Saturday, April 06, 2013

Why Landsburg's Puzzle Is Interesting

I have seen two sorts of defenses offered for the virulently hostile response that many people gave to Steve Landsburg's recent post. One is that one shouldn't talk about rape, or shouldn't use it in hypotheticals,  because it will rouse bad memories in people who have been victims of rape or for other reasons along similar lines. I find that argument unconvincing, and suspect that most of those using it would reach a different conclusion if they were doing the talking and expressing the proper views on the subject. 

The other defense is that Landsburg was not offering an interesting puzzle, since the answer was obvious, hence that the only explanation of his post was that he was trying to shock people, and trying to shock people by talking about a sensitive subject is juvenile and rude. Alternatively, that Landsburg was not offering an interesting puzzle but thought he was, which shows how stupid he is.

Hence this post.

Argument 1 for why the answer is obvious, popular with libertarians:

The unwanted but physically harmless rape is obviously wrong because it violates the victim's property right in her own body.

When I look out the window and see the light in a neighbor's window, the fact I can do so shows that photons whose existence he caused have trespassed on both my property and my retina. We don't see that as obviously wrong.

Why? One obvious answer, although not the only possible one, is that the trespassing photons do no damage—we would react differently if what was trespassing was a megawatt laser beam. But that answer gets us back to Landsburg's puzzle: If physical trespass to someone's body did no damage, would it also not count as a violation of the victim's rights? More generally, how do we figure out what rights, in property or anything else, who has? 

In my view, anyone who thinks that problem is trivially easy has not thought very hard about it. Any philosopher who thinks so should find another line of work. Which brings me to ...

Argument 2, popular with philosophers:

The puzzle is uninteresting because we already know that utilitarianism, at least of a simple sort, is obviously wrong.

Perhaps I missed it, but I am not aware of any proof, by philosophers or other people, of what moral philosophy is the right one. Absent such a proof, the fact that a particular candidate implies a conclusion that feels wrong to us admits of at least three different explanations:

A. The candidate is wrong.

B. Our moral intuition is wrong.

C. The argument from assumptions to conclusion is wrong. 

Part of what makes an argument like the one Landsburg offered interesting is that it forces us to think about those explanations. Responding with "we already know the right answer to the fundamental questions of moral philosophy," which is not what anyone I saw said but what a number of people appeared to be implying, is not a good answer. My long post on the subject was arguing C—that the conclusion Landsburg sketched did not follow from the implicit assumptions, for somewhat complicated (and, I thought, interesting) reasons.

I could go on to list other arguments for why the answer to the puzzle is obvious, but I have not seen any that struck me as convincing, and two unconvincing ones are sufficient.

Showing why particular arguments that his puzzle is uninteresting are wrong does not tell us what is interesting about it. One answer to that question is that one of the most intriguing facts that comes out of the economic analysis of law is that the legal rules that economic theory implies are efficient—loosely speaking maximize utility—often if not always resemble the rules implicit in both existing law and existing moral beliefs. If that is true, it is surely interesting, in part because it suggests some possible conjectures about where law and moral beliefs come from. And it also suggests the project of looking at places where law or moral beliefs fail to fit what economic efficiency appears to imply, and trying to see if one of my answers A, B, or C explains the difference.

One implication of that project is that  it is a mistake to claim, as some philosophers (and economists) do, that wicked pleasures ought not to count in the utilitarian calculus. If you put your moral beliefs in at the beginning of the analysis, it is not very interesting to get them out at the end. It is much more interesting if you put in something much simpler, if you treat the benefit that the pickpocket gets from the money he steals from you on precisely the same terms as the loss to you from having it stolen, and yet end up with something that looks like rather like your intuitions of right and wrong. As you do—for a defense of that claim, see my Law's Order.

It is possible that I am being unfair to Landsburg's critics, since this is an area I have worked and written in for many years, so the point may be more obvious and interesting to me than to them. On the other hand, if an intelligent academic makes an argument that seems pointless to you, trying to figure out why he thinks it interesting, even asking him, seems a more appropriate response than most of the responses Landsburg got.

And even for someone who has never thought about the economic analysis of law, figuring out why we make the moral judgements we do, why we reach different conclusions about what can be seen as similar cases, ought to be interesting.

