Tuesday, August 19, 2008

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.

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.

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