Property Rights and Moral Seriousness

46 Replies to “Property Rights and Moral Seriousness”

1. This all seems right to me, but I think libertarians can concede it without doing too much violence to their position (though not being a libertarian, I may not have a good enough sense of what one would count as too big a concession).
   Any non-absolutist deontological view (and of course, any consequentialist view) will have to allow that drawing policy implications from first-principles requires non-trivial empirical assumptions. I think you’re right that once the libertarian moves to a non-absolutist position, she should allow that in principle it’s possible that the benefits associated with the welfare-state are significant enough that they could justify infringing property rights.
   But she can still say on her view, that the amount of value that welfare-state institutions would have to produce in order to be justifiable is greater than it is according to other views that don’t accord the same significance to property rights.
   Her position is, in this respect, a lot like that of non-absolutist liberals who argue from first principles for various policy positions. In fact, we can use the same example to make the point. Suppose we accept some non-absolutist liberal view about the distribution of wealth. For instance, we think that all else equal, helping the least well off should take priority over helping other groups, but we allow that all else isn’t always equal. For instance, if some policy would produce significant enough benefits to the vast majority of society, it might be justifiable even if it made the least well off slightly worse off.
   If you think that the welfare-state significantly depresses economic growth, then you might think that abolishing the welfare-state is such a policy.
   I’m not saying that this view is plausible. Only that, just as the non-absolutist libertarian can’t defend her opposition to the welfare-state by appealing only to first principles–she must take on some empirical commitments as well–so the non-absolutist liberal can’t defend her support of the welfare state solely by appeal to first principles.

2. Very interesting. I’m going to play devil’s advocate here. I wonder how much mileage Nozick could get from his understanding of the Lockean proviso as the original principle of acquisition. After all, it is supposed to grant the property rights and define their scope and strength too. His reading of the proviso is that, in just acquisition, others should be left with enough and as good stuff to use by your acquisition. They way he understands this proviso is to set the baseline for when as good is left to use very low – all we need to do is to consider the counterfactual of whether the others would be better off in general with the given system of private property and me acquiring the property even if they did not acquire any of the initial resources themselves. In many cases the answer is yes given that they will be able to trade their work for the property I have acquired.
   This principle seems to me explain much of the strength of the rights. A system of so strong property rights in which stepping on someone’s land would be a serious offense presumably makes many people worse off than a system without private property at all. Likewise, a system without ability to use one’s property to create some pollution without impinging on your ownership of your lungs wouldn’t be any better for many individuals than a system without private property at all. However, I wouldn’t, for instance, be any better off with a property right to my lungs when other people would be allowed to take them.
   Now, is taxation different in any respect? I guess Nozick would say that that question comes under the principle of transfer rather than acquisition, and therefore different aspects of property rights are at issue. However, Nozick explicitly accepts that the Lockean proviso also governs the questions of transfer. And, I do remember Andrew Williams arguing that this means that taxation might become permissible by Nozick’s own lights for this very reason. There will be many others who might be worse off with a system that doesn’t tax and redistribute than they would be without any system of private property whatsoever.

3. David,
   I think that libertarians would want to say that prima facie, every violation of a property right calls for compensation. This doesn’t mean that I am justified in violating your property right as long as I am willing to pay compensation later, of course; normally, I’m required to obtain your consent in advance, which may mean negotiating a price. Given this, there seems to be an ambiguity in your discussion between two possible meanings of the statement that I am justified in violating your property right. One is that I am justified in violating your right but will still owe you compensation for doing so. The other is that I am justified in violating your right and need pay no compensation for doing so. The fact that a minor rights violation would produce a considerable social good might mean that the violation is justified in the first sense—e.g., eminent domain—but I’m not sure that it would mean that it is justified in the second unless the person whose right is being violated herself benefits from the violation and the magnitude of the benefit exceeds the amount of compensation owed. If this is right, then the upshot would seem to be that you can’t tax anyone for purposes of redistribution past the point where they gain more than they lose from the redistributive policy. Beyond this point they would be owed compensation, to wit, a tax refund.

4. Daniel,
   I think I agree with all of that, except perhaps the part about it not doing too much violence to their position. But partly this might be a function of my mainly being interested in arguing against a libertarian who thinks that quite generally, if not universally, redistributive taxation is impermissible.
   It is certainly right that as soon as the deontologist moves to a non-absolutist position, empirical matters are implicated in moving from first principles to any particular moral conclusion. But I was hoping to show that the shape of the moral principles the libertarian is forced to render the libertarian more vulnerable to reasonable empirical assumptions than it might have seemed. For example, suppose we kept in place the view Nozick mentions that we may only violate a property right in order to avoid a catastrophic moral horror. Now it seems reasonable to think (yet I would say, not at all obvious!) that taxing one rich person would not prevent that. But suppose that the example of pollution shows that the libertarian cannot plausibly say that all rights violations are that expensive in terms of social utility. If your pollution violates my rights, then it violates a lot of people’s rights. If your action is nonetheless permissible, the social utility per rights violation needed to make such violations permissible must be MUCH cheaper than a catastrophic moral horror. And if that is so, then the libertarian will have to offer arguments much closer to arguments that might persuade the consequentialist to show that taxing the rich is not permissible.

5. Jussi,
   Lots to talk about here.
   Any such libertarian view will necessarily be committed to the idea that one can only trade to others entitlements that one is entitled to. So if I am not entitled to something, I cannot trade with you to give you an entitlement to that thing. So necessarily the Lockean Proviso or what is sometimes called the Shadow of the Lockean Proviso will haunt all exchange as well as all original acquisition. So if a libertarian went the way you suggest, then I think she could not avoid saying the same thing about taxes as you say about minor property rights violations.
   Nozick does seem to ultimately endorse a baseline, for purposes of the Lockean Proviso, that I be no worse off for your appropriation than I would have been had the thing you appropriated remained as part of the commons. G.A. Cohen justly criticizes this conception of the baseline as morally arbitrary. Perhaps your appropriation would make me much worse off than if I had appropriated it or if we had jointly appropriated it. Passing Nozick’s version of the Proviso does not seem to adequately capture the thought that I am unharmed by your appropriation. Nonetheless, Cohen actually accepts Nozick’s more basic point that an appropriation that leaves me no worse off does not violate my rights. Call this the “No Harm, No Foul” principle. I think this principle, which plays a deeper role in Nozick’s position than most people realize, counts as rejecting the idea that our basic morally serious rights are property rights. Rather, one must keep track of what property I am entitled to, but only so as to be able to compare how well off I would have been with that set of goods to how well off I am under a different scenario. It does not actually fundamentally matter, according to “No Harm, No Foul” if my property rights are respected or not, so long as I am compensated in the coin of well being (or perhaps perceived well-being, or perhaps my overall perceived preference satisfaction whether that is correlated with my well-being or not). So I think Nozick, for reasonable but ultimately unsuccessful reasons, deeply rejects a picture in which our property rights are what generates the serious moral prohibitions.
   There are interesting leftover issues in what you wrote but I want to move on for now and come back to the more general proposal you mentioned.

