A Tentative Plan for an Overly Ambitious Climate Change Project

Anyone who's been following my work will know that a main focus of my research is global climate change, viewed from an ethical and political perspective. In this post, I want to sketch out where I'd like to go with that research and how I'd like to compose a complete product. These will only be sketches, and only working sketches at that; I imagine things will change rather dramatically as I move forward. But hopefully they'll help me to organize my thoughts. And if anyone out there is interested in helping me work on some of this stuff, I'd really love to know. It would be amazing to be able to finish this project for a dissertation, but I don't know if that will be possible if I have to do this all alone... Anyway, here it is (as usual, the mainstream scientific standpoint is taken as a premise for the first parts):

1. Collective Action Problems and Coercion

Climate change is a problem that, on its surface, seems to fit right into the model of a public goods problem. People acting on their own independent interests are collectively producing something that appears to be bad. If we were to desire to prevent this bad thing from coming about, we would either need to alter the set of incentives facing the relevant agents (in this case, basically everyone) so that they would adjust their behavior, or perhaps we would need to take steps to mitigate the effects of their actions.

When we talk about an appropriate response to climate change, however, we don't have in mind a sort of Buchananite consensus-building endeavor in which we try to get everyone to agree to a system that would uncontroversially represent an improvement over the current one. Rather, we intend to coerce people -- that is, to influence them to follow plans besides their own by force if necessary -- in order to bring about the desired outcomes.

But we can't just go around coercing people whenever we think we could bring about "better" social outcomes by doing so -- we need some justification for infringing upon individuals' rights to self-determination. Accordingly, this section would attempt to sketch the kinds of reasons that one might offer in defense of an infringement of someone's right to self-determination, all focusing on duties held by the individual whose rights are being infringed.

I will discuss self-defense briefly, acknowledging Roderick Long's contributions in thinking about dealing with climate change from this paradigm, but ultimately conclude that it doesn't make much sense to approach the issue of climate change in this way. I will therefore sketch out two alternative sources of duties which might help us to justify coercion: the duty to show appropriate respect for others' rights and the duty to attempt to mitigate tragic or catastrophic consequences. The next two sections will be elaborations of these issues.

2. Climate Change as an Infringement Upon Rights

This section will draw heavily on my paper, "Justice and Climate Change: Towards a Libertarian Analysis," which will be coming out in The Independent Review in the Fall. It will outline the foundations of a duty to respect others' rights, and explore the ways in which we might think of climate change as infringing upon rights. I will build upon my earlier paper to address some of the issues that were left undiscussed there.

One way in which I will go beyond that paper in this section will be to discuss the question of whether these infringements upon rights would constitute rights-violations. I will predicate this discussion on the premise (which I will challenge in Section 4) that individuals who contribute to global climate change are responsible for the rights-infringements, and search for ways that those individuals might try to defend their actions. The purpose of this discussion will not be to reach any definitive conclusions, but rather to give us a starting point for thinking about these questions in Section 4 when we try to pin down exactly what individuals are responsible for, and how we should think of their duties in light of such an analysis.

3. When Are Consequences Correlative?

This section draws its inspiration from the concept of correlations between duties and rights, observing that some intuitively plausible kinds of duties don't seem to correlate with rights. Some of these duties which are non-correlative with rights seem to make reference to things that we owe to ourselves or to ideals to which we are committed. But others seem to have to do with our duty to promote "the good," or at least refrain from promoting "the bad" or destroying "the good."

In this section, I will attempt to approach the impacts of climate change from this sort of consequentialist perspective, trying to decide when consequences correlate with duties to act in certain ways. I will initially focus on impacts on groups of humans and on cultures, but I will attempt to expand my discussion to incorporate a consequentialist theory of environmental ethics. Much like in the previous section, my discussion in this section will be structured so as to rely on a set of carefully chosen suppositions about individuals' responsibility for bringing about these consequences that will be challenged in Section 4, but not in a way that makes the discussion here useless. Again, the purpose of the discussion here will be to create a starting point for the analysis in Section 4.

4. Collective Responsibility and Individual Duties

This section will bring into focus the emergent nature of the climate change problem, and attempt to engage the literature on collective responsibility in order to understand how we should approach this problem. I will focus particularly on Virginia Held's discussion of the responsibility of "random collections" to organize themselves to address faults corresponding to non-distributive predicates like "caused global climate change." I will draw attention to Held's reservations about the choice of a proper decision-making procedure and search for a resolution to this problem in the literature relating to the selection among sets of alternatives that are impartially reasonable to prefer to inaction.

I will also use this section to directly engage the idea of the social provision of public goods, wondering whether we can think of the ideas presented in this section as justifying or demanding this practice, or if we should rather treat the discussion here as suggesting serious limitations on the extent to which we should be looking to social decision-making mechanisms to fulfill this capacity. I will attempt to show that in certain situations, the line of thinking introduced here can be used to support social measures aimed at providing public goods without relying on perfectionist ideas. But I will also show how these arguments do not establish the sort of paradigm that perfectionists would want, and that my view cannot therefore be seen as a reconciliation between liberalism and perfectionism.

