Holes in natural rights

From a prior entry below, an offshoot discussion about holes in natural rights theory has become very interesting. It centers on a passage from David Friedman's book The Machinery of Freedom about a hypothetical situation involving a madman firing into a crowd, with the only way to save the lives of those in the crowd being to violate the property rights of an unwilling gun-owner. Various Catallarchy commenters have taken different positions in this discussion. The passage from the book follows, with David Friedman's own response (from this prior entry) to defenders of natural rights below that. - J.W.

I could continue with a wide range of other problems for which the natural rights approach to libertarianism offers, so far as I can tell, no solution. I would prefer instead to suggest a different criticism of that approach. Even if we ignore situations that involve vanishingly small rights violations, the usual statements of libertarian principle imply conclusions that almost nobody, libertarian or otherwise, believes in.

Consider the following example. A madman is about to open fire on a crowd; if he does so numerous innocent people will die. The only way to prevent him is to shoot him with a rifle that is within reach of several members of the crowd. The rifle is on the private property of its legitimate owner. He is a well known misanthrope who has publicly stated on numerous occasions that he is opposed to letting anyone use his rifle without his permission, even if it would save hundreds of lives.

Two questions now arise. The first is whether members of the crowd have a right to take the rifle and use it to shoot the madman. The answer of libertarian rights theory, as I understand it, is no. The owner of the rifle is not responsible for the existence of the madman, and the fact that his rifle is, temporarily, of enormous value to other people does not give them a right to take it.

The second question is whether it is desirable that someone take the rifle and use it to shoot the madman--whether, to put it more personally, I wish that someone do so, or whether I would rather see the members of the crowd stand there and be shot down. The answer to this question seems equally unambiguous. If someone takes the rifle, there is a relatively minor violation of the legitimate rights of its owner; if no one does, there is a major violation of the legitimate rights (not to be killed) of a large number of victims--plus a substantial cost in human life and human pain. If asked which of these outcomes I would prefer to see, the answer is obviously the first.

Two questions for those who believe my tale of the madman and the rifle poses no problem.

1. Do you believe in the principle of eminent domain? In theory, under eminent domain, the government takes property and compensates the owner. That is what various people propose to do with the rifle in my example.

2. Suppose the owner of the rifle sees you reaching for it in order to kill the madman and shoots you dead--with another rifle. Further suppose he had no other way of stopping you. Has he done anything wrong? After all, he was only defending his own property, acting against someone attempting to violate his rights.

Alternatively, suppose you see him aiming at you and you shoot first, that being the only way of saving your life. Do you now deserve whatever punishment is appropriate for a murderer? After all, if he was acting properly in stopping a rights violation, surely you have no right to stop him.

Share this

Two questions for those who

Two questions for those who believe my tale of the madman and the rifle poses no problem.

I guess I'm one of them, but the question to me is not whether it is a problem (it is), but rather is it possible to solve it by rights theory alone. I think it is possible, but common theories of natural rights need work to get there.

1. Do you believe in the principle of eminent domain?

Not as presently practiced. (How's that for weaseling?) Intuitionally, I think there may be a valid ordering of rights. Thus a right to property (such as the gun) can be superseded by the right to life (the potential victims). The way eminent domain is practiced we have the forcible exchange of property rights. I should not use the man's rifle to prevent the theft of my stereo. Determining the ordering of rights becomes a utilitarian/economic excercise, thus my original argument that utility and rights go together. I do not think that rights theory is fully developed, and I have no problem using utilitarian arguments as a tool to assist in finding better rights theories.

I am afraid I'll have to stew over the second question for some time, I don't see an obvious solution by rights or utility.

Somewhat related to David

Somewhat related to David Friedman's question on eminent domain is the problem of private road ownership. Suppose I purchase a network of roads surrounding your house and refuse to allow you to leave; unless, of course, you agree to pay some outrageous, extortionary fee (say: all of your worldly possessions). Do we not run into a similar problem as with the rifle case? Would not most libertarians support you in your endeavor to leave your house?

As for the second question, I think we have good common law methods for dealing with this. One may not kill an intruder when it is clear that all the intruder is interested in is property. Only when a person legitimately fears for his life and safety may he use lethal force.

Further, an intruder may not respond with lethal force in self-defense, as far as I know.

By the way, for those who believe Friedman's hypothetical case is outlandish, it may be useful to note that an almost identical situation occurred a few years ago during a bank robbery. The bank robbers had superior firepower (automatic weapons, full body armor, etc.), while the police were trying to stop them with pea shooters. So what did the police do? They broke into a local gun shop and "borrowed" a few high-powered rifles, shotguns, and ammunition.

