at any point. I don’t understand why your decision-making framework doesn’t include this concept. To me it is a very bright line.
One other place that I would diverge is that in questions 1 and 2 I would not entirely discount the individuals’ feelings. Part of the social compact is the joint determination of acceptable action, regardless of cognizable harm. To take a trivial case, a group of homeowners may (and legally do) establish a compact that limits the colors members of the community may paint their houses. I dislike such things, but I recognize the rights of those homeowners to set a community standard and ask people to abide by it. Again, such standard-setting is subordinate to personal autonomy principles, so compacts that exclude people on bases such as religion, skin color, orientation would not be permitted.
This principle is not clearly drawn in law, and hard cases make bad law, but this is generally how we seem to have organized things. I do not, as a general rule, like it that we allow men-only clubs but I have a hard time objecting to the Catholic rule that says only people of a certain religion may be members of their priesthood. These sorts of exceptions do not convince me that social compacts ought to be allowed to be drawn to reflect widespread sentiments of those who choose to be governed by those social compacts.
Simon: “And yes, rape is not a special law, this is about the ownership of your body. But I guess the ownership concept is too simple and efficient for “smart” people.”
Well too simple and efficient for me anyway. Can I infect myself with some new supervirus and go about with my body in public as usual? The attempt to portray all rights as property rights is not convincing. There are lots of things about various rights we have that do not match up to the properties of property rights. An example. Can I sell my right to a fair trial in criminal court? Can I lose it in a *civil* suit so that later when charged with a crime I no longer have it? Can the DEA seize it if I use it in furtherance of my criminal career? These are things that can happen to my *property*. We don’t want them to happen to the right to a fair trial; that is not a property right.
Clearly one distinction between Scenarios 1, 2 and 3 is that Scenario 3 arguably/potentially involves a privacy affront: a private individual has been associated with an event without her permission. In contrast, few people will associate the problems of pornography or the spoliation of the Alaskan wilderness with either Farnsworth or Mustardseed.
Scenario 3a: What if no one ever learns about the sex in Scenario 3? As far as I can tell, there are no legal consequences for events no one ever learns about.
Scenario 3b: What if people DO learn about the sex, but not the victim (because she has subsequently died, or now lacks capacity for understanding, or is on a one-way trip to Mars and is beyond radio contact, etc.)?
This scenario raises the question, “To what extent should we regulate (arguably) harmless behavior as a means to regulate harmful behavior?” As others remarked, we confront this question when we prohibit drunk driving rather than drunk bad driving. We confront it when we prohibit private ownership of nuclear weapons rather than merely private misuse of nuclear weapons. We confront it when we bar solicitation for murder rather than just barring the murder.
In short, Scenario 3b arguably justifies a social (that is, criminal) sanction against the rapists. But does it justify a private sanction (that is, a suit for damages for assault & battery, etc.) as well? That is, should the rapists be subject to private suit by the family of the rape victim? After all, the harm suffered by the family seems pretty similar to the harm suffered by Farnsworth.
Scenario 4: Combine Scenarios 1 and 3 – To what extent does a person have a right to be secure from having others think about her in a sexual way? To what extent does she have a right to be free from having others acknowledge to her having such thoughts? Here we combine porn with a privacy concern.
Sure, I know of no legal or practical mechanism to limit people’s thoughts. This is really a question about social norms and informal social sanctions: How forthright should we be about the fact that we have sexual fantasies about others — specific others who are not public figures?
I’ve drawn the conclusion that 1) it is naive to assume that no one is harboring sexual fantasies about others people, 2) it MAY be appropriate to acknowledge this dynamic in general (as I am doing right now), and 3) it is rarely appropriate to acknowledge this dynamic in specific, unless you are intended to initiate a more intimate relationship. People sincerely dislike knowing that they are the object of other people’s sexual fantasies – unless the attraction is reciprocated. And perhaps not even then. And in the absence of social norms discouraging this kind of speech, women may find themselves deluged by it.
Thus we have a social norm of tacit hypocrisy: We know that people have these fantasies about each other in general, but it’s antisocial to acknowledge this fact in specific. In practice, social norms defend peoples’ (especially women’s) right to live in ignorance about other people’s thoughts.
Really, no need to let #3 be such an airy hypothetical. We can easily make an empirical test of this! Just say the word, and I will procure the rohypnol, the muscle relaxants, the video cameras and the cheesecake. (No fair telling you when the test commences though: the element of surprise is key.)
My answers would be no, no, yes.
I think I object to the assumptions in the meta question: “If your answers to questions 1, 2 and 3 were not all identical, what is the key difference among them?” Why does there have to be a key difference? There are already hundreds of differences. If I had to pick a “key” difference, I would say that rape exposes the victim to the risk of STIs. However, I sense that my opinion would not change if all the STIs were cured, so that’s really just one of many important differences.
If you keep asking “why” about someone’s opinions, eventually you will reach some root opinions for which they cannot give reasons. For John Galt, the principles were “A is A” and “I choose to live”.
