Freedom Infringing Freedom

[username]

The point to notice is this: you seem to seek a rule that assigns duties and obligations (or rights, if you prefer) in a way that meets your complete approval. That is, if you can theoretically construct a problematic case where the rule applies in a way that disturbs you, that rule is rejected. The problem with that method is that no rule will ever meet your complete approval in this way.
What one needs to do is compare how different moral rules fare when confronted with problematic cases and then chose one.

Well I agree that no rule will be perfect in all applications, but limitting rights to demonstrable harm just isn't a very good rule, in my opinion.

You stated that under your system the neighbor who is forced to listen to blasting music has no recourse even though you acknowledge the person is going to find the experience quite unpleasant. I prefer noise laws that regulate the number of decibles of sound one may produce in populated areas.

Pollution is another area where harm is often impossible to demonstrate even though it is clear harm does result. Folks in an area get lung cancer at a higher rate than elsewhere and there is a factory a couple states away pumping out tons of air pollutants. One can look at a map of the prevaling winds and see that the entire area from the factory for 500 miles has a higher rate of lung cancer than the rest of the country. Now, let an individual in that area prove to legal satisfaction that the cause of the lung cancer was the pollution from the factory. No, instead of this we have pollution laws.

Pollution doesn't just affect people with legal rights either, it affects the environment and this impacts both people as well as plant and animal life. These are things that most in a society value and wish to remain healthy without pollution laws it wouldn't.

I prefer this system where we regulate to prevent things we all know cause harm without the need to show that they are actually harming any specific individual. It is preventative rather than reactive.

It isn't perfect, but in my opinion it is preferable to the reactive approach where individuals have the burden of proof when proving that burden is next to impossible. It is also preferale, in my opinion, to a system that allows folks to blast music at unreasonable volumes with no recourse for those forced to shout to talk inside their own home.

In theory I do agree with your idea of property rights as the basis of all rights, but like most of the theories originating from thinkers prior to the industrial revolution they require updating to remain relevant.

 

[Tudor]

Username:

1) If harm to others is impossible to demonstrate, then how do you know it occurs? And if you know, why is it impossible to prove that it does? If the fault lies with the legal standards of proof (but I don't think so), then change those.
2) You seem to advocate laws that protect animals and plants with no regard to their use for humans. I vehemently oppose that (one of the few things I am not wiling to compromise about).
3) Any law that prevents behaviour, does so because it imposes constraints on those breaking it (because it can react, if you like). So there's no distinction here: prevention is a result of potential reaction.
4) The individual who has been harmed would not be required to prove anything. The State would.
5) The theory has been restated many times since before the industrial revolution. Anyway, you probably meant "the theory of natural rights". I couldn't care any less about natural rights though.
I chose property rights as a basis for law because property rights (including a theory of initial apropriation and a theory of property transfer) provide us with a simple set of rules for living together. Emphasis on simple (these rules also have the advantage that when one breaks them, it can be objectively established so: that is, with no need for caracter witnesses, arbitrary judges decisions and the like). Property rights also explicity forbid coercion for any other purpose than ensuring property rights are respected. And to me, coercion equals permanent loss of dignity (which is a necessary condition for a good life - at least MY good life).

6) You seem to be aware of the legal mess we're in right now: "I do think the anti smoking laws are a good example of our system of rights being reduced to near meaninglessness. Suddenly the perceived (but nonexistent) right of some to eat in their nonsmoking restaraunt of choice trumps the real right of a property owner to determine whether guests may smoke or not."

Anyway, your theoretical instruments seem to me to be inadequate: indeed, what is the criteria for deciding which right is a "real" one and which isn't? This is exactly why I am advocating a purpose oriented approach: what do we want in life? How do we get there? What sort of rules do we want? Simple or complex?
Few or many?
Do we want to spend a lot to feed the legal bureaucracy? Or not?
Do we want a system of laws so complex that we need law experts in order to grasp it? Or a deductive system of simple rules which can be grasped by any normal person?
How do we tackle corruption (a consequence of any complex system of laws)? How do we control the legal bureaucracy from expanding? How do we stop institutionalized abuse (look at the number of people imprisoned in the US)? I allow myself to notice that this is a frightening problem, which has not yet been properly considered. Under my proposed system, these problems would simply not arise. Of course, there would remain some problems, on which I am wiling to compromise.

