I. Introduction: Libertarian Theory and Taxation
Libertarian political theory is renowned—or notorious—for its ascription to individuals of robust moral rights that morally preclude others from killing, assaulting, maiming, enslaving, or otherwise extracting benefits from those individuals. It is renowned—or notorious—for holding that among the robust moral rights that persons have or would have under morally legitimate regimes are property rights, that is, entitlements to extrapersonal objects. Moreover, libertarian theory is renowned—or notorious—for holding that, insofar as individuals have legitimate property rights to their holdings, coercively depriving them of any of those holdings impermissibly violates their rights. Insofar as individuals acquire (and retain) genuine property rights, all taxation is theft. I am myself a friend of this sort of rights-oriented libertarian theory. Moreover, I confess to a fondness for the dictum that all taxation is theft. Nevertheless, in this essay I am interested in exploring whether there is room within rights-oriented libertarian theory for some taxation that is not theft.
More specifically, I want to examine one particular challenge to the taxation-is-theft dictum. This is what I will call the “non-absolutism challenge.” This challenge arises within rights-oriented libertarian theorizing and, therefore, has to be taken seriously by rights-oriented theorists. I believe that the non-absolutism challenge is modestly successful in the sense that, starting with the challenge, one can by way of a long chain of speculative reasoning get to a vindication of taxation that would fund something like a minimal safety-net for individuals who would faultlessly find themselves in dire straits without that net. The success of the non-absolutism challenge is modest precisely because (i) the line of reasoning from some initial claims about the non-absoluteness of rights to the vindication of taxation is much longer and more speculative than one might initially think and (ii) the taxation that is vindicated if that speculation is sound is much more modest than many (other than myself) would hope for. In this essay, however, my purpose is to explore what is plausibly involved in the claim that rights are non-absolute and in the inference from this non-absolutism to a vindication of taxation, rather than to trumpet any conclusion about justified taxation.
Before proceeding to the non-absolutism challenge, it is important to note and set aside other challenges to the taxation-is-theft dictum that are also internal to rights-oriented libertarian theory. To begin with, there are the “consent challenges.” According to these challenges: (1) taxation of legitimate property would be theft if consent to that taxation has not been given; but (2) that consent has been given; and therefore (3) that taxation is not really theft. Different consent challenges invoke different accounts of who gave what consent to whom and how (and how directly or indirectly). However, all such challenges from consent fail because the necessary consent does not obtain. Of course, by their uncoerced consent, individuals can and often do make it permissible for another agent to take portions of what, absent that consent, was their inviolable property. But there has never been and there is unlikely ever to be a pattern of uncoerced consent on the part of individuals that would make permissible the sort of configuration of governmental takings that we normally think of as taxation.1
Rights-oriented libertarians will be theoretically opposed to any appeal to a hypothetical consent that is supposed to render permissible the violation (through taxation) of otherwise inviolable rights and to any hypothetical-consent account of why, to begin with, rights are not inviolable.
Consent challenges to the taxation-is-theft dictum accept the crucial premise that legitimate property rights are absolute and, hence, that permissible intrusions upon legitimate property do require freely given consent.2
Or they require the voluntary performance of impermissible actions through which those rights are forfeited.
For ease of expression, I will use “trespass” or “intrude” to cover both rights-infringing entry and rights-infringing taking of property. One “infringes” a right when the right exists and one acts in a way that would “violate” that right if one did not have a dispensation. (One neither infringes nor violates a right if the right is no longer there to be infringed or violated. If F gives E permission to punch F in the nose, E neither violates nor infringes F's right against E not to be hit in the nose—because the permission eliminates the right.)
The most common and modest refinement involves the idea that persons' rights to their just holdings do not exclude those takings of their holdings that are necessary to finance the production of public goods—especially public goods that protect persons' rights, e.g., the public good of national defense.4
The crucial characteristic of a public good is that, if it is produced, it is not feasible to prevent individuals from enjoying it. National defense is always the prime example. Because of this characteristic, individuals may be significantly less motivated to purchase this good voluntarily than they would be motivated to purchase an equally valuable private good. As a consequence, the public good may not be funded or may be markedly underfunded unless individuals who gain from its production are required to fund it. For one general discussion, see Gerald F. Gaus, Social Philosophy (Armonk, NY: Sharpe, 1999), chap. 10. The view that it is permissible to force beneficiaries to fund public goods need not, of course, be cast in terms of a refinement of rights that creates this permissibility. For tentative accounts that do follow the refinement of property rights line, see Eric Mack, “The Ethics of Taxation: Rights versus Public Goods?” in D. Lee, ed., Taxation and the Deficit Economy (San Francisco: Pacific Research Institute, 1986), 487–514; and Eric Mack, “Self-Ownership, Taxation, and Democracy: A Philosophical-Constitutional Perspective,” in D. Racheter and R. Wagner, eds., Politics, Taxation, and the Rule of Law (Dordrecht: Kluwer Academic Publishers, 2002), 9–32.
If taxation is not really necessary because mechanisms can evolve or be devised to overcome the difficulty of marketing this protection of rights to those who will benefit from it, then the takings will not be justified. They will be theft.
The modesty of the refinement is manifest in the fact that the taxation that it permits is not redistributive.
For explorations of this refinement, see Mack, “The Ethics of Taxation,” and Mack, “Self-Ownership, Taxation, and Democracy.”
In this essay, however, I explore a refinement of rights and an associated challenge to the taxation-is-theft dictum that is more dangerous to rights-oriented libertarian theory. For it is a refinement and challenge that opens the door to dispossessing persons of rightfully held property for the sake of supplying something like a minimal safety-net for others.8
I briefly discuss the distance between acknowledging a type of non-absoluteness in rights and validating taxation to support welfare in my essay “Libertarianism Untamed,” Journal of Social Philosophy 23, no. 3 (Winter 1991): 64–72. For a related discussion, see Douglas Rasmussen and James Sterba, The Catholic Bishops and the Economy: A Debate (New Brunswick, NJ: Transaction Books, 1987).
Perhaps the number of individuals who are faultlessly in dire straits is small enough so that, given the various interests others have in eliminating those dire straits, voluntarily funded assistance to those individuals will be feasible and, for this reason, the case for the coercive funding of a safety-net fails. I would like this to be true.
Rights-oriented libertarian theorists tend to try to push consideration of the non-absoluteness of rights to the periphery of their doctrines. Robert Nozick confines to a footnote his remark that “[t]he question of whether these side constraints [i.e., basic protective rights] are absolute, or whether they may be violated in order to avoid catastrophic moral horror, and if the latter, what the resulting structure might look like, is one I hope largely to avoid.”10
Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 30 n.
Ayn Rand, “The Ethics of Emergencies,” in Rand, The Virtue of Selfishness (New York: Signet, 1961), 43–49.
I have said that the line of argument from the non-absoluteness of rights to the vindication of taxation to fund something like a safety-net for faultlessly desperate people is longer and more speculative than one might think. The key reason for this is that to affirm that an individual like the freezing hiker A is at liberty to intrude upon the property of cabin-owner B is merely to affirm that A is not under his normal obligation to abide by B's property right. A's not having this obligation does not imply that B has an obligation to A to provide the needed shelter; A's not having the obligation to stay out of the cabin does not even imply that B is obligated to permit A to trespass.12
To assert the non-absoluteness of a right that B holds against A is not to assert that A possesses a right against B that conflicts with and may override the right held by B. Failing to distinguish between non-absoluteness of rights and conflicts among rights is a weakness in Tara Smith's interesting essay, “Rights Conflicts: The Undoing of Rights,” Journal of Social Philosophy 26, no. 2 (Fall 1995): 139–56.