Now one can easily respond that the gun shop owner would probably have allowed this to take place provided he was fully informed of the circumstances. But we can just as easily imagine a gun shop owned by an anti-social militia member who hates the police and wouldn't lift a finger to help them.

1. Do you believe in the

1. Do you believe in the principle of eminent domain? In theory, under eminent domain, the government takes property and compensates the owner. That is what various people propose to do with the rifle in my example.

I don't believe in eminent domain. A free exchange occurs because each party values what the other has more than what he owns. When property is taken coercively by the government, it is not a free exchange. To claim that the property owner is 'justly' compensated by the market price for his property badly misses the point that he values his property more than the market price. Otherwise, he himself could sell his property at the market price.

However, off the top of my head, suppose that the standard for restitution was that the victim in either scenario (gun-grabbing and eminent domain) is compensated to the point where he is marginally glad that the rights violation actually occurred, after the fact. In other words, you grab the gun, the gun owner is angry at his rights violation, then you pay him enough that he is actually kinda glad the chain of events happened. That could be one way of dealing with the situation, i.e., approximating a voluntary exchange that would not happen in the 'heat of battle'. If we could freeze time when the scenario begins and have the gun-owner and gun-grabber bargain, there might be a mutually agreeable price, even if it is a very high price, that could be reached for exchange of the gun. Since we don't have the power to freeze time, we do our best with our imperfect judgments during the chaos, and try to approximate a free exchange after the fact when there is time for deliberation and debate.

I realize this can't solve the hypothetical in which he would adamantly refuse to give up the gun at any price no matter how high.

2. Suppose the owner of the rifle sees you reaching for it in order to kill the madman and shoots you dead--with another rifle. Further suppose he had no other way of stopping you. Has he done anything wrong? After all, he was only defending his own property, acting against someone attempting to violate his rights.

I don't think he has done anything wrong, other than perhaps respond "out of proportion" since his life was not at risk, only his gun was. He is defending his property.

Alternatively, suppose you see him aiming at you and you shoot first, that being the only way of saving your life. Do you now deserve whatever punishment is appropriate for a murderer? After all, if he was acting properly in stopping a rights violation, surely you have no right to stop him.

It depends on "who started it". If I was threatening to violate his rights, and he tried to defend himself by shooting me, but I shot him first, I am still guilty since I initiated the fight between us.

Friedman's test case is an

Friedman's test case is an example of a "lifeboat ethics" problem. While interesting and important, it does not vitiate the principles of natural rights within their proper domain of applicability.

Ralph Waldo Emerson was on the mark when he wrote that "If you make the criminal code sanguinary, juries will fail to convict. If the law is too mild, private vengeance comes in." Overextension of a principle such as natural individual rights, forcing it into a realm where it cannot be applied without producing horror and ruin, is handled by the natural moral understanding of the mass of men. Much leftist proselytizing has been aimed at deadening that innate moral sense.

See also this.

I look at life as a

I look at life as a complicated multi-player board game (like an N-dimensional chess game) where there are many different strategies to win - with no strategy clearly sufficient to guarantee victory in all situations. Cooperation and civility is profitable (a good strategy). Preaching property rights is also a good strategy. Utilitarianism is appealing since it attempts to measure the relative merits of each "move", and hence "guide" others to work together to make the "right moves".

No strategy guarantees a good outcome all of the time, but some are easier than others to preach or teach, and some are generally better than others in securing a favorable outcome for many. A Right is just a commonly-held agreement, strategy, or "rule of thumb" to help achieve an outcome. A Right is a label one might use to help convince others to agree with you.

The fact that most people value grabbing Mr Meany's gun implies that you can't convince everyone that the "strategy" of property rights is correct 100% of the time.

1. Do you believe in the principle of eminent domain?

Eminent Domain is nothing more than a State's Right to appropriate something. It's an argument used to convince people to buy-into what one wants the State to do or accomplish. Since I don't typically agree with what the State is doing or trying to accomplish, I'll say I don't "believe" in Eminent Domain.

2. Suppose the owner of the rifle sees you reaching for it in order to kill the madman and shoots you dead--with another rifle. Further suppose he had no other way of stopping you. Has he done anything wrong? After all, he was only defending his own property, acting against someone attempting to violate his rights.

Alternatively, suppose you see him aiming at you and you shoot first, that being the only way of saving your life. Do you now deserve whatever punishment is appropriate for a murderer? After all, if he was acting properly in stopping a rights violation, surely you have no right to stop him.

