The View from Hell

Just another WordPress.com site

Archive for the ‘rights’ Category

We Live In The Anarcho-Capitalist Utopia

with 11 comments

In my previous essay, “Markets Are Ungrounded,” I undertook to list some of the regulations that are necessary for a market to function. The idea of a “meta-market” is particularly tempting to those opposed to “government” regulation – the idea that we might not only choose our transactions, but choose the rules for our transactions. I think this is an impossible, incoherent fantasy.

In The Machinery of Freedom, David Friedman defines government as “an agency of legitimized coercion.” Friedman believes that government should not exist, and that the functions currently performed by government either should not exist or should be undertaken by private individuals and groups.

He says:

The special characteristic that distinguishes governments from other agencies of coercion (such as ordinary criminal gangs) is that most people accept government coercion as normal and proper. The same act that is regarded as coercive when done by a private individual seems legitimate if done by an agent of the government. (In “What is Anarchy? What is government?”)

Further, Friedman defines “coercion” as “the violation of what people in a
particular society believe to be the rights of individuals with respect to other individuals.”

So how would these private groups work to perform functions now performed by government – for instance, preventing and punishing crimes? Friedman imagines that this would all be done voluntarily – that is, by individuals subscribing to protection agencies that use force to protect citizens from violations of their rights (as defined by the private, competing protection agencies). These protection agencies would then patronize private courts who would compete for jurisdiction.

Here is my problem with the Friedman model: it’s exactly the system that exists today, and has always existed since the beginning of human kind.

At the deepest level, Friedman is not proposing any change to the current system(s) of government at work in the world today.

Friedman proposes not regulations for a market, but a system of markets and meta-markets, a system that resolves everything through voluntary transactions. However, this is an illusion. Ultimately, it can’t be “markets all the way down” (or up) – competing protection agencies use force, and the balance of force is what supposedly protects citizens. The “free market” is at the deepest level founded upon force.

This is exactly the situation that we have today.

For instance, our Federal and state governments today compete with various forms of organized crime, which fill the institutional vacuums created by the “legitimate” governments denying contract enforcement to some transactions. These are perfect examples of competing protection agencies under the David Friedman model.

Let me repeat Friedman’s definition of coercion: “the violation of what people in a
particular society believe to be the rights of individuals with respect to other individuals.”

Friedman wants to eliminate this “coercion” thing, at least by governments.

But the protection agencies themselves define what coercion is, for their subscribers. And they enforce their definitions by force.

How is that any different from . . . all of human history? Are not all anarcho-capitalist protection agencies “agencies of legitimized coercion”?

There is no way to protect oneself from coercion (whatever one’s definition of this is) without engaging in the coercion of others.

(In case it’s not clear, I’m happy to be straightened out here – I’d much rather understand the dimensions of the problem than be “right.”)

Advertisements

Written by Sister Y

January 24, 2011 at 5:16 pm

Markets Are Ungrounded

with 18 comments

There is no truly free market, in the sense that it is absent from state regulation. State regulation is inherent in the notion of a market. The absence of state regulation is anarchy, in which markets do not function.

The idea of a free market is a popular one. It’s a nice idea – it allows us to lay all kinds of complicated ethical questions at the feet of consent. But, as I have mentioned in the past, it’s not “consent all the way down.” A market must have regulation to exist, and regulation by any means but unanimous consent is inherently non-consensual.

So what does the state have to do in a market economy?

1. The state must define who is a market participant.

In other words, the state must decide whose choices and property rights must be respected.

Who may participate in the market? Who may buy and sell, or refuse to buy or sell? Who may own property?

Are men and women both proper market participants? Are children? Adolescents? The elderly? Deceased people (through documents or proxies)? Unborn people (perhaps through imaginary proxies)? Future people? Possible future people?

Are animals? Dogs? Chimpanzees? Cattle? AIs?

Are people with severe developmental disabilities proper market participants? People with moderate developmental disabilities? People with thought disorders? People with mood disorders?

Whose welfare or utility are our rules designed to maximize?

