Rights Theory, Liberty

Trivial Rights Infringements: They’re Not Just A Problem For Libertarians

As discussed before on BHL, David Sobel offers a powerful objection to self-ownership. If we may not infringe on a person’s self-ownership rights, then a huge number of seemingly innocuous activities become impermissible. When I pull my car out of the driveway, I emit a small amount of pollution—a few particles of which will settle in my neighbor’s lungs. Thus I infringe, slightly, my neighbor’s self-ownership rights. Should my neighbor refuse to allow me to emit the particles that will end up in her lungs (say, in exchange for compensation), then I may not drive my car. Since we all engage in these sorts of trivial rights infringements all the time, respecting robust self-ownership rights will dramatically restrict the range of permissible activities.

This is a compelling objection to self-ownership. But I want to point out that if this objection works against self-ownership libertarianism, it also works against a number of rights-based liberalisms, like Rawls’s. Rawls says that rights of bodily integrity and personal property are among the basic liberties which cannot be infringed except for the sake of other basic liberties. When my car emits a particle of pollution that settles in my neighbor’s lungs, I infringe her right of bodily integrity. When I pull into a stranger’s driveway to turn around when I’ve made a wrong turn, I infringe his right of personal property. But surely emitting a particle of pollution or using someone’s driveway for 10 seconds should be permissible. So Rawls shares Nozick’s problem.

I think the lesson here is to turn away from deontological approaches to justice and move toward something like utilitarianism. The best explanation for why trivial rights infringements are permissible is that they are, well, trivial. They involve trivial harm (if any) and produce non-trivial gains in social welfare.

Published on:
Author: Christopher Freiman
  • JH

    A quick thought: this only seems to be an objection to the view that rights are absolute. If rights can be overridden, then why is this a fundamental problem for rights-based theories of justice?

    • Andrew Pearson

      If rights can be overridden without a breach of justice, then this implies that whatever is overriding them is more fundamental to justice than rights are.

  • Lacunaria

    So, trivial punishments for trivial rights infringements. Why can’t that be a deontological rule?

    • Andrew Pearson

      Because a lot of the appeal of deontology comes from the idea that the meta-rules shouldn’t be “You can legitimately break any level you like, providing you face the punishment”: they are “You must not break the rules, full stop.” If we say “You may legitimately drive your car so long as you face the trivial punishment” then this scales up horribly (“You may murder anyone you like, providing you accept the punishment” ?), but it’s not clear how a deontologist resists that without ending up saying that it is morally wrong to drive your car if you do not get the consent of everyone who is trivially harmed thereby.

      • Lacunaria

        Thank you for your thoughtful reply.

        I think the deontologist must resist that conclusion by distinguishing moral ideals from the practical limitations in achieving justice. e.g. true justice would entail resurrecting murder victims, which is not possible.

        So, you may not murder anyone you like because you cannot undo it, and the closest we can get to justice is to threaten and punish you for it.

        Are other approaches any better in this regard? Or do they just compromise or alter their moral ideals in order to incorporate the limits of justice? Then they could claim that justice is perfectly accomplished.

      • Simon

        Yes, that is indeed an appeal of deontology. But what is it about murder that contradicts deontological rights. Presumably, the fact that the right to life of another has been infringed. But we do not think any infringement of the right to life is wrong. If you jump out in front of my car at a point such that I cannot stop and you die, it is true that I have killed you, but not true that I deserve to be punished. So it not sufficient for my punishment that I have killed you – only necessary for a murder conviction, together with some other necessary condition such as intent. Now consider driving ones car. Well there is certainly intent insofar as one knows one is putting molecules that might not otherwise be there on the property of another. But is there harm? Maybe and maybe not, dependent on whether others are doing likewise to the extent of causing health or other concerns. In which case, one is jointly liable with others for the harm caused. At that point the question becomes a different one. Now, the issue has become significantly more diffuse and the solution will not necessarily be of the same type. I do not suggest I have solved this problem – only that there is a relevant difference in the argument from analogy.

  • The Smart Factory

    Can’t we draw some sort of implicit consent to counter these trivial rights violations?

    • That’s like invoking evil spirits to explain illness. It is a very handy recourse when you have no other ideas; but it is pure bunkum.

  • You said “then a huge number of seemingly innocuous activities become impermissible”. In a self-ownership society, there is no prior restraint. Aggression can be punished by restitution, but only in a commensurate way. If your aggression did no harm, there is no restitution Those who want to make a big deal out of nothing may find it hard to buy insurance or hire a protection agency.

  • Hanno Sauer

    Sobel writes: “This paper will be focused only on how this worry plays out for the Self-Ownership Thesis. But the conclusions I draw here apply at least against any view that claims we have uniformly strong property rights forceful enough to vindicate the stringent traditional conclusions against nearly all re-distribution and paternalism, whether such a scheme is justified via self-ownership or not.”

    • Chris Freiman

      Yes, although as I note in the post, the problem of trivial rights infringements applies to someone like Rawls, a political philosopher who doesn’t believe that property rights are “forceful enough to vindicate the stringent traditional conclusions against nearly all redistribution and paternalism.”

