Libertarian Island II: Individual Rights

In this second installment of the adventures of shipwrecked Libertarian Bob and Left Libertarian Ann somewhere in the south seas.

Bob:

Isle Two, for which I am opting, offers in comparison to Isle One,  fewer chances for jam sessions, fewer books, less art, fewer competitions, fewer get-togethers, and will have me working harder for the same number of calories.  Bad luck for me. I am tempted to say that this whole hypothetical situation is rigged against hypothetical me – Isle One being preferable in every respect except that its majority have imposed upon the unwilling as well as the willing a 5 hour per week public works requirement. So, I am going to paddle to Two because liberty should always trump goodies. In any sound political theory individual rights are lexically prior to other sorts of values, and principles. We cannot violate an individual right no matter how good the consequences.

Ann:

                What individual rights do you have in mind?

Bob:      

For this discussion, the chief right I have in mind is the right not to be interfered with in what I do by force or threats of force.

               

Ann:     

Why is the right against interference by force a side constraint and lexically prior to other moral and political considerations? What is your support for the very strong proposition that such individual rights as that against forcible interference always trump everything else?

                      

Bob:

The starting point is that each human being is an individual. “Individuals have rights,” as reads the first sentence of Nozick’s book. [Anarchy, State, and Utopia, p. ix] Does anybody disagree?  Isn’t  it fundamental that no one can violate another individual’s rights?

Ann:

There may be some important ambiguity and vagueness in your principle, but there is a plausible principle in there somewhere. Suitably understood I think that everyone would endorse it as an “other things being equal” principle. My problem is that other things often aren’t equal, and they certainly aren’t on these islands.

Isle One expands opportunities for all at the cost, I assume for argument, of some sort of penalty on anyone who wouldn’t otherwise want to do the five hours of labor that has produced and continues to produce that opportunity expansion. If the scheme falls to a lexically prior, side constraint principle, it will do so no matter how mild and intuitively reasonable is the coercion and how great its benefit. It is this that you need to support. The fact that we are all individuals doesn’t do it by itself. 

Bob:

Your “all” for which opportunities are expanded doesn’t exist. Only individuals exist. This tree isn’t me and you aren’t me. I end at the outside of my skin. It is because of the fact that individuals are unique, separate, and basic that it violates a primary right for others to force their will on any individual.

Because reality is like this we all accept that your right to wave your arms around stops at my nose, and that I, not you, decide how long I wear my hair, what clothes I wear, and whether I walk south or north on the beach.

Ann:

Are you really going to base your moral political principles on this metaphysics?  Only individuals exist; couples don’t exist, triplets don’t exist, quartets don’t exist, the electoral college doesn’t exist? Incidentally, I can rephrase the specific use of “all” to which you object as “for each resident of Isle One, his or her opportunities have been expanded . . . .”  I here assume, for purposes of argument, that at least one One would prefer no labor requirement even at the cost of the benefits it creates, but that it has expanded opportunities even for these hypothetical negative votes is just a fact.

Your skin reference also leaves me cold. Right, there is an anatomical respect in which I end at the outer layer of my skin. It is not entirely irrelevant to me as a person, however, that I am looking at an island a mile away, hearing your voice, and smelling the sea air or that I care about and do things with and for other people and other people care about me, cooperate with me, and do things for me.

My right to wave my arms around actually stops well short of your nose (civil assault, menacing). Hair length we are now pretty easy about, but this was not always the case, and no society gives the individual carte blanche on dress (public indecency), and even where you walk in public has some restrictions (stalking).  Our shared intuitions are a good deal more complex than you suggest, and once those complexities are explored, I think any support you claim from them for your brand of libertarianism will drop dramatically.

Bob:

There is nothing exotic about my metaphysics. Of course quartets exist for certain purposes, but they are also reducible to their four individual members. There is no quartet mind. If one of those members hates the Whiffinpoof Song, it will violate his rights for the other three to force him into singing it with them.  We do have shared intuition about cases like this that show that individuals and their rights are fundamental for moral and political purposes.

Ann:

Quartets are reducible for some purposes to their four individuals, whether something isn’t always lost is another matter.  Putting that aside, a human being is reducible to brain, liver, and the rest, and the brain to neurons, and so on. Moral principles don’t apply to molecules or neurons at all, and matters normative come into play in different ways for individuals, groups, and societies.  So reducibility alone gets you nowhere.

More promising is the way you use it to motivate the veto of the Whiffinpoof Song. It seems to me, however, that how strongly the other three want to sing about Morey’s would have some moral relevance. There might be even more significance in whether the four were singing in front of a Yale or a Harvard alumni function.