5. Justifying the Enforcement of Duties

In this section I will discuss the jump from the idea that individuals have certain duties (as discussed in the previous sections) to the idea that we could be justified in coercing these individuals to act in the manner prescribed by their duty. I will need to explore the sorts of considerations which justify the enforcement of duties and use them to try to distinguish cases where intervention is justified from those where it is not. Here I will flesh out the questions introduced in Section 4 relating to reasonable pluralism and impartiality, expanding my discussion to cover all duties. I will also explore a dialectical approach to thinking about the justice of coercive enforcement of duties. This section will set the stage for Section 6 and Section 7 by arguing that certain kinds of answers to the questions posed in those questions would make coercion unacceptable.

6. Centralized Policy-Making in a World of Reasonable Pluralism

This section will explore the foundations of political authority outside of voluntary associations. I'm really not sure how I want to approach this section, but a coherent place to start seems to be with the philosophy of Joseph Raz. I'm very much over my head in even trying to imagine what sorts of things I'll want to discuss in this section, but it does seem like I'll have to address this issue. I guess this is what grad school will be for! Hopefully by the time it's ready to actually start writing this, I'll have done a whole bunch of work on the issues raised by this section and will have something worthwhile to say.

7. Finding an Appropriate Role for Uncertainty

Everything that will have been said to this point in the project will have been predicated on the idea that global climate change is undeniably happening in the way forecasted by the IPCC. This section will question this premise and introduce some of the uncertainties involved in the mainstream scientific analysis. It will also introduce the concept of storyline uncertainty and discuss the degree to which we can be comfortable with our predictions about the future.

I will then try to think about how uncertainty should play into our thinking about this issue. I will discuss the precautionary principle and the principles of procedural justice which are enshrined in our current legal system, as well as concerns about the burden placed on victims by standards of proof. I'm not entirely sure where I'll want to go with this, but I think I'm attracted to the idea of some kind of middle ground. I'm not sure, though, so don't hold me to it!

8. Pulling It All Together

In this final section I will attempt to put together all of the pieces discussed in the previous sections in order to compose a coherent answer to the question of how we should think about the justification for a coercive and centralized policy aimed at addressing global climate change. I will highlight areas where I think that reasonable people might find room for disagreement, and where I think my discussion here could be expanded or improved. I will also voice any doubts I have about my conclusions and attempt to identify some avenues for rejecting them. Finally, to the extent that I can do so coherently, I will offer some closing thoughts about the ways that my arguments might be engaged by the policymaking community and the general public.

Some Stillborn Ruminations on Procedural Justice in a Pluralistic Society

Anyone who pays attention to this blog (that is to say, probably none of you) will be aware that I've been having some trouble thinking about the legitimacy of enforcing justice in light of reasonable pluralism. The problem is basically this: Even if we ignore existing disagreement about the precisely correct principles of justice (which could conceivably be the product of such principles' nonexistence), I take it that there is no objectively legitimate procedure for enforcing justice such that no one could reasonably disagree with the legitimacy of having those procedures imposed upon them. (Rothbard disagreed on page 208 of Egalitarianism as a Revolt Against Nature, but since he didn't actually offer an argument...whatever.)

In his essay, "Liberal Neutrality: A Compelling and Radical Principle," Gerald Gaus suggests that legitimizing coercion requires impartial justificatory reasons -- reasons that it would be unreasonable not to accept as justifying the act in question. I agree. But if there is reasonable pluralism about procedural justice, then it's conceivable that the mere descriptive features of a set of procedures would fail to serve as impartial justification for the imposition of those procedures on someone. That is, if I hadn't personally agreed to abide by a certain set of procedures, and I didn't accept the legitimacy of those procedures (and I were being reasonable about my disagreement), then how could others justify imposing those procedures on me? In the absence of reasonable pluralism, this problem could be avoided by designing a procedure with the "correct" features, which would impartially justify imposing the procedure on people. But if people can reasonably disagree about what would be procedurally legitimate, then it might be impossible to design a system that could be impartially imposed on people.

This leads to an obvious problem. In order to have a functioning society, it seems important that there be a way to legitimately enforce justice by imposing impartial procedures on people who do things like commit crimes or destroy other people's property. As even anarcho-capitalist thinkers allow, purely voluntary settlement of disputes will not always be up to the task of ensuring that justice is served. For example, in For A New Liberty: The Libertarian Manifesto, Murray Rothbard writes:

Even if purely voluntary arbitration is sufficient for commercial disputes...what of frankly criminal activities: the mugger, the rapist, the bank robber? In these cases, it must be admitted that ostracism would probably not be sufficient--even though it would also include, we must remember, refusal of private street owners to allow such criminals in their areas. For the criminal cases, then, courts and legal enforcement become necessary.

Rothbard's understanding of libertarian ethics is not one that I share, but the points at which I depart from Rothbard in practice are typically places where Rothbard is dogmatically opposed to using force, even when I don't think it would be disrespectful of the user of force to do so (in theory, we disagree more fundamentally, but often arrive at the same conclusions). Accordingly, if Rothbard can find a plausible solution to this problem within his more rigid ethical paradigm, it will likely satisfy my requirements as well. So what does he say?

