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Mark LeBar
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Mark: my main concern about harm-based arguments is that it seems to me that the notion of harm isn't primitive, at least in the way necessary to do that sort of work. Consider Mill's own use of it, when he considers harms to disappointed competitors. He seems to accept that I harm you when you are worse off as a result of a choice I make than you would be if I didn't make it, or chose differently, so when I choose to sell my car to somebody who offers me more than you, in that sense at least I harm you. But he doesn't think the Harm Principle precludes my harming you in that way, because of the great social utility of exchange. I have no quarrel with his assessment of overall utilities in this case, but they are the ones doing the work, not the Harm Principle. I think (though I have no argument for this) that our notions of harm will always end up consequent on other features of our theory, so it's a mistake to think they belong at the front end. Dave: me and my big mouth! The question of risk from infection is I think a real poser, and I don't have a good answer to it. What I've suggested is more an idea of a direction in which to develop a strategy than an actual strategy, and the infection case may be an acid test. But, yes, the basic idea is that we settle just what privileges and claims come in the bundle of rights that we associate with self-ownership, rather than thinking they come down on stone tablets a priori (to mix metaphors!). Some are comparatively easy (I don't have a claim based in self-ownership to swing my fist where your nose is), some are way more difficult than that, like the infection case. Pollution cases are somewhere in between, though obviously nearer the harder end. It's inevitable that we put each other at risk; that's an unavoidable fact of life. So the question is how to manage the risks to which we put each other, consistent with an overall framework in which we retain equal standing to obligate each other. I think Kant thought that property was the basic framework for thinking about how this occurs in a shared physical world, and I'm attracted to that model. So that rationale for property, for a system of property rights, should constrain the way we can interpret what bundles of rights go with what. That rules out, for example, curtailing or infringing specific rights to property for the sake of social utility, but it doesn't rule out structuring rights to property so that everybody is better off for doing so. The stronger those constraints are made out to be, the nearer the case for a libertarian interpretation, I think. In the extreme case you'd be able to come up with a property-rights scheme for the goods that pollution sullies (water, air, whatever), and then you'd have a framework for tort claims. But I doubt that's really achievable or it would already have been done. Since the problem goes to the heart of this kind of justification of libertarian principles, though, it's a problem worth thinking about.
Toggle Commented Oct 23, 2010 on Libertarianism and Pollution at PEA Soup
David (and Mark) -- I think the questions you are pressing are on a tender point where it is difficult to know how to make the libertarian case. The pollution case is one, but maybe not the most difficult. For a line of argument with real bite, check out a paper by Dan Polsby in Social Philosophy and Policy, 1998, where he worries about bodies as transmitters of risk, e.g. as carriers of communicable diseases; that one is a real bitch for self-ownership liberalism of any sort, including libertarianism. The Lockean/Kantian way of thinking about some of these things doesn't have easy solutions to a lot of these problems (though I'm not sure anybody else does either), but it does suggest a different point of departure in Locke than the proviso. That is the provision for equal authority, in the law of nature (§§4-5). The thought, then, is that social arrangements that do impose obligations (as property rights do) have to preserve that kind of authority (Kant's "innate equality," or near enough). So that amounts to a formal, not a value-based, constraint on the shapes that legal and political institutions can take. It suggests trying to systematize the solutions to problems into forms that respect those constraints. A lot of theory has to go into translating those into some material form, but the thought is that if you have, say, a pollution problem, to the extent you can craft a system of property rights to meet it, you have all you need, and indeed nobody could ask for more. In some cases of pollution, property rights tools work pretty well; in others (e.g. air pollution) it's tough to see how to get the model to apply. But, as Mark suggested, the avenue for thinking about solving the problem seems to be how to determine the bundle of rights in which property consists, in particular cases and parts of the world. Neither the questions nor the answers ignore value-based considerations, but the constraints on the form answers can take arguably carry some libertarian punch.
Toggle Commented Oct 22, 2010 on Libertarianism and Pollution at PEA Soup
I would second the strategy Matt cites Rod Long as advocating. If there is any point to libertarianism as an account of the legitimacy of political authority and obligation, it has to make sense of its principles in light of a messy world in which virtually everything we do exposes others to risk, either actual and small or potential and large, or somewhere in between. I am certainly sympathetic with Dave's curiosity as to how that story might go, but it does seem to me a mistake to think that the empirical messiness dictates a consequentialist approach to the commitments. It might be that a (roughly) natural rights approach is compatible with seeing some degree of indeterminacy in the specific contents of those rights. Those contents need determination in a system of positive law (this I take to be roughly Kant's account of private right), and that is the level at which managing risk must be undertaken. But that saying that doesn't entail that the justificatory framework for determination can only be consequentialist; it might take as its foundations some sort of natural right to self-ownership and try to interpret that right empirically, in positive law. Of course, that's just an outline for a research program, not really an answer to Dave's question.
Toggle Commented Oct 20, 2010 on Libertarianism and Pollution at PEA Soup
Not to gainsay the qualification that not everything is better now, would Richard's point about the airport scene still hold if we looked at what it was costing to board the plane? I don't know, but I'm guessing that we're paying a lot less for service that is less good in many ways (not all), and security services that we didn't need then.