The plan for the remainder of this essay is as follows: In Section II, I sketch the opening phases of arguments for rights. In particular, I emphasize the origination of rights in the proposition that it is not reasonable for individuals to opt for or accept personal losses in order to provide gains for others. It is because this emphasis on the “separateness of persons” is so essential to the case for rights that rights theorists must be receptive to the claim that a reasonable theory of rights will not require the freezing hiker to sit and freeze. In Section III, I look at cases in which one's intuitive judgment is that an individual in very difficult circumstances may infringe upon another's legitimate property rights if that will ameliorate those circumstances. I maintain that in such very difficult circumstances, rights infringement is permissible even if the individual in dire straits will not be able to compensate the owner for the infringement. This is the eye of the needle through which libertarian taxation for a safety-net needs to pass if there is a route from the non-absoluteness of rights to that taxation. In the remainder of Section III, I consider examples in which an individual is (faultlessly) in very dire straits but can escape a great loss by way of a pretty minor infringement of another's rights. If dire straits ever make trespasses permissible, if they ever reveal rights to be non-absolute, they do so in these cases.
How dire must individual A's circumstances be in order for him not to be bound to abide by B's various rights (which may differ in their degree of importance)? In Section IV, I examine—albeit only in a very rudimentary way—how difficult an individual's circumstances have to be for it to be permissible for him to infringe upon another's rights. This examination gives us some idea of how frequently property owners are faced with situations in which other individuals—especially other individuals who cannot compensate the owners for infringements—are morally at liberty to infringe upon their rights. In Section V, I examine how the institution of a safety-net might be defended as a public good for property owners because of the way it allows them to escape from the dangerous and morally difficult condition that obtains when others are morally at liberty to infringe upon the owners' rights. A key feature of my overall argument is that there are several different ways in which a person in dire straits may have a dispensation from his normal obligation to respect another's property rights, and the permissible response by the property owner to that person's permissible trespass will depend on what mode of dispensation (if any) the trespasser has. Therefore, the owner will be able to avoid overreaction and underreaction only if she can determine what mode of dispensation (if any) the trespasser has. It is because this determination is likely to be difficult and costly in itself that owners have an interest in the institution of a safety-net that prevents persons from falling into dispensation-generating straits. In Section VI, I sum things up.
II. Rights and Axiological Separateness
I have said that the non-absolutism refinement of our understanding of rights is grounded in the best arguments for libertarian rights and, for that reason, must be credible to advocates of such rights. A full defense of this claim would lay out those best arguments and point to the ground that the non-absolutism refinement has in them. Clearly, however, the laying out of those arguments cannot be attempted in one section of one essay. In this section, then, I will do something very much less than laying out those best arguments. I will say something about the underlying purpose or function of a system of robust rights, and I will say something more about the “separateness of persons” that friends of rights need to invoke to drive competing systems of enforceable interpersonal rules from the field.
Defenses of rights almost always begin with a recognition or defense of the reasonableness of individuals' pursuing their own good. Each person has a prospective well-being, and the attainment of that well-being stands as that person's ultimate end. Each person has a life of his own, and the first postulate of practical rationality is that an agent rationally aims at ensuring that his own life goes as well as possible. Rights come in as devices for the protection of each individual in the pursuit of his own ends from being trampled by other people in the pursuit of theirs. Rights do this by drawing boundaries between what one individual may deploy as he chooses in pursuit of his ends and what another individual may deploy as she chooses in pursuit of her ends. Rights preclude trampling. They thereby encourage the discovery by individuals of more and more non-trampling ways to achieve their respective goods—including ways of cooperation and ways of cooperatively reshaping those boundaries in order to facilitate yet further gains. Rights facilitate cooperation among individuals without requiring them to serve any common substantive goal—such as the goal of greatest social utility or greatest social equality. That is why friends of such substantive social goals cannot in the final analysis be friends of rights, and that is why friends of rights must reject systems of enforceable rules that are grounded upon some enshrined substantive social end. The rejection of all such doctrines of the social good is not in itself a positive argument on behalf of the system of rights, but it is a necessary negative part of the overall argument. If the basis for rejecting such doctrines of the social good gives rise to the non-absolutism refinement of rights, the friend of rights must give credence to that refinement.
Utilitarianism is, of course, the standard version of a conception of the overall social good that is advanced as the basis for a system of enforceable interpersonal rules. Utilitarianism calls upon individuals to incur costs within their own lives if doing so will more extensively diminish costs within others' lives or more extensively enhance benefits within others' lives. Indeed, it also seems to call upon individuals to impose costs on other persons if doing so will more extensively diminish costs within the lives of third parties or more extensively enhance benefits within the lives of third parties. The most prominent critique of utilitarianism in recent decades is the one offered by John Rawls in A Theory of Justice.13
John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), sections 5 and 6.
Nozick, Anarchy, State, and Utopia, 30–31.
What this shows is that the real critique of utilitarianism cannot consist in pointing to the empirical separateness of persons. Rather, it consists in pointing to what I shall call “axiological separateness.”15
Axiology is, of course, the science of values.
I am not saying that the only measure of reasonableness in action is the value-oriented measure of how well one's ends are satisfied. Another measure of reasonableness is how fully one complies with sound constraining interpersonal norms, e.g., others' rights.
Using one of these people for the benefit of others, uses him and benefits the others. Nothing more…. To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good from his sacrifice, and no one is entitled to force this upon him… .17
Nozick, Anarchy, State, and Utopia, 32.
Unlike Rawls, Nozick realizes that the separateness of persons has much broader negative implications than the undermining of utilitarianism. It also undermines nonaggregative (i.e., distribution-sensitive) conceptions of an overall social good. Such distribution-sensitive conceptions rank alternative available social outcomes on the basis of how extensively they would realize some favored profile or pattern of goods among members of the society in question. For instance, one might think—as Rawls himself does—that alternative available social outcomes are to be ranked in accordance with how well served the least-advantaged members of society are. The better an outcome serves the least advantaged (i.e., the more that is allotted to them within it), the more highly ranked it is.
This distribution-sensitive conception of the overall social good, like any distribution-sensitive conception for which advocates can be found, will sometimes call upon individual A to opt for or accept a loss for herself so as to make possible a smaller gain for B; for circumstances can easily obtain in which such a loss for A will yield a social outcome that more extensively realizes the favored profile or pattern of goods.18
If the favored profile is strictly egalitarian, then losses to A that do not generate any gains for B may still count as yielding a better overall social state.
In this section, then, I have maintained that the first phase of any defense of a system of rights as the basis for enforceable interpersonal norms requires the rejection of all candidates for the role of authoritative social good, and that an essential move in the rejection of these candidates is the invocation of axiological separateness. I have pointed out that to invoke axiological separateness is to validate each individual's questioning of demands that he bear costs for the benefit of others. This validation certainly does not mean that it is never reasonable for individuals to bear costs in order to remain respectful of others' rights. If there is a case for rights as general protective norms that enable each individual to pursue his own valued ends in his own way, then it must be reasonable for individuals to be required to bear some costs—perhaps very considerable costs—so as to comply with those rights. Nevertheless, a doctrine which so focuses on the separateness of individuals' systems of ends, and on the rationality of individuals' seeking the realization of their own ends, cannot comfortably insist that it is all-things-considered reasonable for individuals to bear enormous costs even in order to abide by other persons' relatively minor rights. Because of his appeal to axiological separateness, the friend of robust rights has to give credence to the intuition that an individual need not accept great loss (for example, loss of his life) in order to abide strictly by others' rights.
It should be noted that axiological separateness is not axiological atomism. To accept axiological separateness is not to believe that our valued ends are isolated and unconnected. For all or almost all of us, what gets recorded in others' respective ledgers of gains and losses affects—and not just instrumentally—what gets recorded in one's own ledger. Among the things that all or almost all of us value are things going well for other individuals. More specifically, all or almost all of us value very highly things going well for a limited number of other individuals, value somewhat things going well for a greater number of others, and value slightly (down to barely perceptibly) things going well for most individuals at large. Moreover, all or almost all of us disvalue to various degrees things going well for various other individuals. (We differ from one another in what aspects of things going well or going badly in others' lives we value or disvalue.) Often, then, a gain to another will have some—possibly barely perceptible, possibly highly salient—value to the individual whose loss makes that gain possible. This factor will reappear in this essay when we note that many owners of property may be willing to bear the costs of minor trespasses by individuals who are escaping serious dangers; the owners may be willing to bear these costs precisely because they value others' escaping such dangers.
