Permissible Right-Infringement: Part 1

by Danny Frederick, http://independent.academia.edu/DannyFrederick

I am delighted to host a three-part essay by Danny Frederick, starting with the first installment below. He has degrees from the LSE and Birkbeck (London), and taught philosophy at King’s College London before working for eighteen years in management and accountancy. Since his return to academic philosophy, he has compiled an enviable publication record, appearing in both libertarian periodicals and prestigious philosophy journals of general interest.  His recent publications include ‘Doxastic Voluntarism: A Sceptical Defence’ (International Journal for the Study of Skepticism, 2013); ‘Popper, Rationality and the Possibility of Social Science’ (THEORIA, 2013); ‘A Puzzle about Natural Laws and the Existence of God’ (International Journal for Philosophy of Religion, forthcoming); ‘Pro-tanto Obligations and Ceteris-paribus Rules’ (Journal of Moral Philosophy, forthcoming); and ‘Free Will and Probability’ (Canadian Journal of Philosophy, forthcoming).

__________

Many libertarians believe that persons have moral rights which set the boundaries to what may be done to them by other persons. Those rights are commonly taken to include a right to self-ownership, a right to retain and use, or to transfer, any justly acquired property, and a right to acquire unowned natural resources (subject to appropriate constraints). Few libertarians assume that these rights are absolute. That is, libertarians generally assume that, for any right, there are some possible circumstances under which it is permissible to infringe it (throughout, when I say ‘permissible,’ I mean morally permissible). An example of a permissible infringement is given by Joel Feinberg (1977, p. 233).

HIKER. A hiker on a back-packing trip in the high mountain country is beset by an unanticipated blizzard which strikes the area with such ferocity that her life is imperilled. She stumbles onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. She smashes a window, enters, and huddles in a corner for three days until the storm abates. During this period she helps herself to her unknown benefactor’s food supply and burns his wooden furniture in the fireplace to keep warm.

An action is morally wrong if and only if it is impermissible. The hiker’s action is permissible, so it is not a morally wrong action; yet it wrongs the cabin-owner because it infringes some of his rights. It can therefore be permissible (not morally wrong) to do someone a wrong. In virtue of infringing the cabin-owner’s rights to his property, the hiker owes him something: full compensation for the damage, if she can reasonably afford it; otherwise something less; but, at a minimum, an explanation for her actions. In short, she owes him appropriate amends, where what amends are appropriate depends upon the full circumstances of the infringement.

Alf has a right that Betty does not pinch Alf’s nose. If Betty pinches Alf’s nose, she infringes his right. Of course, that need not be the case. If Betty had first asked Alf whether she could pinch his nose and Alf had consented, then Betty would not have infringed Alf’s right by pinching his nose. If Alf had requested that Betty pinch his nose, then Betty would not have infringed Alf’s right by doing so. An action that would otherwise be a right-infringement ceases to be so if the right-holder consents to it. This suggests an explanation for why the hiker’s action in HIKER is permissible. The action is a right-infringement because the cabin-owner does not consent to it; but it is permissible because the cabin-owner would have consented to it if he had been asked.

However, we can see quite easily that the proposed explanation fails. For the hiker’s action would have been permissible whether or not the cabin-owner consented. For example, it would still have been permissible if the cabin-owner had erected a large sign saying “Can you use this cabin in case of emergency? No!” (Gaus 2012, section 3.2). Or, suppose that the cabin-owner had left a sign on the cabin giving his telephone number, and that the hiker had called him on her mobile, explained the life-threatening situation she faced and pleaded with him to let her break into the cabin, but he said ‘No!’ It would still have been permissible for her to perform the actions described in HIKER. In a situation of that sort, consent is not necessary, and a refusal to give consent may be ignored.

In chapter 3 of Anarchy, State, and Utopia (1974, p.30, footnote), Robert Nozick appears to take quite a strict deontological position with regard to right-infringement, suggesting that it may permissible only in order to avoid ‘catastrophic moral horror.’ In contrast, in chapter 4 of the same book, he seems to take a utilitarian view, according to which right-infringements are permissible, provided full compensation is paid, whenever there is a net social benefit, though he adverts to the Kantian principle of not using persons merely as means as a possible constraint (1974, pp. 71-73). There is a potential inconsistency there, since the Kantian principle seems to rule out all right-infringements; but perhaps he intends the Kantian principle not to be a side-constraint (as Kant intended it) but to be something to be weighed in the balance.