41 Comments:

At 7:57 PM, April 06, 2013, Blogger Hyman Rosen said...

Why do you think the problem is not trivially easy? I would say that just about everyone's moral intuition tells them that having other people use their body or property without consent is very likely to cause harm, and they want people who do that to be punished, regardless if a particular case did not result in damage. In particular, we know that we would not want to be treated in the way the Steubenville rapists treated their victim.

And the reason using rape examples is offensive is that it minimizes rape as it actually exists in the world and it demonstrates that the poser is insensitive to that.

 
At 8:19 PM, April 06, 2013, Anonymous Max said...

At some point, I think you've simply got to say that most people lack the brainpower to think certain things through. IQ is important.

 
At 12:22 AM, April 07, 2013, Blogger David Friedman said...

Hyman:

The problem is making sense of our moral intuition.

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?

One obvious answer is harm, and Landsburg is pointing out that if that is the answer, one gets a very odd implication.

 
At 12:40 AM, April 07, 2013, Anonymous Anonymous said...

" the reason using rape examples is offensive is that it minimizes rape as it actually exists in the world and it demonstrates that the poser is insensitive to that."

Actually, I think H Rosen has it backwards. While I agree the Steubenville teens should be punished for their actions, having the entire country goes apoplectic because a teenager girl got drunk and doesn't recall being digitally penetrated (what in my youth was called "getting to third base"), treating it as equivalent (by using the same term) to being brutally beaten while being repeatedly anally and vaginally raped in the traditional sense and left for dead--something that happens at a significant rate in war zones throughout the world, sometimes perpetrated by American soldiers--is what I would consider insensitive and minimizing rape, just as saying "I hate slavery, communism, and my mother-in-law's cooking" makes minimizes the atrocities of slavery and communism.

 
At 1:17 AM, April 07, 2013, Anonymous Guest 1b said...

@anonymous The US Justice Department's definition of rape (updated in in January 2012) is: "the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim."
http://www.justice.gov/opa/pr/2012/January/12-ag-018.html

Previously the term was "forcible rape" which required evidence of force. An absence of physical injury was, or could be, considered evidence of consent, i.e. there was no rape. Cases where the victim was unconscious, immobile, in shock, or chose not to provoke an attacker were therefore problematic with respect to demonstrating a lack of consent.

If you were "getting to third base" with a consenting partner then there was no rape using this definition.

 
At 6:26 AM, April 07, 2013, Anonymous Anonymous said...

One would think that it should be obvious to a libertarian that the use of ones body without consent is wrong.

David, if I come over and fuck you, but you are unconscious, have I trespassed? Please note that this is a hypothetical.

 
At 7:05 AM, April 07, 2013, Anonymous Don't call me Janet said...

I feel incredibly naive now: I honestly never would have guessed that people would have found this topic so objectionable.

"David, if I come over and fuck you, but you are unconscious, have I trespassed?"

Let's assume that you have trespassed. If you caused no physical harm, what grounds does David have to object? Yes, it is his body but if you enjoyed yourself and he wasn't harmed then surely the world is a better place as a result?

This is the problem. That all of us know what our gut tells us doesn't help much since some people's gut tells them to do all sorts of things we might find immoral (usually after spicy food).

 
At 9:56 AM, April 07, 2013, Anonymous Anonymous said...

Guest 1b completely misses my point. I wasn't arguing that "reaching third-base" involuntarily failed to meet the legal definition of "rape". It was arguing that being equally horrified by each and every example of rape, legally defined, independent of the actual severity of the violation to a person, implies that we are in a "anti-rape" culture. I very clearly indicated above that I thought the Steubenville boys should be punished. I am, however, opposed to the mentality that seems unable to distinguish their actions from that of a brutal gang bang.

 
At 10:18 AM, April 07, 2013, Anonymous RKN said...

But that answer gets us back to Landsburg's puzzle: If physical trespass to someone's body did no damage, would it also not count as a violation of the victim's rights?

Who decides what counts as damage -- a liberal economist, a moral nihilist, an anarcho-capitalist, an evolutionary biologist, a really smart philosopher, the person with the highest IQ, or the putative victim of the harm?