III. Dire Straits and the Permissible Infringement of Rights
Let us begin with the most standard sort of case that intuitively supports the non-absoluteness of rights, the Freezing Hiker case. Here are the stipulated facts of the case:
While on a well-planned wilderness trek and through no fault of his own, Hiker finds himself in fatally freezing weather. The full use of his carefully selected gear will not keep him alive given the unpredicted plunge in temperature. Fortunately, Hiker stumbles across Owner's wilderness cabin and through the window he can see nice cords of wood by the fireplace and life-saving blankets. But the cabin is locked and Owner is not around. Worse yet, there is a sign near the front door that reads, “Private Property! Keep Off No Matter What Your Sob Story.” Hiker, however, will escape death only if he breaks the lock, burns some of Owner's wood, and makes use of her blankets.
The most basic intuition here is that no plausible moral theory says that Freezing Hiker must accept his freezing to death. Even more clearly, no moral theory that builds upon the separate value of each person's life and well-being can hold that Freezing Hiker is morally bound to grin and bear it. Since plausible rights theory itself builds upon the axiological separateness of persons, it especially must give credence to this basic intuition.
Having given this credence, however, the rights theorist will have a great need for an account of the limits on the limits to individuals' being required to grin and bear it. Here is another case—Sore Hiker—that conveys the intuitive need the friend of rights—including property rights—has for such limits on the limits:
While on a well-planned wilderness trek and through no fault of his own, Sore Hiker finds himself one long day from his exit point but very sore and tired and a bit chilled. The ground is rocky and his sleeping pad has sprung a leak. He faces a sleepless and somewhat chilly night and a difficult and physically uncomfortable hike on his final day. Fortunately, Sore Hiker stumbles across Owner's wilderness cabin and through the window he can see nice cords of wood by the fireplace and comforting and chill-averting blankets. But there is that sign that reads, “Private Property! Keep Off No Matter What Your Sob Story.” Sore Hiker, however, will escape that fairly miserable night and a good portion of the next day's misery only if he breaks the lock, burns the wood, and so on.
The loss that Sore Hiker would escape is much less drastic (and permanent) than the loss faced by Freezing Hiker. If we take Owner's rights at all seriously, we will judge that Sore Hiker is required not to enter the cabin even though the cost to himself that he would avert by doing so is distinctly greater than the cost he would impose on Owner. The rights-oriented libertarian theorist needs to provide an account that explains why Freezing Hiker is not morally required to grin and bear it while Sore Hiker is. Then that theorist has to address whether his account—or whatever fragments of an account he can come up with—is a refinement within rights theory that opens the door to more systematic permissible takings of private property—in particular, takings to finance a social safety-net. I offer the rudiments of such an account in the next section of this essay.
However, within this section I am concerned to point out that a given faultless and seriously endangered hiker—like Freezing Hiker—may possess one of a number of different dispensations from his normal obligation to respect Owner's property rights. Which dispensation a given hiker possesses will depend upon further particular features of his case. Consider these four distinct—and successively more modest—dispensations that a seriously endangered hiker might be thought to possess. (The four dispensations represent different—and successively more modest—interpretations of the judgment that the endangered hiker is not morally required just to grin and bear it.)19
It looks like there is room for a whole theory of dispensations. I suspect that there is a good deal in the common law of (intentional) torts that would be instructive to such a theory.
(a) The seriously endangered hiker has a claim-right to break the lock, burn the wood, and so on—that is, he is at liberty to break the lock, burn the wood, and so on, and Owner is obligated to facilitate the hiker's entry (for example, by using some form of telecommunication to reveal the location of the hidden door key).
(b) The seriously endangered hiker has a claim-right to break the lock, burn the wood, and so on if and only if he compensates Owner (either immediately or over time). But Owner is under no obligation to facilitate the hiker's entry. (She need not reveal the key's location.)
(c) The seriously endangered hiker is at liberty to break the lock, burn the wood, and so on; thus, correlatively, Owner has no claim-rights against the hiker's performing these actions. But Owner is under no obligation to allow the hiker to act in this way; Owner is at liberty to prevent the hiker's actions—albeit not by the use of harmful force against him.
(d) The seriously endangered hiker is at liberty to break the lock, burn the wood, and so on; thus, correlatively, Owner has no claim-rights against the hiker's performing these actions. But Owner is under no obligation to allow the hiker to act in this way; Owner is at liberty to prevent the hiker's actions—even by the use of harmful force.
I will maintain that no hiker's serious endangerment confers dispensation (a) upon him.20
Indeed, if persons in dire straits did possess dispensation (a), the route from property rights being non-absolute in the face of individuals in dire straits to the vindication of taxation to undo those dire straits would be much shorter than I have claimed.
Let us begin by considering the case of a freezing hiker who is capable of compensating Owner for the property damage he causes in escaping from the blizzard. He is Freezing Capable Hiker (FCH). This feature of being able and willing to provide compensation makes FCH a stronger candidate for exemption from the requirement that he not trespass on Owner's property than similarly endangered hikers who are not able (or willing) to provide compensation. Thus, if even FCH possesses only dispensation (b), no seriously endangered hikers will—in virtue of their endangerment—possess dispensation (a). After making the case for FCH's possession of dispensation (b) rather than dispensation (a), I will turn to the dispensations possessed by faultless seriously endangered hikers from whom compensation cannot be expected.
If FCH possesses dispensation (a), he has an unqualified claim-right to break the lock, burn the wood, and so on. As a consequence, FCH may not be prevented from performing these actions and he may not be prevented from imposing the cost of his escape from death on Owner. If FCH has this unqualified right, he can do two distinguishable things to Owner that would (normally) be precluded by Owner's property rights. The first is that FCH may deprive Owner of her discretionary control over how the lock, the wood, and so on will be used. Rather than the deployment of these resources being determined by Owner's choice, it will be determined by FCH's choice. The second is that FCH may impose the costs of his escape from death on Owner. FCH does not have to bear the costs of his escape from death either by way of paying Owner in advance for Owner's permission to break the lock, and so on, or by way of compensating Owner afterward for his trespass. If FCH possesses dispensation (a), he is not rightly subject to punishment—which would serve at least metaphorically to nullify the deprivation of choice imposed on Owner—and he is not even rightly required to pay compensation to Owner—which would serve to nullify the imposition of costs upon the right-holder. One reason for rejecting the ascription of dispensation (a) to FCH is that, if FCH has this dispensation, then his actions (breaking the lock and so on) cannot be said to infringe upon any rights of Owner. If FCH has this dispensation, then we should no more say that FCH's actions infringe Owner's rights than we should say that just punishment infringes the rights of the criminal subject to that punishment. If we think that FCH's actions are infringements upon Owner's rights—albeit permissible infringements—we have to reject the ascription to FCH of dispensation (a).
We have further reason to reject this ascription. It is one thing for FCH not to be morally required to sit and freeze; it is another thing for morality to require that Owner bear the costs of FCH's escape from freezing.21
I am not saying that, under dispensation (a), Owner would be required through her own actions to take on these costs; but under (a) she would be required to bear them if FCH imposes them on her.
This essentially is the argument for why, no matter how reasonable the intentional tort-feasor is in, e.g., choosing to damage another's dock in order to avoid greater damage to his ship, he ought to be required to bear the costs of his reasonable action.
However, as Ellen Paul has prompted me to point out, FCH does not have any claim-right to Owner's facilitating his trespass by, e.g., revealing where the door key is hidden.
Note that I have not said that an agent may impose a forced exchange whenever the loss to the agent that the agent averts is great enough for it to pay for that agent to compensate the victim of the forced exchange. The permissibility of infringement with compensation has only been asserted with respect to FCH.