I don’t think you would deny that the other three can coerce the reluctant one by various means from raised eyebrows to mockery to kicking him out of the quartet. That any of these might sometimes be proper shows that there is no side constraint against these forms of coercion, at least.

Bob:

Each of the other three singers has his own rights to make facial gestures, mock, or, assuming no contractual impediments, separate from the anti-Whiff. When there is no right on the other side, however, then there is a right that has the status of a side constraint and is lexically prior.  They can’t threaten to beat him to make him sing the song with him. 

Ann:

Can they push him onto the stage after the introduction to the song has been played? 

Bob:

Pushing someone onto the stage is I think sort of play-violence. It is all in fun, and no serious resistance is expected. If there is serious resistance, then an escalation of the force would violate a right.

Ann:

There are going to be interesting cases of shoving on stage someplace north of play-violence, but south of serious violence. Instead of going into those cases, however, let’s suppose that it is really important for some reason to the other three to sing the song. One of them threatens the recalcitrant with two stiff punches to the shoulder if he doesn’t sing it with them.

Bob:

Sometimes this might fall into the same category as pushing the guy on stage, especially if there were a history of shoulder slugging in the group. However, using real force in this scenario would always be an impermissible rights violation, and so would threatening it.

Ann:

Well, in the case I have in mind the victim doesn’t want to be hit in the shoulder even once. He doesn’t expect any lasting harm, but it hurts. He would avoid it if reasonably possible, although he doesn’t think it is a huge deal.

Bob:

In that case I think it is a rights violation. It is not the most awful rights violation in the world, and if I were the anti-Whiff, I might go along and sing the damn song, but I would think that my rights were violated, and I would hold it against the others.

Ann:

You would not necessarily quit the group over it though. Isn’t this because the other benefits of being in the group would outweigh the rights violation?

Bob:

I might not quit the group despite the rights violation. What I will resist is that it is properly described as the violation being outweighed by other considerations.

Ann:

Let me pose a couple of scenarios closer to our current shipwrecked circumstances. Suppose everyone else on Isle One disappeared save you and one rough chap who required you to get him a coconut every couple of weeks or so, he being heights adverse. That coconut would cost you only a minute’s easy climbing.  

Another one: the people are back and the world is just as it is except that the Isle One Assembly has voted only an hour of labor every year, not 5 hours a week.

Bob:

Maybe neither would really start me paddling towards Isle Two. At least neither would if the One Assembly promised, cross-their-hearts-and-hope-to-die, never to increase the work requirement or introduce any other significant coercive measure. In your alone-with-bully case I would need some reason to believe that the acrophobe wouldn’t become more demanding or otherwise behave so as to cause me ongoing anxiety for my safety.

Ann:

Don’t all these cases show that the sort of individual rights violation we are talking about is not lexically prior to every other sort of consideration and that it is not a side constraint?

Bob:

No. In the two Island cases, I can say that my right has the strong properties I contend for, but that I simply can waive it.  It is my right, and I can agree to forego it where the benefits to me are sufficient.

Ann:

You could do that as well in our “real world” case of 5 hours of required work per week on Isle One.

Bob:

Yes, but in the 5 hours a week case, the rights violation is just too oppressive. If I thought it were in my own personal interest, still, I could not endorse so large scale and systematic a violation of individual liberty. Even if it happened that no one voted against the work requirement, the next time it came up, someone might oppose it. The possibility that that one One would be forced to do a significant amount of forced labor, is enough reason for me to take a firm stand against the whole practice.

In the one hour a year case, my staying on the island may evidence nothing more than my own weakness of the will.  In acceding to this systematic but modest violation, I am ratifying, after a fashion, a politically impermissible situation. As it is in my interest, however, I might let the principle slide. It would be a blot, if a smallish one, on my moral character.

Ann:

In saying it would be only a small blot you are already conceding something. If rights violations are true side constraints, then there is no conceptual room for discriminating moral blot size. You may feel worse about the consequences of one violation than you do about those of another, but all violations are impermissible, end of story.

I think your moral common sense steers you away in spelled out cases from judgments so black and white. Your self-deprecating weakness of the will hypothesis is only cover.

Bob:

Perhaps I should admit that there may be a de minimus exception to the side constraint status of individual rights, an exception within which the shoulder puncher, coconut bully, and one labor hour per year legislators all fit. These may all be too insignificant. They are rights violations below the moral cognizance line or are not full-fledged rights violations at all. This is the other side of Nozick's “catastrophe override,” where he considers the possibility that a right might be violated if doing so were the sole means of preventing a great disaster.