Rothbard envisions that in a society without a centrally imposed set of procedures, individuals would ostensibly maintain a membership with a court organization to help them to settle their disputes. In the event that criminal charges were brought against an individual, the court of the plaintiff party could hold a trial, and if the defendant were found guilty, she would have the opportunity to go to her own court and ask for a second opinion. If her own voluntarily selected procedure resulted in a proclamation of innocence, the two court services could seek a third opinion from an "appeals" court. Rothbard immediately acknowledges the infinite regression he's building, and points out:

But suppose Brown [the defendant] insists on another appeals judge, and yet another? Couldn't he escape judgment by appealing ad infinitum? Obviously, in any society legal proceedings cannot continue indefinitely; there must be some cutoff point.

So basically, Rothbard's answer is, "Well yea, but don't be ridiculous." And to a point, I accept that reply, but it doesn't actually address the question we're posing here. However, even though Rothbard doesn't really solve the problem with which we're grappling, he does provide an important insight: someone who's being accused of a crime needs to have in mind some procedure for establishing his innocence; to simply refuse to participate in the justice system would be unreasonable. That Rothbard takes this for granted is telling.

But to be honest, I was going to make a point about this that I'm no longer comfortable with. So I guess I'll just leave this as it is for now, and maybe come back to the issue later once I've had time to think about it some more.

Batman and the Social Administration of Risky Enforcement Procedures

So I saw the latest Batman movie over the summer, and immediately wanted to write this post; I wrote a note to myself, and never got around to it. But I really, really wanted to make this point, so here it is (several months too late to be relevant).

In the movie, Batman uses surveillance technology to spy on a whole bunch of people in order to save the city of Gotham from certain doom. The interesting thing that happened when I watched the movie was that at first, I recoiled at the suggestion that Batman would be justified in spying on these people, but as soon as I did, I immediately felt like I was being unreasonable. As far as Batman knew, his actions could save a lot of lives, and since he was the one doing the surveillance, he knew that he was going to be acting as uprightly as possible. He could end up being wrong, and that would make his invasions of others' privacy extremely regrettable. But I think that most of us would do the same thing if we found ourselves in Batman's situation, and would not think ourselves evil for doing so. And I really had trouble thinking that Batman was evil while I was watching the movie.

So there I was, a staunch opponent of government programs which engage in precisely the sort of surveillance that Batman was engaging in, and for precisely the same sort of reasons, yet feeling like Batman's actions were not illegitimate. What gives?

Immediately, I took comfort in the idea that the sorts of government programs that I'm accustomed to opposing have nowhere near the sort of evidential grounding that Batman's actions did. Batman wasn't trying to stop "criminals posing a danger to America/Americans any time they should decide to pose a threat." He was trying to stop a very specific criminal in a reasonably specific place at a reasonably specific time. But because I was still uneasy about a government with a mandate for surveillance on its citizens' private affairs, this didn't quite satisfy me.

So here's what I decided: Batman was justified in what he did, but he could not claim the kind of moral authority on behalf of his actions which seems implicit in government action. Of course,

It seems difficult to say that Batman was clearly wrong to do what was necessary, given the importance of his mission. But it seems important that it be Batman who do something like that, and not someone who was explicitly entrusted with acting as the agent of justice. The idea here, then, is that someone believing that Batman was acting wrongly would be justified in trying to stop him, whereas standing in the way of the police or security forces is in some sense only legitimate when they are acting outside of their social roles as enforcers of justice. I suppose that people might object to the idea that there can even be people who are The social enforcers of justice, but whatever. If that's the thing that gets people up in arms about this post, then so be it. I think I'm as happy with this as I'm going to be.

Law and the Knowledge Problem, a First Glance

Update at the bottom of the post

Here's an interesting quote from Hayek's essay, "The Results of Human Action but not of Human Design," from his book, Studies in Philosophy, Politics and Economics:

"...the natural law concept against which modern jurisprudence reacted was the perverted rationalist conception which interpreted the law of nature as the deductive constructions of 'natural reason' rather than as the undesigned outcome of a process of growth in which the test of what is justice was not anybody's arbitrary will but compatibility with a whole system of inherited but partly inarticulated rules" (101).

This does seem like a relatively accurate positive assessment of how law has evolved over time. But it does beg the question, then, of whether or not a centralized attempt to administer justice, which would rely on some understanding of what people will accept as just, would be akin to trying to plan an economy. The idea, in other words, is that if our recognition of justice relies on a partly inarticulated set of internalized rules, and those rules change over time and are sometimes contradictory, then the acceptability of any legal judgment will be in some some sense bound to the circumstances in which that attribution was made, and will necessarily fail to reflect the unanimous will of the people. If that's true, then it would seem almost impossible to determine what would be the proper standard of justice within a society at any given time, and so would be impossible to administer justice "properly" in much the same way as it's impossible to allocate resources "properly" through a centralized method of planning.