To resume: I'm in favor of a system of simple, easy-to-follow AND hard-to-frame rules (the breaking of which can be objectively established by providing physical evidence costly to plant), which forbid certain actions to every individual (no matter who he or she is), in order to ensure that the possibility of a good life exists for everyone who follows the rules. These rules coincide for the most part to some property rights theories.
Considering your diatribe against the present state of the legal system, I think we're not that far apart.

 

[shanek]

Okay let's do exactly that. Who owns the air in the restaurant?

Does the restaurant owner? People come in with their coats and bags and those don't become the restaurant owner's property, so the mere presence of a thing inside the restaurant does not mean that thing also becomes the restaurant owner's property.

And if people come in with tanks of air it doesn't automatically become the restaurant's either. You're being ridiculous here.

It's just like the river we talked about in that discussion awhile back. As the water pours onto your property, it becomes yours. As it leaves it, it doesn't. Someone polluting air that comes onto your property can be charged with damaging your property.

Free-floating air cannot be considered a personal possession. This is one of the most ridiculous suggestions you've ever made.

 

[shanek]

For my example of real rights conflicting with each other I would cite divorce laws.

Well, this is really because the government is sticking its nose where it didn't belong. If government weren't licensing marriage (something it only started doing in the US after the Civil War to prevent blacks marrying whites) then you wouldn't need to appeal to the government to have the license cancelled, and hence, no divorce laws.

 

[shanek]

So say you're my neighbor, and I'm on my property and I play music loudly all night. That's fine, since it's my property?

If you keep your noise on your property, sure. So have some good sound-proofing. But if it's not enough and it comes onto my property, it's noise pollution.

 

[Earthborn]

The restaurant owner would have to own that air.

How did he become the owner of it?

There is no other entity that could properly be said to own the air.

Assuming that is true, I don't see why that necessarily means the restaurant owner must be the owner of the air. If there is no other entity that could own it, why not assume it is owned by no one?

I also don't think assuming the restaurant owner owns the air is the only solution to this. We can also assume that the air is owned by everyone communally. You only choose to assume it is owned by the owner of the restaurant because that would mean anti-smoking laws you don't like appear illegitimate.

In the case of cigarette smoke though, I would think it would fall into the same category as those who pollute the air by farting in public or those who go out in public with the flu.

There is of course a difference: people who fart and sneeze usually don't do it voluntarily. It is not something they can easily control. Smoking is something that people consciously choose to do.

Anyone entering the premises of a smoking allowed restaraunt accepts the risk of breathing such air.

I don't think this is necessarily true, and I also don't see why the fact that someone accepts a risk legitimizes placing someone in that risk.

Suddenly the perceived (but nonexistent) right of some to eat in their nonsmoking restaraunt of choice trumps the real right of a property owner to determine whether guests may smoke or not.

What is the difference between a 'perceived but non-existent' right and a 'real right' ? Is the difference anything other than 'right you don't like' and 'rights you do like' ?

 

[Earthborn]

1. If a piece of land (house, construction etc.) is designated as mine, I and only I decide what I am allowed to do when on it and what you are allowed to do when on it.

If we assume this is true, than nothing is designated as yours alone. If you buy land or a building, there are always restrictions on what you are allowed to do with it and what others are allowed to do with it. If you buy a forest, it does not mean the government allows you to clear all the trees. You can only claim to have partial ownership.

2. The same goes for any physical object (including my body). If I own it, I and only I decide what it will be done to it by me or another.

You are not the only one who decides what will be done to your body. There are always restrictions on what you are allowed to do with your property.

Now let's apply the rules to your example

The rules are irrelevant in real life where no one has ultimate ownership of anything.

If I (for ANY reason whatsoever, including insanity, hate, whim etc) decide you are not allowed to do it, you must stop or leave - rule no.1

You can argue until you are blue that this is what you think things should be like, but they simply aren't. There are limits to what you are allowed to forbid me, even on your own property. The limits are greater when your property fulfills more of a public function.

Rule no. 1 also tells you nobody except yourself may decide with regard to allowing people to smoke in your restaurant.

The rules have no equivalent in any laws, so I don't see how they are any more than your own opinion.

 

[shanek]

How did he become the owner of it?

Because it is a freely-moving resource that is currently on his property.

Assuming that is true, I don't see why that necessarily means the restaurant owner must be the owner of the air. If there is no other entity that could own it, why not assume it is owned by no one?

Because then the restaurant owner would have no recourse against the factory down the street polluting his air, for example. I thought you were against pollution? If nobody owns the air, then nobody has the right to stop pollution.

