Peace Requires Anarchy

Morally Permissible Unjust Acts: Defending the Rights-Based Approach to Defending Libertarianism

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Michael HuemerLiterally minutes ago I purchased Professor Michael Huemer’s newest book “The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey,” which, in the opinion of Prof. Bryan Caplan, is “…the best book [in the genre of libertarian political philosophy].”

In other news, Michael Huemer pointed out in a presentation he gave at Porcfest X called “Defending Libertarianism: The Common Sense Approach” that there are three main ways to defend liberty: One can use economic arguments, rights-based arguments, or common sense. Huemer believes the common sense approach is best in some sense. I will wait until his book arrives and I have read it to decide whether or not I agree with him.

In the mean time, I would like to explain why I disagree with a criticism of the rights-based approach to defending libertarianism that Huemer gave in his presentation. See the relevant portion of his presentation here:

In summary, Huemer criticizes the rights-based approach by arguing that in some extreme situations we do not intuitively agree with the rights-based libertarian position that peoples’ libertarian rights should be upheld. In other words, “rights can be overridden.”

For example, if a starving person lost in the woods stumbles upon a cabin, Huemer says that the person should be permitted to break into the cabin and take the owner’s food.

In a second scenario, Huemer says that one should be permitted to use another person’s car if using their car is the only means of getting someone who desperately needs help to the hospital.

Some people in the audience voiced objections to Huemer’s position, but nobody made the key distinction between morality and justice that I believe solves this alleged problem with the rights-based approach completely. I thus sent Michael Huemer an email:

Hello Michael Huemer,

I was just watching a video of your “Defending Libertarianism: The Common Sense Approach” presentation at Porcfest X when I realized that you and the audience members that spoke up did not seem to be aware of a simple resolution to the criticism of a rights-based approach to defending libertarianism that you gave in your presentation.

You mentioned the “cabin in the woods” scenario and asked if it was permissible to break into the cabin to steal food and not starve. The answer is that it is it is *morally* permissible to break in, but you should not be *legally* permitted to break in.

It’s a simple distinction between morality and justice that I have seen many critics of strict adherents to rights-based libertarianism fail to make.

I do not believe that all aggression is “wrong” (meaning immoral / unethical / people shouldn’t do it).

Rather, I believe that all aggression is “unjust” (meaning it should be illegal). And I believe this 100% of the time and it does not conflict with my intuitive beliefs about justice, no matter how extreme you make the moral dilemma thought experiments.

So go ahead and break into the cabin to save your life even though it is aggression to do so. That’s fine. The rights-based libertarian isn’t saying you shouldn’t break in. He’s just saying that the law should not permit you to do so, since it’s a violation of the cabin owner’s rights.

Thank you for reading this. Your book “The Problem of Political Authority” is third in line on my reading list. I look forward to it.

Here is Michael Huemer’s reply:

Thanks for your thoughts. It is not clear to me why you think that breaking into the cabin should be illegal. I assume that you also mean that there should be some legal penalty for doing so. Here is a simple piece of reasoning. (1) It is unjust to punish a person who does not deserve to be punished. (2) A person does not deserve to be punished for doing the right thing. (3) Hence, it is unjust to punish a person for doing the right thing. (4) The right thing to do in the cabin-in-the-woods scenario is to break in. (5) Hence, it is unjust to punish the agent for breaking in.

As it happens, you appear to be proposing a revision of existing law. Existing common law recognizes an affirmative defense to any criminal charge known as “the necessity defense”, according to which the defendant can argue that an action that violated the written statutes was necessary to prevent something much worse from happening. For example, the fire department can break a door down in order to get inside a building and rescue someone from a fire. (Would you claim that the firemen should then be prosecuted?) Would you say that the necessity defense should be eliminated?

If so, I don’t think you are solving the problem. I think you’re just biting the bullet.

I mulled this over for a while then wrote a long email back to him:

Thank you a lot for your response. I was ready to reply to your email when I first read it, but I wanted to see if I was actually just biting the bullet like you thought, so I spent a while (over two hours!) mulling over what you said and doing some related reading first. Now I’m ready to respond.

I think that breaking into the cabin should be illegal because doing so is a violation of the cabin owner’s rights.