Mode of dispensation (b) nicely fits the judgment that in special circumstances like those involved in the Freezing Hiker case, an endangered agent does not wrong an Owner by infringing upon her rights—until and unless compensation is not paid. Dispensation (b) is a nice solution to the Freezing Hiker case because it involves a pretty neat splitting of the difference. By allowing that the endangered hiker may not be precluded from engaging in his life-saving actions and that he may not be punished for them, we accommodate the judgment that the hiker is not morally required to grin and bear it. By insisting that the hiker is required to compensate Owner, we also accord to Owner a good deal of what her undiminished right would provide—in particular, her not having to bear the cost of FCH's loss-avoiding actions. Unfortunately, this nice solution depends upon the endangered hiker's being able and willing to compensate Owner. Things get tougher and more interesting as we move to situations in which our severely endangered hiker is not able and willing to compensate Owner for the costs imposed on her by the hiker's escape from danger. (And there is no one else prepared to pay compensation on behalf of this hiker.)
As for this endangered hiker who is incapable of paying compensation, let us call him Freezing Incapable Hiker (FIH). And let us presume that FIH is as faultless with respect to his incapacity to compensate Owner as he is with respect to his being caught in the deep freeze. If we have in mind the possibility of moving from some non-absolutist refinement of rights to justified taxation, it is especially appropriate that we focus on the case of FIH and the dispensation for which FIH qualifies. After all, the prime candidates for protection by a safety-net funded by taxation are individuals who (faultlessly) are in dire straits and who (faultlessly) are not capable of compensating those on whom the cost of the safety-net would fall.25
Again I note the possibility that the numbers of such people may be small enough that no coercion is necessary to raise funds and generate institutions to assist them.
Here we need to ask and answer two related questions. Does FIH have as much moral latitude to break the lock, burn the wood, and so on as FCH? Is the fact that FIH is not capable of compensating Owner (and not capable of triggering anyone else's payment of that compensation) irrelevant? I think the answer to both these questions has to be “no.” The sort of moral latitude that FCH has to break the lock and so on depends on the prospect of Owner's being compensated. FCH's capacity to compensate Owner makes it possible for FCH to escape his dire situation by (merely) depriving Owner of discretionary control over her lock, wood, and so on—without his having also to impose any (other) cost upon Owner. What we normally think of as the costs of FCH's escape from the deep freeze can be borne by FCH. It is this prospect of Owner's not having the cost of FCH's escape from his dire situation imposed upon her that makes it unreasonable under the circumstances for Owner to prevent or defend against FCH's intrusion. In effect, FCH's prospective payment of compensation to Owner buys FCH some of the moral latitude he possesses. It makes him eligible for dispensation (b). Unfortunately, FIH cannot escape his dire situation without both depriving Owner of her discretionary control over her property and imposing the costs of his escape on Owner. In the case of FIH, there is no prospect of compensation to Owner to purchase moral latitude for the endangered hiker. It is, of course, true that FIH avoids great loss to himself if he trespasses upon Owner's property and that the cost of the trespass to Owner will be markedly less than the cost to FIH of forgoing the trespass. In light of axiological separateness, however, this in itself cannot be a good reason for ascribing to FIH a dispensation that requires Owner to allow FIH to impose that lesser cost on her. What one should expect is that the latitude that FIH has with respect to depriving Owner of her discretionary choice and imposing the cost of his escape on her will be less than the latitude that FCH has with respect to (merely) depriving Owner of her discretionary choice. This is to say that we should expect FIH to possess a more modest dispensation than FCH.
This line of reasoning would lose credibility if it were to drive us to the conclusion that FIH is morally required to sit and freeze, but we are not driven to this conclusion. Rather, we are driven to dispensation (c). FIH is not required to grin and bear it. He is entirely at liberty to break the lock, burn the wood, and so on—that is, he is under no obligation to refrain from doing these things. If he does these things, he is no more subject to just punishment than FCH is—under dispensation (b)—if FCH breaks and burns and pays compensation to Owner. FIH's need to do these things if he is to stay alive frees him from his obligation not to trespass upon Owner's cabin. No theory of rights grounded in the separate importance of each person's life and well-being can reasonably hold that Owner's rights can, in these circumstances, reach in and bind FIH to eschew the modest trespasses that are necessary for FIH to avert death. But the fact that FIH's infringement of Owner's rights will impose the cost of his escape from death on her leaves Owner with the moral liberty to block this imposition of cost. Owner's liberty rests on her having no obligation to submit to any (uncompensated) cost-imposition at the hands of FIH, whereas FIH's liberty rests on the unreasonableness of any interpretation of Owner's rights that requires FIH to sit and freeze.
In anticipation of the arrival of FIH, Owner is at liberty to install a lock on her cabin door. From the comfort of her primary residence, she may press the button that causes steel shutters to descend around her cabin when the remote sensors she has left there report the arrival of FIH. I do not think, however, that in order to prevent FIH's breaking her lock, burning the wood, and so on, Owner may from the comfort of her primary residence press the button that fires the shotgun mounted on the cabin porch that tracks anyone attempting to break into her cabin. Unfortunately, I do not have a confident account of this judgment. Perhaps what underlines it is a doctrine of proportionality in just defense—a doctrine which states that, for any infliction by A of an injury on B that is not just, there is an upper limit on the harm that B may inflict on A to prevent that injury. Perhaps what underlies my judgment is a principle of moral caution. If Owner in the comfort of her primary residence is mistaken about the hiker approaching her cabin door—if the hiker is not actually planning to break in or if the hiker is prepared to compensate for any damage he does—then Owner's pushing the button that fires that shotgun is objectively a form of homicide—even if it would be a legitimate defense of her property if Owner were not mistaken. In pressing the button, then, Owner takes a huge moral risk to block a likely minor loss. Our judgment that the absentee Owner may not push the button that fires that shotgun may be based on the idea that the loss through trespass in this case is not great enough to justify that moral risk.
If, as I surmise, Owner may not use harmful force against FIH, we can distinguish between the cases of FCH and FIH as follows: FCH possesses dispensation (b). He is at liberty to break the lock and so on, and Owner may not thwart FCH's breaking in (e.g., by bringing down those steel shutters). However, FCH must compensate Owner and may be punished for not compensating her. In contrast, FIH falls under dispensation (c). He is at liberty to break the lock and so on, and he need not do what, by hypothesis, he cannot do (namely, compensate Owner for the costs imposed on her). However, Owner may thwart FIH's breaking in (e.g., by bringing down the shutters), even though Owner cannot thwart FIH's breaking in by the use of harmful force against FIH.
I have been giving FIH the benefit of my philosophical doubt about whether Owner may resist FIH's relatively minor trespass by way of harmful force. That philosophical doubt diminishes as there is an increase in the damage that an endangered hiker in dire straits has to impose in order to escape those straits. I am not thinking here of cases in which Owner is on the scene and the endangered hiker must do damage to her in order to escape freezing to death.26
For instance, suppose that Owner is also caught in the blizzard. She has enough clothing to protect her from harm, including a scarf that she has wrapped around her left hand. Hiker can save himself from freezing to death only by wresting that scarf from Owner and (barely) protecting himself with it. But the consequence of this will be severe frostbite in several of the fingers on Owner's left hand. It is uncontroversial, I say, that Owner is at liberty to use harmful force against the hiker to prevent his wresting the scarf away.
If this endangered hiker can be expected to make compensation to Owner, it seems that he possesses dispensation (b).
I have emphasized Owner's moral liberty to thwart the trespasses that, in virtue of their dire straits, FIH and FIHDH are at liberty to perform. I should add, therefore, that to take note of the permissibility of these thwarting actions is not to hold that Owner should engage in them. The costs or dangers involved in thwarting trespasses by FIH or FIHDH may make those thwarting actions imprudent. Moreover, when the direct cost in property damage to Owner is relatively low—as it is when the prospective intruder is FIH—a morally decent Owner will value the survival of the faultlessly endangered hiker over avoidance of that property damage. (Recall the complicating factor mentioned in Section II—the value that people place upon others' well-being.) Of course, if Owner is faced with FIHDH, she has a markedly greater stake in exercising her moral liberty to thwart the trespass.