6. Dale,
   I actually think that Nozick’s considered view in Anarchy, State, and Utopia is that it is often permissible to prospectively plan to cross the boundary of another person’s property without their permission so long as you compensate them for this. Further, the reasons he offers for limiting the permissibility of “Cross and Compensate” are all either too vague to assess or just plain bad reasons. So I think his view, sympathetically interpreted, would quite generally permit prospectively planned property right violations so long as compensation is paid. And I think he was driven to this sort of position partly from considering cases such as pollution.
   As I said to Jussi, I think this means that Nozick himself abandoned the view that we are, in a morally serious sense, self-owners. Admittedly he says a few things later in the book which are in tension with this interpretation but I would argue for it all in.
   So let’s think about how my complaint works against what I claim is Nozick’s actual view rather than against a self-ownership view. According to this view if I cross your boundary a smidge yet do not give you compensation, then I have violated your rights. But this still seems a small violation, as the fact that you would accept a nickel to be indifferent between the boundary crossing plus compensation and no crossing helps us see. Now suppose instead I take your kidney and provide no compensation. Again I have violated your rights, this time in a much more serious way. Each is these is now a rights violation proper, not just a boundary crossing because in each case compensation is not given.
   Nozick’s “Cross and Compensate” view has a wide range of attractive features as compared to a morally strong self-ownership view and it loses very few features that should be genuinely important to a libertarian. I would love to talk about all these features. But here the important thing is that it, in some sense, allows the libertarian to distinguish between the different importance of different kinds of boundary crossings. Different crossings are differentially morally important, on this view, in the sense that they require different amounts of compensation to make them right. And that is a great advance for the view, I think. However, it is not enough. For it does not help in the case where compensation is not paid. All such cases are still on a par, as far as I can see. But that is clearly wrong.

7. There are two different routes to overriding property rights and both yield limits on the strength of such rights and hence on the limits placed on government by the existence of such rights. I don’t have an exact reference but I think this distinction may come from Gillian Brock. One is to limit property rights internally. We don’t own as much as think we own. Other have a legitimate claim to some things I have under my control, not b/c my property rights are limited, but rather b/c my property rights don’t extend as far as I thought. I know some left libertarians argue something like this. I think this is right, although I haven’t thought or written much about it. I’ve been more interested in the second way to limit rights, externally, by allowing that rights compete against the good that we may bring about my infringing them. Moderate deontologists hold that rights can be infringed on the basis of the good that may be obtained by doing so. On the most plausible moderate deontological views, rights that protect you against very serious harms are very difficult to justify infringing (some may be near absolute) and rights against trivial harms (like cutting across my grass) can be very easy to justify infringing, or overriding. This is why I agree with some libertarians that property rights are at the heart of ethics but disagree about what follows from this.

8. Samantha,
   Good, in the libertarian literature I guess those two different strategies are associated with the Lockean Proviso which sets a criterion for when one has actually managed to gain title to a thing via an attempted initial appropriation and the “catastrophic moral horror” that Nozick says it takes to make it permissible to deny somebody something they are entitled to. (Actually, it is high time I noted that Nozick expresses indecision between an absolutist version and the “moral horror” exception). Left-libertarians like Otsuka, Vallentyne, and Steiner argue for a version of the Proviso that makes it harder to become genuinely entitled to vastly unequal parts of what was in common than on right-libertarian views. So that is a fight within what you were calling the first strategy.
   I certainly agree that it should be harder to justify serious harms to a person than trivial harms, and I understand the thought that the former should be more prohibited than consequentialists seem to allow, but I don’t yet see why any of that should lead us to the view that we can profitably gain better understanding of the moral situation by positing property rights to our body.
   One big issue here is it is actually quite vague what it means to say that I have a property right to something. Most people think this just means that I have some ill specified set of rights over the thing. Those who have been tempted to say that there is a concrete notion of property rights that they use as a basis for their view (rather than a derivative notion of property rights which is just whatever set of rights I independently think a person has over herself) have tended to talk in terms of maximal self-ownership compatible with others having a similar set of rights. I think the view you are attracted to does not look like that as that view seems to take our trivial rights over our person and property very seriously indeed. But if saying that we have property rights to our bodies is just to say that we have a set of rights that we independently think we have over our bodies, then it seems just a not entirely helpful way of summarizing what we already think to say that we have property rights over our bodies rather than providing a deeper explanation for which rights in particular we have.
   This may be as good a time as any to say that I think my complaint against libertarians, although directed against right-libertarians, can be re-deployed against the left-libertarians. The left-libertarians take our self-ownership as seriously as the right-libertarians but they don’t take our world ownership as seriously. In ways that the left-libertarians recent writings reflect, this would seem to have the upshot that even trivial violations of my person—maybe even pushing me out of the way of a bus or tapping on the shoulder to ask the time—are violations of our maximal self-ownership. Unless they too can find some way to treat as less morally important some of our self-ownership rights, they will have the same troubles as the right. Indeed, the beauty of the pollution example is that it works against both right and left libertarians.

9. David,
   With all due repect, you are making a common but fundamental mistake (also sadly made by Railton)in attributing Nozick’s fundamental moral stance to self-ownership. In fact, he mentions SO only once in ASU, and not in the context of deriving rights from first principles, but in his attack on redistributive taxation (and there only by way of metaphor). I am not the first to see this, and among others David Gordon, Leif Wenar, John Hasnas and Trisam Engelhardt have all correctly understood the engine of Nozick’s moral views to be Kantian notions of respect for personal autonomy, which implies a very strong presumption against coercion. I am not sure why you and so many others make this mistake, because in deriving moral rights he not only invokes the second formulation of the CI (ASU, 32), but at one point expressly states “utilitarianism for animals, Kantianism for people” (39).
   This mistake causes you to overlook an avenue open to Nozick style libertarians for consistently resolving issues of pollution and risk, albeit one missed by Nozick himself. If rights are not themselves foundational, but instead are the product of deeper moral values, then rights must be shaped to render judgments that are consistent with these underlying values. So, allowing a leaf from my property to blow on to your property (or emitting a trace level of pollution) is not a rights violation because I am not offending “respect for persons.” On the other hand, if (without the consent of those potentially killed) I build an unsafe nuclear reactor on my property (Railton’s example), I am showing insufficient respect. One way to calibrate this is by measuring the trade-offs that people in a community actually (and voluntarily) make between risk and economic benefits, in other words cost benefit analysis.
   I know this is only a sketch of an idea, but I thought might be helpful, at least for discussion purposes. I try to flesh out this argument in my new book NOZICK’S LIBERTARIAN PROJECT: AN ELABORATION AND DEFENSE, published by Continuum International. It is now available in the U.K., and will be on sale here in May.

10. You miss quite a bit, start here:
    “The fear was that such views cannot explain why it is permissible for me to throw a stick for my dog when there is some small chance that the stick would violate the property rights of others.”
    I’m not harmed by the risk you took, I’m only harmed if your stick breaks my window, or if I have to go pick up the stick from my fenced property, etc. But the .0001% freak thing vs. the 1% thing – these are risks YOU weigh, and choose. You self insure.
    Similarly, Dale Miller makes generally the same mistake,
    “I think that libertarians would want to say that prima facie, every violation of a property right calls for compensation. This doesn’t mean that I am justified in violating your property right as long as I am willing to pay compensation later, of course; normally, I’m required to obtain your consent in advance, which may mean negotiating a price.”
    First, throwing the stick is not a violation.
    Second, OF COURSE, you KNOW before hand generally what the compensation is and you are willing to pay the price.
    Civil disobedience, or say Rand’s hero demolition flows from this – you go ahead and do the deed, KNOWING if you cause a harm, not a “risk” of a harm, about what the price will be.
    Which gets to the next thing – more hard core libertarians are more than cozy with the idea of private binding arbitration.
    That judges can be private and sell impartiality, and free people can generally go about negotiating in good faith with one another.
    Incidentally, one of the underlying reasons for the rise of libertarian thought is simply a reflection of the Internet making the world smaller – making it easy to KNOW LOTS about your trading partners before you trade.