Ann:

You are cheapening Nozick’s catastrophe override quite a bit, but I don’t think we should have been too impressed even by the original article.

Something “de minimus” in law is something so insignificant as to be outweighed by the court costs of taking it up. To say that there is a de minimus exception to a side constraint is exactly to say that sometimes other factors outweigh the right, but that is just what is ruled out by the logic of side constraints. For a true side constraint other factors are always irrelevant. Once exceptions are admitted to a principle it becomes, not a side constraint, but at most a principle of great weight, perhaps such weight that it can be overcome by other considerations only in rare circumstances.

Your admissions show, in addition, that there are exceptions where the considerations favoring the violation of the right need not be especially strong, because the individual right in question is not a particularly evil rights violation.  The threat of a couple of blows to the shoulder as coercion for a couple of minutes of singing is just not a big deal. So, despite the fact that it is a really truly rights violation it is pretty easily outweighed.  Similarly, whatever the specifics of the coercion, a few trips up easy trees, or an hour of required labor in a year, though violating the rights of the one forced into it, are not enough to give up the benefits of Isle One over Isle Two. The benefits outweigh the costs, including any moral principles that might auger the other way. The individual rights do not trump everything else.

Bob:

I think you have the conceptual framework here all wrong. I say that there is a line between rights that are side constraints, and things that look like rights but are below the threshold for side constraint status. There may be some arbitrariness, or at least room for reasonable disagreement, in the line drawing, but there are clear cases of rights above the line – that we should all recognize as side constraints and that political theory should treat as lexically prior to other considerations.

Line drawing, sometimes pretty arbitrary, has to be done in any moral system. It is everywhere in the law, and although advocates often base an attack based on the arbitrariness of a particular line, we all know that line drawing is necessary, and that some arbitrariness is inevitable.  The difference between a misdemeanor assault and a felony assault is typically the seriousness of the injury. Whatever the verbal formulation of the statute, exactly where the line gets drawn will be arbitrary. Yet the distinction between misdemeanor and felony assault is not crumbling away in either theory or practice.

Ann:

In the criminal assault case, the seriousness of the injury doesn’t suddenly become irrelevant when we cross the boundary from misdemeanor to felony assault. There is usually at least two degrees of felony assault based upon the seriousness of the physical injury.  The exact location of the lines is arbitrary, but that seriousness of the injury caused is relevant to the seriousness of the offense is always in play.

What your admissions show is something similar with respect to coercion and the rights against it. The seriousness of the force used or threatened, the distance between what one is coerced into doing and what one would choose to do, and the importance of expected consequences on each side you would describe as going to whether a purported right against coercion in a particular case has side constraint status.  I would describe falling on what you call the side constraint side of the line is simply making the judgment that an other-things-equal right is, after looking at the other things, a right in fact -- to be honored in this case.

My objection to your side constraint, lexical priority, theory is not that it draws lines arbitrarily, but that it characterizes that status of what is above the line in a way that is inconsistent with what goes into drawing the line.

Bob:

Your whole attack is based on a few made up examples where rights violations are insignificant or there are very significant beneficial consequences of the violation. This just distracts from all the important cases for which are intuitions support side constraint status for the right against coercion.

Ann:

Actually, I think that many and common real world cases of physical or coercive interference with action that are not clearly wrong.  A very incomplete list of examples would include: typical pushing in crowds, moderately aggressive auto driving, interrupting in a small conversation, giving a child a time out.  Although sometimes each of these is wrong, it doesn’t take much to lift a particular instance out of that category. The person who pushes into a subway car as it is closing to avoid being late for work, again, has been rude, and should no doubt have left home earlier. It  would be extravagant, however, to say that his squeezing into the car was morally wrong.  It is, again, not unlike assault. There are many more misdemeanor assaults than felony assaults, and many more physical altercations that do not rise to the level of a crime than misdemeanor assaults.

Bob:

Even if you were right about side constraint status and lexical priority as a conceptual matter, the big difference between us would remain. You seem not to appreciate how serious are physical interferences with and threats against an individual’s doing what he chooses. In many cases, and particularly in cases crucial to political theory,  these evils completely swamp all other considerations, and are far worse as a matter of both moral and political theory than other ways in which we lose alternatives for choice.

Ann:

I would like to see in more detail just what it is about this one sort of way my choice options may be curtailed that is so supposed to be so much worse than other ways I might lose the same options.

That discussion, was recorded in August of 2017, but somehow disappeared from the blogosphere. Insofar as it could be reconstructed it appears here:
https://lawrencecrocker.blogspot.com/2019/02/libertarian-island-iii-coercion-and.html