Tuesday, 20 May 2014

"Turn off the **** Light!"

Adherents of theories of moral rights run into difficulties when they find they are compelled by their own logic to defend a variety of "outrageous" demands, such as that of an individual whose beauty sleep is ruined by photons trespassing on his property from the night light which his neighbour likes to keep. Property rights are violated by that night light, because it changes the character of adjacent land. Lights from aeroplanes and even breathing could be similar examples. This is indeed a serious problem. Consequentialists usually bring forth examples of this variety when criticizing rights-based ethics.
I submit that for consequentialists to legitimately criticize theories of moral rights on the above sort of basis, they must be able to plausibly argue that the consequences of rights-based arrangements are sufficiently horrible. So what would happen if we took the extreme view of property rights and acknowledged the right of the sleep-deprived not to have intrusive photons on his property?
Under the most extreme view of negative moral rights, disputes would have to be settled in private courts (there would be no state). Individuals pay for a collection of rules under which they want to live and which they want to see upheld in disputes with individuals living under different sets of rules. This means that if the photon-emitting individual is willing to pay more for those photons to intrude on others' property than property-owners are willing to pay in order not to be disturbed in this fashion, photons can be emitted sans fear of the law.
But this is partly evading the issue. After all, according to the theory of negative moral rights, a wrong is committed if photons invade a person's property without his consent. So whatever private courts decide, the invaded's rights have been infringed upon. Whether he is found to be entitled to compensation or not, morality says that he is. So what will the justifiably outraged individual do to protect his rights? Here enters the question of retributive justice.

Since retributive justice may differ in outcomes from what private courts decide, it will happen that individuals who are losing legal battles will be in the right when they wish to seek retribution by their own individual efforts. Most consequentialists would, I believe, argue that these individuals should just accept the verdicts. This is also roughly what would happen under a private-law regime. An individual unhappy with a verdict which goes against sound moral theory is free to challenge it. Precisely how much he may escalate the resultant conflict (inflict property damage? kill?) depends on what view of retributive justice one has in mind, but an analogy with armed robbery suffices to indicate that the vast majority of persons would accept private courts' verdicts. When confronted with a gun and the words "your money or your life!", people invariably give away their possessions. In the cases under discussion, challenging verdicts with violence probably means being punished later, the analogy with armed robbery is not a bad one. People won't challenge verdicts by private courts.

Is the theory of negative moral rights thereby immune to attacks from consequentialists? I don't think so at all, but I believe that, if what I have just written is correct, certain classes of attacks appear to be more "survivable" for rights-based ethics than one may at first think. Adherents of the theory of negative moral rights may not necessarily be happy with the outcomes, but I don't see how they could be any less unhappy without violating their own principles.

The bottom line is that consistent application of the theory of negative moral rights results in a market for legislation which may turn out to bring consequences which are not at all in line with the theory of negative moral rights prescribes. But those consequences of consistent application of negative moral rights should be rather palatable to consequentialists, so what case do the consequentialists have against it?

In writing this blog post, I am reminded by a similar argument I made a while ago here.

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