Although I like Jonathan's response to #2 and it's alternate, there are even more complicated questions one could imagine, and in the end it boils down to: How will you pay for your actions? If you can convince some people you had a Right to do it, they might help keep you from being hanged (and losing the "game"). If you can convince the others that it was the Utilitarian thing to do (they're glad you did it), they too might help keep you from being hanged. Beyond that, perhaps there is no absolute way to judge one's actions.

Even if there is some ultimate "Truth" of Right and Wrong, (and some immortal who sits in judgement, discerning the black and white from what we see as grey) we're not privy to this "Truth". We have no hotline to this deity.

"Right" and "Wrong" were easy to understand when there was 1 God, and 10 commandments. When there are 4 billion Gods, it becomes nuanced to the Nth degree in the myriad situations of life - let alone the hypotheticals clever people can conjure.

I rambled-on there, a bit.

I rambled-on there, a bit. Maybe this will make my arguments more clear:

1) I would steal the gun in

1) I would steal the gun in a second. I would also torture a terrorist to find a ticking bomb, and with my time machine I would kill baby Hilter. But, that doesn't mean that I should not face the consequences of my action. It is possible to do the right thing and still face consequences. The world is imperfect. The problem with eminent domain is that there is no individual making a choice with the willingness to face judgment, hence the high probability of abuse.

2) I think the answer to this follows from my first answer. The gun owner would have the right to shoot me, and I would have no right to defend myself. His actions would simply be the consequence of my original action, which I willingly made the choice to undertake.

It's unclear to me who wrote

It's unclear to me who wrote what in the original post here though I know the middle passage is from TMOF. Is the third also?

John, The italics is me.

John,
The italics is me. The middle is from TMOF. The last is David Friedman's response on this thread below.

Excellent discussion thread.

Excellent discussion thread. One thing that I noticed though as I read through the many comments is that no real mention is made of the fact that two of the players in the scenario, the misanthrope gun owner and the indiscriminate madman shooter, are irrational beings. Be that as it may, though I do not believe in eminent domain and have only the highest regard for private property rights, I would, without compuntion, or permission, utilize the misanthrope's rifle with the understanding that I will have to provide restitution for this utilization. If the misanthrope attempts to take my life for this unauthorized use of his rifle has he done anything wrong? No, but he would be acting irrationally, IMO, thus I would have no problem with defending myself with lethal force against the misanthrope's attempt to protect his property. Discussion and contemplation of theory is an excellent path to travel, practicality may, at times, cause us to detour from this path.

John Venlet

Congratulations John Venlet

Congratulations John Venlet on his astute and erudite solution to the ridiculously unlikely problem.

Bill Cholenski hit the nail

Bill Cholenski hit the nail on the head with this statement,

No strategy guarantees a good outcome all of the time, but some are easier than others to preach or teach, and some are generally better than others in securing a favorable outcome for many. A Right is just a commonly-held agreement, strategy, or "rule of thumb" to help achieve an outcome. A Right is a label one might use to help convince others to agree with you.

Randy Barnett made a similar observation a few years ago in a speech he gave. He said something along the line of, "Natural rights are just the first step in any argument; not the last step. They are like a cheat-sheet or Cliffnotes designed to give you a good indication of what the answer should be. And sometimes, although far from often, they are enough to settle the matter and convince all concerned of the proper outcome. But in most cases, libertarians need to go further than natural rights arguments and explain, for example, exactly why the War on Drugs is a bad idea, even if one doesn't believe people have a right to inebriate themselves. This requires a knowledge of economics, sociology, and other social sciences, and is not as easy as applying the non-coercion principle in all cases."

Bill also makes a great point with his concluding remarks,

Even if there is some ultimate "Truth" of Right and Wrong, (and some immortal who sits in judgement, discerning the black and white from what we see as grey) we're not privy to this "Truth". We have no hotline to this deity.

"Right" and "Wrong" were easy to understand when there was 1 God, and 10 commandments. When there are 4 billion Gods, it becomes nuanced to the Nth degree in the myriad situations of life - let alone the hypotheticals clever people can conjure.

I was speaking to one of my (libertarian-leaning) professors about natural rights and he made essentially the same argument. Just as one must be extremely skeptical when making claims about religion in a world with countless religious doctrines all claiming to be "The One True Path to God," so too one must be extremely skeptical when making claims about human rights in a world with countless theories of rights all claiming to be "The One True Theory." Without this skepticism, people start to view libertarianism as just another religion.