11. Mark,
    You may be surprised to learn that I agree with you that Nozick is not best interpreted as committed to fundamental and powerful rights of self-ownership. You might check out the comments I offer 2 and 3 comments above yours for a very quick version of my take on Nozick on these matters. I do think Nozick says several things to encourage a self-ownership reading, however, and certainly he should have been much more explicit in repudiating the self-ownership view which is very much in the air in his discussion so I would not myself be too hard on those who attribute such a view to him. Additionally, you would have to persuade me that Railton is making that mistake. I think Railton eventually argues against the view that I take to be Nozick’s towards the end of the paper, albeit a bit too quickly for my tastes.
    It seems you allow that your proposal is not how we should understand Nozick but instead a reading that his deep commitments do not rule out. Nozick is very difficult to pin down. I agree that he has moments of deep admiration for Kantian notions of not using people as a mere means. However, in his discussion of the permissibility of what I call “Cross and Compensate”, he allows that it “embodies the use of persons as means” (71) and he repeats that claim without ever taking it back, yet he clearly allows a significant role for Cross and Compensate in his final view and the reasons he offers for limiting it are mostly obviously poor. That is, I think he is best interpreted as allowing consideration of pareto optimality (and dealing with cases of risk successfully) to at least often trump considerations of using someone, at least by his own lights, as a means. So I am not fully convinced his commitment to such Kantian notions get to the bottom of his fundamental commitments.
    Additionally, what exactly it means to treat someone as a mere means is notoriously difficult and any move to specific content from that premise is sure to be wildly controversial. Obviously the consequentialist will say that to the extent that it is clear that we ought never treat people as mere means, what the idea comes to is the idea that we should notice that some things are valuable and other things are not and we should not treat valuable things as if they were not valuable. Consequentialists have a clear claim to capturing and giving expression to this thought, so interpreted. It seems you need an interpretation of not using people as a means which gets very specific content—my polluting your lungs without your consent does not use you as a mere means—and I guess, admittedly without reading your book, I am skeptical that there will be a morally tempting interpretation of the second formulation which plausibly can generate such specific content.

12. David,
    I sincerely apologize for misunderstanding your views. The confusion of Nozick’s ethical foundations with those of Rothbard’s is a particular pet peeve of mine, and caused me to go off half-cocked. Having humbly apologized, I repeat that Nozick refers to self-ownership only once in ASU (172), and then in passing, i.e. redistribution is wrong because “it makes them a part-owner of you.” He does not use SO as part of any foundational argument for libertarian rights.
    And this is exactly what Rothbard and other anarcho-capitalists do. They start with SO, move to the ownership of the fruits of one’s labor, and then exclude all egalitarian claims by asserting that “all rights are property rights.” This is precisely the view Railton is addressing when he states in “Locke, Stock…” that: “When we apply the Lockean framework to social policy…the image of individuals holding rights against individuals, and of individual trespass as the paradigm of impermissible action ceases to be illuminating.”
    But, since Nozick does not take the “all rights are property rights” road, he does not subscribe to the “trespass as paradigm” view either. Not only did he make this clear in an interview with David Gordon, but this notion is inconsistent with his endorsement of procedural rights, the prohibition of fraud, and (I believe) his commitment to deontological constraints. Railton does consider and reject a libertarian resort to CBA in his essay, but he is able to do so only because he does not come to grips with Nozick’s actual views.
    Nozick’s discussion of his principle of compensation is quite confusing, and almost all natural rights libertarians have in any case rejected it as inconsistent with his other core principles. Nevertheless, I believe that it was only designed to cover a narrow range of cases involving atypically risky conduct, but conduct that is not so risky as to be subject to outright criminalization. Thus, on 82 he states that “This principle is meant to cover forbidding the epileptic to drive while excluding the case of involuntary Russian roulette.” Accordingly, this idea should be seen as a preemptive response to a Railton-like objection that libertarians can’t deal with risk, and not a surrender of his Kantian commitments.
    I believe a better strategy would have been to hold that in arbitrating conflicting claims of right, libertarians may adopt a fairly administered CBA as a method consistent with “respect for persons.” If so, they are not at any disadvantage in this regard relative to consequentialists. This is a different issue, it seems to me, than the issue of how stringent actual rights are.
    Thus, I have a near absolute right to dispose of my lungs. They cannot be used in whole or in part for non-voluntary transplants, even to save the lives of others. But this right does not give me a veto over all industrial activity on the grounds that molecules of pollution will enter them. Air pollution levels must be determined on a society-wide basis, and CBA is the only rational method available for this that does not privilege one person or groups risk tolerance over others.

13. Morgan,
    Worth noting that I mention the argument from risk only to quickly abandon it. But I do not think we should abandon it for the reasons you offer. You seem to suggest that my rights only protect me from an actual border crossing, not from someone risking crossing my borders. This seems to me not the best way to develop the view as then I have no claim against others playing Russian roulette with me with a gun with quite a lot of chambers and only one bullet. But surely I do have a claim against other people imposing such a risk against me. Note this is a case, of the sort that Nozick noted and worried about, where likely no amount of compensation would make it ok with me should the risk eventuate in a border crossing.
    But the case of pollution is a case where there is a high chance of a border crossing, albeit a morally unimportant one (given the relative harmlessness of the pollution I ask us to imagine) and that is the sort of case I focus on in what I wrote.
    You express a lot of confidence that people know what sort of compensation will be required should the risky action they engage in lead to a border crossing. Several issues arise here. First, what account of compensation are we presupposing? Nozick requires (at least) that I compensate so that the person whose borders were crossed is indifferent between the combination of cross and compensate and no cross. Let’s go with that. Given that standard most people most of the time should have very little confidence that they know how much compensation would be required if their risky actions lead to border crossings for we do not generally know the preferences and trade-offs that would be acceptable to strangers.
    Additionally, as far as I can see, all it takes is one Howard Hughes who is very rich, has very simple tastes, and is very concerned about his health to make any pollution impermissible. Howard would sincerely not be content to be subject to pollution for any level of compensation. So it is not enough that we (implausibly) know people’s preference structure. If even one person has Howard Hughes’ preferences then, seemingly, no one on the planet may pollute.

