Are others forbidden to perform actions that transgress the boundary or encroach upon the circumscribed area, or are they permitted to perform such actions provided that they compensate the person whose boundary has been crossed?
I take it (controversially, I should add) that in at least some instances, we can knowingly infringe on others' rights without acting immorally, provided that we are willing and able to pay compensation (for now, I'll set aside the question of whether such infringements would be justified in the absence of compensation). In a sense, then, the willingness and ability to pay compensation to the victims of one's actions serve as justification of certain actions which would otherwise be unjustifiable. Let's go to Feinberg's hiker example:
Suppose that you are on a backpacking trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble upon an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates.
I want to avoid the question of whether or not the hiker would be justified in breaking into the cabin if he were unwilling or unable to compensate the cabin's owner for the damage. The point is that it seems like the willingness and ability of the hiker to compensate the owner of the cabin for the damage would be sufficient (though again, perhaps not necessary) to justify the hiker's breaking into the cabin. That is to say that if a person were in the hiker's situation, and were willing and able to compensate the cabin's owner for damaging the cabin, then she would be justified in breaking into the cabin.
But things get a little complicated from there. Over the course of several posts (the rest of which will likely not be written any time soon, knowing me), I'd like to discuss a few factors that seem important to the conversation about a proper role for compensation as a justification for rights-infringements. In this post, I'll discuss the notion of rights as specific interests which must be considered apart from overall wellbeing, and in doing so I'll call into question the coherence of the concept of "wellbeing" itself. Second, I'll take a look at the suggestion that interests can be categorized as being "basic", "peripheral", etc., and that this framework can be used to distinguish between legitimate boundary-crossings and illegitimate ones. Third, I'll consider the mechanisms by which "proper compensation" can be determined, in light of the absence of a negotiated agreement between the victim and the boundary-crosser. Finally, I'll consider the interplay between the utilitarian argument in favor of compensated boundary-crossings and the rights-based argument in favor of deference to rights in the absence of negotiated consent.
So on to the subject of this post. There's this idea, which comes from the very old notion that beings have "a good", that we can think of a person as having a level of "wellbeing", and that things which detract from that overall level of wellbeing are "bad" for the individual, and things that increase that overall level of wellbeing are "good". Adopting this mindset, I think, leads an observer to an interesting way of thinking about things. As Michael Toman wrote in his essay, "Values in the Economics of Climate Change":
One...critique of climate change economics as a guide to policy involves the use of a single-dimension net benefit measure for evaluating different outcomes. This reflects the standard assumption in economics that all costs and benefits are commensurable and interchangeable once expressed in a common metric (a monetary metric as a representation of unobservable utility). There may be serious measurement problems in implementing such a reductionist metric, but as a concept the notion of full tradeoffs and thus full potential compensability of losses from climate change is ubiquitous in the economic model. This view differs from alternatives that see different kinds of values as less commensurable, e.g., some losses of natural beauty or function simply cannot be compensated by other welfare gains...
Though Toman was talking specifically about the issue of climate change, his point seems to be a general one. Take, for example, this definition from Nozick:
Something fully compensates a person for a loss if and only if it makes him no worse off than he otherwise would have been; it compensates person X for person Y's action A if X is no worse off receiving it, Y having done A, than X would have been without receiving it if Y had not done A.
Notice that when Nozick says "worse off", he seems to be implying an "all-things-considered" sort of worse off. If we were to reject the notion that all benefits and harms can be thought of as being commensurable and interchangeable, then the only way to fully compensate someone for some kinds of invasions would seemingly be to never have performed them in the first place. To illustrate this, imagine that Cletus punched Suzie in the nose, causing harm to Suzie (she is not a masochist, and did not consent to this). If it were not the case that benefits and harms are commensurable and interchangeable, then we would need to think of how we could make Suzie no worse off in the way that Cletus made her worse off (than she would have been if she had not been punched in the nose). We could not accomplish this by doing something good for her after the fact, because this would be making her better off in a different way, as if this would somehow outweigh what had been done to her through the punch in the nose (by stipulation, we're not allowing this sort of weighing). I submit that nothing that Cletus could do would accomplish the task of compensating Suzie if benefits and harms were not commensurable and interchangeable.
The question Nozick posed, which is what I'm looking to answer, was whether or not a boundary crossing could be justified if compensation were paid. What I'm saying is that if there is not such a thing as an overall "wellbeing" -- if some kinds of benefits and harms are not commensurable and interchangeable -- then it might not make sense to talk about compensating Suzie for the punch; the only way to avoid making Suzie worse off in that particular way would be to not punch her. Accordingly, if certain costs and harms are not commensurable and interchangeable, then compensation of the Nozickian brand would sometimes be incoherent, and therefore could not legitimize a boundary crossing where the kinds of costs and benefits discussed here are involved. [I don't mean to suggest that this would rule out post-hoc restitution, only that this restitution would be a different sort of animal than compensation.]
Nozick anticipated this possibility when he wrote:
If some injuries are not compensable, they would not fall under a policy of being allowed so long as compensation is paid. (Rather, they would be allowed provided compensation was paid, but since the compensation could not be paid by anyone, in effect they would be unallowed).
Take, then, the example of Edith Macefield. Edith Macefield, who passed away last month from pancreatic cancer, was an elderly Seattle resident whose tiny house stood in the way of a commercial development which was being constructed on her block. Edith refused to sell the house, though the developers offered her far more than the market value of the house, claiming that the money would be relatively worthless to her compared to the house, which she had every intention of inhabiting until her death. And so she did.
Now, if it were true that Edith's interest in living the rest of her life in her house were completely incommensurable with any other interests, then Nozick would seemingly be committed to saying that we would never be justified in forcing Edith out of her house, since to do so would be to treat her improperly, as a subordinate or a mere tool for the satisfaction of others' desires and not her own. But the kind of situation embodied in Feinberg's hiker example comes immediately to mind. What if, we might ask, we discovered that a rare substance was buried immediately underneath Edith's house, and that without access to this substance, many hundreds of people would die from a condition which only that substance could cure? What if the only way to get to the substance would be to dig underneath Edith's house in a way that (with existing technology) could not help but eliminate her ability to continue living there? Might we be justified, in order to save these hundreds of people, in destroying Edith's house or her capacity to inhabit it?
If we buy Nozick's claim entirely, the answer must be no. Edith, being an end-in-herself, is not to be sacrificed for the good of others, and so we would regrettably have to tell the hundreds of dying individuals that they had no recourse but to plead with Edith for permission to dig underneath her house, and if she refused, then that would be the end of things. As Nozick points out:
…there is no social entity with a good that undergoes a sacrifice for its own good. There are only individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is something is done to him for the sake of others. Talk of an overall social good covers this up. (Intentionally?) To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good for his sacrifice, and no one is entitled to force this upon him.
In the "rare substance" case, we must note that not only does Nozick's argument directly indicate what we should do, but the reasons one might offer in defense of destroying Edith's house are precisely the sorts of reasons that Nozick is rejecting as being amply justificatory of the kind of act in question.
But some people might find this argument implausible. Taking account of the separateness of persons might not mean, as Nozick argues it does, that we must treat them as infinitely inviolable. Some might argue that Edith's claim to have her house left alone is a very serious one, but would not lead us to condemn as unjust an action contradicting that claim which would save hundreds of lives. To properly evaluate this line of reasoning, though, we need to discuss the idea of evaluating the relative importance of different interests which, as we have seen, are not likely to be clearly commensurable. But that's a conversation for another day.