We should also note that the situation is more epistemically complicated when Owner is on site—as we owners are on site in our real social circumstances. If she is on site, Owner has to wonder what else an (apparently) endangered hiker will trespass upon if he is admitted to the cabin or succeeds at breaking in. If she throws a nice high-tech sleeping bag and high-tech snacks out to the freezing hiker and yet he still pleads to be let in or still is fiddling with her lock, she has to worry about what he intends to fiddle with if he gains entry. Owner has full and uncompromised rights not to suffer any loss that an endangered hiker does not have to impose in order to escape his dire straits. She may thwart the imposition of such a loss both by means other than harmful force (i.e., by means of the steel shutters) and by means of harmful force (i.e., by means of the shotgun). If Owner is on site, she may have reasonable or at least understandable concerns about the endangered hiker's overstepping his dispensation and, thus, she may have a reasonable or at least understandable basis for resisting the hiker's actions in ways that are not objectively permissible if the hiker is in fact acting within his dispensation.
If the endangered hiker is FIH, that is, if he enjoys dispensation (c), then that hiker and the on-site Owner exist in something like a Hobbesian micro–state of nature. FIH is at liberty to break into the cabin (albeit not by way of using harmful force on Owner); and Owner is at liberty to thwart FIH's entry (albeit not by way of using harmful force on FIH). Unlike the case of FCH, there is no way to split the difference so that in some significant sense neither party has to lose. When at least one party has to lose, and neither is at fault, a reasonable moral doctrine does not declare that either party is bound to submit to the loss. The micro–state of nature that exists between FIH and on-site Owner is not a fully Hobbesian micro–state of nature because neither party is at liberty to thwart the other party's exercise of his or her liberties by the use of harmful force—that is, by attacks upon the other person. Nevertheless, these situations obviously have great potential for escalating into Hobbesian micro-wars of each against each. If the endangered hiker is FIHDH, that is, if he enjoys dispensation (d), then the hiker and on-site Owner exist in a fully Hobbesian micro–state of nature. Each may permissibly use harmful force on the other, and this normative state will almost inevitably escalate into a micro-war of each against each. This tendency for escalation when Owner is on site may be exacerbated by one further factor. If an individual who is not herself endangered wanders by as an endangered hiker is ineffectively attempting to break into Owner's cabin, the wanderer is at liberty to act as the hiker's agent; she may exercise the hiker's liberty to break the lock, burn the wood, and so on.28
I would uphold two restrictions on one party's acting as the agent of another. The first is that, if there is some third party who is already supposed to be the agent of both the cabin owner and the endangered hiker, that third party cannot permissibly act on behalf of the hiker and against the cabin owner—absent something like the permission of the cabin owner. This means that we cannot go from the permissibility of some third party's acting on behalf of the endangered hiker to the permissibility of the government's acting on his behalf. The second restriction is that the costs that will be borne by each of a number of individuals—e.g., the various burdens of discomfort that will be borne by twenty chilled hikers—if no third party acts on their behalf do not aggregate into one much bigger burden, the group's collective burden, that provides the group or its agent with a dispensation.
Other wilderness wanderers may leap to the defense of Owner's property and may be seen by endangered hikers and their agents as overstepping what may permissibly be done in resisting the present trespass.
The point of mentioning these exacerbating factors is that they are factors that will come into play as we move from the truncated world of isolated endangered wilderness hikers, (mostly) absentee owners of wilderness cabins, and few (if any) aspiring nonendangered samaritans to the world of everyday society. I have offered here a (rudimentary) account of the diverse dispensations from the normal obligation to abide by others' property rights that individuals in dire straits may possess. We need to see what the implications of this account are for everyday society—or, more specifically, for a society like ours except for its being more systematically respectful of individual property rights. In such a social order, there will be lots of on-site owners or on-site agents of owners and lots of samaritans who may be prepared to act on behalf of individuals whose straits are dire enough to confer on them dispensation (b), (c), or (d). What we most need to know, then, is how widespread within such a society will be the possession (or apparent possession) of one or another of these dispensations. More specifically, we need to have some idea of how dire the loss that an individual (faultlessly) faces must be in order for it to be true that he is at liberty to infringe upon the rights of another. If it turns out that the costs of an individual's compliance with another's rights readily provides him with a dispensation from the obligation to respect property rights, then the prediction of the rights absolutist—that any departure from absolutism will lead to the unraveling of rights—will turn out to be correct. As I have already noted, then, the friend of rights who wants nevertheless to recognize that sometimes individuals in dire straits are not obligated to grin and bear it must explain why only quite dire straits exempt individuals from that obligation.
IV. Limits on Permissible Infringement
Section III's crude sketch of moral dispensations yields this rough picture: If an individual will suffer a great enough loss unless there is a transfer of property from its legitimate owner to that individual, then that individual has a dispensation from his normal obligation to abide by the owner's property rights. Which dispensation that individual will have will depend upon (i) whether or not the individual can compensate the owner for the transfer of property and (ii) how much of a transfer of property is needed to prevent the prospective loss. If the endangered individual can compensate the owner, then the individual enjoys dispensation (b). If the transfer of property needed to escape the dire straits is more than modest, the individual enjoys dispensation (d). Otherwise, he enjoys dispensation (c). Thus, the crucial question we must ask in order to get some idea of how frequently owners in an everyday property-respecting society will encounter individuals who possess (or may appear to possess) some dispensation is this: How severe a loss must an individual face before some dispensation is triggered?
We have already taken note of some intuitions relevant to this question, namely, that a wilderness hiker facing death possesses such a dispensation, but a wilderness hiker facing soreness does not. Since we are abstracting from questions about whether the parties facing losses are capable or not of compensating for the trespasses they would have to perform to escape their losses, and about whether those necessary trespasses would be modest or not, let us simply designate the hiker who faces freezing to death as “F” and the hiker who faces soreness as “S.” If we tell S that his trespass is not permissible, S will demand some explanation of why his case is so different from F's case. We can and should say that, if his case is significantly different, then a due regard for the rights of Owner requires that S eschew the break-in. But this still leaves us with the burden of saying why it is different.
What would be especially nice would be to show that, whereas it is advantageous to hikers that the danger of freezing to death triggers a dispensation from the obligation not to break into wilderness cabins, it is disadvantageous to hikers to so expand this exemption that the danger of soreness also triggers a dispensation. More generally, what would be especially nice would be to show that, whereas it is advantageous to individuals in everyday society that the prospect of death triggers a dispensation from the obligation not to trespass, it is disadvantageous to individuals in everyday society that the prospect of middle-ish discomfort also triggers a dispensation. All this would be nice because it would rebut a claim that the individual who demands a more permissive dispensation might make—the claim that a moral code that lacks this more permissible dispensation is not sufficiently solicitous of his interests. It would be still nicer to be able to say something about where the cut-off point is at which any further expansion of exemptions becomes disadvantageous. Friends of robust rights will want that cut-off point to be in the region of significant permanent injury, so that only individuals who have to trespass to avoid such injury or worse have a moral liberty to do so. If an argument from the non-absoluteness of rights to a tax-funded safety-net goes through, these will be the individuals saved by the net. But how could it even be shown that it is disadvantageous to S for there to be an exemption from obligatory respect for property rights that extends to individuals like S who face the prospect of soreness? Surely it is advantageous—not disadvantageous—to S that the prospect of his soreness triggers a dispensation. It is crucial to see why this apparently plausible proposition is false.