Perhaps my core principles are:
1) A is A
2) I choose to live
3) Rape is wrong
4) I reserve the right to add more core principles.
I guess I’m just skeptical that you can reduce all of morality down to some sort of algorithm or proof. I’m skeptical of the idea that there have to be key differences to explain why you react differently to different things. It would be cool if you could do those things though.
@David Grayson:
“4) I reserve the right to add more core principles.”
I like this one! It’s a nice way to put the point you make in your next paragraph, which I agree with, that you really cannot reduce it to just a few simple, clear principles..
I’m sure if Dominique Strauss-Kahn read blogs head enjoy this one.
Steve:
Question three differs in that the rape involves risks of various adverse outcomes that cannot be avoided.
Your assumption that there is “riskless rape” for sure is not credible; there is only a non zero probability (considerably less than 1) that there will be no adverse outcome.
Since taking risk deserves a reward, there has been theft.
The enforcement of every law depends on someone being aware of the crime. We don’t need to have special provisions in laws about breaking into homes that make exceptions for intruders who only want to sit in comfy chairs without waking anyone up before cleaning up and locking up. Laws are irrelevant if no one is aware.
Acts against unknowing victims can be criminal if it is reasonable to expect the person would not consent they were if aware. This is why we have age of consent laws. We protect people who are unable to consent.
The key difference, as some have pointed out, is that in case 3 there is a violation of private property, whereas in cases 1 and 2 there is not.
“As long as I’m safely unconscious 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?”
Violation of private property matters whether any harm is done or not. If you drive off in my car while I sleep and return it in the same condition, such that I would never know you had used it, you may not have caused me harm–but you may have noticed the ounce of cocaine I keep in the glove box for a rough day, or my client’s personal information I had sitting in the passenger seat in preparation for our meeting tomorrow morning. In the case of one’s body, you may have seen evidence of venereal disease or some genetic abnormality. It seems to me that the expectation of privacy trumps the benefits accrued to those who use private property without consent.
You have also violated my revealed preference that nobody use my property when I am not using it. If I wanted to loan out my car or my body while I am not using them, there is nothing preventing me from doing so (at least for the car there isn’t, the body is trickier). The fact that I have chosen not to do so indicates that I prefer they not be used, and if you accept the premise that I have a right to control the use of my private property, you have answered the question quoted above.
Of the Newport McCrankypants?
Assuming these issues really boil down to psychic harm.
1. No
2. No
3. Yes
Just looking at behavior; Farnsworth in #1 might find the existence of porn offensive, but what’s he going to do about it if we don’t ban it? Not much. Mostly he’ll complain to his like-minded family and friends.
What about Granola if we don’t ban oil drilling? Again, nothing much.
What about Petunia the partier if we don’t ban passed-out rape? She’ll go to less parties and party less hard. Et voila, real world consequence.
Todd (37): Your third paragraph is the best presentation of the private property argument yet.
A property right is an instrument, not a goal.
In scenario 3 Steve asks if we should outlaw unconscious rape. This is a different question than he asked in scenarios 1 and 2. In those cases he asked if Farnsworth’s or Granola’s distress should matter in the decision. The analogous question in scenario 3 is, should Steve’s reaction to Barb’s rape matter in the decision?
So you can answer the question Steve asked Yes without problem if you answer this question No.
I answer both these questions Yes, so my answers are to Steve’s are(like most here) no, no, yes.
I think the main difference is not respect for someone’s body, but respect for their wishes and choices. I don’t turn my wishes and choices and hopes off when I fall asleep. This position is not very widely shared on TBQ. Some will recall the discussions about Sierra Black, where many here were willing to sacrifice respect for her wishes, her choices— sometimes ironically on the basis of demanding from her some “respect” for her body.
If you base your moral thinking on the idea of persons as independent moral agents, who are allowed wide lattitude in their choices then it is not a conundrum. Her wishes and choices exist even while she sleeps, and demand respect and protection.
Ditto what Neil #41 stated.
For the posters invoking private property, let me change part of Landsburgs post to this:
It is, I think, a red herring to say that there’s something peculiarly sacred about private property. Every time someone on my street turns on a porch light, trillions of photons penetrate my private property. They cause it no physical harm and therefore the law does nothing to restrain them. Even if those trillions of tiny penetrations caused me deep psychic distress, the law would continue to ignore them, and I think there’s a case for that (it’s the same as the case for ignoring Bob McCrankypants’s porn aversion). So for the issues we’re discussing here, private property penetration does not seem to be in some sort of special protected category.
As far as I can see, you all are arguing that private property is something sacred in and of itself that ought not to be violated.
@Bearce 44:
Yes they are, and that’s why they are wrong. See also my comment in 30. Not all rights are property rights.
The offense of rape is only tangentially related at best to the amount or existence of physical harm. It’s a matter of consent and violation of consent.
Who can realistically demand consent from someone else to watch porn on their own?
While someone has much firmer ground to demand consent for sexual acts, conscious or not.