 
At 11:38 AM, April 07, 2013, Anonymous Anonymous said...

David,

In response to your reply to Hyman:

I totally agree that the problem is making sense of our moral intuitions. Lately I have been trying to divorce myself from moral absolutism, but it's examples that you've been discussing that make it hard.

Generally speaking I tend to view property rights as a trump system, with individual self ownership being the highest order and other forms of property falling into lower tiers. In this system the only time that I am justified in violating another individuals self ownership is in defense of my own:

I would be justified in shooting you if I had sufficient reason to believe you were about to do the same to me. I would certainly not be justified in shooting you if you were simply walking across my yard. (Unfortunately I've seen some libertarians think they would be justified in this...I like to disdainfully call them 'little kings')

In this view whether 'damage' is done or not, unconscious rape is a much greater form of trespass than unconscious driveway use.

I agree this is a can be a muddled view and several hypothetical situations, such as is it okay to kill 1 person to save 2->all people, can poke serious holes in it. This is one reason why I've become interested in your view of property rights as a set of commitment strategies.

 
At 11:42 AM, April 07, 2013, Anonymous Nightrunner said...

As for the libertarian argument: property is a legal concept. It does not include live human bodies. Libertarian argument is based on the wishful thinking that if someone says often enough that the body is a property it will somehow make it true. It won't.

 
At 12:19 PM, April 07, 2013, Blogger Noah Siegel said...

Nightrunner:

A rule recognizing A's property interest in A's body could very well be adopted by an arbiter. Indeed, a shameful piece of our past involved recognizing A's property interest in B's body. Are you arguing that any such rule is inherently incorrect ?

I think David makes a pretty convincing case for adopting a rule recognizing A's property interest in A's body here: http://daviddfriedman.blogspot.com/2013/04/response-to-bork-and-landsburg.html?m=1

 
At 2:36 PM, April 07, 2013, Blogger Joseph Miller said...

This comment has been removed by the author.

 
At 2:37 PM, April 07, 2013, Blogger Joseph Miller said...

This comment has been removed by the author.

 
At 3:46 PM, April 07, 2013, Anonymous Max said...

Joseph,

You would probably benefit from reading this:

http://daviddfriedman.blogspot.com/2013/04/response-to-bork-and-landsburg.html

 
At 5:09 PM, April 07, 2013, Blogger Joseph Miller said...

Oh man, point taken. Unposted.

 
At 5:47 PM, April 07, 2013, Anonymous Max said...

Hey, no need for that. I actually thought your comment was quite good. You managed to independently think up a great deal of what David did, and that's no small feat. =)

 
At 7:04 PM, April 07, 2013, Blogger David Friedman said...

"In this system the only time that I am justified in violating another individuals self ownership is in defense of my own"

That still leaves the problem of defining "violating self-ownership." Standing where you can see me means that photons bouncing off of me enter your eye--and if I'm holding a light, photons I caused to exist. Is that violation?

Sitting in your shade on the beach is using you as an object rather than a person, contra Kant--is that immoral?

Whether the action does damage is part of what affects how we view it, but not all.

 
At 9:08 PM, April 07, 2013, Blogger Joseph Miller said...

Haha I appreciate that, Max. I'm gonna think some more in light of David's post. Meanwhile, I don't want to look like a copycat.

Anonymous,

Generally speaking I tend to view property rights as a trump system, with individual self ownership being the highest order and other forms of property falling into lower tiers. In this system the only time that I am justified in violating another individuals self ownership is in defense of my own:

I understand that you don't consider it an unassailable system. I thought you'd be interested in what I think is the best argument against property rights as a moral rule, at least as described by some libertarians:

On what basis can a natural rights libertarian deny rights to sentient nonhumans? I'm sure most would agree that civilized aliens should have their property respected, so how can we justify treating sentient animals as our property?

Here's an uncomfortable implication of animal rights:

If all animals' rights are equal and denying an animal's life is wrong, we are all murderers whose actions are displacing the lives of millions of ants. Seems to me like animal rights implies maximizing the amount of insects per square foot.

 
At 9:43 PM, April 07, 2013, Anonymous Patrick said...

David,
"Sitting in your shade on the beach is using you as an object rather than a person, contra Kant--is that immoral?"