To make my case, I'll draw on a number of different quotes which I think paint a better picture of the issue than I might be able to do myself (especially given the "reason as I go" approach that generally characterizes these posts). First, from the beginning of David Schmidtz's book, Elements of Justice:

"I have become a pluralist, but there are many pluralisms. I focus not on concentric "spheres" of local, national, and international justice nor on how different cultures foster different intuitions, but on the variety of contexts we experience every day, calling in turn for principles of desert, reciprocity, equality, and need. I try to some extent to knit these four elements together, showing how they make room for each other and define each other's limits, but not at the cost of twisting them to make them appear to fit together better than they really do. Would a more elegant theory reduce the multiplicity of elements to one?" (4).

I jump over to the beginning of Rawls' Justice as Fairness: A Restatement:

"...I believe that a democratic society is not and cannot be a community, where by a community I mean a body of persons united in affirming the same comprehensive, or partly comprehensive doctrine. The fact of reasonable pluralism which characterizes a society with free institutions makes this impossible. This is the fact of profound and irreconcilable differences in citizens' reasonable comprehensive religious and philosophical conceptions of the world, and in their views of the moral and aesthetic values to be sought in human life" (3).

And with that, I jump back to Schmidtz, a few pages later:

"In effect, there are two ways to agree: We agree on what is correct, or on who has jurisdiction - who gets to decide. Freedom of religion took the latter form; we learned to be liberals in matters of religion, reaching consensus not on what to believe but on who gets to decide. So too with freedom of speech. Isn't it odd that our greatest successes in learning how to live together stem from agreeing on what is correct but from agreeing to let people decide for themselves?" (6).

And back to Hayek, this time in his essay, "The Use of Knowledge in Society":

"The peculiar character of the problem of a rational economic order is determined precisely by the fact that the knowledge of the circumstances of which we must make use never exists in concentrated or integrated form, but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess" (519).

He continues:

"In ordinary language we describe by the word "planning the complex of interrelated decisions about the allocation of our available resources. All economic activity is in this sense planning; and in any society in which many people collaborate, this planning, whoever does it, will in some measure have to be based on knowledge which, in the first instance, is not given to the planner but to somebody else, which somehow will have to be conveyed to the planner. The various ways in which the knowledge on which people base their plans is communicated to them is the crucial problem for any theory explaining the economic process. And the problem of what is the best way of utilizing knowledge initially dispersed among all the people is at least one of the main problems of economic policy--or of designing an efficient economic system" (520).

And more:

"Today it is almost heresy to suggest that scientific knowledge is not the sum of all knowledge. But a little reflection will show that there is beyond question a body of very important but unorganized knowledge which cannot possibly be called scientific in the sense of knowledge of general rules: the knowledge of particular circumstances of time and place" (521).

Just like how attributions of justice are contingent on a set of partly inarticulated rules, economic actors make their decisions according to their personal interpretations of circumstances, in light of their own value systems. And as they are inarticulated and often contradictory, they cannot be aggregated to form a "social" standard. Hayek writes:

"...the sort of knowledge with which I have been concerned is knowledge of the kind which by its nature cannot enter into statistics and therefore cannot be conveyed to any central authority in statistical form" (524).

So we've sort of gotten to the point I'm trying to make. Basically, if society's acceptance of certain things as just is, as Hayek says, based on compatibility with an internalized, partly inarticulated set of rules, and if these sets of rules are subject to reasonable pluralism and continuous flux, then it's as impossible to get law perfectly right through central planning as it is to get an economy perfectly right through central planning. But then the question becomes, so what? In looking at the economy, Hayek writes:

"We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders. We must solve it by some form of decentralization" (524).

But is this the right answer for law? That's something I'll have to leave for another day.

Update:

Hahahahahahahaha! So this post was written in a sort of "Ah hah!" moment while reading Hayek's "The Results of Human Action but not of Human Design," causing me to jump up from the book and hammer out the above. Turns out that if I had kept reading, I would have discovered Hayek making a nearly identical point in the essay itself. So I'd almost say to forget about this post and go pick up the book.

Protecting Others' Rights

So here's the basic idea: It seems like there's a difference between coming to someone's aid when they're asking you to, and coming to someone's aid when you determine on your own that they're being treated wrongly. This difference, I think, is extremely important, and might open the door to an understanding of the libertarian position which would allow for a reconciliation with a lot of historically un-libertarian views. Here's what's up:

I take it that the backbone of any brand of libertarianism is a right to self-determination, such that individuals are entitled to non-interference in the absence of morally significant justification for doing so. But it's immediately clear that this exposition of the fundamental libertarian principle leaves its two core components somewhat indeterminate: it's unclear what constitutes a "morally significant" justification for interfering, and also what is meant by the "entitlement".

To illustrate how the distinction is supposed to work, without solving the problem posed by this indeterminacy: I think that most libertarians would want to recognize something like a "right to self-defense," which seems like it would be derivative from the right to self-determination. That is, it's because I have the right to self-determination that I have some right to self-defense. I am entitled to self-determination, so if others act to infringe upon that right, I am entitled to use some degree of force to stop them.