In your essay “Is There a Right to Own a Gun?” you write:

“I distinguish between absolute and prima facie rights. An absolute right is one with overriding importance, such that no considerations can justify violating it. A prima facie right is one that must be given some weight in moral deliberation but that can be overridden by sufficiently important countervailing considerations. Thus, if it would be permissible to steal for sufficiently important reasons—say, to save someone’s life—then property rights are not absolute but at most prima facie. It is doubtful whether any rights are absolute.”

I agree completely. It is doubtful whether any rights are absolute, that is, whether there are any rights that people should never violate in any situation. Further, I agree with you–in the special case we have been discussing–that the cabin owner’s right to control the use of his cabin is a prima facie right. Even further, I agree that the starving person who luckily comes across the cabin in the woods should violate the owner’s right and break into it and steal food.

If we replace “unjust” with “immoral” in your line of reasoning below, I would agree with it:

“(1) It is [immoral] to punish a person who does not deserve to be punished. (2) A person does not deserve to be punished for doing the right thing. (3) Hence, it is [immoral] to punish a person for doing the right thing. (4) The right thing to do in the cabin-in-the-woods scenario is to break in. (5) Hence, it is [immoral] to punish the agent for breaking in.”

However, if we keep it as “unjust” rather than “immoral,” then I believe that the first premise is false (note that to me the term “unjust” means “should be illegal”): “(1) It is unjust [i.e. it should be illegal] to punish a person who does not deserve to be punished.”

I disagree with the premise because I disagree with this statement: “It should always be legal to do the right thing / morally permissible things.” If I am right that there are times when it should be illegal to do morally permissible things, then it follows that your premise 1 is false, since someone who does such a morally permissible thing that should be illegal should be able to be punished legally for their actions, even though they probably don’t deserve to be punished.

One example of a case when I believe it should be illegal to do a morally permissible thing is the case of the starving person breaking into a cabin we have been discussing. You said earlier, “I assume that you also mean that there should be some legal penalty for [breaking into the cabin and stealing the food].” Yes, just as in a typical case of someone breaking into someone’s house and stealing their property, the victim should be legally permitted to go to a court and have the court force the thief to pay the victim restitution.

Also just like the typical case of someone who is not starving committing theft, if the owner is around to defend his property then yes, he should have the legal right to do so. I would morally condemn him for refusing to feed the starving person who stumbles into his cabin, however, if he chooses to forcefully prevent the starving person from entering his house and eating his food, then he should not be punished by the force of the law, even if this person starves to death on his porch while knocking repeatedly on the door for help. In my opinion he should be punished nonviolently such as by ostracism, yes, but he should not be punished by the force of law. I would regard it as unjust if a court held him legally responsible (such as by forcing him to pay money or by imprisoning him) for the person’s death merely because he refused to feed the person who starved.

I write out these consequences of what it would mean for it to be illegal to break into the cabin and steal the food from the selfish owner to make it so that my intuitive view of the situation is more likely to be accurate. As you said in your essay “Against Equality” :

“Many intuitions are incorrect and distorted by emotional and other biases. Symptoms of the fact that an intuition is distorted include (a) that the intuition is correlated with political ideology….”

By taking a careful look at all of the implications of making it illegal for the starving person to break into the cabin and steal food, I think it is more likely that we will refrain from letting emotional bias get in the way of our intuition. Initially, we all strongly feel for the starving person emotionally and want him to be able to break in and get food. However, when we consider our gut reaction towards the cabin owner being prosecuted for refusing to give the person food I think it becomes apparent that although this person is apparently very mean and selfish, he does not deserve to be punished with force, since, after all, he didn’t actually even hurt anyone. He just refrained from helping someone. It seems difficult, emotionally, to want to use force against someone who never harmed anyone or anything.