I also don't think assuming the restaurant owner owns the air is the only solution to this. We can also assume that the air is owned by everyone communally.

We could, except, as the early American colonists prove, that doesn't work at all. And then we get back to the original paradox: if everyone owns the air communally, then Person A has the right to smoke while Person B has the right to stop him.

You only choose to assume it is owned by the owner of the restaurant because that would mean anti-smoking laws you don't like appear illegitimate.

No, I assume it because that's the only way the restaurant owner can exert control over his own property.

Earthborn, please THINK about what you are saying. You are saying essentially that his property ends at the surface of all of the solid things. Do you really not see how ridiculous this is?

What is the difference between a 'perceived but non-existent' right and a 'real right' ?

The "real right" is exercised by the property owner.

 

[Earthborn]

Free-floating air cannot be considered a personal possession. This is one of the most ridiculous suggestions you've ever made.

I haven't claimed that air can become a personal possession. I have just pointed out that you presented the wrong object as relevant to the smoking issue.

You asked us that whenever there is a problem we must ask ourselves who the owner is. You claim that the owner of the restaurant is the one to decide whether smoking is allowed in the restaurant or not, because it is his restaurant. The problem with that is that what is at issue is not the restaurant, but the air inside the restaurant. If the air is also owned by the restaurant owner, then your argument is basically sound.

But why do we need to assume the air is also owned by the restaurant owner? We can also assume that the air is communally owned by everyone even when it happens to be inside someone's property. Just by changing the assumptions the argument is based on makes the justification invalid.

 

[Pup]

If government weren't licensing marriage (something it only started doing in the US after the Civil War to prevent blacks marrying whites) then you wouldn't need to appeal to the government to have the license cancelled, and hence, no divorce laws.

A side issue, but nonetheless...

I think you'll find that marriage and divorce were well regulated by the government before the Civil War in the U.S., even if you don't count the centuries of English common law that we inherited. The movement toward increased rights for married women in the 1840s-1850s, thanks to the Seneca Falls convention etc., meant that legislators were pressured to codify changes that were already happening in common law. So new legislation concerning marriage and divorce, and what happened to a woman's property before, during and after, show up commonly in state codes before the war.

But back on topic, I can see the practicality of a restaurant owner's right to set rules (smoking or non) on his own property, since no one really needs to eat at any given restaurant.

But what about areas that people share, which could be divided up into private ownership like restaurants, but which would be very inefficient to operate privately, and also inefficient to avoid using? For example, highways.

A patchwork of privately-operated roads, each with their owner's traffic laws, each bought and built without the aid of eminent domain so they zigzagged around the most expensive or stubborn property owners, would make for less efficient transportation, thus lowering the standard of living for everyone. Not necessarily a bad thing overall, but a steep economic price that would need to be paid for the added freedom.

 

[The Central Scrutinizer]

Re: Re: Re: Freedom Infringing Freedom

What about in a public park? Both parties "own" that.

Shanek's evasion is duly noted. He tends to do that when people ask questions that point out the flaws in his "logic".

 

[Ed]

If you buy a forest, it does not mean the government allows you to clear all the trees.

The government has nothing to say about it unless there is some sort of restrictive covenent in place when you buy it. If the governement decides after the fact that is really tough since ex post facto laws are explicitly banned in the constitution.

 

[Ed]

I don't think this is necessarily true, and I also don't see why the fact that someone accepts a risk legitimizes placing someone in that risk.What is the difference between a 'perceived but non-existent' right and a 'real right' ? Is the difference anything other than 'right you don't like' and 'rights you do like' ?

So, in your view a government can second guess your decision to do what you will with your own body? And who makes these decisions?

 

[username]

Username:

1) If harm to others is impossible to demonstrate, then how do you know it occurs? And if you know, why is it impossible to prove that it does? If the fault lies with the legal standards of proof (but I don't think so), then change those.

It isn't impossible to demonstrate harm to people in general, but it is often impossible to demonstrate harm to a specific individual. In the polluting factory example where the rate of lung cancer is higher in the direction of prevailing winds for 500 miles it would seem likely that the factory pollution is the cause. However, for any individual to take the factory to court and prove his cancer was the result of that pollution would be impossible since that individual may have gotten cancer from some other cause.

Other forms of harm are intangible. Take the case of the neighbor's loud stereo. If I can't sleep at night because of the racket and after several days I fall asleep behind the wheel while driving to work how does one prove that my accident was caused by the loud music?

2) You seem to advocate laws that protect animals and plants with no regard to their use for humans. I vehemently oppose that (one of the few things I am not wiling to compromise about).

