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.
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).