We can make the situation even more extreme, and I think the emotional gut reaction is still the same: Imagine that the starving man breaks in and steals an apple. Then the owner catches him and removes him from the cabin. The starving person who has just eaten half an apple stays and begs for food, but the owner refuses. The person starves to death outside his cabin. Later, the cabin owner goes to the people in charge of the dead man’s estate and demands a dollar in restitution for the stolen apple. This is such an extreme situation—I cannot even imagine Adolf Hitler doing such an indecent thing. But should the law really say that he is not owed restitution for the stolen apple? Why? This scenario, although very extreme, intuitively doesn’t seem like a strong enough reason to support overruling his property right in the apple. There are countless ways that libertarians agree people should legally be allowed to be mean and selfish people. Why should we make an exception for people enforcing their property rights again people doing morally permissible things?

To elaborate on what I said at the beginning of this email, I think that breaking into the cabin should be illegal because doing so is a violation of the cabin owner’s rights, and because–although I am open to the possibility that there could be an overriding reason why it should be legal to violate the cabin owner’s rights–I am not aware of a reason why it should be legal that is strong enough to override the reason that breaking into the cabin is a violation of the cabin owner’s rights. The reason that it is morally permissible to break into the cabin seems to be nowhere near strong enough. Consider another scenario:

An asteroid is flying at the earth and is about to kill a million innocent people. There is a button that only Joe can choose to press. If he presses this button the asteroid will be redirected and will kill you instead of the million other people. Joe knows this. Should he press it? Of course! (Assume that you explicitly stated that you did not want to be killed. Of course most people would be decent and would consent to be killed in such a scenario to save the million people, but assume that you do not consent and that it is thus murder.) Should your family be legally allowed to force him to pay them restitution as punishment for murdering you? As in typical cases of intentionally killing people, I would say yes. And my intuitive sense of justice agrees with this. What if you have young kids and they just lost their father who they were depending on for support? If we’re going to answer this question by appealing to emotional intuitions rather than libertarian principles then we have to consider possibilities like this. Of course most people are kind, decent people, so it’s almost definitely true that the million people whose lives were just saved would donate plenty of money to your kids to support them, but putting this aside, don’t our intuitions tell us that your children deserve restitution from Joe for murdering their father?

Anyway, there are plenty of extreme situations like these in which “the right thing to do” or an obviously morally permissible act involve violating people’s rights. You said you think I’m biting the bullet, but I still don’t agree since, after all, my intuitions are also that the victim of the rights violation in each scenario still should be owed restitution and still should not be punished by the force of law if they defend their property rights so as to prevent the morally permissible act in each scenario from occurring. As I mentioned earlier, you wrote in your essay “Against Equality” that “Symptoms of the fact that an intuition is distorted include (a) that the intuition is correlated with political ideology….” My intuition is indeed correlating with my rights-based libertarian political ideology. I’ve tried my best to acknowledge this possible bias and examine the situations without letting what the libertarian principles say get in the way.

I’m not sure how I can tell at this point if I am indeed “biting the bullet” in these extreme scenarios as you say, or if my view that people should still be permitted to enforce their property rights in these scenarios is in fact reasonable.

I’ve written such a long response, that I might as well write a little bit more to explicitly reply to the rest of you said in your brief email:

“As it happens, you appear to be proposing a revision of existing law. Existing common law recognizes an affirmative defense to any criminal charge known as “the necessity defense”, according to which the defendant can argue that an action that violated the written statutes was necessary to prevent something much worse from happening. For example, the fire department can break a door down in order to get inside a building and rescue someone from a fire. (Would you claim that the firemen should then be prosecuted?) Would you say that the necessity defense should be eliminated?”

No, I do not think the firemen should be prosecuted. A different question that you probably meant is: “Should the firemen be permitted to be prosecuted?” To answer this I would have to know more about the scenario. Who was stuck in the building? Presumably whoever it was wanted to get out. The owner of the building has no right to prevent them from getting out safely or to prevent others from coming to their rescue to save them before they burn to death. Therefore, it seems to me that the fire department would be justified in breaking down the door to get in and save the person even without “the necessity defense.”

I had never heard of the necessity defense so I looked up other examples of it. The first four examples of it at this Brandeis University webpage involved unjust statist statutes that are not justified on libertarian grounds anyway, so I would say that the necessity defense is not needed for these cases—what is needed is to eliminate the unjust statutes. I could go look for more cases in which the necessity defense was used to defend someone and see if I agree with the ruling, but instead I’ll just say that I don’t know whether or not the necessity defense should be eliminated based on my limited knowledge of it. In any case, it doesn’t seem necessary that we answer the question of whether or not “the necessity defense” be eliminated in order to answer the question of whether or not it should be illegal to steal food if that is the only way to avoid starving to death, etc.