Maybe I misunderstood Kant, but I thought that in the Kantian framework, using someone else as a means was not immoral, it was amoral. The degree to which you use others as means never enters the moral calculus; only the degree to which you treat them as ends matters. As long as you weigh someone's ends equally in the balance, the degree to which you treat them as means is irrelevant. (I also think this ends up making Kant a utilitarian in all but name, so maybe I am oversimplifying his position.)

Using someone for shade is thus not immoral by Kant's criteria, since I assume the shade-caster doesn't care one way or another. In other words, taking shade in the other man's shadow is a Pareto improvement, and since the obligation to treat people as ends holds equally to all including yourself, it is morally good to make Pareto improvements. Although if there were some way to better benefit him without hurting you, then I suppose that would be morally preferable, in turn.

 
At 9:48 PM, April 07, 2013, Anonymous gotlucky said...

David:

"That still leaves the problem of defining "violating self-ownership." Standing where you can see me means that photons bouncing off of me enter your eye--and if I'm holding a light, photons I caused to exist. Is that violation?"

I think libertarians should be less focused on determining absolute rules of property and should be focused on the system that property rights are defined. While many libertarians share certain values, such as non-aggression or the golden rule, we still do not always agree as to what actually constitutes a violation of these values.

You've said before that an anarcho-capitalist society might not necessarily be libertarian. Your photon example shows that there isn't just one libertarian view of property. Centrally planned law, like centrally planned prices, results in the law reflecting the central planner's vision of justice (or his idea of correct prices). Libertarians should be interested in decentralizing law as much as possible, so that the law is more likely to match their own values instead of a central planner's, as it seems central planners are never libertarians.

In the mean time, these *are* interesting examples to consider, even if some are offended by them. They don't have to participate.

 
At 1:36 AM, April 08, 2013, Blogger windwheel said...

I had not previously come across the notion that the liability rule/vs property right distinction arose from considerations of informational efficiency and would certainly be interested in reading more. My own feeling is that this shifts the focus of attention to the power and financing of the State, or whatever body enforces the local 'Tiebout model' of governance.
In the 'rude vs prude' debate, the fact that 'rude' can migrate from a Puritan Tiebout model, thus reducing the local tax-base, means 'prude' may have to content himself with expressing his disapproval in some more or less obnoxious way. Furthermore, 'rude's' behavior may contribute to positive Psychic Capital (in Kenneth Boulding's sense) which contributes to general prosperity.
Returning to liability rules vs property rights- it is interesting that most jurisdictions have an 'adverse possession' law- i.e. property rights are defeasible by reason of a failure to exercise the privileges and obligations of property ownership- as well as some concept of eminent domain- (even Ayatollah Khomeini came to accept this)- which implies that there is a recognition that property ownership, by itself, isn't always going to lead to allocatively efficient outcomes.
I think, Liability rules, by definition, are more easily evaded by 'exit' from the local Tiebout model and thus we see that, in some cases, strict liability goes against the property owner rather than the malefactor who gains access to that property. In the case of Juveniles, sometimes liability goes against the parent, though how tenable this is in our sort of Society remains to be seen.
In conclusion, in discussing 'psychic harm or benefit', it may be worthwhile to look at positive and negative Psychic capital formation- Ken Boulding's work emphasises the evolutionary dynamics of this process which, I believe, swamps allocational efficiency effects.
In any case, there is a problem with the way Landsburg frames his arguments because he assumes the income effect of any change is negligible and only substitution effects matter in working out whether any given initiative yields a Hicks-Kaldor improvement- vide http://socioproctology.blogspot.co.uk/2013/04/landsburg-efficiency-and-rape.html

 
At 1:56 AM, April 08, 2013, Blogger windwheel said...

Further to- the problem of defining "violating self-ownership- can this be done without recourse to conterfactuals? One method would be reviving a Stoic concept of self-hood, or its Soteriolgical equivalent in other Cultures, but here self-ownership comes with a teleology 'in-built' which militates against positivie Psychic Capital formation.
The Kantian approach yields absurdities- masturbation is forbidden as is kissing your Granny coz you love her and kissing her makes you feel good.
The approach of modal realism might appear plausible but it cashes out as some 'elite eligible' criteria of distinguishing what you really ought to want from what you really truly think you want- which means we all have to listen to Nanny and not try to crawl out of our play-pen.