The first step in seeing this is to note that, if a given level of prospective loss triggers a dispensation for any hiker (e.g., for S), then that level of prospective loss triggers a dispensation for every hiker facing that level of prospective loss. We can hold that hiker F is at liberty to trespass in order to save himself from death only if we hold that every hiker is at liberty to trespass to avert his death. We can hold that hiker S is at liberty to trespass to save himself from a period of discomfort only if we hold that every hiker facing that increment of discomfort has this liberty. The second step is to note that there can be considerable blowback from others' having a liberty that, if not for the blowback, it would be advantageous for one to have. It is precisely on point here to cite that maximal state of moral liberty—the Hobbesian state of nature. First, picture individuals occupying an uncomplicated Lockean state of nature, where each individual possesses claim-rights to his life, limbs, freedom, and peacefully acquired holdings. None of these individuals has any moral liberty to trespass upon any other's life, limbs, freedom, or peacefully acquired holdings. Now imagine that one of these individuals—call him “Tom”—receives a dispensation from all his Lockean obligations not to trespass upon others' lives, limbs, freedoms, and property. At least at first blush, it seems that Tom's freedom from the bonds of Locke's “law of nature” would be highly advantageous to Tom. Let us suppose that it would be advantageous to Tom in and of itself—that is, before we take account of the implications of Tom's having this liberty and the consequences of those implications.30
At second blush, even this singular moral liberty is not advantageous to this individual—at least if others are aware of his being unbound. For he is now more dangerous to be around. Moreover, since he is at liberty not to keep his contracts, people will be very reluctant to enter into contractual relationships with him.
Tom's unique unbounding could arise from a Lockean state of nature if everyone else were to waive all their Lockean rights against Tom. For Locke, that is the incredibly implausible story that would have to be told to vindicate a Hobbesian sovereign.
Tom's life in a world of Hobbesian liberties will not be enjoyable because of the blowback to Tom from others' equally unlimited Hobbesian liberties. The most readily envisioned part of this blowback is the cost to Tom of others' being under no obligations at all to constrain their conduct toward him. For each of them, it is as much open season on Tom as for Tom it is open season on all of them. However, a less readily envisioned part of this blowback is crucial for an account of the limits on permissible infringement. This is the portion that derives from each of those other individuals' being unconstrained in his or her actions toward each of those other individuals. A great deal of the brutishness, nastiness, poverty, and shortness of life that will befall Tom in a Hobbesian state of nature will be the negative externality of the war of all these others against all these others. We can get a sense of the magnitude of this negative externality, that is, of this portion of the blowback, by imagining that Tom has Lockean rights against everyone else—so that everyone else is quite constrained in what they may do directly to him—but each of these others enjoys Hobbesian liberty with respect to each other. In other words, we imagine Tom as an island of Lockean rights in a sea of Hobbesian liberties.
That is going to be a pretty small, pretty poor, and pretty short island. It will, essentially, be only as good an island as Tom can create for himself without any trade or joint cooperative endeavors with anyone else. This is the case because others will, of course, have very little to trade and very few developed skills to bring to any cooperative endeavor with Tom. Moreover, since none of them will have rights to any of the goods they might offer to Tom in trade, Tom's Lockean right to anything he obtains in trade will be highly questionable. Thus, others' strict compliance with Tom's Lockean rights will not require them not to seize these goods. And, of course, even if some other individuals have some goods to trade with Tom or some developed skills to bring to cooperative endeavors with Tom, these other individuals will have little incentive to trade or cooperate with Tom. By hypothesis, they will have no Lockean rights against anyone else to the fruits of those trades or endeavors.
Here is one more exercise in imagination to convey the magnitude of the negative externality for a given individual of the dilution of others' rights vis-à-vis one another. Imagine, again, that Tom has Lockean rights against everyone else. Suppose, however, that each of the remaining people has what we might call Benthamite liberties against each other. Each of these individuals is at liberty to infringe on the rights of any other of these persons whenever the cost that the infringer escapes through the trespass exceeds the cost that the infringer inflicts. It seems clear that, under such a regime, life would go much less well for everyone—including Tom—than it would if rights were not subject to so extensive a dilution. It would not be as bad for Tom as it would be if others were to have Benthamite liberties toward him, but it would still be very bad—because the enormous positive externalities for Tom of living in a well-ordered market society would largely disappear. Life would go markedly worse for Tom than it would if the only dilution of people's Lockean rights were to consist in people's being at liberty to infringe those rights when—as in the case of the freezing hiker—an agent's infringements were necessary for that agent to escape an extremely bad outcome.
It is probably obvious why I have emphasized the indirect portion of the blowback that originates with others' having the same liberty to infringe upon rights as our protagonist Tom has. For this is the portion of the blowback that hits our protagonist—as a negative externality or as a loss of a positive externality—even if others are not going to be exercising against him the liberty to infringe rights that he may be exercising against them. It is only this indirect portion of the blowback that is relevant if we think of the wilderness as something like a closed system in which there are hikers (who are not also owners) and owners (who are not also hikers). The hikers do not have to consider the cost to them of the owners' exercising against them the same liberty to trespass upon cabins that the hikers have or may be thought to have. Although the owners would also have the same moral dispensation that the hikers have, they would rarely have occasion to exercise it. Similarly, individuals who are in dire straits in our non-wilderness society, and to whom some dispensation regarding trespass might similarly be ascribed, do not face the prospect of direct blowback by way of non-indigent individuals exercising a comparable liberty to trespass against them. Though the non-indigent would have the same moral dispensation that the (faultless) indigents would have, the former would rarely (if ever) have occasion to exercise that dispensation. Thus, if there is a case to be made against a hiker who cannot compensate having a liberty of a certain extent to trespass on Owner's property, it has to be made in terms of the cost to that hiker of the indirect blowback of everyone's having that liberty to trespass. That is to say, it has to be made in terms of the indirect cost to that hiker if everyone were to have a liberty of that degree and, hence, if people were to act as they would if everyone were to have that exemption. If the cost to a hiker that would flow from everyone's having an increased dispensation to trespass would exceed the local gain to the hiker of having that increased dispensation, then the hiker would be better off without that increase in his (and hence in everyone's) dispensation. Thus, even from his own perspective, he cannot hold that a moral code that denies this increased dispensation is unreasonable. A moral code that denies this increased dispensation—while perhaps allowing a lesser exemption—is, on the whole, better for him than one that incorporates this increased dispensation. Similarly, if there is a case against the everyday indigent individual's having a liberty of a certain extent to trespass upon us, it has to be made (at least very largely)32
I say “very largely,” and not “entirely,” because the indigent individual may well not remain indigent; thus, he may well become subject to the permissible trespasses being considered.
We have, in effect, already envisioned the case against the indigent individual's having an unlimited Hobbesian liberty to trespass and the case against the indigent individual's having even the somewhat limited Benthamite liberty to trespass. But to see more clearly why such cases can be made and what liberties to trespass may survive, it is useful to go back to hikers F and S (Freezing Hiker and Sore Hiker) and to see why the indirect blowback on hikers increases as the level of loss to a hiker that triggers a dispensation from the obligation not to trespass is lowered. My hypothesis is that the cost to potentially endangered or discomforted hikers of the blowback from all hikers' having a dispensation will exceed the advantage to hikers of having that dispensation when the level of loss that triggers the dispensation is lower than serious lasting injury. The analogue hypothesis for everyday society is that the cost to potentially loss-suffering individuals of the blowback from all individuals' having a dispensation will exceed the advantage to those individuals of having that dispensation when the level of loss that triggers the dispensation is lower than serious lasting injury.
Here is the reasoning behind these hypotheses, cast in terms of wilderness hikers and the blowback cost to them of increasing permissive dispensations. Freezing hikers who need to break locks and so on in order to escape death are much rarer than sore hikers who need to break locks and so on in order to alleviate their discomfort. If hikers have only the liberty to break and burn in order to escape death, owners will face a much lower probability of this sort of trespass upon their cabins than they will face if hikers have the liberty to trespass in order to escape (considerable) discomfort. Besides there being now lots more sore hikers than freezing hikers, think of how many more sore hikers there will be when word gets around that they are morally at liberty to trespass to ameliorate their prospective discomfort. (In contrast, a liberty to trespass to save oneself from freezing to death—a liberty which one will be in a position to exercise only if one stumbles upon a suitable cabin—is not likely to increase the number of freezing hikers.) For these reasons alone, owners will have much less incentive to install strong locks, camouflage their cabins, or relocate them to warmer climes if hikers have only the narrow liberty of trespass rather than the broader liberty.