I advocate laws that protect the environment in general. A healthy soil, water and air system results in protection of the environment. Our environment and the plant/animal's environment.

3) Any law that prevents behaviour, does so because it imposes constraints on those breaking it (because it can react, if you like). So there's no distinction here: prevention is a result of potential reaction.

Not sure what your point is here.

4) The individual who has been harmed would not be required to prove anything. The State would.

The state regulates to prevent certain actions known to cause problems so those problems don't occur in the first place. I would rather be alive than dead with the state trying to prosecute

5) The theory has been restated many times since before the industrial revolution. Anyway, you probably meant "the theory of natural rights". I couldn't care any less about natural rights though.

I chose property rights as a basis for law because property rights (including a theory of initial apropriation and a theory of property transfer) provide us with a simple set of rules for living together. Emphasis on simple (these rules also have the advantage that when one breaks them, it can be objectively established so: that is, with no need for caracter witnesses, arbitrary judges decisions and the like). Property rights also explicity forbid coercion for any other purpose than ensuring property rights are respected. And to me, coercion equals permanent loss of dignity (which is a necessary condition for a good life - at least MY good life).

And I agree that property rights are a solid basis for determining what rights exist and which do not. What I am arguing though is that property rights alone are not sufficient in a modern society to maintain the order that people want. A modern system has to make room for public and private property as well as allow for forms of harm that don't violate property rights when strictly/narrowly defined. It needs to allow for regulation to prevent certain actions so that harm doesn't take place, not simply punish the offender if the harm takes place.

6) You seem to be aware of the legal mess we're in right now: "I do think the anti smoking laws are a good example of our system of rights being reduced to near meaninglessness. Suddenly the perceived (but nonexistent) right of some to eat in their nonsmoking restaraunt of choice trumps the real right of a property owner to determine whether guests may smoke or not."

Anyway, your theoretical instruments seem to me to be inadequate: indeed, what is the criteria for deciding which right is a "real" one and which isn't? This is exactly why I am advocating a purpose oriented approach: what do we want in life? How do we get there? What sort of rules do we want? Simple or complex?

We are in a legal mess at this time, but we could say we have always been in a legal mess. In my opinion the legal system in the US, at this point has moved away from a strict (property) rights basis for laws. In and of itself this doesn't trouble me because as I have stated, I think it is necessary to do this in a modern society. However, we have moved away from the property rights basis in a nondisciplined fashion. There doesn't seem to be any legal theory that we are moving toward. The end result is we end up with some goofy laws and encroachments of government into our lives.

Viewed in the short term these are very troubling developments, viewed over the course of history though I think this is simply growing pains from a natural evolution of our theory of law as societies transform and our needs change.

To resume: I'm in favor of a system of simple, easy-to-follow AND hard-to-frame rules (the breaking of which can be objectively established by providing physical evidence costly to plant), which forbid certain actions to every individual (no matter who he or she is), in order to ensure that the possibility of a good life exists for everyone who follows the rules. These rules coincide for the most part to some property rights theories.
Considering your diatribe against the present state of the legal system, I think we're not that far apart. [/B]

I don't think we are all that far apart either, but the internet is a magnifying glass that focuses on differences, not similarities.

I do agree with you in that property rights are a sound basis for establishing laws. Where I think we disagree is that I allow for laws that serve a valuable purpose in maintaining a society that aren't derived from a strict property law basis. I have no theory of law to articulate that would encompass those laws. That's part of the problem with deviating from a strict property rights basis for law, but hopefully some genius will come along and give the theory a name and bring it all together.

 

[Earthborn]

The government has nothing to say about it unless there is some sort of restrictive covenent in place when you buy it.

Yes, and when you buy a forest, that's usually standard.

If the governement decides after the fact that is really tough since ex post facto laws are explicitly banned in the constitution.

That just means that the limits that are placed on ownership are codified beforehand.

So, in your view a government can second guess your decision to do what you will with your own body?

It's not my view, it's how it actually works whether I agree with it or not. People are not allowed to use certain drugs, or they are not allowed to be euthanised when they want to. So they are not allowed to make all decisions concerning their bodies themselves.

And who makes these decisions?

The government.

 

[shanek]

But why do we need to assume the air is also owned by the restaurant owner?

I just gave you a very detailed answer to this question.