 
At 2:07 AM, April 08, 2013, Anonymous Max said...

windwheel,

I just finished reading "Landsburg, Efficiency and Rape." You should pick up a copy of Landsburg's More Sex Is Safer Sex and read the chapter titled "Things That Make Me Squirm." He has thought of things you think he hasn't thought of.

 
At 3:09 AM, April 08, 2013, Blogger windwheel said...

@Max- I am certain Landsburg knows Econ and thus has definitely thought of all the things you think I imagine him to be ignorant of. My point is that he argues in bad faith for an ideological reason. As a matter of fact, I probably share that ideology, but I feel it is better served by intellectual honesty rather than a specious type of Scholasticism which begs the question.
I liked 'More Sex' and I would have expected Landsburg's subsequent trajectory to be more in line with research in Evolutionary Game Theory and Behavioral Econ- perhaps integrating it with the Coasian 'Law & Econ' school or something like that. For all I know, that is what he's doing just not on his blog. I think this is a pity because he writes very well as does David Friedman, though the latter's thinking is rigorous in a manner that might militate against a large popular following.

 
At 4:30 AM, April 08, 2013, Anonymous Max said...

windwheel,

Oh, okay. I don't get the impression that he's being disingenuous at all. Maybe you've read more of his stuff than me and so have better insight into his thought process and motivations.

Just bookmarked your blog fwiw.

 
At 5:04 AM, April 08, 2013, Blogger windwheel said...

@ Max- thanks. I guess we can agree that Landsburg's blog is thought provoking and fun reading.
I suppose, one issue, relevant in this context, has to do with repugnancy costs and repugnancy markets. This raises an issue which Prof. Friedman discusses in his book on Technology. Us humans have some seemingly irrational preferences re. what can be known about us as 'common knowledge' as opposed to what can be publicly, or legally, affirmed about us.
We expect Justice to 'be blind' in a manner that acknowledges this distinction because some of our actions carry irrational 'repugnancy' and 'shame' costs by reason of historical legacy.
Prof. Friedman, it appears, has thought a lot about the implications of 'Information abundance' in our digital age. Should the State willfully blind itself to this ubiquitous information or would that be a violation of our 'self ownership' rights?On the one hand, the repugnancy cost we associate with breach of privacy (e.g. I may not want my Religion, or Sexual preference, or even 'Color' to be 'publicly known' even though I'm not ashamed of it- arises from irrational 'hysteresis- i.e. path dependence' and 'historical lock-in'- so, as rational human beings, shouldn't we disallow such arguments? Isn't the alternative- which already obtains- just more Legalism and lawyers coining it at our expense? Economists, since Bentham, have usually been suspicious of lawyers. Coase, who originally trained for the Law, points out that his work hopes to put lawyers out of business.
Yet what is the alternative?
My own feeling is that repugnancy of the 'dead hand of the past' lies behind Marxist and other Left-wing polemics.
Hopefully, people like Prof. Friedman will integrate hysteresis based repugnancy markets into their analysis.
Vide http://socioproctology.blogspot.co.uk/2012/11/true-blood-hysteresis-and-repugnancy.html

 
At 5:21 AM, April 08, 2013, Blogger windwheel said...

Sorry- I missed a step in my last. I meant to say that 'self ownership' as opposed to some notion of 'entitlement' implies that all information about what is owned is in the public sphere and gives rise to legal rights and obligations. An entitlement may be over a broad class of goods & services whereas ownership is specific.
Furthermore, for 'self-actualization', most Virtue theories would agree that 'self-ownership' is only fulfilled when all relevant information about what is owned is public.

 
At 8:50 AM, April 08, 2013, Blogger David Friedman said...

Re Landsburg's More Sex is Safer Sex ...

I read the beginning of it and concluded that the title was not true. The actual argument was not that increasing the amount of sex resulted in sex being safer but that a change in who had sex, evening out the distribution, made sex safer. So far as I could tell, that argument was correct, but it didn't justify the title. I don't think I ever read the entire book, but I do have a copy around somewhere.