To some degree, the state must also define the unit of a market participant. Is it a single individual? Can it be a family? A business partnership? Is a single individual over his entire lifespan a market participant, or are young and old versions of the same person separate market participants?

2. The state must define what counts as property, and what belongs to each market participant.

Is one’s labor one’s property? Does one own one’s genetic endowment?

Can people be property? Are our children our property? Our spouses or sex partners? The sexual services of our sex partners? The promised future sexual services of our sex partners?

Are animals property?

Does one have a property interest in one’s feelings?

Are our bodies our property? Our organs? Blood? Semen? Ova? The years of our lives? What about antibiotic resistance – is the capacity for antibiotics to prevent infections our property? Is our appearance our property? Are the feelings that we produce in others our property?

Do we own our attention?

Is our general good behavior (not stealing, not raping) our property? Are things we have been promised our property?

Do we have a property interest in having enough air to breathe? Water to drink? Food to eat?

Can land be owned? If so, does a land owner own the wild animals on his land? The air above his property? How high up?

The related issues of (a) who is a market participant and (b) what is property are especially convoluted when we consider that some entities may be classified as either a market participant or a piece of property – or have elements of both, as with the current position of children and the historical position of women.

3. The state must define appropriate remedies for enforcing property rights.

Once the state has defined who may own property and what property may consist of, it must define what may happen when a property right is violated. Money sanctions? Specific performance? Self-help? Death or loss of a member by the breaching party? Imprisonment?

This is an especially complicated question, as the state may define different sanctions as appropriate remedies for different sorts of property violations.

4. The state must define what requires consent.

The state must define what counts as a transaction requiring consent. This is related to the above questions about what counts as property, what belongs to a person, and who is a market participant. If my money is my own, taking it from me requires my consent; but if it is not my own, it may be taken without my consent. And if I am not a market participant, my consent is not required in any case.

What counts as consent? Is affirmative consent required, or merely a failure to opt out? Must we consent to be advertised to? When can consent be presumed?

When can a substitute for consent be used? What substitutes are appropriate?

How far into the future may consent operate? Can it operate into the past?

When is apparent consent not real consent?

5. The state must define cheating.

There are many flavors of cheating that tend to undermine the market. Open up an introductory contract law text book to get an idea of the issues that must be regulated.

Is fraud okay? Accidental misrepresentation? How careful must an assertion be? What disclosures are required to make a transaction consensual?

What about coercion? Undue influence? Mutual mistake?

Is exploiting the cognitive biases of one’s contract partners “cheating”? Exploiting the naivety of a contractual partner? Exploiting his illiteracy? His poor understanding of the contract’s language?

Do the motives for putative cheating matter? What are the relevant states of mind?

And perhaps most importantly . . .

6. The state must define the procedure (if any) for changing the rules of the market.

As I hope I have shown, social norms affect and are affected by market rules. But social norms – and material circumstances – change, and with them, perhaps the rules of the market should change. How can this be accomplished? Majority rules? Unanimous consensus? Should there perhaps be . . . a market for establishing market rules? (And, if so, what are the rules of the meta-market?)

The State Has A Lot Of Work To Do

It’s not simple. It can’t be “free.” And it can’t be based on pure consent.

Written by Sister Y

January 11, 2011 at 8:27 pm

Posted in economics, markets, rights

Is Antinatalism Illiberal?

with 14 comments

Aschwin de Wolf‘s “Non-existence is hard to do: A review of contemporary antinatalist writings,” published in Cryonics magazine for the second quarter of 2010, examines antinatalism from the perspective of a life extension enthusiast.

One of de Wolf’s more original claims, I think, is that antinatalism is illiberal. He says:

Like Crawford, Benatar cannot completely escape the charge of illiberalism. Classical liberalism takes very seriously the difficulties in reaching satisfactory conclusions about the quality of other people’s lives. In practice this means that we exercise restraint in making strong cognitive and moral claims about the feelings and preferences of other people. This is a mindset that does not seem to come easily to antinatalists. [Emphasis mine.]