14. Let’s take a different type of example. Cutting off someone’s arm is more “serious” that cutting off their little finger.
    That is certainly true. But, now, what about two or three fingers. Or the whole hand. Or just up to the elbow?
    So, at what point is violating that person’s property right to his arm no longer “trivial” or not worth taking a “dogmatic” property rights position over?
    The law certainly recognizes that stepping on the edge of someone’s property is a less serious violation than burning the owner’s home down on that property.
    And the “punishment” is meant to fit the seriousness of the crime.
    But in either case, the presumption is that the individual had a property right in that land and the things on it (e.g., his house), and that his property right should not be infringed upon by a neighbor, in principle.
    The person who cuts off my little finger is as guilty of a trespass as he would be if he cut off my entire arm. Just that the court might decide that the “punishment” for the violation might be more severe in one case rather than the other.
    Now if that person’s property is violated for purposes of income redistribution, neither the politician nor the recipient is punished for this violation. Instead, they are “rewarded.”
    The politician may get reelected due to the votes of those who are the beneficiaries of the redistributed wealth. And the recipient of the redistributed wealth is that much “richer” to the extent of the income or wealth he was received from the political transfer.
    Who, now, is punished? The property owner! He is told that if the State had confiscated all his income or wealth that would be, perhaps, unjustified.
    But to “merely” take five percent or ten percent (the equivalent of cutting off a couple of fingers or just the hand), then he should not complain and make “either/or” assertions about his property rights.
    What is “just” in this?
    Furthermore, suppose that the person whose income or wealth is to be redistributed — and for the sake of the argument, let us assume that all his wealth has been earned honestly on the basis of voluntary and peaceful exchange with others without violence or fraud — resists his wealth or income being taken for this purpose.
    Does the state have the right to imprison, or even in the extreme kill him, for resisting having his wealth and income coercively given to another to pay for that person’s food stamps or visit to the doctor?
    The fact is that is what anyone resisting such coerced wealth transfer is faced with, because the the State asserts the right to take whatever income and wealth it claims is owed by the individual. And it may, if necessary, confiscate his property to the claimed amount owed. Plus, the State asserts the right to compel him, including with arrest, imprisonment, and even lethal force (in the extreme) if this individual resists.
    The fact that most people do not resist — any more than most of us resist the thug who puts a gun to our head and says, “Your money or your life,” does not demonstrate that this is trying to make an “extreme” argument. It is the fact, and does not make it a “voluntary” choice.
    So, does the State have the right to imprison me or kill me to pay for someone else’s food stamps, public housing apartment, unemployment insurance, visit to the doctor, . . . .?
    And if the answer is, “Yes,” then why and on what basis is that person’s food stamps and doctor’s visit of morally greater value than my freedom or life?
    Richard Ebeling

15. Mark,
    Self-ownership makes other appearances in ASU, and at those moments Nozick seems to be endorsing the idea. Consider the passages on p. 282-3. Nozick writes (in the context of showing how a person might think you could get to a more than minimal state without violating rights),
    people do not conceive of ownership as having a thing, but as possessing rights (perhaps connected with a thing) which are theoretically separable. Property rights are viewed as rights to determine which of a specified range of admissible options concerning something will be realized. Admissible options are those that do not cross another’s boundary; … Some of these people desirous of more money hit on the idea of incorporating themselves, of raising money by selling shares in themselves. They partition the rights that until that time each person alone possessed over himself into a long list of rights….
    (P. 171 reiterates the relevant parts of this conception of what it is to have a property right to something).
    Later Nozick writes, p. 286, “People view the exchange as an absolutely even trade. Before the exchange a person has one full share in himself, and not even a partial share in any other person.”
    With regard to Railton, his paper is not primarily about Nozick. However it does consider and, to my mind, offer good reasons to reject the view that I think is Nozick’s actual view towards the end of his paper (a view that often tolerates cross and compensate—indeed needs it in its derivation of the existence of the state). I think your real complaint against Railton is that it does not consider the view that you allow is not Nozick’s own view but which you think is available to someone with many of Nozick’s fundamental commitments. That is true but does not show that there is a problem with Railton’s arguments against the positions he means to be addressing.
    Cross and compensate is not inconsistent with Nozick’s core principles but flows from some of them and is in tension with others, as he himself says. Nozick is broadly attracted to pareto efficient outcomes from a baseline that is people’s property rights being respected. This explains the shape of his Lockean Proviso, for example. And it is what tempts him to cross and compensate despite its treating people as a means.
    You allow that Nozick “missed” the view you want to attribute to him and you admit that Nozick explicitly says that in a range of cases (obviously not just the epileptic driver case) his view is not only that we may but that we should take action which uses people as a means. Yet you want to say that Nozick’s real view flows from Kant’s second formulation that we must never treat people as a means.
    I think the above is sufficient to undermine the claim that you are developing Nozick’s view. Rather, I think you should think of yourself as developing a Nozick-inspired Kantian view.

16. David,
    Well, we may have to just agree to disagree about how to interpret Nozick. I deny that he held a broad “cross and compensate” view. As previously mentioned, his ill-fated principle of compensation was meant to address a certain, distinct class of cases, and was not a general endorsement of this idea. The passage you quote from 282-83 is part of his effort to determine whether a more-than-minimal-state can be justified. As you know, he denied this could be done, so I’m not sure what milage you get here. Just to be clear, I am not claiming that Nozick thought that in fact we do not own ourselves, just that this fact does not do the heavy lifting in his moral theory.
    Nozick’s actual argument for side constraints is found in Part 1. In chapter 1 of my book I very carefully dissect his reasoning, which is far more substantive than is commonly thought. Most of this chapter is available for preview either on Continuum’s site, or my own (NaturalRightLibertarian.com).
    With all due respect, you are just dead wrong on Railton. Very early in his piece he says this: “From this Lockean view emerges an image of moral space akin to a map at a registrar of deeds. Individual entitlements or rights determine a patchwork of boundaries within which people are free to live as they please so long as they respect the boundaries of others.” This quote has an endnote 4 which reads “Perhaps the most explicit use of this boundary-based image of moral space is in Robert Nozick…” At several other points in his endnotes he specifically cites or quotes Nozick, and not a single other modern libertarian philosopher. I’m sorry, but Nozick is plainly his target.
    And, Railton misses. As previously mentioned, not only does Railton consider the use of CBA by libertarians as a means of resolving the issues he raises, but even acknowledges that this proposal appears to be consistent with the libertarian notion of respect for persons, since “to respect a person involves (among other things) refraining from exposing him to unusual levels of risk.” Yes, exactly my point.
    But if you closely follow his reasoning on this, it becomes clear that he rejects this possibility because he believes that Nozick holds that the “boundaries” referenced in the above quote are akin to physical and not moral boundaries, i.e. “trespass as the paradigm” of rights violations. Thus, he says that the imposition of a threshold level of risk [below which no rights violation would occur] “has no answer in traditional property rights.” Yes, but Nozick is certainly not committed to this “traditional property rights” idea, and it is in fact inconsistent with other things he has to say about rights in ASU.
    I agree that Nozick did not make this argument, but he should have, and it was plainly open to him given his underlying commitments. However we interpret Nozick, Railton plainly does not show that a Kantian based libertarianism cannot subscribe to CBA, and thus any arguments against this doctrine based on its alleged inability to deal with risk or pollution are not, in my opinion, convincing.

17. Mark,
    It is worth noting that all the reasons Nozick gives for limiting cross and compensate, a principle he relies on constantly, are really just cases where compensation is impossible or unlikely or could be made adequate with some more compensation. All the reasons except that it treats people as a means, that is, which he clearly treats as a sometimes outweighed consideration.
    But the scope of Nozick’s use of the principle is not really crucial—what is crucial is that Nozick plainly says that in some cases it is ok to treat people as a means. You accept that, right? And he explains why he thinks it and that way of thinking fits in with his treatment of the Lockean Proviso, for example. Nozick did not just in a fit of passion embrace a principle that permitted treating people as a means. He suggested it was sometimes ok to treat people as a means under that description. In the face of such a plain fact about his view, your interpretation offered as an account of how we should understand Nozick strikes me as not tempting.
    But even if we waive that worry, the argument I offered suggested that the libertarian needs some way of weighting different instances of, for example, treating someone as a means. It will only help against the sort of worries I present if one could offer a tempting account of that together with a tempting account of what it is to treat someone as a means. The bare availability of such an interpretation does not yet begin to answer the general objection.
    Additionally, Nozick is, in the passages I mentioned previously that suggest a right of self-ownership, trying to show how someone might argue to the conclusion that more than a minimal state is justified without violating the rights Nozick thinks we have. In the passages Nozick is showing how that project might get started. Do you really think Nozick intentionally misrepresented his own understanding of people’s rights without sayings so in his own work?