Where infringing a right yields a net benefit, it would in principle be possible for the interested parties to negotiate, so that the consent of the right-holder(s) is obtained, for a price, to perform the action that would be right-infringing without that consent. In other words, where there is a net benefit, there is no need to infringe a right, because the right-holder can be bought off, at least in principle. The ‘in principle’ qualification adverts to the fact that in some cases it may be impossible or very costly to ask the affected right-holder(s). Nozick therefore proposes the following necessary (but not sufficient) condition of permissible right-infringement (1974, p. 72). Let ‘A’ stand in for a description of an action. If a person, x, has a right against a person, y, that y does not A, then, it is permissible for y to A without the consent of x only if it is either impossible or very costly for y to ask x whether x consents to y A-ing. For example, y might not know where x is; or x might be in a place, or in a condition, in which it is temporarily impossible to communicate with him; and so on.

Our consideration of HIKER has shown that Nozick’s alleged necessary condition for permissible right-infringement is not in fact necessary. For, as we have seen, it is permissible for the hiker to infringe some of the cabin-owner’s rights to the cabin and its contents even if he refuses to consent to her entering the cabin. The idea behind Nozick’s allegedly necessary condition seems to be that, if x has a right that y does not A, then the refusal of x to consent to y A-ing is sufficient for it to be impermissible for y to A. Or, to put it another way, if it is possible and not very costly to ask x for his consent, then what x says goes. But, while that may generally be true, it is not so in cases like that of HIKER. What, then, makes it permissible for the hiker to infringe some of the cabin-owner’s rights? I offer an answer in Part 2.

References

Feinberg, Joel. 1977. ‘Voluntary Euthanasia and the Inalienable Right to Life.’ http://tannerlectures.utah.edu/lectures/documents/feinberg80.pdf

Gaus, Gerald. 2012. ‘Property.’ In David Estlund (ed.), The Oxford Handbook of Political Philosophy (93-112). Oxford: Oxford University Press. http://gaus.biz/

Nozick, Robert. 1974. Anarchy, State, and Utopia. Oxford: Blackwell (1980).

 

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16 Responses to Permissible Right-Infringement: Part 1

  1. Mark Friedman says:

    Danny,
    I believe that Judith Thomson would say of situations like HIKER that the owner’s right is “infringed” by any break-in, but only “violated” if the break-in was unjustified on an all-things-considered basis. So I think her conclusion would be that there was no rights violation in the circumstances you describe, assuming compensation is paid. Do you agree with this analysis, and does it affect yours in any way?

  2. Hi Mark,

    As you may know, I am a big fan of Judith Thomson; though, of course, I often disagree with her. I do, though, follow her terminology in distinguishing infringements (which are permissible) from violations (which are impermissible). So, yes: there are no rights-violations in HIKER.

    On the question of compensation, Thomson is sophisticated (as she is on most things). The normal, or default, situation is that full compensation is owed for a right-infringement, even though the infringement is permissible. But if, e.g., the hiker is strapped for cash while the cabin-owner is well-off, minimal or no compensation may be appropriate. In some cases, a permissible infringement might kill the right-holder, in which case no compensation is possible. In some cases of accidental infringement, the infringer may be excused compensation. But even where the infringer owes no compensation, she has wronged the person whose right was infringed, so at least an explanation or acknowledgement is owed. There morally ought to be some form of amends for even a permissible a right-infringement (so long as the victim is still alive).

    I strongly recommend Thomson’s ‘The Realm of Rights’ to anyone who has not read it (I know you have read it). It is the most stimulating and illuminating book on the subject that I have read.

  3. Earl Vernon says:

    Hi Mr. Frederick and Mark,

    Thank you for your thoughtful essay. I would like to hear your thoughts on the basis of morality. Morality, for me means that there is one God which is an indispensable component of morality. Only if there is one God is there one morality. Two or more gods mean two or more divine competing wills, and therefore two or more moral codes.