We often hear the claim that antinatalism cannot be correct because life cannot be a harm – look at all the happy people! (de Wolf even posits this as somehow “empirical” evidence for the correctness of reproduction. I wonder what he makes of things like this when he says that “The claim that coming into existence is always a harm is not consistent with the reports of all those who have come into existence.”)

Antinatalists, then, are chastised for being such closed-minded party poopers, and pointed to evidence of subjective happiness of existing people.

In reality, liberalism, in de Wolf’s conception, is at the very core of antinatalist ethics. We just conceive of babies as human beings, too.

It is difficult for me to imagine a greater instance of “making strong cognitive and moral claims about the feelings and preferences of other people” than intentionally creating a person. To do so, one must assume that this stranger, whose beliefs and values cannot possibly be known, will be happy with his life. And that is a load of shit. “Most people don’t like it” is not a liberal argument for a prohibition on drug use, prostitution, suicide, etc. Nor is “most people like being alive” a liberal argument for reproduction.

Written by Sister Y

December 16, 2010 at 7:54 pm

Nonviolent Exploitation: Is It A Problem?

with 2 comments

Let me motivate this discussion before I get into it – I have been considering whether the concern for rights and autonomy upon which I’m basing a right to suicide is inconsistent with the regulation of economic activity that I would deem exploitative (such as the marketing behavior of the consumer credit industry, and certainly other industries, that causes suffering that leads to many suicides).

What is exploitation? I wish to try to get at a specialized sense of this word, not its common usage. I would define exploitation as

  1. deliberately “pushing people off” of rationality – using knowledge of cognitive bias to cause people to act in a manner contrary to rational interest maximization
  2. for profit or easily measurable gain
  3. causing great suffering and harm in a fairly direct way

My definition of “exploitation” would not, for instance, cover the case of prostitutes “exploiting” their customers. First, I would not (necessarily) consider a value (we could more pejoratively call it an “appetite”) to be a cognitive bias, and sex must certainly be seen as a value. Second, even if prostitutes exploit cognitive bias in “marketing,” it must be rare that the prostitute causes great suffering and harm to a client. It might be more accurate to say that the prostitute causes much rejoicing – or, at least, relief from suffering. This is not what I mean by exploitation. (Actually, my concern with exploitation is more in the marketing methods used to secure the exchange, rather than the exchange itself. Here is the tricky part – this might include marketing for any transaction, from prostitution to cars to stocks to food.)

I am aware that it is strange to take the case of “prostitute exploiting client” first in the sex work scenario. The more common case proposed as an example of exploitation is the exploitation of the prostitute by pimps (or, perhaps, clients). I think the most realistic position on this is that not all sex workers are exploited, but that many are. Pimps, for instance, (1) deliberately use a knowledge of cognitive bias (if not outright violence) (2) for profit, (3) often creating great suffering. As with obscenity prosecutions, we must keep our eyes on the real harm – the exploitation, the departures from trustworthy consent – and not some aesthetic judgment. The fairest and most realistic tactic, to me, seems to be to regulate the deliberate exploitation of the individuals whose suffering we worry about – not to directly limit the freedom of the individuals themselves. In other words, the pimp has no claim for a right to ply his “trade” in the just society, whereas the prostitute does.

But why not allow exploiters to exploit, so long as they don’t utilize coercion or fraud? To answer this, we must first ask, why should the state protect individuals from violence, theft, and fraud?

There are several possible answers to this question. To the person whose moral system is grounded in utility maximization through rational self-interest (in classical economics, for instance), violence, theft, and fraud are suspect because transactions that take place as a result of violence, theft, or fraud are not utility-maximizing – we have reason to suspect that this type of transaction reduces utility, because the transaction is either not voluntary or entered into with false information. In addition, violence, theft, and fraud cause over-investment in security, again interfering with free market utility maximization. And yet another problem is that violence, theft, and fraud produce nonfunctional income: income unrelated to efficient economic activity (which would be utility-maximizing). (The enforcement of contracts – a function Robert Nozick ascribes to the minimal state – might be justified on similar grounds, such as preventing over-investment in hedging against nonperformance.) To the person more concerned with individual rights, violence, theft, and fraud are serious examples of the violation of what is generally taken to be the most important individual rights. It is actually not clear to me exactly why Nozick would allow the state to protect against violence, coercion, and fraud, and to enforce contracts, but I am currently re-reading Anarchy, State and Utopia with an eye to figuring this out.

