These are notes to accompany my blog post “Engaging Steven Landsburg.” It’ll be helpful to go read that first.
As I was preparing my response to Steven Landsburg’s thought experiment, I found myself getting in to too many of the details of his suppositions and not focusing on the bigger questions he was trying to ask. However, I didn’t want to leave a stone unturned in discussing his post, so I’ve left my notes and responses out for those to look at if they wish.
In his OP, Landsburg says:
A. Why should one sort of harm (e.g. a punch in the nose) be legally actionable and another (e.g. psychic distess over someone else’s reading habits) not be?
A punch in the nose constitutes physical and psychic distress to the person who is punched, which is why it’s legally actionable, not because it hurt’s someone else’s feelings. To the best of my knowledge, you can’t take legal action against someone who punches someone else in the nose, unless that person is unable to act and you’re a legal guardian of them (children, mentally incapacitated, elderly).
C. As long as I’m safely unconsious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits? And if the thought of those benefits makes me shudder, why should my shuddering be accorded any more public policy weight than Bob’s or Granola’s? We’re still talking about strictly psychic harm, right?
Here he gets his wires crossed between someone else’s psychic harm and his own, which is outside of the bounds of his thought experiment (I confess myself to be annoyed, because I hate it when people break thought experiments). But, even if we take this at face value outside of the blog post in general, what you have here is a basic, not uncommon question: If I do something to someone, and they don’t know, and don’t suffer any physical harm, is it wrong?
Yes. Essentially, this is because in most western societies we believe that there are certain aspects about your world (here, your body) that should remain under your control regardless as to whether or not you’re conscious to experience the changes or effects therein. We usually describe this more concretely as having rights. Whether you express that as a right to bodily autonomy or as property rights, almost every person in the country consciously recognizes that you get to have a final say in what happens to your body. Here are some counter-examples:
- A person puts a tap on your phone and listens in to your phone calls. You never become aware of the tap and no harm comes to you from your conversations being heard and recorded by another person. We recognize this as wrong because it’s a violation of your privacy and property rights.
- Someone slips a drug into your drink that you did not consent to. Despite the affects of this drug, positive or negative, we still recognize this as wrong.
- You have the ability to kill someone without them ever knowing or feeling any pain. If you consider dying as a ceasing of existence, then no harm has been done. We still would recognize this as wrong because it’s a violation of bodily autonomy and the right to choose whether or not to live.
So, too, rape is still wrong because it is a violation of bodily autonomy. Landsburg tries to counter this argument with the following:
Edit: Some commenters have suggested that Question 3, unlike Questions 1 and 2, involves a violation of property rights. This seems entirely wrong to me; in each case, there is a disputed property right — a dispute over who controls my computer, a dispute over who controls the wilderness, a dispute about who controls my body. To appeal to a “respect for property rights” solves nothing, since in each case the entire dispute is about what the property rights should be in the first place.
Here again he’s crossing his wires. The questions he posed are whether or not we should impose policy based on the psychic distress of something that happens to someone/something else; a property right is not in dispute at all in the “violations” in his original experiment. Now, a property right would be in dispute if public policy intervened in the first two, but not the third (as it’s not a violation of someone’s property rights to keep them from hurting someone else). But watching pornography does not violate someone’s property rights. Harming the unclaimed land in the environment doesn’t either; raping someone does.
D. It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies. Every time someone on my street turns on a porch light, trillions of photons penetrate my body. They cause me no physical harm and therefore the law does nothing to restrain them.
There’s a pretty obvious difference here between natural phenomena and rational actors. Photons can’t help being photons, but rapists can surely help being rapists. I’m not sure what else there is to say about that one.