You are approaching these issues from the wrong direction. This is not how laws are made, i.e., we do not make laws based on very specific individual cases.
Rather, we make general laws for big, general reasons. Then, when we have dealt with the big issues, we decide if it is worth making exceptions for specific cases. There is a general resistance to making exceptions because the law becomes costlier to execute as it becomes more complicated, and the exceptions we allow can be abused.
For porn, we are primarily interested in its large-scale effects on society. Farnsworth’s aversion to porn is one manifestation of the idea that porn is (or may be) generally deletorious to society in various ways. We don’t really care about Farnsworth’s feelings themselves, but we do give them some weight as they provide evidence that some people think porn can be bad.
For the wilderness question, we balance the benefits of oil with the benefits of wilderness. Some people do, actually like to hike in the wilderness and there is a general feeling that there is a danger to tampering with the ecosystem. This should be given weight. If everyone was a Granola, then we would give zero weight to hiking considerations because there would be no hikers. The existence of Granola’s feelings are somewhat interesting because they suggest that some people like hiking (although all of them may not actually hike). If no one actually hiked, we wouldn’t really care much that some people like the idea of hiking. The other consideration, that not disturbing the ecosystem is a benefit, doesn’t depend on people hiking. These people’s feelings, therefore, count for something on this issue because they are evidence that there might be some value to not disturbing the environemt — perhaps future generations will benefit.
In the case of rape, we have a big reason to discourage unambiguos rape. We therefore make simple rules saying “you can’t rape people.” We then have some judgments to make about how much coercion is required before we call it rape (the date rape issues). Now, you raise the issue of a very narrow carve out for non-consensual sex when the victim is unconscious. This is such an uncommong, hair-splitting issue that we don’t give it much consideration because the big issue is much more important. If we did make an exception for it, it would be rarely applied, and it would give genuine rapists another defense that we don’t want them to have.
To summarize: these questions can’t be debated in isolation. Each has to be considered in the overall context of what we are trying to achieve in the larger legislative issue.
No, no, yes. The difference is point E – practical reasons. Most of the deontological arguments are really just consequentialist solutions to practical problems that got embeded deep into our culture.
Let me acknowledge that much of what I wrote @ 31 simply recapitulated the arguments made more succinctly by Fiasco Tavish @ 10. Somehow I missed those remarks.
I struggle to devise a framework for thinking about these hypotheticals.
I. Honoring preferences vs. maximizing social welfare
At various times, Landsburg has posed hypotheticals about respecting the wishes of the dead, or of people who would be dead shortly. (E.g., Choosing between 1) a 50% chance of killing 100% of humans, or 2) a 100% chance of killing only 50% of humans. Or choosing between 1) killing both members of a loving, childless couple, or 2) killing one member of two loving, childless couples, when all concerned claim to prefer the latter option.) Somewhat analogously, here we are asked to weigh the preferences of a person who is, for practical purposes, dead when people are deriving benefit from her body.
Many of these hypotheticals cause us to trade off policies that would honor people’s (stated or implied) preferences vs. policies that would (apparently) maximize social welfare. I often find myself leaning to the social welfare maximizing side – but not always.
So which is worse: A) A person(‘s body) being raped, even if the person never becomes aware of the fact, or B) Trinity having the simulated experience of being raped as part of the Matrix? In other words, do we object to the EXPERIENCE of being raped (regardless of the facts), or the FACT of being raped (regardless of the experience)?
II. Externalities.
Arguably, someone who is raped but never experiences it provides a benefit to others, even without consenting to do so. This is the nature of positive externalities.
What rules should we create regarding externalities? We typically have asymmetric policies – seeking to have people provide compensation for their negative externalities, but not requiring society to compensate people for their positive externalities. Should different rules apply to the current context?
Steve,
It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies. Every time someone on my street turns on a porch light, trillions of photons penetrate my body.
I don’t think this is a red herring, nor do I think your porch light example sheds any light on the subject. I think a far more practical comparison would be this:
Someone breaks into your house, watches TV, uses your shower, or any other number of trivial things that you wouldn’t be aware of, basically taking advantage of your absence to enjoy himself. This is no way hurts you. You would not have voluntarily have let this man into your house and used some of your things, but you think if you didn’t know about him breaking into your house and using your stuff (in no way damaging or abusing anything), it’s totally cool? You don’t think ownerhip issues will come up?
Also, light from porch lights are known to not be in any way dangerous or have undesireable consequences to your neighbors. The most these lights would cause are mild annoyance, easily solvable by closing blinds or asking your neighbor to turn off the light.
I think your rather flippant disregard for your own body being sacred is fairly ridiculous.
@Bearce #44:
I believe you are improperly equating two scenarios:
1: Peter engages in X action which has an incidental secondary effect on Paul’s property
2: Peter engages in Y action which requires the use Paul’s property
When you turn on your porch light, you are not using my body as a target for your photons—you are seeking the benefit of the light. Any effect of the photons on me, psychological or otherwise, is incidental. When you use my unconscious body for your pleasure, my body is not incidental, but integral. If I were removed from each scenario, you would still turn on your porch light, but you could not derive pleasure from my body. I believe the difference is both self-evident and significant.