But notice that my doing this infringes upon the aggressor's right to self-determination. My use of force upon this individual would normally be unacceptable; they do have the right to self-determination. In this instance, however, they are in the process of infringing my right to self-determination. I take it, then, that this constitutes a morally significant justification for infringing their right. So it is acceptable for me to do so.

Now, here's why I like to think about it in this way: If someone wanted to object to my use of force -- to my infringement of the aggressor's right to self-determination in self-defense -- they would want to say something like "You used too much force" or "Two wrongs don't make a right." The former objection, I think, can be very informatively understood as contending that the degree to which I infringed the aggressor's rights was not justified by the circumstances under which I did so. And the latter can be understood as contending that "The fact that the aggressor was infringing your right to self-determination does not constitute a morally significant reason for using force in the way that you did." So the point is, even though I might disagree, the objections would still be stated in terms of the overarching framework for understanding rights, and we would be able to isolate the actual source of the disagreement.

Okay, so hopefully that makes sense. On, then, to the core of the discussion. Many libertarians accept the idea that if it would be permissible for me to use force against you in response to your infringing upon my rights, then it would be permissible for me to ask someone else to use that same force against you on my behalf, and for them to infringe upon your rights. It is on this basis, they argue, that we can justify things like security guards or coming to the rescue of someone who's being robbed, attacked, or raped.

I see no compelling reason to object to this doctrine, except the possibility that the person being defended might potentially not be justified in defending herself in certain situations, and a third party might not be able to know whether this were the case, and so would face a degree of uncertainty in intervening. But imagine that a businessman hires a delivery person to pick up a package from the garage at someone's home. The delivery person arrives at the house, which is empty, and sees the package sitting in the garage. She picks up the package and takes it to the businessman. Now imagine that it turns out that the package did not actually belong to the businessman, and what the delivery person has done is to steal the package on behalf of the businessman. It seems to me that the delivery person is completely innocent here, and that any accusation of wrongdoing should be aimed at the businessman. So too, then, it seems like the person who intervenes on behalf of a victim who is asking for help is guilty of no wrongdoing, even if victim were not actually in possession of the right to defend himself. The principle, then, would be that the person who transfers the justification which does not belong to him is the one who acts wrongly, and not the person who acts on the justification which they believe they have.
So, then, we can dismiss the one objection I can think of to the idea that others should be able to act as our agents in infringing the rights of others in order to protect ourselves. Shifting to the perspective of the third party, we can say that individuals are justified in intervening to protect entitlements at the request of an apparent victim, even though we must inherently face some uncertainty about whether or not the alleged victim actually has the entitlement we believe them to have (of course, standards of negligence would have to apply here).

As I have discussed in a past essay, Paul Taylor discusses two ways to conceive of rights and entitlements:

According to Taylor’s first account, there are several necessary components of rights...First, Taylor argues that to have a right, it must be possible for us to conceive of the rights-holder asserting the moral legitimacy of the claim represented by a right...Second, he claims that we must be able to conceive of the holder of a right being able to think of herself as being inherently worthy of that right...Third, Taylor contends that we must be able to conceive of a rights-holder as being able to choose whether or not to exercise his right...Finally, Taylor explains that having a right involves an entitlement to “…register complaints, demand redress, or call for legal enforcement of their rights…” whenever they are violated.

However:

Where the first view understood duties possessed by others as the corollary of rights recognized and asserted by the rights-holder, Taylor’s alternative conception of rights holds them to amount to recognitions of duties towards others which result from taking proper account of their inherent worth.

To be clear, Taylor was talking about whether or not plants and non-human animals could have rights. But it seems clear to me that the sort of example we've been working with so far, where a victim asks a third party for help, conforms very much with the first way of understanding rights. The victim perceives a rights violation, registers a complaint, and demands intervention to rectify the violation of his entitlement.

However, it should be readily apparent that there are situations in which individuals perceive a justification in intervening in situations which do not fit this form. For a first example, if you saw someone being beaten, and they were unconscious, it seems reasonable to think that you would be justified in intervening. For a second example, if you saw a child being groped in a sexual manner by a much older individual, it seems like most people would think that intervention would be acceptable. For a third example, if you saw a severely insane individual being beaten or sexually groped by a member of his institution's staff, many people would feel that intervention would be legitimate. The account of why you would be justified in intervening in each of these situations is of critical importance for understanding how intervention should work.

There are two kinds of explanations that come immediately to mind here. The first explanation, which is still in line with Taylor's first account of rights, is that the alleged victim, in the absence of "transactions costs," would ask you to intervene on their behalf, and that in situations where you can be almost certain that this is the case, you can legitimately go ahead and intervene even without being asked. But the second explanation, which falls more in line with Taylor's second account of rights, is that the person whose actions the intervention is meant to interfere with is acting improperly or unjustly, and can legitimately be stopped.

It seems to me that the aforementioned examples grow increasingly difficult to interpret through the lens of the first explanation, the the point where the third example is almost impossible to think about in that way (as is discussed in the previously mentioned essay). The first example, where the alleged victim is being beaten while unconscious, seems like a simple enough case where transaction costs are relatively uncontroversially preventing the victim from asking for help, and if the victim were physically able to, it's pretty reasonable to assume that he would ask for help.

