Saturday, April 20, 2013

Debate with David Friedman: Is Physical Harm All that Matters?

I have recently entered into a bit of a back-and-forth with David Friedman regarding Steven Landsburg’s controversial blog post. This debate has spanned across the comments of both my blog and his blog, so I figured it would be easier to follow if I compiled our remarks onto one page. I have pasted his most recent comment below in italics, with my own comments (directed to Friedman directly) in standard font beneath that.

Me: "You don't need a degree in philosophy to understand, on a fundamental level, why the pleasure obtained by rapists cannot justify rape." (quoted from my earlier post)

Friedman: You don't need a degree in philosophy, but you do need an argument, and you have to be careful not to assume your conclusions in the process. 

Plausible and interesting approaches to moral philosophy include variants of utilitarianism, which raise the question of whether and why some pleasures don't count--and provide arguments for opposing things such as rape or murder that do not depend on claiming that the benefit to the offender doesn't count. 

As far as I can see, there is no approach to moral philosophy that is more than plausible, so the plausible ones are worth thinking about--especially since it turns out that when one does so, quite a lot of our moral intuitions that feel non-utilitarian can be justified on utilitarian grounds.

For details see my Law's Order or Machinery of Freedom, both of which discuss the issues in the context of asking what is wrong with theft.

Going back to your response on photons ... . Quite a lot of things that we object to humans doing to us are also done to us by non-humans--your bear attack is an example. We don't say that assault by a human doesn't count as a violation of our rights just because assault by a bear does.

Similarly, the fact that photons penetrate my eye from natural causes doesn't imply that a human being who turns on a light or starts a fire and so creates photons that penetrate my eye isn't violating my rights. It doesn't feel like a rights violation--but why?

One possible answer is because it does no injury--but that's the answer you and Landsburg's other critics want to reject in his case. 

Note, by the way, that lots of people argue, in effect, that trespassing photons are a rights violation when they cause unhappiness--for instance when other people walk around naked where you can see them, or paint their houses an ugly color, etc.

Me: I spent most of my last post attempting to discredit the photon analogy individually, as it was the only one Landsburg and you cited in your critique of the natural rights objection. To do so, I made a distinction between the sort of bodily penetration that is natural and perpetual (like light or breathing) and the sort which is unnatural (like rape or laser beams) and/or sporadic (like bear attacks and falling tree branches). I admitted that individual instances of both sorts of violation can be externally induced by other human beings. But the simple fact that it’s impossible for anyone to escape from the perpetual violation even momentarily, regardless of whether the source of that violation is human or non-human, suggests to me that the specific source of perpetual violations on a case-to-case basis is not all that important. The actions humans take have no impact on whether someone else’s body will be penetrated by light; it’s just a matter of how much light will penetrate, and from what angle. Since moral philosophy only seeks to govern the morality of human actions, this strikes me as evidence that light penetration can be safely disregarded without missing anything critically important about morality. I still feel you give the science of ongoing atomic-level interactions more significance than it deserves in moral philosophy.

However, I now recognize that my squabbling over the photon analogy missed the point – not because the distinctions I drew were wrong, but because that specific analogy is inessential to the larger point you’re trying to illustrate. Your point is that there are many natural rights people violate harmlessly through common activities, and that these activities are not viewed to be as immoral as the ones which do cause harm. This suggests that the net outcome of harm caused carries some weight in our moral calculations – more weight, you’d argue more, than rights violations. There are many other analogies you could have used that have nothing to do with photons, but still exemplify rights violations we deem acceptable. Therefore, all my talk about natural vs. unnatural, perpetual vs. temporary violation has bogged down and impeded the debate by distracting from those issues, and I’m sorry for that.

To start anew, let’s instead use another analogy of a temporary trespass that is clearly human induced. We can even use the one you provided in your response to another comment:

“I use other people's property without consent by backing into a stranger's driveway in the process of turning around in an urban street. I use it by taking pleasure in admiring someone else's beautiful house. What is it that distinguishes those cases where it is all right from those where it isn't?”

You provided your answer to that in your original post, and reiterated that answer in the response I posted above:

“One possible answer is because it does no injury--but that's the answer you and Landsburg's other critics want to reject in his case.”

