Guest Post by Danny Frederick, http://independent.academia.edu/DannyFrederick
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. http://gaus.biz/