 
At 9:20 PM, April 09, 2013, Anonymous GB said...

I'm not so sure the dismissal of the trivially easy argument is valid. The common example cited are photons, however, many people feel violated when beamed by high energy photons for body scanners and the difference to me seems to revolve around judging natural forces with no will behind them as inherently neutral. general photon penetration seems to be a morally neutral part of our natural world which can only be judged by its effects.

 
At 7:56 AM, April 11, 2013, Blogger Andrew Doris said...

"When I look out the window and see the light in a neighbor's window, the fact I can do so shows that photons whose existence he caused have trespassed on both my property and my retina. We don't see that as obviously wrong. Why?" - Friedman

Short answer: because photon penetration isn't truly the doing of human beings, making it beyond the scope of governable and morally calculable activity.

Long answer: The whole point of the term "natural rights" is that we have them naturally from birth. In a state of nature free from outside human interference, each individual inherently has his life, his liberty, and his property. Our primary and initial piece of property is our own bodies, and in this state of nature we enjoy a degree of bodily autonomy.

But even in this world, that bodily autonomy has never been interpreted to mean we're free from things like photon penetration. Light is not a human action so much as a natural and perpetual occurrence. The sun is natural, but it penetrates our body with photons all the time. Similarly, smells are natural, but when we smell something tiny particles enter our body, perhaps against our will. Even breathing involves an arguably involuntary body penetration of certain materials. But to the majority of thinking people, these atomic-level natural interactions are insignificant enough to disregard, because they aren't truly the result of human actions so much as the unavoidable and perpetual physics of human existence.

When we say government is designed to "protect our natural rights", we rarely take the time to specify from whom those rights are being protected. But it's clear what we mean is to protect them FROM OTHER PEOPLE. Whom else do governments govern? Surely they don't govern animals; when we say murder is illegal, we don't both explaining this to a bear that might maul us. When we protect people's right to life, we don't protect it from germs who might infect us, or from lightning that might strike us. The law holds no dominion over these things. And even though humans can sometimes manipulate this natural world in such a way as it becomes an unnatural cause of death (imagine if I injected you with germs with the intent of getting you sick), we draw a line somewhere between what is truly "human" action, vs. what is the natural ebb and flow of nature. I'm not sure exactly where that line is, but I'm fairly certain turning on a light is on one side of it, and rape is on another.

Perhaps the majority of people who were angered by Landsburg's hypothetical couldn't articulate this distinction if you asked them. But I do believe that when serious intellectuals hand-wavingly dismiss the distinction between penetrating your body with a photon, and penetrating it with a penis, the rest of us can't help but roll our eyes. He has his head in the clouds - which is fine (what philosopher doesn't?), so long as he recognizes and acknowledges it. By posing the question "is that any different?" instead of the question "why is that different?", Landsburg crossed the border between thought experiment and ridiculous argument. He insinuated that he didn't know if one was any worse than the other, and that's beneath his intellectual capacity. You don't need a degree in philosophy to understand, on a fundamental level, why the pleasure obtained by rapists cannot justify rape.

 
At 9:40 AM, April 11, 2013, Blogger windwheel said...