Preliminarily, the same reasons that justify a proscription of violence and coercion (and enforcement of contracts) may be applied to what I have termed exploitation. The deliberate, calculated practice of lulling a person away from rationality encourages transactions that are not rationally utility-maximizing. We should have no faith in these transactions, just as we have no faith in “transactions” that are the result of theft or fraud. Exploitation is attractive as a field, and, left unchecked, is likely to draw investment away from economically efficient enterprises and toward its own unproductive, harmful enterprise. Income from exploitation may be seen as nonfunctional income – the income is unrelated to economic efficiency, unrelated to any contribution to the productive economy.

For purposes of comparison (this is really different from anything Nozick is talking about), this is Galbraith’s explanation of nonfunctional income:

It is the normal assumption of economists in advanced communities that income rewards economic effort. Since it induces that effort, it is functional. There has been ample dispute over whether particular functions are over- or under-rewarded, and this is the foundation of the ancient quarrel between Marxians and non-Marxians. But the adequacy of reward for service is not the central issue in this model; the problem is that numerous claimants [in the economies of Latin American countries] – landlords, members of the armed services, government functionaries, pensioners – render no economic service at all. And the best rewarded businessman is not the one who performs the best service but the one whose political position or franchise accords him the most secure monopoly. It is useful to have a term for the income which is so divorced from economic function, and one is readily at hand. It may be called nonfunctional income. [John Kenneth Galbraith, “The Causes of Poverty: A Classification,” in Economics, Peace and Laughter, Houghton Mifflin, 1971]

Of course, there are ethical reasons to prohibit exploitation – reasons that, I would argue, are not redistributive. Prohibiting exploitation does not redistribute wealth from the savvy to the vulnerable; rather, it acts to prevent a redistribution from the vulnerable to cheaters that does nobody any good (except the cheaters). We should give no more credence to the “right to exploit” than to the “right to defraud” or the “right to violently coerce.” In fact, we might properly consider a “right to be free from investment in exploitative tactics” – a right not to be the target of tactics, backed by significant investment, designed to push us off our rationality, and to enter transactions that appear voluntary, but that benefit the exploiter, but not the exploited. This is not the same as saying there should be no right for an individual to enter transactions (or take actions) that appear to be contrary to his self-interest.

Another, less formal way of thinking about this is to imagine the evolutionary arms race that must have occurred in our EEA between cooperators and cheaters. Cheating is an attractive strategy, and mechanisms to successfully cheat, as well as mechanisms to detect cheating, must both have high fitness value (though cheating-prone genotypes occur with much lower frequency than cooperator genotypes if society is not to collapse on itself). The cheating-detecting strategy that is the current human standard model was developed to deal with fairly straightforward cheating by individuals and small coalitions. Faced with massive investment in “cheating technology” by corporations, the natural cheating-detecting mechanisms of individuals must fall short. When predators and prey evolve together, the “arms race” often results in an equilibrium, with both predators and prey surviving in sustainable numbers. Similarly, cooperators and cheaters were able to coexist for millions of years. But when a predator either develops a major new technology, or is faced with prey species with whom he did not evolve, the predator is at risk of wiping out the entire prey species – and, ultimately, the entire ecosystem, including himself. Large mammal extinction was the result of early humans arriving on continents with an existing package of technology that the mammals had no defense against. Massive investment in cheating technology leaves cooperators just as vulnerable to these new super-cheaters as the American megafauna were to the early humans. Some say the cooperator collapse is already here.

Edit: Even Richard Posner thinks that deregulation of the banking industry has shown itself to be bad policy. “I have long thought it troublesome that Alan Greenspan was a follower of Ayn Rand,” he quips.