With scenario 1, whether or not we allow Paul to constrain Peter’s action X is determined by the nature and the extent of the secondary effect of action X on Paul’s property. With scenario 2, in all but a few cases, we recognize Paul’s right to constrain Peter’s action Y.
Steve’s questions 1 and 2 fall under my scenario 1; his question 3 falls under my scenario 2. There is a meaningful difference, and it is perfectly consistent to give a different response to question 3 than to questions 1 and 2.
This reminded me of a note to a friend…
I can almost imagine an xkcd where you’re on a drawbridge with several questionable Rube Goldberg contraptions that you can’t figure out. The bridge is opening, there are several children playing near the opening, there’s a ship that looks like it might hit the bridge with 100’s of people on it, and you see Steve Landsburg coming towards you all smiles. Next panel, Landsburg is laying dead and you say to the officer, “I had no idea what was going on, but I’m pretty sure he was going to kill me.” The officer then replies, “Yeah, you’re probably right, you’re free to go.”
Leaving this as a comment and also adding it to the post:
Some commenters have suggested that Question 3, unlike Questions 1 and 2, involves a violation of property rights. This seems entirely wrong to me; Farnsworth wants to restrict my property rights by telling me what sites I can visit on my own computer; Granola wants to restrict the property rights of Alaskan leaseholders who want to drill for oil; my rapist wants to restrict my property right to control access to my body. The key question is: Which property rights do we want protected by public policy, and under what circumstances — and, of course, why.
Frankly, I’m surprised that anyone would discount the psychological harm.
Suppose, for example, that I lose a leg, but it doesn’t bother me at all, nor does it bother anyone I know. No harm done, right?
In reality, the law recognises psychological distress as a form of harm. If you disagree, well, do you really feel “no harm is done” when people are rude to you, or the TV is unplugged just before the touchdown, or an otherwise nutritious meal tastes bad?
The way to resolve the Farnsworth vs More Serious Harm issue is not to deny that Farnsworth suffers real harm, nor to deny that there is an externality here. Rather, the answer to the Pigovian claim that Farnsworth’s suffering must be dealt with via taxes or restrictions etc is to Coaseanly argue that we need to consider all pros and cons before deciding whether to side with Farnsworth or not.
Steve,
At 54 it looks like you’ve answered your own question. Farnsworth, Granola, and the rapist all want to restrict your property rights. Shouldn’t the burden be placed on these three to argue for the restriction of property rights, rather than the other way around?
Ken: Ah! I misspoke, and am correcting the edit in the post. What I meant to say is that 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.
#3 is a special case, and I would say goes beyond disputed property rights. Basically, the sexual consent thing is a deeply personal issue that could be argued originates from natural rights, or evolution etc., where the control over ones own sexual consent and therefore reproduction is pretty much hard-wired to be one of the most deeply guarded human issues.
We don’t need any property rights arguments in order to discuss sexual consent at all – it’s way deeper than that – it’s biological.
the enjoyment someone derives from bad things shouldn’t be included in a cost benefit analysis. therefore the enjoyment someone receives from raping someone is not included and the rape has no benefits even though the rapist enjoyed the act at the time. instead we should educate people that such horrific acts are deplorable. hopefully the rapist will feel remorse in the future and as such the rape has negative utility.
this is similar to Steven landsburg’s views on other subjects, for example free trade. Steven argues in favour of free trade because economic theory says it is usually beneficial. however a lot of people are against free trade. if we included people’s free trade fears it is possible that the negatives would outweigh the positives and free trade would fail a cost benefit analysis. instead an economist like Steve should educate people about free trade’s benefits.
Steve, your computer is not Farnsworth’s property. Likewise, your body is not a rapist’s property. McMustardseed’s complaint is potentially over a public good (if no one owns that wilderness). I think the government should only have a role in the provision of true public goods and regulation of public bads. No reasonable person would think that your orafices become public goods when you are not conscious.
To the man with a hammer, everything looks like a nail. To a libertarian, everything looks like a property rights issue.
Even people who would conclude that the rapists did no harm and might warrant no punishment would be loath to conclude that the rapists had acquired the right to buy, sell, or destroy the victim’s body.
I sense the issue Landsburg is driving at is beneficial use, not ownership per se. Yes, beneficial use is ONE property right. But, as I noted above regarding positive externalities, we recognize that people derive beneficial use of property without every attributing ownership rights to them. We can all enjoy the scent of the fresh-baked bread at Subway or cat videos on YouTube without ever claiming a property right in them.
In sum: I like to maximize social welfare, thus I like provide mechanisms by which people can maximize beneficial uses. Where this is consistent with an owner asserting an absolute right of exclusion, that’s fine. Where it isn’t, well, that’s not as fine. For me, maximizing social welfare generally takes precedent, and respect for exclusive control by property owners is merely a rule of thumb that tends to promote the larger goal, but is subordinate to it.