18. Richard,
    As I understand you, you agree that some rights violations are more serious than others. But I take it you want to say that taking someone’s money with the threat of the “guns of the state” if one does not is a very serious violation, more like taking a kidney than like stepping on someone’s property.
    I want to talk about that but first I must quibble with your set up of the case. You ask us to assume that a person came to their money honestly, “on the basis of voluntary and peaceful exchange with others without violence or fraud.” Assuming that much is insufficient, I think, to ensure that the person is genuinely entitled to their holdings. For we can only trade that which we rightly own, and no amount of trading, no matter how nicely the trading is done, will generate the initial rights to that which people trade. We must supplement this story with a story about how people can legitimately come to own previously unowned things to explain how something can initially become owned such that then it can then legitimately be traded. And many people think that that story will create constraints on how much inequality is just. Having said this, I will just suppose that there is vast inequality of wealth and that that need not be unjust.
    But back to the main issue. I guess one general issue is how we should understand what makes a right important or less important. You perhaps have in mind a picture in which what makes a right important is that losing what you have a right to would significantly harm a person. Or at least your examples suggest such a picture. Suppose we run with that. Then imagine a possible person who is very rich yet has not much use for all that money nor do they have people or projects that they strongly want to give the money too. I take it we can agree that taxing this person would not harm them very much and it could do an awful lot of good. Consider how many people lack clean drinking water in this world. Now consider a more realistic case where of course the person would mind if some of their money were taken, but if the person were very rich and not giving lots away to worthy causes, then the damage to them of taking one million dollars to redistribute from someone that has thousands of millions of dollars seems rather minimal. I wonder if you would agree?
    Another strategy to help one see my point would be to make the pollution in my example more toxic and wonder at what point you think people’s rights require that such a toxic pollutant must not be put into the atmosphere.

19. At this point I confess to being a little confused. Earlier, I apologized for accusing you of thinking that Nozick founded his claim for rights on SO. Now, you seem to be aggressively pushing this line. I agree that Nozick accepts the fact of SO, but this is not the distinctive or critical part of his moral reasoning. You agree, right?
    Again, I deny that Nozick accepts “cross and compensation” as a general principle. I quoted you the language from p.82 that shows that he meant this notion to address only important, common activities that present undue risk, but which are not so inherently dangerous to be subject to criminalization, i.e. like DUI. Libertarians long ago rejected Nozick’s principle of compensation as a complete mess. But, the whole point of the principle is that we NOT treat people solely as a means. While, due to the risk, we must ban the epileptic from driving, we compensate him so that he can lead his life by taking taxis, limos, etc.
    Thus, I also deny that Nozick thought it morally permissible to treat persons solely as a means, other than to prevent moral catastrophes. In such extreme cases, I believe he would say that enforcing positive rights is not such an assault on our moral sovereignty as to run afoul of Kant’s injunction. Generally, for Nozick to treat a person solely as a means is to apply force or the threat of force against them, other than in self-defense, etc. But, to build w/o consent an unsafe nuclear reactor in a residential neighborhood is also to violate respect for persons.
    I do not claim that Nozickian libertarianism is a perfect political theory that provides a pat answer for every challenge. Do you know of any that do?

20. I have all along claimed that I would not criticize those who wrongly think that Nozick held a self-ownership view as he says several things that suggest such a view. You insisted there was only one place in the book where the notion comes up. I showed that was false and that he does at times seem to commit himself to such a view. I continue to think such an attribution not the best interpretation overall of his view.
    Last time: you agree that he allows cross and compensate sometimes, yes? You agree that he wrote that “a system permitting boundary crossing, provided compensation is paid, embodies the use of persons as a means” [71], right? Now you want to say that Nozick’s view is that the point of cross and compensate is to avoid treating people as a means?

21. David,
    I will take one last stab at this. The fact that Nozick’s principle of compensation is a complete muddle is very old news. It is both confused and confusing. I don’t know of a single natural rights libertarian that defends it. Fortunately, this idea is not essential at all to the overall structure of Nozick’s moral views. We can amputate this rotten limb and leave an otherwise healthy patient, as I have tried to suggest earlier by means of a libertarian resort to CBA, which in my judgment is a far superior option for Nozick than his principle of compensation.
    The passage you cite (71) occurs in the context of his lengthy discussion of this principle. He considers two alternatives. First, let agents impose great risk or other rights violation on others, so long as they compensate the victims. He rejects this because, among other reasons, risky activities and rights violations create fear on a society-wide basis, and Nozick doesn’t know how to measure or compensate for this fear. It is here, in the very process of REJECTING the boundary crossing with compensation idea, that he writes in the quote you cite: “Other considerations converge to this result: a system permitting boundary crossing, provided compensation is paid, embodies the use of persons as means…”
    Having rejected the first possibility, he considers a second: prohibit all nonconsensual boundary crossings. This too is rejected, leading to the principle he ultimately adopts, i.e. for certain types of essential but risky behavior, we prohibit but compensate. I claim that this principle, though flawed, does not violate respect for persons, either in Nozick’s mind or actually. It is only the rejected principle of rights violations with compensation that he considers as constituting treating persons as means because it exposes them to nonconsensual harm or the fear of harm.

22. Just a historical point (but with philosophic undertone): Sobel ends up in Adam Smith’s position, which recognizes that only some property rights (in one’s manual labor) is sacred/absolute, while the rest comes with varying degrees of protection because these are (conceptually and historically) the consequence of institutional arrangements. Not surprisingly he also ends up defending (some) progressive taxation.

23. Mark,
    Well, I guess we should not be surprised when the great works can support more than one interesting reading. I think this especially likely to be true in the case of Nozick who throws out an unusual number of fascinating lines of thought and is not as insistent as most members of the philosophical cannon about which line is his.
    Thanks for your comments.

24. Very interesting discussion, David.
    I’ve been trying to point out the same flaws in dogmatic/deontological libertarian thinking to some of my anarcho-capitalist friends for a while. (My example was to use a hippie as someone who would not accept any compensatory payment in enjoining industrial activity, but I like your Howard Hughes analogy as well.)
    @ Morgan
    I’m not harmed by the risk you took, I’m only harmed if your stick breaks my window, or if I have to go pick up the stick from my fenced property, etc. But the .0001% freak thing vs. the 1% thing – these are risks YOU weigh, and choose. You self insure.
    David has already addressed some issues above. In addition, I would only ask you to consider how different risk premiums are exacerbated by asymmetries of information. This partly relates to matters of regulation; I much prefer driving in a country where standardised driver licenses and road-worthiness tests for vehicles offers me some insurance against risk-prone drivers. There’s no way I control for who shares a highway with me, but at least I am reassured that their cars (say nothing of the drivers themselves) are expected to meet certain minimum standards.
    And, of course, I would suggest that “justice” administered ex post is, in many cases, a straggling third best; especially when it comes to more dramatic outcomes like severe injury and death. Don’t get me wrong; there’s plenty bad regulation out there… But I’d prefer (regulatory?) prevention than (courtroom?) “cure” when the latter typically involves putting a monetary value on matters that are inherently beyond valuation.