@Andrew- I live in the U.K, a Common Law country like the U.S, though no doubt with some differences. The photon example actually has a legal precedent here. A tenant of ours found the high wattage security light installed by a neighbour disturbed his sleep. We looked into it and found that the light really was too strong and the motion detector way too sensitive and so we sent a solicitor's cease and desist letter to the property owner. The common law has always recognized that things like cutting off day-light or shade by either a new construction or the destruction of something pre-existing can give rise to an action for damages. Sadly, Local Govt., by Statute, has taken away many such Common Law rights with the frightful result that some sleazy bureaucrat is vested with powers he has neither the wit nor the inclination to properly use.
Friedman suggests that there is some significance to whether the action in damages lies against the property owner or the person who causes the offence. I've asked him why he thinks so and if there's any literature to support this claim but he has ignored my comments and from what I can tell there is no substance to such a claim. Still, Friedman counts as one of the good guys.
Landsburg writes irresponsibly and achieves his effects by ignoring the Law of the land which is that the State becomes the Guardian of a person incapacitated for whatever reason and hence has a legal duty to take notice of any offence against such a person and to prosecute the offenders whether or not the incapacitated person suffered any 'subjective' (i.e. self assessed damage).
A Libertarian Community, properly so called, would do the job better than the State. It is the essence of Community that it assumes Guardianship of any incapacitated person within its purview.
I suppose, a defence might exist for the scoundrels who did this disgusting deed iff they can prove that there was a pre-contract whereby, for some substantial advantage to herself, the victim deliberately incapacitated herself for the specific purpose of being subjected to this revolting crime. However, in England, this defence would fail- I don't know the relevant State law in your country but I've known a lot of stand up Americans so I don't believe a Liberty loving Community there would not take appropriate action.
On past performance, it seems to me, Friedman does have some claim to be regarded as a Libertarian though he has done himself no favours by his ill-judged remarks on this issue. There was another way he could have gone- Vide http://socioproctology.blogspot.co.uk/2013/04/self-ownership-extractive-introjection.html
Landsburg is simply an enfant terrible- an 'underage thinker' as you put it- whose blog posts demonstrate a Yahoo indifference to the rules of Public debate and a reckless disregard for the truth when it comes to re-stating the Rules derived by the Great Economists of the common Canon. Vide http://socioproctology.blogspot.co.uk/2013/04/landsburg-efficiency-and-rape.html
What is it about rape that gets Landsburg so hot and bothered? Vide http://socioproctology.blogspot.co.uk/2012/08/steve-landsburg-legitimately-rapes-todd.html

One important reason to be a Libertarian is that we don't have to put up with eggheads when their thoughts get too addled.

 
At 12:34 AM, April 12, 2013, Blogger David Friedman said...

"You don't need a degree in philosophy to understand, on a fundamental level, why the pleasure obtained by rapists cannot justify rape."

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, or ... .

 
At 2:38 AM, April 12, 2013, Anonymous Anonymous said...

Suppose the Local Authority of Steubenville, being convinced by Friedman's argument in the Machinery of Freedom, had sold or given back to the Sutebenville Community- i.e. all the (Common Law) legally competent adults of that County or Municipality- the right to enforce the law. In that case, is Friedman's claim that Landsburg reference to the rape case is philosophically interesting rather than trivial, at all justifiable? I would say- no. It is the essence of Common Law or layman moral intuition that property and other rights do not disappear in the absence or non-competence of the owner of those rights. In effect, the Community becomes the Guardian or the absent or non-competent person and enforces those rights. Since acting in accordance with moral intuitions and doing righteous, if altruistic deeds, itself bears Utility and since, further, present Utility can certainly be the capitalization of a future stream, it follows that no philosophical puzzle for Utilitarians or anyone else arises from the Stuebenville rape and it is either egregious bad faith or poor reasoning for Landsburg to dwell on the subject or for Friedman to insist that some non trivial issue is involved.
Friedman's equation of Bork with Landsburg is too superficial and lacking in rigour to have the property he ascribes to it.
Pity, but there it is.

 
At 9:15 AM, April 12, 2013, Blogger windwheel said...

@ David Friedman
Sir,
I have great respect for you and a veneration bordering on idolatry for your illustrious parents.
I was born an Indian citizen and thus will always be grateful for your father's effort to help the Indian Govt.
I am now a British Citizen and yield to none in my admiration of the impact of your father's thinking on the re-vitalization of this great country.

As a Libertarian, might I take the liberty to say your books and ongoing Research Program are of the greatest possible significance to peoples who dwell far from your own natal shores. In the same way that your esteemed Father's preferred monetary rule would, had it been practicable, been foundational to a Libertarian Islamic Economics, so too, w.r.t India or Indic Civilizations, are the insights contained in your books.
As a former student of Ken Binmore, my approach is mathematical and game theoretic. Thus I would appeal to 'the folk theorem' of Game theory and proceed from there.
Still, I am also a sedulous student of what I might call the LSE theory- Wicksteed/Coase/Hart- of Law & Econ with which, I feel, you would find much commonality.
Sir, you have ignored my comments on your blog but this is not what distresses me- perhaps, as 'Max' has suggested I express myself unintelligibly- rather it is that you appear to have no 'internal opponent' keeping you to the straight and narrow of the rules of Public Discourse.