In the second example, where the child was being sexually abused, this might be less clear; a child might not understand that she is being sexually abused by an adult, and may not understand until much later why she should have registered a complaint and requested protection. But still, one might argue that if the child were made to understand the true nature of the situation at hand (which may or may not actually be possible), she would almost certainly ask for help, and so it would be justifiable to intervene.

In the third example, however, we run into serious problems. As I wrote in the previously mentioned essay:

Some insane and severely mentally handicapped individuals are certainly unable to conceive of “legitimacy,” to see themselves as being inherently worthy of respect, to choose whether to exercise or waive a right, to complain about violations of their rights, to demand restitution, and to call for the enforcement of their rights. Accordingly, Taylor’s first view would deny that we can possibly conceive of these individuals as having rights.

But nevertheless it seems clear that we would often think ourselves justified in using coercion to protect these individuals. And it does seem that the kind of situation in which we would feel justified in doing this lines up quite well with Taylor’s second conception of rights. That is, we coercively intervene to protect the insane and the severely mentally handicapped when we feel that they are being treated by others in a manner which fails to take proper account of their inherent worth. If we feel that this practice is based on a manner in which those individuals are entitled to be treated, then it seems to follow that we recognize them as having rights, in spite of all of the objections that Taylor’s first account has to offer, and that these rights are of the kind suggested by Taylor’s second account.

If I am right about this, then it seems like what we are suggesting is that in some instances where an alleged victim would not ask us to intervene on their behalf, we would nevertheless be justified in intervening. We cannot think of this sort of thing as a voluntary transfer of justification for using force from a victim to a third party intervenor, or even a potential voluntary transfer: I take it to be uncontroversial that where we cannot conceive of some "victim" transferring some right, we cannot base a view on the potential transfer of that right by the victim. It seems, then, that we are basing our justification on the second kind of explanation: we intervene because what the "aggressor" is doing is wrong, and it would not be unacceptable to put a stop to it.

If we accept this, however, then we arrive at the conclusion that we are justifying the use of force not only to enforce that to which individuals are entitled, but also to enforce others' duty to respect things with inherent worth. And if this is the case, then an entirely new range of potentially legitimate uses for force seems to open up which would be prohibited by a simple Non-Aggression Principle (unless one takes the rather implausible view that the only things that have inherent worth are individuals' rights). For example, it would open libertarian philosophy up to the idea that environmental ethical or utilitarian concerns might play a role in justifying the use of force. But I'll have to address that another time. For now, I think I need some time to digest all of this.

The Responsibility Principle vs. Breach of Duty

So I stumbled upon a really jarring debate today. I'm sort of puzzled that I haven't already heard of this issue, and am suspicious that someone might just be able to explain to me why there isn't any problem, and I'm just confused. But in any case, here's the issue.

It seems that in our current legal system, in order to establish that someone owes you damages to compensate you for a tort, you need to show that they have breached a duty that they owed to you. If it is determined that they did nothing wrong in harming you, then the idea is that they don't owe you anything.

But on the other hand, there's this, care of Joel Feinberg:

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. During this period you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing all these things, and yet you have infringed the clear rights of another person.

I agree that the hiker is justified in his actions. But as Judith Thomson points out, it seems true that in this case, the hiker would also be obligated to compensate the owner of the cabin for the damage. This is in line with a principle central to the doctrine of Strict Liability, called the Responsibility Principle. Talbot Paige phrased the principle like this: "When A's actions impose costs on B, A should be made responsible, by paying those costs." It sort of does seem like this is why the hiker should have to compensate the cabin owner. Even though the hiker didn't do anything wrong, he still imposed a cost on the cabin owner, and he should have to pay that cost.

So it seems like I'm rejecting the "duty of care" standard. But on the other hand, I feel like there are some situations in which Strict Liability is, well, too strict. It seems to me that the concept of negligence (as distinct from something like "mere harming") is not completely without value: I find it an attractive notion that in situations where a person does nothing wrong, they should not be subject to the coercive pressure of others (through being held to account for something by a court--here I obviously don't mean "coercive" to imply that there's anything objectionable about holding people accountable through courts).

I definitely need to think about this some more; any thoughts or suggestions would be very much appreciated!

Preemptive Compensation

One question I've been thinking about recently is the idea of preemptive compensation; that is, compensation paid in advance of a particular damaging event actually happening. I wanted to broach the subject here, as a starting point for future discussion. I'll start by sketching why the idea of preemptive compensation is important at all.

Let's say that Betsy launches a rocket into space, and calculates that it will eventually return to the Earth and land on Murray's house, but that this will take 10 years. Betsy acknowledges that when the rocket returns to Earth, it will damage Murray's house, and she should be held accountable for that damage. But sadly, Betsy is quite old, and doesn't expect to live anywhere near long enough to see the impact.

Murray considers the situation in which he finds himself, and sees a problem looming. He anticipates that Betsy will spend all of her savings by the time she dies (Betsy is willing to acknowledge that this is likely to be the case), and if he waits until the rocket lands on his house, there will be no way to do anything about it. Betsy won't be around anymore, and there will be no estate from which he can demand compensation.