    One morality also means one moral code for all of humanity. “Thou shall not murder” means murder is wrong for everyone, not just for one culture.

    Ethics would be primary to one morality because God’s primary demand is that we act decently towards one another.

    Best regards,

    • Mark Friedman says:

      Hi Earl:
      Thanks for stopping by and for your question. Philosophers have struggled for thousands of years with this issue, and no completely convincing answer has yet been found. I claim no special expertise, but I am happy to give you my $.02 worth.

      Since we are friends, you know that I share your committment to God and to the commandments of the Torah. But clearly this is a matter of personal faith and not knowledge. If I had actual knowledge of God’s existence and will, I wouldn’t need faith. Thus, faith cannot serve as the “basis” of morality because any purported foundation must be equally available to and valid for atheists, agnostics and believers alike.

      I believe that morality consists of a set of mind-independent moral facts. By this I mean that just as the laws of logic and mathematics remain true even if we happen to be mistaken about them, so too with moral facts. In both types of cases, we have intuitions that guide us towards the truth, subject to many revisions over time, just as in other fields of study. Just as there is only one true set of mathematical/logical principles, there is only one true morality.

  4. Hi Earl,

    Thanks for the question. I am an agnostic, so I do not look for the basis of morality in God’s will. I think the basis of human morality is human flourishing; that is to say, that the purpose or point of human morality is to promote human flourishing. However, I am not an atheist, so I do not rule out a deeper basis of morality in God’s will. Presumably, you would agree that it is God’s will that humans flourish (or something like that).

    I agree with you that there is ‘one true human morality.’ It is a matter of fact which of all the possible moral systems best contributes to human flourishing (though we should allow that there may be a tie between different systems).

    You may be puzzled by my prefixing of ‘human’ to morality. The reason for that is that there may, for all we know, be persons on other planets who are biologically and psychologically very different to us. What is requisite for their flourishing may be different to what is requisite for ours; and that may mean that they have a different system of morality to the human one.

    • Mark Friedman says:

      Hi Danny,
      I completely understand the appeal of the viewpoint you express here. It anchors morality in the physical world and subjects it to empirical study in terms of what moral system best promotes “flourishing.” Thus, this idea holds out the promise of objective knowledge about morality, and the prospect of progress in a scientific manner.

      Nevertheless, it seems to me that this approach just postpones the need to identify objective values for one step in the anaytical process. People will have radically different ideas about what constitutes human flourishing. Some will think that a fourishing society is one where the differences in the holdings of “primary social goods” is minimal; others (like myself) will claim that flourishing consists of respect for certain rights, pretty much come what may; and still others will claim that a flourishing society is one that produces one or two “supermen” per generation, and so on. How do we arbitrate this dispute without appeal to some overarching values? Do you see this as a problem?

      • Hi Mark,

        We need to distinguish metaphysics and epistemology. First let me comment on your response to Earl.

        I took Earl to be asking a metaphysical question: what is the basis of morality. Earl’s answer: God. My answer: human flourishing; but I leave open the possibility that God may supply a deeper basis.

        It seems that you took Earl to be asking an epistemological question: on what epistemic basis do we know moral truths. Your answer: not God, because that is a matter of faith; rather, intuitions. I don’t answer that question: I reject it, because I reject the whole notion of an epistemic basis. That sort of talk derives from an analogy between knowledge and a building, the latter being constructed upon firm foundations. But a better analogy for knowledge is a balloon which floats in the air until someone shoots it down. In epistemic matters our ammunition is criticism. We do not build knowledge from the ground up. We create knowledge by proposing a novel conjecture which we then test through debate (sometimes involving the results of experimentation).