We’ve been discussing a hypothetical that puts my preferences to the test, because I value bodily autonomy. In a highly stylized world, I could acknowledge a no-harm/no-foul rape – and, for all I know, such rapes actually happen in the world we experience. (Which of us can say we haven’t been victimized by such rapes, given that one characteristic of the rape is that you never knew it happened? Thus, which of us can claim to have been rendered better or worse off as a result of events we never knew happened?)
But ultimately this argument becomes recursive: It’s only a no-harm/no-foul rape if no one who objects ever learns about it. Once someone who objects DOES learn about it, we need a different analysis. And because, in the world of our experience, a would-be rapist can rarely know that no one who objects will ever find out, the rapist needs to apply that different analysis before he acts. Thus, any conclusion we might draw about a no-harm/no-foul rape can only apply at the end of time, when we can safely conclude that no one who would object ever found out. In other words, the analysis is pretty hypothetical.
I’m a little surprised that in this room the answers to #1-2 are so monolithically “no”. I would think the honest utilitarian is required to factor the disutility of “psychic harm” into the cost-benefit, even if one personally disapproves of the source of that harm. (I believe I’ve heard here that we’re even supposed to account for the utility of murderers?) I would note the counter-arguments SL mentions on this point here seem basically of the ‘practical’ variety.
Or is it that questions like this do illuminate a certain affinity for pure “liberty rights” after all? Hope springs eternal!
Sorry, I have a correction “I think the government should only have a role in the provision of true public goods, regulation of public bads, and enforcement of property rights.” I’m going in circles but I’m trying to figure out how to distinguish between regulation of public bads and enforcing self-ownership. Is your neighbor’s light’s photons a public bad or is it a direct infringement of your self-ownership?
I find out where you keep your emergency key when you are drunk and take it from your neighbor’s house.
I cook some meals in your fireplace using all of my own food and supplies.
A lot of your friends and my friends see me there and come to visit.
I clean everything up perfectly and leave the day before you come back from your trip.
And the person who agreed with Rush that Sandra Fluke is a slut doesn’t have a problem with this.
Priceless!
I think that by definition if someone is being prosecuted for rape, that person didn’t make certain the victim never found out about it
neil wilson, he never said he doesn’t have a problem with it. He is just saying he’s failed to draw a compelling bright line between the scenarios.
Here’s another example of #3: http://www.forbes.com/sites/billsinger/2013/03/21/metlife-broker-barred-after-repaying-customer-in-full-with-interest/.
In summary, a woman complains to her insurance agent that she is not earning interest on the funds in her checking account. The agent suggests that she turn the money over to him, and he will ensure she earns some interest. The customer gives the agent a check for $2,500., which he deposits into his personal money market account. A few months later, she asks for her money back, and he pays her $2,597.09, which works out to about 1.6% interest.
The agent is charged with securities fraud, and as part of a plea deal he has to surrender his license. Why? Because he COULD have stolen her money, even though he did not, as he did not follow proper accounting rules.
I don’t see why it matters, if the rape goes unnoticed it is as if it never happened anyway. Same for all crime isn’t it?
I want to add a couple of additional thoughts.
First, I think those who are making property rights arguments aren’t doing so because they think property rights are “sacred,” but rather that their favorite philosophers often invoke property rights to resolve apparent conflicts between individuals. That is, if you accept that ownership of one’s body is the basic and most inviolable form of property rights, then Question #3 is absurd: We need not consider the psychic harm or lack thereof, because the victim was physically violated in any case. I think this point is actually very important, and those criticizing it should think twice about doing so.
Second, I think Questions 1 & 2 reflect existing psychic issues, whereas Question 3 is the direct cause of one. It begs the question: should it be against the law to cause purely psychic harm to someone? The answer is yes, of course we should forbid it. There are infinitely many ways we can cripple our fellow human beings by inflicting purely psychic harm. Victims of this kind of assault often report that the psychic harm is much more terrible than the physical harm, and one can hardly blame them.
But not all psychic harm is equivalent. There is a big difference between irritating someone and psychologically damaging them, just as there is a difference between a paper cut and a severed jugular.
THEREFORE:
* The unique aspect of Question 1 is that the psychic harm is self-inflicted.
* The unique aspect of Question 2 is that there is a burden of proof that rests on the sufferer to demonstrate the reality of physical harm.
* The unique aspect of Question 3 is that the victim experiences untold and incapacitating psychological distress at the hands of another human being.
Great provocative thought experiment, like so often from Steve.
The trick is, I think, that the 3rd question reflects a situation, unlike the former two, where the situation is so “idealised” as to be totally unrealistic. Which makes open minded thinking about it quite difficult.
So my answers would be yes, yes, no. Because of the way (my) mind works, the knowledge of unconscious people being rutinely raped would make me much much deeper trauma than in case 1 (no trauma at all) and 2 (minor unease depending on few other parameters).
I was meaning to say no, no, yes of course.