I say this because having carefully read and mulled over four of your recent posts, all thematically motivated or otherwise connected to Steve Landsburg's Metatronic raptures over the Media controversy re. the punishment of the Stuebenville rapists, I have had to conclude that you write either in absence of mind or sheer ignorance or more culpably in calculating bad faith.
In any case, I invite you or your adherents to respond to this assertion on my blog- http://socioproctology.blogspot.co.uk/2013/04/david-friedman-getting-it-wrong-on.html

To conclude, I urge you, given your proven literary and narratological skills, to remain alert to ways in which you can serve the Public- for, surely, to a man so prodigiously endowed and so advantageously placed, no higher good, no superior Cursus Honorum calling, can possibly obtain.
With all possible profferances of Respect,
I beg to remain
yrs fthflly
Vivek Iyer

 
At 10:26 AM, April 12, 2013, Blogger windwheel said...

To be clear, I assert that your posts on this topic were written either in bad faith or absence of mind.
It is not your fault, or that of Prof. Landsburg, that your lectures do not induce instant narcolepsy in your students and that, for the two of you- as opposed to so august a personage as myself- the question of whether or not to rape the unconscious victims of your eloquence remains one of theoretical interest merely.
And, no, to forestall your question, I DID NOT rape my students though, it is entirely true that I routinely pretended to have done so, that too in a manner too degrading to permit of description, in a vain attempt to get them to stay awake.
Pity this technique doesn't work on my g.f.
But then her Econ degree is from North Western so waddya gonna do- right?

 
At 12:48 PM, April 12, 2013, Blogger windwheel said...

I have received a very well documented 'incentive compatible' explanation not just of your conduct but that of the sort of people you find it worthwhile to reply to on your blog.
Silly me.
Well, one lives and learns.
Yours is an ever narrowing intellectual cul de sac. Yet, as one grows older, who is to say it isn't contested or, indeed, enviable?
I regret having accorded you any expression of courtesy or respect. I suppose, corruption is highest at those fringes of Academia where the Professors themselves deny an inter-subjective intellecual nomos.
Sad to think that it is Rose & Milton's son thus caught with his pants down- but, perhaps, it was always on the cards. The father did start saying some very foolish things at about the time when the son started publishing.

 
At 3:01 PM, April 12, 2013, Blogger gotlucky said...

^
What a punk.

 
At 3:09 PM, April 12, 2013, Blogger windwheel said...

Oooh, and now the groundhog has been heard from.

 
At 9:21 AM, April 20, 2013, Blogger Andrew Doris said...

The fundamental ideological disagreement between us – indeed between you and many libertarians - is that I use the Rothbardian moral framework of natural rights, whereas you prefer some version of consequentialism. You’ve written multiple books on the matter, and I haven't. As a renowned philosopher, you can direct me to those works in lieu of restating your argument; as an undergraduate in his 20’s, I lack that luxury.

However, this does not mean I have not thought about the matter before, or that I lack an argument. I have serious qualms with utilitarianism, and I’ll get around to articulating them in a blog entry soon. If you want to continue our debate after I do so, my only condition is that comments will have to consist of arguments that are readable, much less type-able, in one sitting. I value and enjoy this discussion enough to continue responding to the arguments you provide in your posts. I don’t value it enough to read two entire books just so I can find and address what your points would have been had you written them in your posts. If you don’t have time to elaborate on your opinions within the comments of our blogs (or at least to direct me to a link that’s more readable in one sitting), I understand: surely, you’re a busy man. But if so, perhaps debate on our underlying philosophical differences will have to wait until I find time to read your books.

 
At 9:50 AM, April 20, 2013, Blogger David Friedman said...

Reading two entire books would seem a big excessive even if (I hope) entertaining and educational. On the other hand, having written out an argument once, I am reluctant to rewrite it de novo for one reader.

You can find my responses to several versions of the rights approach in:

Chapters 41 and 42 of The Machinery of Freedom, downloadable from my web site for free.

http://www.daviddfriedman.com/Libertarian/My_Posts/Ought_From_Is.html (responding to Rand).

As it happens, I am not and have never been a utilitarian--the entry in the index of my first book for "utilitarian" is "Utilitarian, why I am not a."

 

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