25. Eric,
    That is very interesting. I didn’t know that. Now I feel like I should try to see how he develops such a view. Is there more to tell about Smith’s view about what makes one right more important than another within the set of rights that are the consequence of institutional arrangements?
    By the way, the weighted rights view is not my view. I am attracted to consequentialism, even with all its problems. I was just thinking it would be hard for a deontological view to simultaneously cover much of morality and yet mark no distinction in the moral force of rights.

26. David,
    I very much enjoyed our conversation. I will make a final comment for all those interested, for whatever reason, in Nozick. He is a very different animal than the anarcho-capitalists, with (in my judgment) far more sophisticated and nuanced views. Anyone wishing to understand his stance on rights should pay very close attention to the passage on 34 that starts “Thus we have a promising sketch of an argument from moral form to moral content…” AND his answer to the question he poses for himself on 48: “…in virtue of precisely what characteristics of persons are there moral constraints on how they may be treat each other or be treated?”

27. Stickman,
    Wow are we on the same page. Railton, in “Locke, Stock, and Peril,” very quickly towards the end of his paper notes (one of) the kind of problems for compensation that we are on about with the Howard Hughes type examples.
    I should add that my view is that it is rather stunning how many problems “Cross and Compensate” solves for the libertarian within a quite recognizably libertarian framework. Locke himself mentions the rationale for his Proviso that no one is worse off for such appropriation and so it is not a violation of rights. Steven Wall’s very nice recent paper “Self-Ownership and Paternalism,” indirectly points out a new advantage. A strict property-rights view seems unable to vindicate the thought that soft-paternalism (pushing a non-suicidal person out of the way of a bus, etc.) is permissible. Cross and Compensate very much helps. It also, as I mention above, allows the view to, in a sense, mark distinctions in importance between different boundary crossings as different crossings will require different amount of compensation to make the crossing right. It is almost a pity when one sees that Cross and Compensate is unworkable too for the sorts of reasons we are pointing out.
    I recommend people check out Stickman’s blog at: http://stickmanscorral.blogspot.com/

28. While I am recommending blogs, I certainly should point people to an exciting new blog on issues concerning classical liberalism and libertarianism. It is Bleeding Heart Libertarianism
    http://bhl.typepad.com/bleeding-heart-libertaria/

29. Dave, you ask a fair question. I am not sure there is a univocal answer because (on my reading of) Smith’s position about the set of rights that are the consequence of institutional arrangements is always going focus on how they are the product of (trailing) peculiar/local cultural/historical developments. So, it would be surprising if there were a very general template. Having said that, on my reconstruction Smith would recognize an equal authority to make claims and demands on one another and that any set of arrangements about the size of and the right to our (derived) property is the product of our shared activities. That is a long-winded way of saying that those (non-absolute, derived) rights that contribute to systematically enhancing the product of our shared activity will be favored. Does that help? (I have a paper in which I explore some of these issues in Smith that I could send.)

30. Yes and yes, please. Thanks!

31. David,
    Thanks for the kind words and the blog punt. I must definitely take a look at the Railton article that you mention (great title BTW).
    Coming from an (environmental) economics background, I approach “Cross and Compensate” with some caution simply because I think that tort law is hamstrung by its own inefficiencies; which are often overlooked by its libertarian proponents. I certainly think torts can be very useful in helping to address more localised pollution problems, but we’ve already highlighted some of the inherent problems as you scale things up. (You may already have seen these, but I’ve tried to make some additional points on torts here and here if anyone’s interested.)
    Of course, perhaps all ideologies break down in ugly ways at the margin. However, that just reinforces my belief that a deontological/absolutist approach is the wrong way to go. Horses for courses, IMHO!

32. It seems correct to think that there exist different degrees of moral seriousness when individual rights are violated. That, for instance, it is a worse offense to hold someone captive for 5 years, ceteris paribus, than for 5 minutes. This seems difficult to argue with and I would not wish to do so. And these different degrees of seriousness will come into play when deciding what restitution is due for a particular violation of rights. But this shouldn’t stop us from thinking that any such violation should be characterized as wrong. Therefore it seems quite legitimate to say that the violation involved in a progressive income tax is wrong, even if it is not as serious as the violation involved in say waterboarding. The compensation due, were we able to gain restitution (doubtful, under present circumstances, I agree!) should, in this case, be related to the amount taken under such policies. But to suggest that the wrong of such taxation is mitigated because another ‘social wrong’ is thereby corrected is surely an improper conclusion, except under very specific circumstances. Generally, such circumstances will not apply. What we are being taken to here is a completely different story which sounds as though it might be of a welfarist nature. It is far from obvious that one would want to accept this complete abandonment of a deontological approach just because there can be different degrees of rights violations.

33. Simon,
    You are, in my opinion, exactly right. You have expressed the idea that lies behind Nozick’s famous “progreesive taxation as on a par with forced labor” argument. Nozick doesn’t claim that this tax is the moral equivalent of forced labor at the point of a gun. I read him to say that non-consensual redistributive taxation is wrong for the same reason that forced labor is wrong, i.e. it uses the taxpayer as a mere tool to achieve some objective not of her own choosing. Foreced labor at gunpoint is worse than progreesive taxation, but this doesn’t exonerate the latter.

34. Simon,
    Good, thanks for that. This is just the sort of stuff I was hoping to talk with others about. One possible view is an absolutist deontological libertarianism. Such a view would say that one may not, for example, violate a property right no matter how much good would come from doing so. It would be wrong to step on the edge of someone’s legitimate property against the property owner’s will even to save many people. (For the sake of simplicity assume either that the property owner is very rich and fussy and so would sincerely require more compensation than the crosser has or that the crosser has very little and so even an intuitively reasonable amount of compensation is beyond her.)
    I believe little hangs on the nature of the absolutist deontological rights posited for the above argument, so I chose property rights merely for the purpose of illustration.
    Such absolutist views, I think, are defeated by the case of risk. Almost everything we do imposes some risk of a property rights violation on others (think of throwing a stick for one’s dog, driving a car, flying a plane, being part of a legitimate and decent but imperfect legal system, etc.) On an absolutist view, as far as I can see, all such actions would be forbidden. The risk of a violation is, on an absolutist view, as costly in terms of social good to justify as a certain violation. So no risk of a violation, no matter how small, could be justified by any social benefits of the violation, no matter how big. The case of pollution is also supposed to help us see that this is not really our view.
    So let’s consider non-absolutist versions of the view. I take it that what we mean by non-absolutist versions is that some violations of a right (or chance of such) are made not wrong by the great good that would come from them. Moving to a non-absolutist version abandons the thought that necessarily all violations of genuine rights are, all things considered, wrong. It may, as Nozick says, leave a residue that an action that was not wrong violated a right, but still the act is not wrong.
    So now the question is how much social good (or whatever the value is that can outweigh a rights violation) does it take to outweigh a rights violation. As you agree that rights violations are of different weights, I am assuming you would want to say that this number varies depending on the right. So now we need an account of what makes a right more important in the sense that it takes more social good to make it permissible.
    Feel free to supply any general story about that that seems independently plausible to you.
    Now my claim is that such a story, if it is genuinely plausible, will reveal some re-distributive taxation to be among the less important rights. And so it will take less social good to justify. And if the world were such that some people had an awful lot and others had very little, then it would be especially plausible that wise takings and givings could violate only small rights and produce large benefits. And so be justified even by libertarian principles.
    The example of pollution helps to focus the mind on how cheaply we are willing to sell rights violations in some contexts. Keep in mind that the pollution in our example can be made arbitrarily toxic. Obviously at some level of high toxicity and volume we would say it is wrong to put out that kind of pollution. But pick some point near but not over the line of toxicity and volume such that you think it not wrong to put out that sort of pollution. Now ask yourself how cheaply you are selling people’s rights to not have pollution put into their lungs per rights violation. Also ask yourself what the consequences would be of charging much more (in terms of social good) per rights violation.