If Scenario 3 seems too outlandish, try this —
Scenario 10 (I’ve lost count): A meteor strike creates a shock wave that triggers 1) a huge number of otherwise healthy people to drop dead, and 2) a huge number of people to incur organ damage, resulting in a surge of demand for organs to transplant. The government starts a crash program of harvesting organs from the dead, regardless of the stated wished of A) the now deceased and B) their next of kin/friends.
This scenario has certain parallels to a scenario in which someone is raped but never comes to know of the event, but who has next of kin/friends who do come to learn of the event. In each event, the invasion of bodily integrity benefits someone without the embodied person’s consent. And in each event, objections come from 3d party observers, not from the person whose body is at issue.
Same conclusions?
Steve, I read your follow up in the post. Why do we need to talk about three different scenarios if your basic question is, “What is property and possession?” I’m not sure how interesting that is.
I don’t think is right. If you phrase the original dispute in terms of property rights, the dispute is about whether one has a property right in being free from psychic harm.
Claiming that the dispute is “about what the property rights should be” describes it with an excessive level of generality. The dispute is about whether one particular type of property right exists, not about property rights in general. Answering “no, but another type of property right (in one’s body) exists instead” does, in fact, answer the original dispute without raising the same question that it answers.
I also don’t buy the “trillions of photons” argument. It’s okay to violate another’s body by sending photons because the extent of the intrusion is de minimis. Steven seems to be saying that it’s analogous to the rape example because the amount of harm is deminimis. The amount of harm is not the same as the extent of the intrusion.
Furthermore, Steven seems to be implying that the extent of the intrusion is not de minimis because the photons number in the trillions and “trillion” is a big number. Needless to say, photons are very small things, making the extent of the intrusion small even if the number of individual photons is big.
Steve said @ #54:
“Farnsworth wants to restrict my property rights by telling me what sites I can visit on my own computer; Granola wants to restrict the property rights of Alaskan leaseholders who want to drill for oil; my rapist wants to restrict my property right to control access to my body.”
I realize that you have revised this comment, but I think you made a mistake here which is telling, and I’m not sure you even realize that you made it. Here is what you said, rephrased to draw distinction to the mistake:
Farnsworth (VICTIM) wants to restrict my (PERPETRATOR) rights to my own property
Granola (VICTIM) wants to restrict leaseholder’s (PERPETRATOR) rights to leaseholder’s own property
Rapist (PERPETRATOR) wants to restrict my (VICTIM) rights to my own property
You see what you did there? You switched the last one around to make it fit with the other two. What you should have said in the third case, in order to be consistent with the first two, is:
I (VICTIM) want to restrict the rapist’s (PERPETRATOR) rights to my (VICTIM) property
When you state it this way, sans your little switcheroo, I think it is obvious that 3 is different. In cases 1 and 2 the victim of psychological harm wants to restrict how the perpetrator uses the perpetrator’s own property; in case 3, the victim of psychological harm wants to restrict how the perpetrator uses the victim’s property.
Steve said:
“Some commenters have suggested that Question 3, unlike Questions 1 and 2, involves a violation of property rights. This seems entirely wrong to me; in each case, there is a disputed property right.”
I’m not sure that it’s relevant, but I feel compelled to point out that you are conflating violated property rights with disputed property rights.
I stated earlier (#38) that 3 involves a violation of property rights whereas 1 and 2 do not. I think we all agree that 3 does involve a violation of the rape victim’s property–where we seem to differ is that you regard cases 1 and 2 as violations of Farnsworth’s and Granola’s right to not be psychologically distressed by others’ actions which have no direct effect on Farnsworth and Granola. I reject the notion that this is a valid property right, and so stand by my previous statement.
Even if we grant the (absurd) premise that Farnsworth and Granola have a right to be free of psychological harm from actions which do not affect them, 3 is still meaningfully different, and this can be shown by a slight revision of my initial statement:
“The key difference is that in case 3 there is a violation of TANGIBLE private property, whereas in cases 1 and 2 there is not.”
Farnsworth and Granola have suffered a violation of their right to an intangible distress-free mental state; rape victim has suffered a violation of her tangible body, in addition to a violation of her intangible distress-free mental state. There is no room for debate here–the tangible harm in 3 makes it different from 1 and 2.
There is room to debate whether this difference is meaningful, and I think that it clearly is. To argue that it is not meaningful is to argue that:
1. Tangible (thus, provable) property violations carry no more weight than intangible (unprovable) violations
2. Two violations of property (the rape victim’s body AND psychology) carry no more weight than a single violation of property (F&G’s psychology)
3. All violations of intangible property carry equal weight whether they have evidence to support their existence (rape victim’s tangible property violation supports the legitimacy of RV’s psychological harm) or not (F&G have only their word that they are psychologically harmed)
Ken B, #30
I would argue that all valid rights are property rights and logical extensions of property rights.
Taking your examples:
1. No, you cannot infect yourself with a supervirus and transmit it to others any more than you can slip cyanide into another’s drink; this harms their body. I’m not sure where the grey area is here, perhaps I’m missing something.