It seems to me that Murray would be right to demand that he be guaranteed compensation for the future damage which will be dealt to him. To require that Murray wait until the damage eventuates would be to deny him compensation entirely. And given that we already know what will happen to Murray, and we agree that Betsy ought to be held accountable for what happens to him, it seems unfair that we should deny Murray restitution for the damage that he will surely be dealt.

One way to approach this would be to say that Murray should only be entitled to compensation when the harm eventuates, and so Betsy is only responsible for ensuring that when the rocket lands on his house, proper arrangements have been made to compensate Murray. So, for example, if there will be $50,000 of damages that Murray can legitimately claim (including the damage to his house, as well as any compensation for the inconvenience), Betsy only needs to ensure that when the rocket lands, there is $50,000 available to compensate him. Betsy wouldn't have to pay Murray the $50,000 immediately, but would only have to guarantee that it would be given to him when the rocket landed. Because it might be difficult to administer such a rule, it might be fair for the courts to require that Betsy pay Murray the present value of the damage in the future, or to require that Betsy secure a no-risk, interest-bearing investment on Murray's behalf which would pay the $50,000 at the appropriate time. This would ensure that Murray was compensated, but also that Betsy was not deprived of more than we might think she ought to be.

But in reaching this conclusion, we have not mentioned what is undoubtedly the most important consideration in this problem, which is uncertainty. We have spoken as if we knew exactly what would happen to Murray 10 years after Betsy launched the rocket, when it landed on his house and damaged it. It's quite probable that in any case like this one, we won't actually know what will happen to Murray's house. Perhaps there is a range of levels of damage we can conceive of as being possible scenarios for when Betsy's rocket hits Murray's house. What then?

One possible way to approach this problem would be to gather more information. But it might not be possible to collect the necessary information before it's too late. As Murray is unable to wait to see what the damage actually is, it could be that he has no real choice but to go to court with considerable uncertainty over the consequences of Betsy's action. Perhaps he can demonstrate that the actual damage will, with a high level of confidence, be within the range of $40,000-60,000, with a "best guess" of $50,000. What should Betsy be held accountable for?

One answer would be to say that since Murray can't prove the precise nature of Betsy's offense, that he fails to meet the burden of proof which would be required to hold Betsy responsible at all. But this seems clearly wrong. We agree that Betsy's actions will cause damage to Murray, and we agree that we won't know the precise nature of the damage until it's too late. It seems patently unfair to completely deny Murray's case on the basis of him lacking knowledge of the exact amount of the damage.

Another route would be to come down on Murray's side, and to say that he should be entitled to the maximum amount of damage that could reasonably be expected. The reasoning behind this would be that Betsy is the one who's at fault here; if there's any uncertainty, the burden should fall on her. After all, she's the one who launched the rocket, not Murray; it would be a real shame if the rocket landed and ended up doing more damage than Murray had been compensated for, especially if we knew that there was a reasonable chance that things would turn out the way they did.

I can definitely see why someone would want to argue this way, and I don't think that they'd be wrong to do so. But I could also see why someone would object to this treatment. One could point to that fact that libertarians have generally taken the position that it's somehow worse to let an existing damage go unrepaired than to punish an innocent person for something for which they are not responsible. As Murray Rothbard wrote in his essay, "Law, Property Rights, and Air Pollution," when "...it is unclear whether an individual is committing aggression...the only procedure consonant with libertarian principle is to do nothing; to lean over backwards to ensure that the judicial agency is not coercing an innocent man." But of course, in our example, Betsy is not innocent. In fact, that's the entire intuition behind making her bear the burden of the potential harm.

But the fact remains that if the rocket struck and did less damage than the maximum amount that could have been reasonable expected, then it would mean that Betsy would have been punished for a degree of damage which she did not cause. And because we're talking about the largest reasonably expectable damage, it's extremely likely that this sort of overpunishment will happen under this policy. So for people who believe that we should be protected from being punished more than we deserve, the policy in question here would be extremely troublesome.

Accordingly, we might place the burden of uncertainty on Murray, and say that he is entitled to compensation for the lowest amount of damage that could reasonably be expected. The argument here would be that the burden of proof is on the victim to show that someone harmed them, and the mere possibility of greater damage doesn't satisfy this burden of proof. The lowest amount of damage that could reasonably be expected would constitute the sort of thing that could be looked at as "proven" in court, but moving beyond that would seem to indict Betsy on "the possibility" that she is guilty.

It should be noted that the same sort of problem that confronted the last policy applies to this one, except in reverse: In all likelihood, Murray will be compensated for less damage than he will actually incur. This might make people uncomfortable, for the simple fact that Murray's the victim here. It could seem like we're going out of our way to protect the person who did something wrong, and chose to do it, very likely at the expense of the person who did nothing wrong, and in fact did nothing at all. So this policy is somewhat questionable as well.