35. Simon,
    Good, thanks for that. This is just the sort of stuff I was hoping to talk with others about. One possible view is an absolutist deontological libertarianism. Such a view would say that one may not, for example, violate a property right no matter how much good would come from doing so. It would be wrong to step on the edge of someone’s legitimate property against the property owner’s will even to save many people. (For the sake of simplicity assume either that the property owner is very rich and fussy and so would sincerely require more compensation than the crosser has or that the crosser has very little and so even an intuitively reasonable amount of compensation is beyond her.)
    I believe little hangs on the nature of the absolutist deontological rights posited for the above argument, so I chose property rights merely for the purpose of illustration.
    Such absolutist views, I think, are defeated by the case of risk. Almost everything we do imposes some risk of a property rights violation on others (think of throwing a stick for one’s dog, driving a car, flying a plane, being part of a legitimate and decent but imperfect legal system, etc.) On an absolutist view, as far as I can see, all such actions would be forbidden. The risk of a violation is, on an absolutist view, as costly in terms of social good to justify as a certain violation. So no risk of a violation, no matter how small, could be justified by any social benefits of the violation, no matter how big. The case of pollution is also supposed to help us see that this is not really our view.
    So let’s consider non-absolutist versions of the view. I take it that what we mean by non-absolutist versions is that some violations of a right (or chance of such) are made not wrong by the great good that would come from them. Moving to a non-absolutist version abandons the thought that necessarily all violations of genuine rights are, all things considered, wrong. It may, as Nozick says, leave a residue that an action that was not wrong violated a right, but still the act is not wrong.
    So now the question is how much social good (or whatever the value is that can outweigh a rights violation) does it take to outweigh a rights violation. As you agree that rights violations are of different weights, I am assuming you would want to say that this number varies depending on the right. So now we need an account of what makes a right more or less important in the sense that it takes more or less social good to make it permissible to violate it.
    Feel free to supply any general story about that that seems independently plausible to you.
    Now my claim is that such a story, if it is genuinely plausible, will reveal some re-distributive taxation that violates people’s property rights to violate rights that are among the less important rights. And so it will take less social good to justify. And if the world were such that some people had an awful lot and others had very little, then it would be especially plausible that wise takings and givings could violate only small rights and produce large benefits. And so be justified even by libertarian principles.
    The example of pollution helps to focus the mind on how cheaply we are willing to sell rights violations in some contexts. Keep in mind that the pollution in our example can be made arbitrarily toxic. Obviously at some level of high toxicity and volume we would say it is wrong to put out that kind of pollution. But pick some point near but not over the line of toxicity and volume such that you think it not wrong to put out that sort of pollution. Now ask yourself how cheaply you are selling people’s rights to not have pollution put into their lungs per rights violation. Also ask yourself what the consequences would be of charging much more (in terms of social good) per rights violation.

36. Perhaps worth pointing out that one might want to put the normative limitations on rights within the right, as it were. That is, one might say that when one’s alleged right is outweighed such that violating it would not be wrong, one then has no right that we not do what one would ordinarily have a right that we not do. The content of one’s right would be something like not to have one’s property messed with without one’s consent unless enough good would ensue. This right could then be held to be, in a degenerate sense, absolute without having some of the implications I mentioned earlier as problems for absolute deontological theories. I take it to be clear that all the same issues I mentioned remain even if the language needed to describe the issues would change if we decided to talk about rights this way. We will still need to decide how much social good makes one’s quasi-right disappear. And we will still need to come up with different amounts of social good to make go away differently important quasi-rights. For my money, however, this is not the best way to talk about rights.

37. I agree with your last comment,David. I think this discussion demonstrates a need for a more robust theory of rights in general and of property rights in particular.

38. Thanks tomkow and thanks for the very interesting links. And congrats on whooping my ass in last year’s blog competition.

39. David – I don’t have a problem with using property rights to illustrate the general problem. In fact, they provide a good test of absolute rights and the question of whether there might be circumstances under which they should be contravened. This is because the generally seem less important to us than, say, rights of bodily integrity – though we can think of some infringement of the latter – such as a having one’s fingernails forcibly cut – which might also qualify as trivial as well.
    Now on to the main issue. I’m not convinced that you are applying risk in a proper manner here. You are right – any action might, under certain circumstances – lead to a violation of property rights. But the same might be said of rights in the person as well. My stepping off of the sidewalk might just cause a driver to become distracted etc. The end result is that we couldn’t take any action at all. But it is not obvious that taking an action with a small risk of the infraction of a right can count as violating that right. We generally think that a right has been violated when the result of a deliberate action to do so. This is not the case when the intention was not present and the likelihood of the violation quite low. Even if the likelihood is quite high, we would be inclined to describe the behaviour as reckless rather than rights violating. So I don’t think you can map risk as easily as you suggest onto violation of rights. This is a quick answer – a full theory would need to be more complex.
    On to your main point. You suggest that, because certain rights seem rather trivial, and the results of trampling on them rather significant the two can and should be weighed against each other to see which gives the best result. And perhaps they should. I agree entirely that the property owner who refuses to allow a minor trespass on to his property with little adverse effect on himself, and which would otherwise result in the saving of lives is morally wrong. We could rightfully say that his assessment of risks and rewards is odd and that he fails to properly value that which should be valued. We would thus criticize him in moral terms. This is not, however, quite what is being suggested here. You are extending the issue into what governments should or should not be permitted to do. For governments to be permitted to enter the arena and make assessments all over the place about when rights ought to be violated and when not, is to talk of a very different type of issue. To start with, it will require a theory of what it is legitimate for government to do, bearing in mind that governments do not enjoy universal support. (If they did, they would be a form of association, and we might well be happy for associations to do things that we are not happy that governments do.) You seem then to have jumped to the thought that welfare is going to ultimately trump rights as a general rule. This is not to say that rights are abandoned completely – they might well feature in the welfare equation. Unless you think that welfare or utility maximization and rights protection equate, this would really be to abandon liberty in favour of utility at the political level. I suppose Mill seems to suggest something approaching this in “On Liberty”, since he certainly sees the value of liberty and does not believe in natural rights. Jan Lester has also attempted this in “Beyond Leviathan”. I don’t find the case compelling, since it seems too easy to think of examples, such as the ones you provide, where the two do not seem to coincide. But the case might be made that the two coincide in the round, I suppose, although I have my doubts.
    I realize that I have only begun to address the question here. I will try and provide a fuller response as time permits. But I think the key question lies in what it is that governments should protect and what it is they should be permitted to initiate. I think that your argument has gone far too quickly and will end in a far from happy place, if you think that individual liberty is a both a ‘right’ and something that we are entitled to value.
    (PS Mark – thanks for your comment. Your new book arrived yesterday. I look forward to reading it!)