But that’s not true; I do not want to reject this answer. In fact, I believe this answer is partially correct – it’s merely incomplete. My objection to your conclusion (and indeed to utilitarianism and consequentialism at large) is not that the net harm or benefit does not matter – the outcomes of our actions do have moral implications. But just because the amount of damage an action causes is oftentimes important to assessing its moral value does not mean it is the only factor to consider. Other factors may include:

1. Intent. Rapists intend to stick a part of their body into another person's another person's body. They know full well what they are doing, and they choose to do it anyway. But many people who turn on lights have no idea what photons even are. Knowingly deciding to violate another person's body is less morally excusable (not to mention legally punishable) than doing it accidentally or ignorantly.

2. Directness of causation. In order for someone to be morally responsible for an outcome, the causal link between the actions they took and the outcome they are blamed for must be fairly direct and exclusive. A pharmacist selling prescription painkillers is not responsible for the deaths of people who overdose. A father who waters his lawn could not have anticipated that the slick grass would cause his son to slip and skin his knee on a rock. And if that man’s boss fires him from work, making him so flustered and distracted that he crashes his car on the ride home, his boss can’t be blamed for that either. Each of those actions may have, in some small and highly indirect way, contributed to an eventual harm brought on somebody else. That harm would not have happened without something those people did; therefore, it is technically as you put it, a “product of human action”. But these actions do not constitute a rights violation, because the link between the action and the effect is so indirect as to be insignificant. By comparison, physically penetrating someone else's body with your own body is the most direct form of causation possible.

3. Potential damage that the action risked inflicting. A drunk driver may not actually crash, and may not wind up causing any casualties or damage to anyone at all. Someone who knows they have AIDS, and decides to have unprotected sex with a stranger anyway without telling them, may not actually pass along their infection. And the bomb set off at the Boston Marathon might, by some stroke of incredible luck, not have injured anybody. Assessing the harm inflicted alone renders each of these decisions morally neutral and permissible. But these decisions are not morally neutral, because each of these decisions very easily could have harmed other people. No rights may have been infringed this time, but rights were jeopardized and threatened. Repeating these actions in the future, it is highly unlikely that no harm would result. Therefore, the decision to do them anyway is immoral.

4. Likelihood of consent. Using and even damaging someone else’s property is fine when you have explicit permission to do so. And although libertarians must be wary of so-called “implied consent” due to how easily it can be abused, the fact remains that there are some uses of private property that the owner is extremely unlikely to object to. If two neighboring families are good friends, and one family’s children accidentally hit a baseball into the adjacent yard, they can probably go retrieve it without needing to call the neighbor for permission – especially if they have been granted permission to do that in previous instances. The fathers may borrow one another’s wheelbarrows without asking, whereas they would not assume consent from total strangers. This is true even in instances in which harm may result – walking across the lawn might damage the grass or leave ugly footprints. But if one is almost certain the owner would not mind, we view it as morally superior to inflicting the same amount of harm against the owners will. Depending on the action, assuming consent for some trespasses may be less immoral than assuming it for others.

When we consider all of these factors in conjunction, it’s much easier to distinguish between situations you posed as analogous. Yes, none of your examples caused any physical harm. But unlike the photons, the rape was intentional. Unlike consent to merely look at someone’s house, consent to stick a finger up someone’s vagina cannot be assumed. And unlike backing into somebody else’s driveway to turn around, rape has a very high likelihood of causing harm to one’s victim (mental or physical).

This brings me to another flaw in Landsburg’s blog entry; as I wrote in my original reaction, “not all psychic harm is interchangeable.” This is where natural rights come into play. Landsburg is correct that the mental distress caused by things like porn or oil drilling does not justify making those things illegal. This is because porn and oil drilling do not violate anyone’s rights. But when mental distress is brought about because one’s rights have been violated – as is the case with rape of any kind – that harm cannot be dismissed as immaterial. In other words, becoming offended or distraught over some things is more justifiable if your rights have been violated than it is if they haven’t.

Coupling psychic harm with a rights violation lends credence to the victim’s right to be offended, and renders the direct and intentional violation of their rights immoral. If person A is mentally distressed simply because person B is doing something they don’t like, perhaps person A is just ornery and intolerant. But if person A is mentally distressed because person B encroached upon their rights, person A is a genuine victim. Rape victims are genuine victims.

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