A final approach would be to hold Betsy liable for the amount of damage representing the scenario where the chances of more damage eventuating are the same as the chances of less damage eventuating. The core virtue of this policy is obvious: it represents a compromise, placing an equal portion of the burden of the uncertainty on both parties. But of course, in the eyes of many, this virtue will also be its main weakness: by placing half of the burden on Murray, it ensures a good chance that he will be undercompensated, and by placing half on Betsy, it ensures a good chance that she will be overcharged.

It seems to me that this discussion highlights a very simple point: what will appeal to you as the correct way to deal with uncertainty will depend on your views regarding the purpose of the burden of proof. If the spirit of the burden of proof is to ensure that innocent individuals are protected, then you will likely feel that the victim -- who is the only innocent party -- should bear less of the burden of uncertainty. On the other hand, if you view the burden of proof as protecting individuals from having to pay for damage that they have not been proven to have caused, then you will likely come down on the side of placing the burden on the victim. I will not take a stance on this issue here, since I honestly don't know what to think.

Before calling it quits on this subject, I want to touch on one more potential problem for Murray's case against Betsy. Namely, Murray might not be able to prove that Betsy's rocket will hit his house at all. It seems to me that uncertainty of this sort is very different from the kind of uncertainty discussed above. It is uncertainty regarding whether or not the harmful event will occur at all, rather than uncertainty regarding how severe the damage caused by the harmful event will be. On this issue, I think our current system has the tools to tell us what should be done. That is, our normal ideas regarding the burden of proof seem more or less adequate for dealing with cases like Murray's. Perhaps we might want to allow for a slightly more relaxed standard, given that our current standard might create a systemic bias towards placing burdens on victims, but that seems like something that can be discussed without breaking new ground.

So I guess I haven't really reached any firm conclusions about preemptive compensation in this post, but I think that as far as providing a starting point for discussion, I'm happy with this. It seems like the next step needs to be a discussion of what the proper role of the burden of proof ought to be. But I think I'll stop for now and deal with that later.

Is It Justifiable to Use Punishment as a Deterrent?

I don't mean to suggest that there is no justification for punishing people beyond forcing them to compensate the victims of their actions. It does seem like it might be fair to impose a penalty on someone for violating the rights of others. But it occurs to me that using punishment as a way to deter future rights violators is very obviously a way of using someone as a means to an end. Accordingly, it seems like a just society would not allow punishment of that sort.

One might wonder why I would make a big deal out of this, given that I've admitted that there could be other justifications for punishing people. What I have in mind is Nozick's idea that we apply certain labels to the reasons for particular arrangements, and that we might drop the labels if presented with alternative reasons. So if the only reason we could possibly come up with for punishing someone in a certain instance were that doing so might deter future people from repeating her offense, then I would contend that such a punishment would be unfair, because it would sacrifice her in order to achieve our ends.

It seems that I should make a distinction between established penalties and ad hoc punishments, though I'm not sure that this distinction is exactly the one which is making me feel unsure of myself. What I'm thinking is this: it would be perfectly fair to say that "Anyone who breaks this rule will be punished significantly on top of being forced to compensate any victims." Such a rule would clearly be a deterrent, and it would be using punishment as a way to deter people. But it doesn't seem disrespectful.

The sort of deterrent I'm calling illegitimate is where someone is being made an example of, in spite of the fact that she clearly doesn't deserve the punishment she's getting. Could there possibly be any reason that would justify this sort of punishment without being subject to the objection I've raised?

I can think of one response to what I've said here, which is that by violating the rights of others, a person forfeits a claim to respect. A good example of this comes from Locke: "In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity...and so he becomes dangerous to mankind, the tye, which is to secure them from injury, being slighted and broken by him. Which being a trespass against the whole species, and the peace and safety of it, provided for by the law of nature, every man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one, who hath transgressed that law, as may make him repent the doing of it, and thereby deter him, and by his example others, from doing the like mischief" (Section 9).

Locke's claim seems to contain a bunch of different points. The first is clearly that by violating the rights of others, a person forfeits the right not to be harmed. I don't object to that. The second is that people have the right to punish the offender, because they have the right to preserve mankind. I'm not sure I agree with this line of reasoning, because it seems to want to use the offender in order to achieve social ends, which makes me uncomfortable. To be clear, I'm not disagreeing with the claim that we have the right to punish an offender; I'm only unsure whether I think that the source of this right is our right to do what is necessary to preserve mankind. But my disagreements do not impact the validity of conclusion of the second point, we can safely move on.

The third point is that we have the right to punish an offender to the point of making him repent what he has. I think this is right, though again I'm not sure I agree with how Locke got there. But the movement from the third point from the fourth point is what really interests me. The fourth point is that others will be deterred by the repentance of the offender. I like this way of thinking about it a lot.

So taking this into account, it seems like we could say that we are justified in punishing an offender beyond what's necessary for compensating the victim to the point of causing the offender to be repentant for his transgression. And because of this, we would be able to deter others from committing the same act in the future, because others would see that they would be punished to the point of repentance as well if they offended. But it seems like we could simultaneously say that we would not be justified in punishing someone far beyond the point of repentance in order to even further deter others. I think I'm pretty happy with that.