40. Excellent! Great topics to talk about. But there is so much to say and teaching and visiting parents require attention so I will be slow for a while in reply. It is not for lack of interest in your reply.

41. Simon,
    Thanks for your interest in my book, but I’m afraid that if you read it you will discover all its flaws…

42. Simon,
    I would assume that the friend of the full self-ownership view will want to mark a strong causing/allowing distinction in what can be said to make one responsible for a rights violation. So the examples I focus on are cases where one risks causing such a violation. So my point was not merely that any action can lead to a violation but rather than a wide range of actions might, in an intuitive sense, cause such a violation.
    I have wondered about the plausibility of saying that my action does not violate your right unless I intended the upshot of my action that purportedly violates your rights. I doubt this is the best way to go. Surely the libertarian will want to say that my property right to my person or my house protects these things from foreseen but unintended harm. If someone floods our neighborhood because they want to make a big swimming pool, foreseeing that my property will be damaged without my consent, I have a complaint. It just clearly counts against the permissibility of that plan that I have a property right to stuff that will get damaged without my permission. If someone recklessly damages my person or property, I have a complaint and am owed compensation. It is not just that they behaved badly and made the universe a less good place. They behaved badly in a way that I had a claim that they not do, right? Or what will it be that grounds my complaint and right to compensation if it was not my rights?
    Further I don’t think our libertarian can put much weight on when we do and don’t intuitively think there is a rights violation. After all, intuitively most of us do not think there is a rights violation when we are taxed progressively. They must follow the logic of their position, not our commonsense intuitions about when a right has been violated. If we agree with Cohen or the left-libertarians, we will think that to make the self-ownership view a distinct and specific view we should look towards maximal self-ownership compatible with equal such rights for all. On such a view, surely I own my stuff more if my stuff is protected against foreseen but unintended harm without my consent.
    My own view is that nearly all of the problems I discuss are just as bad even if we only focus on rights of self-ownership and do not yet worry about property rights in external goods. If true, that would mean my case is as strong against left-libertarians as it is against right. Pollution was meant to be a violation of self-ownership rights. And we can set the toxicity of the pollution at whatever level we like.
    I don’t take myself to have argued for consequentialism yet, just to offered problems for some deontological views, especially those associated with several forms of libertarianism. I am claiming some set of claims that libertarians often make don’t add up. If I am right about that, we will have to search for a better morality. My money would be on consequentialism but I do not purport to have made a case that such views are acceptable here.
    To me, the most important issue you raise in your last paragraph is that progressive taxation will need to be administered by the state and allowing the state into such redistributive activities could have broad and uncertain upshot. It might be safer, I think I hear you saying, to just keep the state out of such business altogether. I have not argued against that claim, but rather only that it would not violate the property rights of the rich to have the state do it. It may be unwise for other reasons to give the state such broader powers. I have only attempted to show that even by libertarian principles, in a wide range of cases the state need not refrain from taking some of rich Ms. X’s money and spending it wisely to help the infirm because doing so would violate her property rights to her money.

43. I should have mentioned other problems with saying that if the risk of a rights violation is below a certain threshold that the action does not violate a right. First, this would mean that a state lottery in which there is a small chance that the rich have their assets redistributively taxed would not violate the rights of the rich. Second, this would mean that we did not have a right that others not play Russian Roulette with our head so long as the chance of killing us is small enough. Third, if the view is developed in the threshold manner, then there will implausibly be cases where just below the threshold is no problem as far as rights are concerns but just over it is a full rights violation. Fourth, uncoordinated acts each of which is below the threshold could add up to an arbitrarily high chance of a violation yet no one violates my rights (this is on the assumption that what makes it a violation is the risk I impose by my action, not the total risk the rights holder bares.)

44. I should have mentioned other problems with saying that if the risk of a rights violation is below a certain threshold that the action does not violate a right. First, this would mean that a state lottery in which there is a small chance that the rich have their assets redistributively taxed would not violate the rights of the rich. Second, this would mean that we did not have a right that others not play Russian Roulette with our head so long as the chance of killing us is small enough. Third, if the view is developed in the threshold manner, then there will implausibly be cases where just below the threshold is no problem as far as rights are concerns but just over it is a full rights violation. Fourth, uncoordinated acts each of which is below the threshold could add up to an arbitrarily high chance of a violation yet no one violates my rights (this is on the assumption that what makes it a violation is the risk I impose by my action, not the total risk the rights holder bares.)
    Additionally, I am tempted to say that the difference between reckless behavior and good clean fun, at least on a libertarian model, is that the former threatens stuff that people have a right to. Reckless behavior is behavior that does not take appropriate care to avoid crossing a line. That line, at least by the lights of the sort of libertarian we have been considering, should presumably be the boundary of my property rights.

45. I should have mentioned other problems with saying that if the risk of a rights violation is below a certain threshold that the action does not violate a right. First, this would mean that a state lottery in which there is a small chance that the rich have their assets redistributively taxed would not violate the rights of the rich. Second, this would mean that we did not have a right that others not play Russian Roulette with our head so long as the chance of killing us is small enough. Third, if the view is developed in the threshold manner, then there will implausibly be cases where just below the threshold is no problem as far as rights are concerned but just over it is a full rights violation. Fourth, uncoordinated acts each of which is below the threshold could add up to an arbitrarily high chance of a violation yet no one violates my rights (this is on the assumption that what makes it a violation is the risk I impose by my action, not the total risk the rights holder bares.)
    Additionally, I am tempted to say that the difference between reckless behavior and good clean fun, at least on a libertarian model, is that the former threatens stuff that people have a right to. Reckless behavior is behavior that does not take appropriate care to avoid crossing a line. That line, at least by the lights of the sort of libertarian we have been considering, should presumably be the boundary of my property rights.

46. David – no, you are right, we would normally think that an unintended violation of property rights would qualify for compensation and this seems correct. I was universalizing from a specific idea I was pursuing, and the resulting universalization was not justified.
    On the subject of (progressive) taxation, I take you to be saying that it is an acceptable activity for the state to engage in. Since progressive taxes are generally on income, I therefore take it that your case is that the income we gain from exchange of some good – typically labour – with another is not our property in the full liberal sense. That there is something about the transaction that means that others are party to it, even if they have not been involved in any aspect of it, or that certain duties flow towards others as the result of certain obligation on income earners – or perhaps just the rich – such that they have a duty towards these others to make their lives better, whether they wish to or not. It is therefore for you to demonstrate that such involvement or care duty can be justified as enforceable by the state – and equally for deontological libertarians to argue that it is not.
    You seem to suggest that a hybrid theory is going to be required, with some elements of favourable consequences (decided by whom?) overriding some elements of rights. It will be interesting to see how this is justified and how and where the line will be drawn.
    I think that we naturally think that risks of rights violation do not map well onto liability in the self-ownership case. They seem to map somewhat better on the property case, even though this is normally derived via a Lockean-style argument, from self-ownership rights. Of course, our natural intuitions may simply be wrong in this case. I am presently developing a quasi-Lockean argument for property rights and will give further consideration to this apparent divergence.