1. It's a rights violation

1. It's a rights violation to take the gun. If he shoots me while I'm trying to take it he does no wrong. If I shoot him to protect myself while taking it I have compounded my violation of his rights, but in moral context it is not the equivalent of a simple murder. It is reasonable to take the context into account.

2. I would consider it reasonable to violate rights under some circumstances.

3. Such rights violations should not be institutionalized as with eminent domain. It's one thing to recognize that it might be reasonable to violate rights under some circumstances, another thing to systematically delegate the violation of rights.

Isn't there a hierarchy of

Isn't there a hierarchy of rights? Incrementally civil behavior evolves & assists in more wealth creation and safety for the participants. Building upon and sometimes reverting to eminent criteria for interpretation.

reader

definitely not a lawyer

a lawyer is a sawyer
cuts thoughts in two
democracy's handmainden
the forest is beautiful
individual trees get busy
analyze, debate, ho-hum guess it is required
wealth is good now that we're here
all these individual trees
nice forest though

John, your point #3 reminded

John, your point #3 reminded me of an argument made by Alan Dershowitz, relating to using torture in ticking-time bomb scenarios (a bomb is set to go off in large metropolitan area; you have in custody one terrorist who knows where the bomb is located but refuses to tell; torture is the only way to save millions of innocent lives).

Interestingly, Dershowitz comes to the exact opposite conclusion you do. He says that even though the U.S. government is currently prohibited from using torture in these kinds of situations, it probably would do so anyway, through the use of various loopholes. In fact, Dershowitz argues, the state probably already does use these methods from time to time, but because of the prohibition, must do so under the table.

Instead of prohibiting the use of torture and thus pushing it behind closed doors, Dershowtiz argues that it should be institutionalized so that we can apply the proper checks and balances of judicial review, etc.

I think there's an interesting balance here between lending legitimacy to actions we generally oppose but which we may want to allow under limited circumstances, and having a system in place to make sure those in positions of authority who use these methods (torture, eminent domain) are held accountable.

John V, I usually tend to

John V,

I usually tend to stay away from the label of 'irrational'. This is largely because as a libertarian who takes some radical positions, I have often been accused of being 'irrational'. When I advocate a free-market in health care, people often call me irrational for wanting to 'go back to 19th century medicine'. When I say I want the public school system to be completely and thoroughly shut down, they call me 'irrational'.

If human ends are subjective, then you have to recognize their great diversity. Only when those ends result in aggression against other indidivudals pursuing their ends should force be used against them.

Irrationality may have some meaning in psychology, but it plays no part in rights-theory. Thus, I don't think you can use 'irrationality' to justify the violation of the gun-owner's rights. It must be justified by rights-theory itself.

Micha, How are they more

Micha,

How are they more accountable if they do what you've given them permission to do in plain view and the rest under the table?

I find Dershowitz's argument that we must give government permission to torture in order to regulate torture absurd.

"Irrationality may have some

"Irrationality may have some meaning in psychology, but it plays no part in rights-theory. Thus, I don't think you can use 'irrationality' to justify the violation of the gun-owner's rights. It must be justified by rights-theory itself."

Agreed, plus I think the examples can be adjusted so that the gun owner is neither a misanthrope or irrational.

John, Here's an analogy that

John,

Here's an analogy that may be familiar to libertarians. It is often easier for high school students to purchase marijuana than it is to purchase alcohol. Why is this so? Because alcohol is legal and licensed, giving the alcohol retailers a disincentive to sell to underage consumers. Marijuana, on the other hand, is illegal to sell, so whether one sells to an 18-year-old or a 22-year-old, the punishment is the same.

In the same way, what is legal is seen and what is illegal is unseen. If we want to hold state torturers accountable, in the sense that we only want them to use these methods in extreme cases, we would prefer to legalize it.

I don't fully buy this argument either, but it's too interesting to be dismissed as absurd.

on the "compensation/eminent

on the "compensation/eminent domain principle"
1. behind the principle of compensation there lies a value judgement: i.e. that someone's house is worth only its market value, even to the person living in it (tyranny of the majority anyone?) And with it the idea that human experiences can be valued objectively, and using currency- i.e. how do you arrive at the amount of compensation this gun owner is entitled to?

2. Robert Nozick allows that a society might ban epileptics from driving and then compensate them. This would be a general rule (I suppose.) Would we be entitled to compensate drunk drivers if we ban them from driving? The question is, how does a libertarian natural rights theory answer questions like this? Make this distinction, that is.