Permissible Right-Infringement, Part 3

Guest Post by Danny Frederick,

In Parts 1 and 2, we considered the following case.

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.

We came to the conclusions that:

• the hiker’s action is a permissible infringement of the cabin-owner’s rights;

• it is permissible even if the cabin-owner refuses to consent to it;

• the net social benefit of the action is not sufficient to make it permissible;

• its permissibility depends on the hiker’s duty to herself, because only another duty can override the hiker’s duty to respect the cabin-owner’s rights;

• the hiker’s duty to save her own life makes the action permissible, rather than obligatory, because she can release herself from her duty to herself;

• in virtue of infringing the cabin-owner’s rights, the hiker owes him appropriate amends.

Throughout, when I say ‘permissible,’ I mean morally permissible. It is permissible for the hiker to infringe the cabin-owner’s right to exclude her from the cabin. But since he does have that right, is it also permissible for him to exclude her? That would make morality self-contradictory. Let ‘p’ stand in for a consistent description of a state of affairs. The following is not self-contradictory

it is possible that p and it is possible that not-p;

but the following is self-contradictory

it is possible that p and not-p.

For example, it is possible that I am at home and it is possible that I am not at home; but it is not possible that I am both at the same time. Permissibility is moral possibility. So, while

(a) it is permissible that someone brings it about that p and it is permissible that someone brings it about that not-p.

is not self-contradictory,

(b) it is permissible that someone brings it about that p and someone brings it about that not-p.

is self-contradictory. For example, suppose that a lending library has just one copy of Nozick’s Anarchy, State, and Utopia and that Alice and Bob are members of the library. It is permissible for Alice to borrow that copy of the book and it is permissible for Bob to borrow that copy of the book; but it is not permissible for them both to borrow the book at the same time. If Alice is borrowing the book, it is impermissible for Bob to take it off her.

It cannot be the case that it is permissible for the hiker to enter the cabin and (simultaneously) for the cabin-owner to exclude her. Under normal circumstances, it is permissible for the cabin-owner to exclude her; but in the circumstances of HIKER it is permissible for the hiker to enter. Therefore, under the latter circumstances, it is impermissible for the cabin-owner to exclude her. That is why, if the hiker were able to talk to the cabin-owner on the telephone and he refused his consent for her to use the cabin, she would still be entitled to enter the cabin.

The hiker’s action is a permissible infringement of the cabin-owner’s right; so that right still exists. How can the cabin-owner retain the right to exclude the hiker if it is impermissible for him to do so? The answer is that the cabin-owner’s right is not absolute and it happens to be permissibly infringed, or overridden, in these circumstances. The reason it is overridden rather than simply annulled is that the hiker owes the cabin-owner appropriate amends for her action. If the cabin-owner’s right were simply annulled, the hiker would do him no wrong in entering the cabin without his consent, in which case she would not owe him amends.

It has been said that HIKER is not a case of right-infringement because the cabin-owner’s right that the hiker does not raid his cabin is transformed, in the circumstances of HIKER, into the ‘liability-right’ that the-hiker-does-not-raid-his-cabin-without-paying-him-compensation (Gaus 2012, section 3.2). However, if the cabin-owner’s right were merely the liability-right, then the hiker would not infringe the cabin-owner’s right so long as she pays whatever compensation she owes. But, in fact, the reason that she owes appropriate amends is that she wronged the cabin-owner by infringing his right (even though the infringement was permissible). The liability-right theory leaves out of the picture the moral dynamic of wronging a person and then making amends.

Suppose that the cabin-owner is in the cabin when the hiker arrives. The hiker pleads to be let in, but the cabin-owner says: ‘Go away! This is private property!’ The cabin-owner does something impermissible, something morally wrong. It is permissible for the hiker to enter the cabin by force in that circumstance. However, as she would still be infringing the cabin-owner’s right, albeit permissibly, she would still owe him appropriate amends. Since the cabin-owner defaulted on his duty to the hiker, when he impermissibly denied her entry to the cabin, he also owes her appropriate amends. Although what form the amends should take depends upon the total circumstances of the case, it seems that in such cases generally the hiker would owe some financial compensation for the cabin-owner’s property she consumes, and the cabin-owner would owe the hiker an apology.