What’s the right path, then? “The correct approach,” says Judge Posner, “is to carve down regulation to the optimal level but then finance and staff and enforce the remaining regulatory duties competently and in good faith.”

Written by Sister Y

June 10, 2008 at 10:55 pm

Moral Dilemmas Involving Harm to Children

with one comment

Suppose A, knowing he is HIV-positive, has repeated, unprotected sex with B, whom A knows to be HIV-negative, and to whom A lies about his HIV status. B becomes HIV-positive as well, as he discovers through an HIV test. Deranged with sorrow about his condition, B decides to commit suicide, and stabs himself in the chest with a kitchen knife. Just then, A enters, and is faced with a dilemma: take B to the hospital and save his life (knowing that B will be involuntarily committed to a psychiatric hospital for a while), or let B die from blood loss, even though B has never been suicidal before and has said in the past that he would rather suffer a great deal than die prematurely.

There might be different opinions as to what A should do in this situation. Either decision has problems. A is faced with choosing the lesser of two evils; but, of course, the lesser of two evils is still evil.

There is something strange about this problem, though: the rightness or wrongness of A’s action now pales in comparison to the wrongness of his action in knowingly transmitting a terminal illness to B. A’s actions directly and foreseeably caused the situation in which he must choose either to violate B’s rights by “saving” him and having him forcibly hospitalized, or to let B die in violation of B’s stated wishes. No matter what A does now, he is responsible for the harm to B, because A’s action put B in the wretched situation.

This concept is what is missing from most discussion on harm to children, the proper way to raise children, and the violation of the rights of children. Knowingly creating a situation in which one will be in a moral dilemma – in which one can opt either to violate someone’s rights, or allow harm to happen to that person – is itself a moral wrong. There may be debate about whether it is better to vaccinate or not vaccinate, lie to children or not lie to them (about drugs, sex, or the horrors of the world), spank or not spank, indoctrinate or not indoctrinate, allow genital cutting or not allow genital cutting, educate or not educate. But, regardless of the answers to these “lesser of two evils” questions, to the extent that the parent should have been aware of these double-binds at the time of the decision to procreate, the parent has committed a grievous wrong, and is responsible for whatever harm befalls the child.

Forcing a medical procedure on an adult is wrong. Where a child is concerned, however, it might be said that not forcing a medical procedure on a child could also be wrong – and, when this is said, it is usually grounded in an idea of a child as not having the mental capacity to determine his own values. It is my position that, where a child refuses a medical procedure that he needs to live or to be healthy, both actions are wrong – forcing the medical procedure, and allowing the child to die or to be harmed. Neither action is right. And, where only bad actions are available, knowingly getting into the bad situation should be the locus of moral responsibility for either bad action.

Related: “Fundamental coercive power is power not resting upon any consent of the person to whom it is applied.” (Robert Nozick, Anarchy, State, and Utopia.)

Written by Sister Y

June 6, 2008 at 1:52 am

Where Do Rights Come From? (Or, A Weird Consequentialist Reason Why Pure Consequentialism Fails)

with 3 comments

Utilitarianism, a form of consequentialism, may be informally defined as a moral system in which each actor is expected to maximize utility (and minimize suffering) with his actions. Deontological systems, in contrast, grant certain rights to people that other people may not violate, even if, by violating those rights, the actor could increase overall utility. An agent may not violate someone’s rights, even if doing so would reduce the overall level of violation of these very rights in the world.

In The View from Nowhere, Thomas Nagel explains rights and obligations in terms of a distinction between agent-neutral values (values we have a reason to promote from an objective perspective, such as the prevention of pain) and agent-relative values (values each person might have a reason to promote, but which we have very little reason to promote from a neutral perspective, such as a particular person climbing Kilimanjaro). Unless I seriously misread him (a distinct possibility, I must admit), Nagel seems to argue that, just as we might have agent-relative reasons to pursue our own goals that others might not have a reason to help us with, we might also have real agent-relative reasons for avoiding doing harm ourselves, even if doing harm ourselves could prevent someone else from being harmed by another person. Perspective matters. “A fully agent-neutral morality is not a plausible human goal,” says Nagel.