        Thus, you say that faith cannot serve as the “basis” of morality because any purported foundation must be equally available to and valid for atheists, agnostics and believers alike. In contrast, I say that God may be the metaphysical basis of morality (I don’t know); there is no epistemic basis for moral knowledge; it could actually turn out that the best, most explanatory, moral theory is one that involves an appeal to God; if that turns out to be the case, we should say that atheists and agnostics appear to be mistaken; but only ‘appear to be mistaken,’ because we might in future get a better, more explanatory, theory which dispenses with the appeal to God. So I do not need a ‘basis’ to which all can agree; in fact there will never be such a thing. All I want is a good theory that explains more than its rivals and stands up to criticism. Such a theory will not be self-evident to anyone, let alone to all. It may be astounding considered in itself; but persuasive when considered in terms of its consequences.

        I agree that the question of what counts as flourishing is a moral one. Working out an account of that may be a daunting task. However, I think I have a trick up my sleeve which may be able to circumvent much of the problem; but that is a work in progress. Of course, people will disagree about what counts as flourishing; but much of that disagreement can be accommodated within my approach. However, some people will disagree with my approach. So what? People always disagree. That is a good thing because disagreement is the source of all knowledge. However, we can try to show that our preferred theory is actually better than its rivals in that it explains more and stands up better to criticism. It will then set the bar for any theory that is to supersede it.

        • Mark Friedman says:

          Thanks for this, Danny. I am saying two things to Earl: (1) just as there are mind-independent facts about mathematics and logic, there are also analogous facts about morality; and (2) we can gain knowledge about moral facts by intuition (I am not saying that this is the exclusive means). I think most philosophers, particularly ethicists, would consider my first claim to be a metaphysical one, and not an epistemological one. You seem to disagree, so I wonder how you would classify my first statement? I know I have mentioned this before, but I believe Michael Huemer in his book Ethical Intuitionism, provides a good defense of this idea.

          Second, perhaps you could clarify further your statement that “there is no epistemic basis for moral knowledge.” I know you do not reject the use of intuitions entirely, and there must be some way to obtain knowledge or, if you prefer, to formulate “the most explanatory theory.” I am not sure what is at stake here. Could I not recast my statements to Earl in the following way: “The most explanatory theory regarding morality is that there are mind-independent moral facts…”? I don’t see that I have changed here the substance of my view.

  5. Hi Mark,

    Yes, (1) is metaphysical and (2) is epistemological. What I was saying was that I took Earl (perhaps mistakenly) to be assuming (1) and asking a question about the metaphysical basis of morality. To which my answer was: human flourishing and, perhaps, at a deeper level, God. You did not take Earl’s question that way. You took him to be asking about the foundations of our knowledge of morality, because your answer ran: ‘faith cannot serve as the “basis” of morality because any purported foundation must be equally available to and valid for atheists, agnostics and believers alike.’ I don’t know which way Earl intended his question; but I am drawing attention to the fact that there are two quite separate questions here, which need different sorts of answers.

    Compare a different case. What is the basis of the physical world? Atoms. Perhaps at a deeper level, God. What is the basis of our knowledge of the physical world. Different question entirely.

    What is at issue in the ‘epistemic basis’ stuff is the dispute between justificationism and falsificationism. The justificationist thinks there are solid foundations for knowledge. These may be supposed to be self-evident axioms, sense-experiences, propositions with which no reasonable person can disagree, intuitions, or whatever. On this view, knowledge begins with these foundational propositions and seeks to derive, by deductive or some other supposed kind of argument, conclusions which augment our knowledge and enable us to build a superstructure on top of the solid foundations.

    In contrast, the falsificationist denies that there are any foundations for knowledge. No axioms are self-evident; sense-experiences are theory-laden, and the theories may be false; reasonable people can disagree over any proposition (as General Patton said: ‘If everyone is thinking the same thing, no one is thinking’); and intuitions are just implications of our inherited theories, and those theories may be false. Since there are no firm foundations to build on, knowledge is possible only if the analogy with a building is up the creek. And it is up the creek, as the history of science shows. Progress in science comes about through the proposal of bold new conjectures, which are entirely unjustified, but which can be tested and criticised. If they do not stand up to criticism, they are rejected. If they do stand up well to criticism, we try to find a better theory that does even better. As I said before, theories are not like buildings, they are like balloons which float until they are shot down.