Finally, we have noted that, while rights imply duties, there are also other duties; and while the duties to respect rights are normally overriding, there are exceptional circumstances in which they may be overridden by another duty. Justice means honouring people’s rights, which includes making appropriate amends for permissible right-infringements; but the fact that there are permissible right-infringements shows that justice, though central to morality, is not the whole of it.



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


This entry was posted in Blog. Bookmark the permalink.

10 Responses to Permissible Right-Infringement, Part 3

  1. Mark Friedman says:

    Thanks for the excellent, stimulating series of posts. I have two questions. First, do you see the theory of permissible rights-infringement that you adopt as having any normative implications relative to the “liability right” theory that you reject? In other words, could two philosophers have identical moral values and thus identical moral judgments, while taking opposite sides in this theoretical dispute?

    Second, can you say a little more about the “moral dynamic of wronging a person and then making amends.” Why is this concept important? For one thing, it is not clear to me that if hiker acts responsibly the cabin owner will usually feel any “wrong.” Imagine hiker can’t contact owner before breaking into the cabin, but she subsequently contacts him and offers him $1000 as compensation, and he is perfectly satisfied. In fact, he believes he has gained by the transaction. In what sense is a “wrong” committed in this and like cases?

  2. Hi Mark,

    I think the two theories have (or can be made to have) exactly the same implications for what is permissible/impermissible. But they give different explanations of what is going on.

    Let us assume that compensation is owed in the HIKER case. The infringement theory says that the hiker infringes a right and therefore wrongs the cabin-owner; and as a consequence she owes the cabin-owner compensation. That is the moral dynamic: wrong someone, then put it right. The liability-right theory says that the hiker infringes no right so long as she compensates. There are two actions of the hiker: raid the cabin, then compensate the owner. But she never wrongs the owner: there is no dynamic of wronging and then putting right. That seems to me to be a false description of the case.

    You might say, who cares? In terms of permissibility, in terms of what needs to be done, it is all the same. I agree that if we were being purely pragmatic about it, we would not care which theory we used. But we are not being purely pragmatic: we are doing moral theory. My claim is that the infringement version gives a correct analysis of our actual moral theory of rights, while the liability-right theory does not. The latter is revisionary.

    You question whether the infringement theory is the correct analysis of our actual moral thinking about rights. You say that, so long as the hiker pays compensation, the cabin-owner will not feel any wrong. Well, that is true; but he will feel that a wrong against him has been committed UNTIL compensation is paid. On the other hand, if the liability-right theory were true, the cabin-owner would be in doubt as to whether a wrong has been committed while compensation is outstanding. Let me put it another way. On the infringement theory, the cabin-owner may look back on the whole episode and say: that hiker did me a wrong in raiding my cabin; but it was permissible in the circumstances; and she eventually put things right by compensating me for the damage she caused; so, overall, I have no complaints. On the liability-right theory, when the cabin owner looks back he will say: the hiker raided my cabin and compensated me for damages; but at no point did she do me any wrong. That second account seems to me to be false. But I agree that the difference between the two accounts is subtle.

    You ask, is this difference important? Why should we bother to be careful about this distinction? I suspect that the difference will have consequences for the elaboration of a consistent and elegant theory of rights. But I cannot substantiate that suspicion as yet. You are right, then, to point out the need for further work.

    • Mark Friedman says:

      Hi Danny:
      I believe this is a very interesting issue, well worth exploring, so I hope you didn’t take anything I said in my comment to the contrary. For what it’s worth, I’ll offer some additional thoughts, and ask you to react.