2. Your right to a fair trial is an extension of your right to your own freedom. A fair trial is not an end in itself–if there is no challenge to your freedom, your right to a fair trial is irrelevant.
I haven’t put a lot of thought into this, but at present I can’t come up with a legitimate right which isn’t directly traceable to a property right. I welcome suggestions.
Todd,
Farnsworth and Granola are not victims; they are in fact the perpetrators. They are perpetrators using the police state to limit others’ liberty by restricting property rights.
Todd #52
Before I begin, is labeling a particular action ‘X or Y’ really necessary?
Second, you missed the point of the post.
When you turn on your porch light, you are not using my body as a target for your photons—you are seeking the benefit of the light. Any effect of the photons on me, psychological or otherwise, is incidental. When you use my unconscious body for your pleasure, my body is not incidental, but integral. If I were removed from each scenario, you would still turn on your porch light, but you could not derive pleasure from my body. I believe the difference is both self-evident and significant.
You beg the question why the body (or for the matter, private property) is something sacred that ought not to be violated.
With an approach like this, one wonders why murder should be so despised and looked down upon.
After all, a photon is no different from a knife to you, right? It ought to be quite quick, perhaps – to avoid pain (although why that pain ought to be distinguished from psychic pain I don’t know). But we can specify that the murder victim must be unconscious too.
And unlike the unconscious rape victim, the murder victim never has the downside of ever finding out what happened in the future!
Rape already is effectively legal if no one finds out about it. If people do find out about it, then obviously the perpetrator’s precautions weren’t good enough.
I second RPLong’s request–PLEASE stop using hypothetical rape examples. This is not helping libertarianism, trust me.
As for #3: In this case, the victim did not suffer from disease, pregnancy, or other physical harm. But she unwillingly was exposed to the probability of suffering from these things!
To put it in even crasser terms, the expected value (in welfare terms) of the attacker’s action was clearly negative to the victim, even if it didn’t actually result in harm in this instance. (There’s also a chance the victim will awake during the attack as well).
If I play Russian roulette with your head while you’re sleeping and the gun doesn’t go off, is that kosher too? I would think not.
I love your stuff most of the time, but this was an unfortunate post.
I’ll say one thing, Landsburg’s got balls posting this one. Thank God for tenure!
We punish rape not just because of the damage, but because we believe it is wrong. We believe the psychological damage is reasonable because rape is wrong, and in a circular way we believe rape is wrong in part because of the psychological damage.
If we compare it to my earlier hypothetical of a society where there are untouchables. I won’t say that this is India, because that does not quite fit, but historically untouchables could be punished for certain acts: “It was a criminal offense for a member of an excluded caste knowingly to pollute a temple by his presence” (Cohn and Singer 1968: 304). It is not too far a stretch to imagine a society where an untouchable could be punished for touching someone of a higher caste.
This society would probably view being deliberately touched by an untouchable as something very similar to how we view rape. The victim would feel polluted and suffer significant psychological harm. If the victim were unaware of the status of the toucher, they would suffer no harm.
How should an untouchable be treated if the victim is unaware? In such a society, they would probably be punished for touching – certainly for disguising their status. Generally, the hypothetical society would agree with such punishments. They would view the psychological harm as reasonable.
Now what should happen if a high caste member of this society visits the USA and is touched by an untouchable? As far as the victim is concerened the damage would be the same. We would not feel any need to protect them from this damage, and the untouchable would go unpunished. This is because we view the distress caused as unreasonable. We do not believe it is wrong to be touched casually by another person whatever their caste.
What if an untouchable flees to the USA? We would not extradite them for this “crime” (I think).
If this were just a matter of property, then we should treat the high caste person the same as a rape victim who suffered no physical damage.
This begs the question of why we ultimately believe some things are wrong. That is a different discussion.
Steve, #3 is a reductio of your positions on 1 & 2. You are wrong on all of them! (Although you shield this by setting up strawman cases against 1 & 2.)
I’ll -1 it, reducing the second down to a first.
Rape is important as an example because it is morally unambiguous. Nobody is going to argue that rape is okay. Using a morally unambiguous example for comparison is often important.
It’s the same reason as to why there are legitimate comparisons to Hitler, despite Godwin’s Law. If your argument would show that Hitler is a good guy, there’s something wrong with it, because Hitler being a bad guy is pretty much indisputable, just like rape being bad is pretty much indisputable.
What almost everyone is ignoring is the costs of making hair-splitting rules based on fine distinctions. Everytime you propose some fine distinction, you impose a cost because you are making the laws more confusing and prone to abuse by bad people who will invoke your fine distinction.
This isn’t a rejection of economic analysis. To the contrary, it is an economic argument that you are ignoring important costs to your hair-splitting rules. When it is recognized that hair-splitting is costly, it should be minimized subject to constraints just like every other cost.