Moreover, many a cabin owner won't really mind a (faultlessly) freezing hiker saving himself through breaking her lock and burning her wood. Indeed, many such owners may positively value this happening. In contrast, many owners will really mind (faultlessly) sore hikers mitigating their discomfort through breaking the owners' locks and burning their wood. Owners may very well spend less to make their cabins less vulnerable to trespass by freezing hikers than it would be rational for them to do as pure Homines economici (economic men), and may very well spend more to make their cabins less vulnerable to trespass by sore hikers than it would be rational for them to do as pure Homines economici. The upshot is that there will be considerably fewer cabins available for breaking into if individuals are also at liberty to engage in break-ins in order to mitigate their discomfort than there will be if individuals are only at liberty to engage in break-ins in order to escape death. Since hikers (rationally) care very much more about escaping death than about mitigating their discomfort, they (rationally) have to prefer that the more permissive exemption not be added to a moral code that already contains the less permissive exemption. They cannot say that a morality that allows the lesser exemption but denies the greater exemption is insufficiently solicitous of their interests.
So it looks like an interesting and nonarbitrary line can be drawn between a dispensation that is triggered by a hiker's prospective death and one that is triggered by his prospective discomfort. But where between death and discomfort does the line fall? As I have said, my hypothesis is that it is nearer to death. Suppose hikers were also to have the liberty to trespass whenever this is necessary for them to escape deforming frostbite or permanent (or even long-term) loss of health. This would increase the percentage of hikers at liberty to intrude upon the cabins of owners, but it would not increase by much the total number of hikers having this exemption. This is because the addition of a liberty to trespass on a cabin—if one can find one—to escape from disfigurement or long-term loss of health is not going to recruit many more people into the ranks of wilderness hikers. Moreover, many (absentee) cabin owners will not mind being subject to trespass by individuals who (faultlessly) must engage in it in order to avoid frostbite disfigurement or long-term loss of health.33
The exception here would be the rare case of a hiker who must do more than minor damage to escape his dire straits and who, therefore, operates under dispensation (d).
However, as we extend the dispensation much beyond this point, we get a dispensation the consequences of which are less favorable to hikers than a less extensive dispensation; for we get both a substantial increase in the percentage of hikers who will be at liberty to trespass and, I think, a marked increase in the hiking population. For just this reason, then, owners will be moved to improve their locks, camouflage their cabins, build in warmer climes, and so on. Moreover, owners are likely increasingly to mind trespasses by hikers as the degree of the danger that hikers escape through trespass diminishes. Owners are likely to be more strongly moved to decrease the opportunities for trespass than they would be as pure Homines economici. Thus, as the liberty to trespass is extended much beyond the liberty to trespass to escape loss of life, limb, or health, the supply of cabins susceptible to trespass drops, and it seems as though the drop in supply accelerates as soon as owners' distaste for being trespassed upon becomes more salient than their sympathy for not-very-endangered hikers. (This point will vary from owner to owner.) At least beyond the liberty to trespass to escape loss of life, limb, or health, increases in liberty to trespass blow back toward those to whom the liberty is ascribed in the form of an accelerating drop in the supply of cabins susceptible to trespass. This drop in the supply of cabins susceptible to trespass is not offset by the more extensive liberty that can be exercised by the hiker if he (nevertheless) finds a cabin susceptible to trespass, for the loss escaped by the hiker whose escape is allowed only by the more extensive exemption is not a major loss.
In the truncated world of hikers and owners, the blowback toward hikers of a permissive dispensation from the obligation not to trespass on cabins comes entirely from the incentives the dispensation provides to owners (especially in light of a prospective increase in the number of hikers) to better barricade or camouflage their cabins or not to build in the freezing wilderness. But the permissive dispensation does not negatively affect the level of productive economic activity in the non-wilderness segment of society and, thus, does not negatively affect how much wealth there is to build cabins or keep them in useable condition. Suppose, however, that a dispensation more permissive than the life, limb, and health dispensation were part of the moral code for society at large. Property in general would then be substantially more likely to be subject to permissible trespass than if the code included only the life, limb, and health dispensation. Recall that as the dispensation becomes more permissive—as the cost to the “endangered” individual that engenders a liberty to trespass drops—the number of individuals who enjoy that dispensation rises at a greater rate. Statically, this is because more people within the current population come under the umbrella of the expanding dispensation. Dynamically, this is because as more of an umbrella is provided, more people will go out in the rain. As the dispensation becomes more permissive, then, one gets a substantial decrease in the security of property. It is not that some property is taken away and that is that. Rather, it is that all property (in practice, no doubt, some types of property more than other types) is subject to a substantial but not very calculable risk of permissible trespass.
Each owner is directly somewhat less well off, just as each wilderness cabin owner is directly somewhat less well off if the dispensation for hikers becomes more permissive. But owner O1 will also be less well off because prospective trading partner O2 is less secure in her capacity to determine by her choice what will be done with her holdings; for this will make O2 a less attractive trading partner for O1 (and vice versa). Beyond this, O1 will be less well off in virtue of O3 and O4 being less eligible trading partners to one another; for, except when O1 is a direct competitor of either O3 or O4, the more nifty mutually beneficial interactions there are between O3 and O4, the more attractive as trading partners they will become for O1 (and vice versa). And so on. All are likely to be worse off because of the general undermining of mutually beneficial bilateral interactions between owners and between owners and nonowners (of extrapersonal holdings). As we noted with respect to a Benthamite liberty of trespass, as dispensations become more permissive, this increasingly deprives people—including nonowners—of the positive externalities of life within a smoothly functioning market order. As a general (society-wide) dispensation becomes more permissive, that which is available to be trespassed upon by people who are in dire straits (and who would be at liberty to trespass under a less permissive dispensation) diminishes. Moreover, there will be more people in dire straits because of the undermining of economically productive interaction.
Rights protect individuals in their capacity to determine by their own choice how they will act—including how they will deploy the resources that they have acquired for the sake of carrying out their respective valued plans. Right-holders benefit, of course, from their possession of (respected) rights, but others benefit as well. I have concentrated here on the benefit to others—other property owners and other nonowners—derived from the productive economic actions and interactions that secure enjoyment of rights engenders. However, we should not forget a harder to quantify general benefit that rights and respect for them provide. Rights provide resolutions of disputes about how particular resources will be employed—resolutions that do not hopelessly appeal to claims about which employment of those resources would most advance some specious social good. The nice resolution is that the party who has rights over a particular resource gets to determine by her choice what is done with the resource. We need only determine who has jurisdiction over the resource whose use is in dispute to know which deployment of it—the deployment favored by the owner—is to be allowed and protected.34
Obviously, those who favor a different use of the resource have an opportunity to put their money where their mouths are.
In the next section, I turn to the taxation implications of these rudimentary thoughts about the types of dispensations that individuals in dire straits have and how dire the straits have to be in order for them to obtain. Before doing so, however, I want to try to deal explicitly with a natural objection to the form of argument I have been offering. Suppose Sore Hiker responds as follows to the argument that it is not reasonable for morality to include an exemption permissive enough to allow him to trespass:
My concern is with my specific situation here and now. I have stumbled upon a cabin susceptible to trespass. It will be costly to me in terms of soreness and discomfort not to trespass. I understand the argument that the cabin is the rightful property of Owner and, for that reason, I must bear the cost of complying with that right. But once you allow that the costliness of compliance may exempt someone from compliance, I want to know why the costliness of my compliance here and now does not exempt me. I do not see the relevance of all this talk about how Abstract Hiker is better served by a moral system that does not include a liberty to trespass in circumstances like those I am in here and now. (Isn't this the sort of talk about abstract individuals beyond veils of ignorance to which libertarian theorists usually object?) Of course, I am not saying that I am the only hiker with the liberty to trespass in order to escape discomfort. I am quite willing here and now to say that all hikers have this degree of dispensation—though, of course, I recognize that, insofar as this liberty obtains and actual and potential owners respond to it, lots less hikers in their here and now will stumble upon cabins to break into—even to escape from death.