      For those of us who take rights seriously (and I’m sure you do), they have great (although not absolute) stringency. This is another way of saying that we hold that it would be wrong in almost all cases for an agent to treat a right held by another as a liability-right that he may elect to infringe for a price. Nozick explains why (at ASU, 71): “a system permitting boundary crossing, provided compensation is paid, embodies the use of persons as means; knowing that they are being so used…is a cost to people; some injuries may not be compensable; and for those that are compensable, how can an agent know that the actual compensation payment won’t be beyond his means?”

      So, in the ordinary case, even if we would find it greatly advantageous to infringe a property right, we should still secure the consent of the owner. After the property has been damaged or destroyed, even the owner will not know what he would have accepted in the ex-ante situation. Thus, even if the agent infringing the right subsequently reaches agreement with the holder, he impermissible subjected the right-holder to the risk of a wrong in the event no satisfactory after-the-fact agreement is negotiated. This might be what you are referring to as “the dynamic of wronging and putting right,” i.e. why we feel that a boundary crossing is somehow wrong despite amends being made.

      But in a rare case like HIKER, an owner who–if contacted in advance by a person offering fair compensation–nevertheless refuses his consent would be guilty of grossly abusing his rights (if he could enforce them). And, it is only in such cases that an agent is morally permitted to infringe without the owner’s consent, so that the agent is not acting wrongly in breaking into the cabin, and should not feel any need to apologize for his actions (assuming he follows through with compensation). In effect, the agent has the moral right to enter the cabin. Thus, the liability-right theory is usually irrelevant, but in the small subset of cases where applicable, I think it is unobjectionable.

      • I agree that we are talking about exceptional cases and that in normal circumstances ‘specificationists’ affirm that our rights are not liability-rights. But I think that the cabin-owner’s right in HIKER was also not a liability-right, but an ordinary right that was infringed leading to a requirement to make amends.

        I think this can be seen more clearly in the case where the cabin-owner is altogether absent, i.e., where he cannot be asked for consent. Don’t you think that, in addition to compensating for damage, the hiker owes the cabin-owner some sort of apology for making use of his property without his consent? Since the hiker’s act was permissible (it was not morally wrong), some people may think that an apology is too much to ask. But even if we accept that, surely there is a wrong done to the cabin-owner, an infringement of his rights, which the hiker should at least acknowledge? Otherwise, she seems to be treating him merely as a means. (Recall, from my Part 1, that I say it can be morally permissible, and thus not morally wrong, to do someone a wrong.)

        The situation is obscured in the case where the cabin-owner (impermissibly) refuses consent, because the cabin-owner then owes an apology, too, so we may be tempted to say that the two apologies cancel each other out. I think that is mistaken. For the hiker to refuse an apology because the cabin-owner does not make one would be a kind of revenge: two wrongs do not make a right.

        You were quite right to raise the question about the point of my distinction. Too much philosophy is concerned with distinctions that make no difference. My claim that the infringement theory tallies with our ordinary thinking, whereas the liability-right theory does not, sounds like something out of ordinary-language philosophy (mere triviality). If I had left the claim there (as, I have to admit, I was inclined to do), I would have been engaging in the sort of scholastic humbuggery that I normally criticise. So I am grateful to you for pressing me to show some more important point to the distinction.

        Here is a possible avenue. The infringement theory describes HIKER cases as involving the same phenomenon as cases of impermissible infringement, i. e., in both types of case a right has been infringed and so, ceteris paribus, compensation is payable. The liability-right-theorist (the ‘specificationist’) has to invoke a new kind of right to explain those cases. The infringement theory is therefore more economical of conceptual resources and ought to be preferred (ceteris paribus). This point needs developing, of course.

        • Mark Friedman says:

          Hi Danny:
          Thanks for the additional analysis, which I think substantially stengthens your argument. Let’s assume that you’re right and that it is only in cases where the right-holder acts very badly that we might be tempted to conclude that no apology is owed. But even here, the agent owes at least an apology because otherwise he is treating the holder as a mere means.