The big rule for rape is simple. It is something like “you can’t have sex with someone without their permission.” We don’t add an exception for when the victim doesn’t know about it because that opens an avenue for bad people to make their prosecution more difficult by invoking your hair-splitting rule when it doesn’t apply. If you raise the cost of punishing bad people, you will get less punishment of bad people.
Ken Arromdee,
“Rape is important as an example because it is morally unambiguous.”
Do you seriously think anyone will change their opinion on porn or environmental protection due to Landsburg’s rape example?
The only possible response to this post by the mainstream media is an out of context quote: “Libertarian economist Steve Landsburg asks, ‘why shouldn’t the rest of the world be allowed to reap the benefits’ [of rape]?”
Answer this: does this kind of exposure help the cause of libertarianism or not? If you say “it helps,” you are clueless beyond belief re: typical human reactions.
Steve, think in terms of gambling EV. This type of post has no possible upside, but tremendous potential downside. Bob Murphy’s comment on getting fired is no joke in today’s PC environment.
@ RPLong #7 and John S #83
I will never understand why so many libertarians gravitate toward hypothetical examples involving rape
PLEASE stop using hypothetical rape examples
I’m assuming that you both hate the same rhetoric when environmentalists talk about raping the earth and equating strip mining with rape of a human being.
Well, let us not forget that jury nullification exists.
Theorhetically, if they thought people could understand the argument, the defense lawyers for the Steubenville kids could have made the argument that “what the defendents did should not qualify as rape because no physical harm was done to the victim and she was not even aware of it until well after the fact.”
They could use your exact analogy even.
And if the jury was full of people sympathetic to your analogy, they might get a mistrial.
Point is, we don’t have to change the law to make “unconcious rape” legal, but rather, if you succeed in convincing the general public that concious rape is okay, it will become a reasonable legal defense and become de-facto legal through jury nullification (whether they intend to be nullifiers or not).
Q1) Farnsworth McCrankypants has no argument for regulation. But Will A who believes that the increased use pornography leads to psychological and physical abuse of children throughout the world does have an argument of regulation.
Q2) Granola McMustardseed has not argument for regulation. But the Friends of Pita Bread who believe that altering the state of a natural environment can help lead to rising sea levels which would in turn displace people from lower elevations does have an argument for regulation.
Q3) I would equate the attempted impregnation of a woman without her consent with the attempt to blow up a large occupied office building.
If a failed attempt at impregnation should result in no penalty, then a failed attempt at blowing up a large occupied office building should result in no penalty.
Since we are having fun with making up people’s motivation, here is another good questions.
Question 4
Uninformed Whiteguy just hates the idea that someone somewhere might be getting food stamps from the government. It’s not that he thinks food stamps free food stamps cause bad behavior; it’s just that the idea of other people’s free food stamps cause him deep psychic distress. Ought Uniformed’s preference be weighed when considering regulation.
So to me the answer to (1), (2), and (3) are all the same.
A personal concern of self distress is not a valid argument for restricting anyone’s behavior.
@Will A 90:
+1
Yes
Yes
Yes
But the third yes weighs much more heavily that the first two.
On number three there is an implied law that my body will not be used in this way and I have a right to make such a law because my body is mine. The boys surely knew that the girl would require consent for this and yet they did it. In one and two there is no assumption that everyone must consent to this. If you want to use most things of mine you must get my consent.
This absolutely IS about property rights. In fact, the three scenarios are less similar than first appears because of the property rights in question.
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.
Therefore it is entirely consistent to have a differing answer for Question 3, than Questions 1 or 2. (Because Question 3 has a victim, Question 1 does not have a victim, and Question 2 may or may not have a victim, but regardless that victim is not Granola McMustardseed.)
“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? ”
Because this is an incredibly collectivist form of thinking. Self-promotion alert, I wrote about this myself a couple months ago when the story first broke:
http://dudewheresmyfreedom.com/2013/01/07/statists-in-steubenville/
The individual has a right not to have aggression committed against them. Your hypothetical of “what if they never find out” is silly and doesn’t apply to this situation. Fact is, she DID find out. Therefore, it is an act of aggression. Photons from streetlights are not aggression, because they are not unwelcome.
Dude Where’s My Freedom:
Photons from streetlights are not aggression, because they are not unwelcome.
I infer that you didn’t read the post.
I think some are missing the point of point D. Steve is NOT saying there is nothing special about the case of bodies, he is saying you cannot express that specialness purely in physical terms like boundaries, or even penetrations. So if you think bodies are special you need to articulate some criteria other than those.
That difference might be a matter of degree. A street lamp vs a laser. Or it might be something in different terms of discourse.
Some here have proposed property. That I think clearly wrong, but it’s the right *kind* of thing. I propose intentions, decisions, and desires. That may not convince you or Steve, but again it avoids the kind of problem Steve identifies in D.
Ken B:
Steve is NOT saying there is nothing special about the case of bodies, he is saying you cannot express that specialness purely in physical terms like boundaries, or even penetrations. So if you think bodies are special you need to articulate some criteria other than those.
Yes, exactly.