Very soon after sending this I sent Huemer another email telling him that it was okay if he didn’t want to read my long email and reply to it (“Thank you for the conversation, even if you do not get through my 2000 word email. I’ll understand.”) Then immediately after that I realized that I shouldn’t have sent him such a long email if I thought it was too much to ask him to read. I should have been more concise. Anyway, hopefully by posting our exchange here I can get feedback from someone on my position.

Am I biting the bullet as Huemer believes? Or is my position that it should be illegal to break into someone’s cabin and steal their food—even if you are starving and have no other way of getting food—reasonable?

Again, I argue that it is reasonable because holding this position does not require that I believe it to be morally wrong to steal the food. I believe that it is morally permissible to steal the food and that the starving person should steal the food. Further, I believe that if the owner of the cabin is there when the starving person shows up he should not prevent the starving person from taking his food and eating it. Further, if the cabin owner is not there and only learns of the crime after it is committed, then I believe that the owner of the food should be kind and forgive the trespasser/thief rather than demand restitution for the stolen food.

Therefore, my position that it should be illegal for the starving person to commit aggression—even if the only way he can avoid starving to death is to commit aggression—does not contradict any of the intuitive moral views I or most people hold. All I am saying is that if the owner wishes to enforce his property rights against this poor starving fellow whose only choice was to starve to death or steal, either by locking him out of the cabin and refusing to give him food or by demanding restitution for the stolen food after the fact, then he should be legally permitted to do so.


UPDATE 06/21/2014: In my first email to Prof. Huemer above I said that I believed that it should always be illegal to commit libertarian rights-violations, even when it is morally permissible to commit the violation. I said “I believe this 100% of the time.” Here I will qualify this statement so it accurately states my view: In the same way that I believe rights-violations can sometimes be morally permissible (i.e. when committing the rights-violation likely leads to a much better outcome  than can be achieved without committing the rights-violation), I also believe that in principle there are some cases when committing rights-violations should be legal (when making it legal to commit the rights-violation likely leads to a much better outcome than can be achieved without making it legal to commit the rights-violation).

However, since I am not aware of any cases in the real world in which making it legal to commit a rights-violation likely leads to a much better outcome than can be achieved without making it legal to commit the rights-violation, then I do not believe there are any cases in the real world in which it should be legal to commit a rights-violation. Perhaps such cases exist, but I am not aware of them.

Note, however, that Huemerian minarchist libertarians* who take my view that it should only be legal to commit morally permissible libertarian rights-violations if they meet the above criterion do believe that such cases exist; that is why they are minarchists. Specifically, they believe that the existence of minarchist governments that, for example, make it illegal for people to not surrender a certain amount of tax money to them to be used to try to improve society (presumably by providing services of law and order) are likely to make society much better than it likely would be without rights-violating minarchist governments.

* A Huemerian minarchist libertarian, meaning someone who is a minarchist libertarian because they accept the thesis advanced in the first half of The Problem of Political Authority (nobody has political authority), but they reject the thesis advanced in the second half of The Problem of Political Authority (the likely outcome of a society with government–a kind of organization that necessarily violates peoples’ rights–would not be sufficiently better than the likely outcome of a society without government to make it permissible for government to exist).


This is the first of three related blog posts featuring discussion between Prof. Mike Huemer and I. All three posts deal with the question of when it is moral to support or commit aggression:

(1) Morally Permissible Unjust Acts: Defending the Rights-Based Approach to Defending Libertarianism

(2) How Bad Would Anarchy Have to be to Justify Unjust Government Activity?

(3) Mike Huemer: “We’re nowhere close to the case where government would be justified.”

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Author: PeaceRequiresAnarchy

“A consistent peace activist must be an anarchist.” – Roderick T. Long

One thought on “Morally Permissible Unjust Acts: Defending the Rights-Based Approach to Defending Libertarianism

  1. Discussion of this post occurred on the Ron Paul Forums here. However, if you wish to comment here I will still see it and reply.

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