 

[shanek]

I think you'll find that marriage and divorce were well regulated by the government before the Civil War in the U.S., even if you don't count the centuries of English common law that we inherited. The movement toward increased rights for married women in the 1840s-1850s, thanks to the Seneca Falls convention etc.,

That was more related to women's rights. Women, despicably, were considered to be property. That was what was changing.

A patchwork of privately-operated roads, each with their owner's traffic laws, each bought and built without the aid of eminent domain so they zigzagged around the most expensive or stubborn property owners,

I want to break in right here and ask two questions: 1) What is the evidence that this would be common enough to cause widespread problems, and 2) why does this justify theft of property?

Not necessarily a bad thing overall, but a steep economic price that would need to be paid for the added freedom.

Well, I don't think there's a price on freedom any more than there's a price on life.

Anyway, to answer the question I think you're really asking with all this, it would be up to whomever owns the roads to make the rules. If that's government, then fine, but it must be done in a way that is responsive to the will of the people.

The main thing I have a problem with here is government claiming a monopoly on the roads. The free market isn't even given a chance to see if they could come up with something workable. It's just assumed.

 

[username]

It's not my view, it's how it actually works whether I agree with it or not. People are not allowed to use certain drugs, or they are not allowed to be euthanised when they want to. So they are not allowed to make all decisions concerning their bodies themselves.The government. [/B]

It is true that people do not have their right to their own body protected in all ways by government, but that doesn't invalidate the idea that we still have the right of full control over our property (our bodies).

So, this is simply a case of existing laws violating rather than protecting our rights. I mean think about it for a moment. Can you or anyone else articulate a sound reason why people shouldn't enjoy full rights over their own body? Can you articulate any reason we shouldn't be able to consume pot (or high fat/carb foods) or terminate our life if we are terminally ill and in intractible pain?

The question to ask here is if we do not own ourselves to this degree, what entity has partial ownership of us and what is the basis for that entity's legal claim over our bodies?

It should be noted that the drug laws are based off a very loose interpretation of the interstate commerce clause (in the US anyway). The legal tide is slowly turning as the courts are hearing challenges to cases where no interstate commerce took place. Euthanasia laws are also in the courts and there is a very real chance that the courts will put an end to this violation of property rights.

 

[shanek]

It isn't impossible to demonstrate harm to people in general, but it is often impossible to demonstrate harm to a specific individual. In the polluting factory example where the rate of lung cancer is higher in the direction of prevailing winds for 500 miles it would seem likely that the factory pollution is the cause.

Unless, of course, you do Erin Brockovich-style cherry-picking. You would also need a scientific mechanism linking that specific kind of pollution with cancer. But your point is well taken. This is the idea behind the class-action suit. It's an imperfect solution, but appears to be the best one we have.

Other forms of harm are intangible. Take the case of the neighbor's loud stereo. If I can't sleep at night because of the racket and after several days I fall asleep behind the wheel while driving to work how does one prove that my accident was caused by the loud music?

One doesn't; however, no one would need to. It should be the function of the police and prosecutors to prove that you were at fault. If you showed responsibility by trying to get your neighbor to turn down his stereo, and made complaints about it to the valid authorities, that should be seen as a viable defense.

And I agree that property rights are a solid basis for determining what rights exist and which do not. What I am arguing though is that property rights alone are not sufficient in a modern society to maintain the order that people want.

But if it's what people want, then it's something a free market will provide. If a community wants to be safer, they can form a neighborhood watch group, as many of them do.

It needs to allow for regulation to prevent certain actions so that harm doesn't take place, not simply punish the offender if the harm takes place.

You need to be careful, here. There is a difference between taking action against (say) a careless gun owner who is recklessly endangering others before he actually injures or kills someone, and a corporation who has no intent or maybe even ability to pollute but who must comply with onerously strict regulations anyway. US companies pay out more money complying with government regulations than they make in profits. I don't see any way how that can be justified.

I do agree with you in that property rights are a sound basis for establishing laws. Where I think we disagree is that I allow for laws that serve a valuable purpose in maintaining a society that aren't derived from a strict property law basis. I have no theory of law to articulate that would encompass those laws. That's part of the problem with deviating from a strict property rights basis for law, but hopefully some genius will come along and give the theory a name and bring it all together.

Well, at least one guy tried. I believe he called it "Communism."

 

[shanek]

Yes, and when you buy a forest, that's usually standard.

Then you don't completely own the forest.

People are not allowed to use certain drugs,

Yes, and look at how well that's worked out...

The government.

And who makes up the government, if not the same greedy, self-interested people willing to put others at risk that you're wanting a government to guard against?