    How do we go about formulating the most explanatory theory? We make a guess and then we criticise it and test it. If it fails, we may amend it in a non-ad-hoc way (so that the modification is independently testable), and then we criticise and test the new version. It if fails we may try doing the same sort of thing again or we may propose a new theory.

    You ask: ‘Could I not recast my statements to Earl in the following way: “The most explanatory theory regarding morality is that there are mind-independent moral facts…”?’

    I think we all three agree that there are mind-independent moral facts. That is one of the metaphysical issues. The epistemological issue is how do we come to know them. The justificationist answer is: we start from agreed premises and start to deduce. That gets us nowhere. The falsificationist answer is: we put forward a theory and we test it. Where do we get the theory from. We start with what we have: we have all been schooled in moral theories from our youngest years. Let’s analyse those first, sort them into rival theories, and start testing and evaluating them. When we find that they fall short, we can try to create a better theory that solves the problems with the existing ones. How do we test a moral theory? Big question; but you know my suggestion. Look what happened when socialist moral theory was built into the cultural, legal and political fabric of society – disaster. Socialist moral theory is refuted.

    • Mark Friedman says:

      Very interesting. I will not debate the history of scientific progress with you as I am hopelessly out of my depth. However, in the realm of moral progress I am not sure that the distinction you draw between the justificationist and the falsificationist is as sharp as you imagine. The justificationist is not committed to the infallibility of moral intuitions, and indeed would say that at any time there will be competing intuitions about many subjects. So there is no single agreed premise, but many competing ones.

      Over time, intuitions change and what was once a minority intuition becomes the accepted norm. Those with the minority view simply had it right all along. Those with the correct intuitions did not necessarily start with what they had received from society and did not necessarily proceed by deduction. I am sure that certain people have always had what were radically different intuitions than the mainstream, and just “felt” their moral vision to be true.

      Consider the case of slavery. For a very long time most people had the intuition that it was morally acceptable, but at least in relatively modern times there were always dissenters who thought it manifestly unjust that one person should exercise dominion over another. Why can’t we say that they had moral knowledge on this subject before their contemporaries did? I am not sure how the morality of slavery was “tested,” or why this process should be seen as the only way forward.

      • I agree that those who opposed slavery held a correct view at the time that they held it. There were non-slave opponents of slavery even in the ancient world. Did they have knowledge or only a true theory? I don’t know; but I suspect it was only a true theory. What converts a theory (whether true or false) into knowledge is the fact that it stands up to criticism better than its rivals. I don’t know what the state of the intellectual debate was concerning slavery in ancient times. The change from one theory to another is often a fad or a response to self-interested considerations, etc. That would be the case if people switched from pro-slavery to anti-slavery views because they came to think that slavery is ‘manifestly unjust.’ A switch from ‘slavery is manifestly just’ to ‘slavery is manifestly unjust’ would be an unreasoned one. It would be a switch from a false theory (‘slavery is just’) to a true theory (‘slavery is unjust’); but it would not be an increase in our knowledge – at least, not until someone could show, by argument, why the ‘slavery is unjust’ view is better that its rival.

        How could that be shown? I say it would be shown if it could be argued that societies without slavery promote human flourishing better than societies that have it. Adam Smith provided an argument to that effect, though I am not sure the argument originated with him. It is part of the argument that shows that free markets (‘the system of natural liberty’) promotes human flourishing. Since Smith, if not before, we have known that slavery is unjust. But this is not to deny that every move away from slavery prior to then was an instance of moral progress; it was just not an instance of progress in moral knowledge (unless there were the critical arguments available to show the superiority of the anti-slavery theory).

        Did the anti-slavery people in ancient times start with what they received from society? Yes, because they had no choice about that. This need not mean that the anti-slavery theory was already one of the collection of theories being discussed, since one may always put forward a new and surprising theory. But it does mean that no one could put forward the anti-slavery theory without having a massive background of theories about how the world and society and people work. Even very novel theories are outgrowths of the pre-existing ‘problem situation’ (which is why there are so many priority disputes in the history of science). Newton said that he had only seen so far because he had stood on the shoulders of giants (Kepler and Galileo, whose theories he replaced); and there could have been no Einstein without Newton.