Here is my answer to Sore Hiker's objection:
A crucial feature of dispensations from the requirement not to infringe upon rights is their tendency to generate blowback—their tendency to generate negative externalities or to undermine positive externalities. For this reason the relevant assessment of a proposed further dispensation must be prospective and dynamic. That is, besides considering what individuals who receive this further exemption would gain if the inclusion of it within a refined doctrine of rights would not generate any blowback, we must consider what individuals receiving the dispensation would lose as a consequence of everyone's having the proposed further exemption. Sore Hiker's static assessment—after he knows that whatever blowback there has been has passed him by—is not the appropriate sort of assessment for proposed refinements that tend toward blowback. The appropriate assessment must (also) be dynamic—and this necessarily means prospective and probabilistic.
Moreover, the static assessments of some less-lucky hikers will conflict with lucky Sore Hiker's static assessment. These unlucky hikers, including most strikingly some of those in danger of death, disfigurement, or long-term ill health, will, when making their assessment from their here and now, rationally bemoan the inclusion of this liberty to trespass to avoid discomfort. For, in their cases, the nonavailability of cabins susceptible to life-, limb-, or health-saving trespasses will be due to the inclusion of that dispensation. Thus, if we sanction static assessments like Sore Hiker's, every proposed dispensation will be both reasonable and unreasonable.35
The language of “static” versus “dynamic” assessment almost certainly comes to my mind because of its use in David Schmidtz's essay “Taking Responsibility,” in David Schmidtz and Robert Goodin, Social Welfare and Individual Responsibility (Cambridge: Cambridge University Press, 1998).
V. Out of the Trespass Frying Pan and into the Taxation Fire
An important difference between the everyday social world and the truncated world of the winter wilderness is that in the former there is a significant prospect of interactions between owners (of apple pies, recreational vehicles, homes and businesses) and individuals who possess or appear to possess some dispensation from the obligation to respect the owners' property. Owners or their agents will face the big problem of differentiating among the trespassers they may encounter—the problem of determining whether any given approaching trespasser has any dispensation and (more difficult yet) determining what specific mode of dispensation (if any) this approaching trespasser has. Yet the permissibility of the response of owners or their agents depends upon what dispensation, if any, the trespasser has. If an owner fails to identify correctly whether an approaching trespasser has a dispensation, or fails to identify correctly what mode of dispensation that approaching trespasser has, that owner will either overreact or underreact to the pending trespass. She may overreact by either forcibly or nonforcibly thwarting a trespass when it is not permissible for her to do so—because the trespasser possesses dispensation (b). Or she may overreact by resisting the trespass with harmful force when only nonforcible resistance is permissible—because the trespasser possesses dispensation (c). She may underreact if she desists from any resistance in the false belief that the trespasser has dispensation (b) or if she desists from forcible resistance in the false belief that the trespasser has dispensation (c). It is bad to overreact because this wrongs the trespasser in dire straits; it is bad to underreact because the owner thereby forgoes the permissible protection of her property.
The prospect of overreaction and apparent overreaction on the part of owners and their agents to approaching trespassers, and the prospect of overreaction or apparent overreaction on the part of trespassers to the actions of owners and their agents, is precisely the prospect of escalation of actual and apparent partial and full Hobbesian micro–states of nature into micro-wars of each against each. Indeed, the numbers of individuals who will have some dispensation or who may take themselves to have some dispensation, combined with the prospect of actual or apparent overreaction against these individuals, combined with the prospect of individuals who possess or take themselves to possess one or another dispensation themselves reacting or overreacting to the reactions against their anticipated trespasses, adds up to the prospect of pervasive micro and not-so-micro wars of each against each. Moreover, while diverse owners may have friends or employees who are willing to join them in a bit of Hobbesian smack-down (even at the cost of opening themselves up to permissible counter-force), there may also be champions of the folks in dire or apparently dire straits who are eager to mix it up with the owners and their capitalist lackeys. The prospect of third parties acting as agents for owners and other third parties acting as agents for trespassers adds further fuel to the Hobbesian fires. Recall also that, insofar as actual partial or full Hobbesian micro–states of nature exist between a given owner and a given indigent individual, neither party can expect the official neutral rights-protecting agencies of his or her society to intervene on his or her behalf.
Lastly, even if all and only actual possessors of dispensations had highly visible badges of their status and owners were prepared to surrender whatever would enable those in dire straits to escape the loss of life, limb, or health, the resulting world of unpredictable permissible intrusions and acquiescence to those intrusions would be unsettling to the owners—above and beyond the economic costs they would incur. “Good evening, sir,” says the certified local (faultless) indigent individual, after one answers the knock on one's front door. “This evening, in the exercise of my dispensation, I have chosen to have dinner with your family in your lovely dining room.” Or: “Good afternoon, madam. Today I have chosen to exercise my dispensation by reaching into your car and removing the emergency cash you keep in the car's ash tray.” Or: “Good morning, Motel 6 owner. I presume you've been keeping that light on for me.”
Thus, if rights are non-absolute to something like the extent I have suggested, and non-absolute in something like the range of different ways I have suggested, then the social world is going to be at least somewhat dangerous, morally risky, and irritatingly messy both for owners and for nonowners—including nonowners who are not in dire straits. Those in dire straits are, by definition, not in a position to eliminate the “underlying causes” of this danger, moral riskiness, and messiness—namely, those dire straits and the dispensations that they engender. But those against whom those dispensations would operate can eliminate those underlying causes.36
Of course, there will always be the kinds of dire straits into which someone—e.g., one of our wilderness hikers—may stumble.
An obvious complicating factor here is that it may not be feasible to restrict the benefits of this absolutization to those who voluntarily fund the system of aid that engenders it. As the familiar story goes, the publicness of these benefits may so remove the incentive for individuals to pay for the system that the system will not get funded voluntarily (or will be significantly underfunded). Whether that story would be plausible depends on lots of things that we do not know—for example, how much the system would cost, what the total gain from the system would be to potential contributors, and what clever techniques could be devised to exclude noncontributors from free-riding on the system.37
The administrators of a system that is less well-funded than it would be if all contributed to it may discover that they can only afford to give those in dire straits free rides by bus to the homes of the noncontributors.
That is, it absolutizes them except with respect to the right-holders' being subject to taxation to support such public goods.
VI. Conclusion
In this essay, I have argued that the non-absoluteness of rights has to be taken seriously. It has to be taken more seriously than it is when friends of rights acknowledge certain cases in which acts that would normally violate rights are permissible, but then confine those cases to the far outer limits of our moral experience. I have also argued that friends of rights and friends of taxation are both correct to think that, if one takes the non-absoluteness of rights seriously, one is on the road to some vindication of taxation—indeed, taxation to relieve the dire straits in which some people may faultlessly find themselves. I have also argued, however, that friends of rights and friends of taxation are both wrong to think that, if one takes the non-absoluteness of rights seriously, one is on a short road to taxation. The road is long and convoluted and full of potholes that will be welcomed by enemies of taxation and bemoaned by friends of taxation. It is long and convoluted and full of potholes because the non-absoluteness of rights involves different modes of dispensation, none of which implies obligations on the part of legitimate owners to assist those in dire straits and most of which allow legitimate owners to thwart (albeit sometimes not by way of harmful force) the permissible infringements upon their rights. The length, convolutions, and potholes show how much exploration has to be done to understand the non-absoluteness of rights and the true significance of their non-absoluteness.