          This leads to an entirely new question: why can’t the specificationist build this sense of wrongness into his theory? Why can’t he acknowledge that all ordinary rights are sufficiently stringent such that any unilateral decision by another person to treat an ordinary right as a liability right, even if permissible on an all-things-considered basis, triggers at least an apology (or an acknowledgement of wronging the holder in some fashion)? The effect of this would be that a hiker that breaks into the cabin, acknowledges the wrong, and pays compensation sufficient to satisfy the owner doesn’t infringe the owner’s rights, but honors them.

  3. Hi Mark,

    Yes, the specificationist can create another new-fangled right. Christopher Wellman takes that approach in his ‘Conflicts of Rights’ paper. He says that in cases like HIKER, the cabin-owner does not have the ordinary property right; instead he has a ‘compensation right,’ i.e., the right that if the hiker uses the cabin, she pays him compensation. What if the hiker is poor and cannot pay compensation? Oh, in that case the cabin-owner has a ‘latent compensation right,’ which means that the hiker can use the cabin without paying compensation but, should she ever get into a position in which she can pay compensation then she ought to pay the cabin-owner. Similarly, if we could get Wellman to agree that the hiker owes an apology, he would say that the cabin-owner has a right that, if the hiker raids the cabin, she makes an apology. He manufactures a different right for every different occasion. I cannot take this approach seriously, because it is entirely ad hoc.

    Recall a case from astronomy. Aristotle said that the planets move around the earth in circular orbits (because it is natural for heavenly bodies to move in circles). However, if one tries to make exact observations of the motions of the planets, one discovers that they do not move in circles around the earth at all. What was the response of the Aristotelians? The planets move around in a small circle (an epicycle) which itself moves around the earth in a large circle. With a choice of appropriate sizes of circles and speeds of rotation, an approximate fit to observations could be achieved – until more or better observations were made. What was the response of the Aristotelians then? We need another epicycle (or some other mathematical makeshift like an equant). The theory of circular orbits around the earth can be made, more or less, to fit the observations, but only by becoming more and more complex. Worse still, every new complexity is there purely to solve a particular problem that has arisen. None of them explains anything over and above the particular problem that it is introduced to solve.

    Do you see the resemblance to specificationism? In contrast, the infringement theory says that the only rights we have are the ordinary rights we think we have; and if we admit permissible infringement, we can explain compensation and apologies in such cases in terms of what happens when an ordinary right is impermissibly infringed. The explanatory resources already exist in the theory: we don’t need the specificationist’s ad hoc epicycles.

    • Mark Friedman says:

      Thanks, Danny. I agree that one theory of rights may be preferred over another, even if they do not differ in their normative prescriptions. As you said, one theory may be more elegant, may sit better with other carefully-considered ideas we have about rights, and so on. However, whatever the merits/demerits of specificationism on these criteria, I don’t yet see that it is objectionably ad hoc.

      I believe the specificationist would say that he starts with the basic idea that the outer boundaries of rights are defined by what is permissible for agents to do. In other words, a person acting in a morally permissible fashion just can’t be guilty of infringing other people’s rights. What you call ad hoc epicycles are not made-up adaptations, but simply the application of that theory to the facts of the various cases that we must consider. In all such cases the specificationist will hold that if the agent acts appropriately (acknowledges the wrong, compensates, etc.) he will be respecting rather than infringing the right in question.

      • That is a good defence, Mark. But I think it is open to Thomson’s objection that it makes rights superfluous. Why do we need rights at all, on that theory? We don’t need them to work out what it is permissible or impermissible for us to do, because, on that theory, we must first work out what it is permissible or impermissible for us to do before we know what rights we have. Only once questions of permissibility and impermissibility are settled can we say whether a person has a right and what that right is. But there is then no longer any point in talking about rights. Rights turn out to be cogs that turn no wheels. The term ‘right’ becomes a pointless label.

        • Mark Friedman says:

          Thanks for this. Clearly there is more that needs to be said here, but you have me at least half-convinced for now.

  4. I am only ever half-convinced about anything.

Leave a Reply

Your email address will not be published. Required fields are marked *