        I agree that contemporary justificationists accept fallibilism, or at least pay lip-service to it. But that is just an attempt to have the cake and eat it. If the foundations may be false, they fail to justify. But this point threatens to become verbal because the justificationists will say they are using a weaker sense of ‘justify.’ The problem, though, is that they then go on to say things that make sense only if ‘justify’ retains its old sense. That’s why I say that they pay lip-service to fallibilism.

        • Mark Friedman says:

          Danny, you make a strong case, but I am not entirely convinced. It seems to me that many anti-slavery crusaders were relying on something like Kant’s first formulation of the Categorical Imperative, the crux of which we might summarize as something like, “It’s wrong to have one set of moral rules for how some people may be treated and a separate set of rules for other groups of people.” This insight is ancient: variations are found in the Hebrew Bible and–not surprisingly–in the teachings of Jesus (and probably other places as well).

          I recognize that humanity’s experience has shaped how we understand this idea, and thus its scope and reach have been expanded over time, including the abolition of slavery. However, it is not clear to me that the basic insight is capable of being tested: you either see it or you don’t. If you see it, I’m not sure why this doesn’t qualify as “knowledge,” and why it is an important matter if you prefer to call it something other than knowledge (“the best explanation”). Of course, this is why Kant held that the CI was the product of “pure reason.” Why is this view implausible?

  6. Hi Mark,

    There’s a few points in your post I want to dispute, some more significant than others. Let’s begin with Kant. I think it is generally accepted that Kant’s first formulation of the Categorical Imperative is empty. All sorts of discriminatory principles are universalisable: we just include the discriminatory conditions within the conditional. For example, ‘all persons are such that, if they are adult and male, they have the right to vote;’ ‘every person should be enslaved if he is a barbarian.’ How do these differ from ‘everyone should be rewarded if he does a good deed’ or whatever? All the rules apply to all people. I think it is undeniable (dare I say that?) that moral principles must be universal; but that says nothing, because any principle can be put into universal form.

    What about slavery? It is a substantive principle that slavery is wrong. To you and I it seems self-evident. To other people it has not seemed so. This raises two questions. First what would we say to those other people to try to convince them that slavery is wrong? Surely not: it seems self-evident to us that slavery is wrong. We need something better than that. Since we are talking here about convincing people, the something additional could be a charismatic teacher/leader. That often changes people’s convictions. Or we might try arguments. That brings me to the second question: what arguments could we use to show that slavery is wrong? Well, you know what I am going to say there.

    Let us suppose that we are correct in thinking that slavery is wrong. Now suppose that Bill asserts: ‘slavery is wrong.’ He therefore says something true. We ask him why he thinks that is true. He says: ‘well it seems self-evident to me.’ Is that good enough to count as knowledge? It would not surprise me to find that some contemporary philosophers say so. But it seems to me that Bill does not have knowledge of what he asserts (even though it happens to be true, and even though he is convinced of it) because knowledge requires some critical assessment. If Bill has not compared the proposition he asserts with rival propositions and come up with some epistemically-relevant reasons for preferring the one to the others, all he has is true belief, not knowledge.

    Just to forestall a possible objection: there is no infinite regress in what I say, because I do not claim that Bill must know all the propositions that figure in the arguments he uses in his assessment. Knowledge sits on top of inherited theories. To put the point another way, what I have been talking about is rational knowledge, to be contrasted with the sort of instinctive or unreasoning knowledge that we attribute to animals. So I could say: our rational knowledge sits on top of our animal knowledge (it is a development out of it). This involves no paradox because I am not a justificationist (not even our rational knowledge is justified). Incidentally, I think that the best explanation counts as knowledge.

    I appreciate that some of what I have been saying may seem counter-intuitive; and I know that it flies in the face of everything taught by contemporary epistemologists. The falsificationist approach to knowledge derives from Karl Popper. I have produced what I think is a succinct, clear and in some ways improved account of Popper’s approach in a paper called ‘Theoretical and Practical Reason: A Critical Rationalist View,’ which is available here:

    http://www.academia.edu/793164/Theoretical_and_Practical_Reason_A_Critical_Rationalist_View

    But I suspect we are getting away from our topic.

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