In “Personal Rights and Public Space,” however (Philosophy and Public Affairs 24:2, pp. 83-107), he seems to argue in favor of inviolable rights – rights that may not be violated, even to prevent major harm, including greater violation of those same rights by other – for a very different reason. Nagel says, on universal human rights such as freedom from torture and political persecution:

First, it means that these are forms of treatment to which no one should be subjected – that every person, everywhere, is wronged if maltreated in these ways. Second, that the wrongness is not a function of the balance of costs and benefits in this case – that while in some cases a right may justifiably be overridden by a sufficiently high threshold of costs, below that threshold its status as a right is insensitive to differences in the cost-benefit balance of respecting it in each particular case. Rights are universal protections of every individual against being justifiably used or sacrificed in certain ways for purposes worthy or unworthy.

Nagel posits a few rights in particular in this essay – the right to be free from torture, and the right to freedom of speech and thought, including sexual fantasy, are discussed. But where do these rights come from? And what is their justification as rights that should be free from utilitarian calculation (at least below a certain threshold, perhaps that of moral catastrophe)? Why these, and not other rights?

Even though Nagel favors the view of rights as intrinsic, rather than instrumental (valuable only to the extent that they promote happiness and other goods), oddly, extremely oddly, I think Nagel is offering what might be considered a consequentialist justification for a set of deontological rights.

Nagel certainly does not see himself as making a consequentialist argument. Quite the opposite:

I shall try to defend the distinct (but perhaps complementary) position that rights are a nonderivative and fundamental element of morality. They embody a form of recognition of each individual’s value which supplements and differs in kind from the form that leads us to value the overall increase of human happiness and the eradication of misery – and this form of recognition of human value is no less important than the other. The trouble with this answer is that it has proven extremely difficult to account for such a basic, individualized value so that it becomes morally intelligible. The theory that rights are justified instrumentally, by contrast, is perfectly clear and based on uncontroversial values.

To make the argument for inviolable rights in what he considers a “morally intelligible” way, he first defines a status of inviolability (possession of rights that may not be violated, even to prevent a greater violation of rights) as a non-consequentialist value:

Being inviolable is not a condition, like being happy, or free-just as being violable is not a condition, like being unhappy or oppressed. To be inviolable does not mean that one will not be violated. It is a moral status: It means that one may not be violated in certain ways – such treatment is inadmissible, and if it occurs, the person has been wronged. So someone’s having or lacking this status is not equivalent to anything’s happening or not happening to him. If he has it, he does not lose it when his rights are violated – rather, such treatment counts as a violation of his rights precisely because he has it. [Emphasis Nagel’s.]

In Nagel’s sense, inviolability is a non-consequentialist value because it doesn’t correspond to subjective states of the actual violation of a right, but rather the moral status of having the right to be free from the violation, and, consequently, of being wronged in the case that the right is violated. Inviolability is valuable above and beyond the value of not having one’s rights actually violated. But is this really escaping consequentialism? Being inviolable is not the same as being happy. But what, then, is the value of inviolability? People are certainly happier when their rights are inviolable, in the sense that people would prefer to live in a free state with a fairly high murder rate than live in a police state with a murder rate of zero, but in which those suspected of having murderous desires were occasionally summarily shot in order to prevent murders. In this sense, the right not to be murdered – inviolability – must be said to be responsible for real utility gains, since it is preferred (and, I would say, rationally preferred) to a situation where rights are more likely to be violated, but where their violation is a wrong. Indeed, Nagel’s “non-consequentialist” explanation of the value of inviolability sounds profoundly consequentialist:

It is true that a right may sometimes forbid us to do something that would minimize its violation – as when we are forbidden to kill one innocent person even to prevent two other innocents from being killed. But the alternative possibility differs from this one not only in the numbers of innocents killed. If there is no such right, and it is permissible to kill the one to save the two, that implies a profound difference in the status of everyone – not only of the one who is killed. For in the absence of such a right, no one is inviolable: Anyone may be killed if that would serve to minimize the number of killings. This difference of status holds true of everyone whether or not the situation will ever arise for him. [Emphasis mine.]

I suppose my main disagreement with Nagel is that, as I see it, inviolability is a condition “like being happy” – it is one that has subjective value, and a situation that includes inviolability may be preferred to a situation that is materially better for the agent, but in which his rights are violable. In my view, it is strange to think that only subjective affect and material consequences should count toward utility. Nagel himself lists “being free” as a possible consequentialist value, as opposed to, say, the appearance of freedom. If being free is a consequentialist value, why not inviolability? This is especially true since inviolability, like freedom from pain, seems to be one of what Nagel would define as an agent-neutral value – one we have an objective reason for promoting.

This is not an instrumental argument. I am not arguing that people should have rights because rights may be exercised to make people happy, or that agents may be unhappy if morally required to violate the rights of others. I am arguing that the very status of inviolability makes people “happy,” to put it a bit reductively. I think Nagel wants us to look at the world and figure out which rights are really important – meaning, in which cases does inviolability make people feel valuable, special, and happy? Even if rights are violated in the actual world, there is a certain solace in inviolability – sympathy of the community, for instance, and the basic knowledge that the harm to one was a wrong. The possibility for moral outrage in the face of a violation of rights is a basic good.

To put it in a bit more consequential and certainly oversimplified terms, in our current world, we are all vulnerable to succumbing to organ failure. A certain percentage of us will die from lack of organ donors. More people might be saved if we, as a society, held a lottery and culled a certain number of randomly-chosen individuals, transplanting each person’s organs into the bodies of several waiting recipients. More people would be saved, fewer people would actually suffer the harm of dying – materially, society would be better off. But most people would consider this a worse world. This might be because the right not to be murdered – a morally inviolable right – gives us substantial utility, even though we are more likely to die of organ failure in our current world. The right not to be (painlessly) murdered is worth a substantially greater risk of (miserable, prolonged) death. (This example compares a little murder to more natural death; see my earlier example for a comparison of more murder to less murder minus inviolability.)

While my formulation is admittedly a bit flippant, and might be looked upon skeptically especially since it purports to put a consequentialist argument in the mouth of Thomas Nagel, it does have certain advantages. For one, it gives us a place to start when figuring out what our inviolable rights should be: rights occur where the “value of inviolability” is substantially greater than the expected utility gains that might come from the occasional utilitarian violation of the right. (Even Nagel is willing to allow for violation of “inviolable” rights to prevent moral catastrophe; we need only look at things below a certain catastrophic threshold.)

I would go so far as to define an inviolable right – and perhaps the skeleton of an entire moral system – this way: An inviolable right should be recognized, that cannot be violated even to prevent greater harm, including a greater violation of the same right by others, when the value of the right’s being inviolable is greater than the potential utility gains that could be made from its occasional violation.

Unfortunately for my simple little system, in a pluralistic world, few people would agree on the value of the inviolability of all but a few basic rights. Perhaps this is why Nagel limits himself to discussing such basic rights as the freedom from torture. A new question presents itself: how do we measure the value of inviolability? Certainly, it can’t be the average importance accorded to the right among actual members of a particular society. So is it, after all, a sort of first-order utilitarian calculation? Perhaps we need to think of inviolability from the perspective of a potential member of society, as in Rawls’ original position. In our current political system, I feel that the inviolability of the right to die is systematically undervalued, because cognitive bias prevents people from understanding the suffering of the suicidal, and because the competence of the suicidal is too easily dismissed with reference to broadly defined mental illness. But, as Benatar points out, the value of the inviolability of not being born may be undervalued even in a perfect Rawlsian original position – because the decision makers, in order to make decisions, exist, and it is difficult for an existent person to understand the value of nonexistence and the terrible violation imposed on one by being brought into existence.

(I changed the title based on a conversation with Jim – thanks!)

Written by Sister Y

May 28, 2008 at 10:37 pm