      • Hanno Sauer

        True. But I think the problem of trivial infringements arises for both libertarians and Rawls because of the *strength* they think some rights enjoy. The implications of such views regarding redistribution or paternalism are not at the core of the “conflation problem”. Sobel could have said “forceful enough to vindicate the stringent traditional conclusions against infringements of the Millian liberties/civil rights/etc”.

  • Rachel

    I don’t know why Sobel’s article gets so much attention. I’m surprised it was even published because the objection is so boring. It literally is just the Sorites Paradox objection that every high schooler raises in class toward any proposal. This is literally the most boring, age-old and obvious objection ever.

  • R. Kevin Hill

    I think people with a legal training find these kinds of discussions… odd. In an actual litigation setting where a court is trying to determine what a right in the constitution requires, they don’t say “OK, this is trivial therefore it is a permissible violation of your constitutional right” but “this is trivial therefore it is not a part of the content of that right and therefore isn’t a violation.” It’s not even a matter of whether rights can be “overriden”–it’s a matter of what they are in the first place. If that’s right, then there is nothing about these kinds of examples that tell against deontology, because to say that we have some preposterous rights begs the question of what our rights are in the first place.

  • jtlevy

    This is where a little law goes a long way.

    Self-ownership as a concept borrows from the real social institution of *ownership*, evolved under various legal systems for a very long time. And real legal systems, which have real social functions to fulfill, treat ownership as a right and yet apply “de minimis non curat lex” or some local equivalent. Nuisance law, for example, requires getting over a de minimis threshold. Once you’re over the threshold, a private nuisance is a tort, not justifiable on grounds of my greater utility from the action than your disutility from the violation. But below the threshold, we’re in the realm of bad manners, not justiceable rights violations.

    There’s no reason to think that the derivative concept “self-ownership” would be more absolute than the parent concept “ownership.”

    • Chris Freiman

      I like this reply but I think hard-line deontologists will have two problems trying to take it on board. First, the best justification for not worrying about trifles is that they are harmless and not worth the legal system’s time. But now we’re appealing to considerations external to the deontologist’s moral framework, like welfare or pragmatism. Second, as a matter of moral principle, it’s not clear to me how deontologists can pinpoint a non-arbitrary threshold.

      • Irfan Khawaja

        You seem to be assuming that any reference to self-ownership presupposes a commitment to deontology. I don’t get why. Levy wasn’t presupposing–and didn’t mention–deontology in his response to you. The last paragraph of your original post draws the lesson that we turn away from deontology, but the claim seems a non-sequitur against the backdrop of what precedes it. The bulk of the post is about the conceptual relationship of self-ownership to trivial rights infringements (so called), not about the relationship between deontic conceptions of ownership and trivial rights infringements. Unless deontology is somehow a necessary condition for espousing self-ownership (however weak or flexible the conception of ownership), your invocation of deontology is a red herring.

    • LLC

      I can’t help but think that it’s high time that we, because of the realities of our time, pay more moral, ethical and legal attention to the aggregations of ‘trivial infringements’ as they bear greater and greater significance to the health of ourselves, as well as the planet. Is there even a way to do this at the level of the individual, as opposed to deontologically? The aggregate of is no longer a dung heap at the downhill end of the street — it’s now global concentrations of toxins and pollutants.

    • Irfan Khawaja

      I agree with what you’re saying, Jacob, but don’t think the issue really turns on the nature of law. I have no legal training at all, but it seems obvious to me that whether the law requires it or not, rights violations presuppose a de minimis threshold (among other parameters), and that self-ownership is parasitic on ownership. That’s probably more obvious within, say, a neo-Aristotelian virtue ethic than it might otherwise be, but I think it’s obvious to most people, at least prior to contamination by deontic libertarianisms.

  • M S

    Isn’t this just an objection to a specific conception about self-ownership, rather than the idea of self-ownership? Or a specific conception of rights rather than the idea of rights themselves?

    Also, let’s say you were to convince me that a rights-based approach is terrible at dealing with trivial matters, and that utilitarianism is much better at that. Why should that convince me to give up rights-based thinking altogether? Is it your contention that utilitarianism has literally no flaws whatsoever, such that any tiny problem with rights-based thinking makes it absolutely worse than utilitarianism?

  • geoih

    Where does this idea of a pristine environment come from, and why should anybody have an inherent right to it? Waste products are a part of biology and technology. From one point of view, your very breathing pollutes the air. From another point of view, your breathing provides a valuable resource. Air is the common medium in which we all exist. It is a given that our existence will create “pollution” in it. Carbon, sulfur and nitrogen compounds, whether produced from the tailpipe of a car or a person, all can serve vital, and harmful, functions in the ecosphere. In which category does your “pollution” fall?

  • piperTom

    Maybe the difficulty is differentiating between criminal activity and a civil tort. I reserve “criminal” for an ongoing and unacceptable threat to the society. This almost never happens without malicious intent. A civil tort, by contrast, is either tolerable or a chance occurrence (or, esp with young people, you expect the offender to learn). With a civil matter, you are entitled only to recovery of damages. With a criminal matter, you want to stop the ongoing threat.
    For the case at hand, I’ll class as “trivial” any damage which is less trouble/expense to tolerate than to sue for. Into any calculation, add this: if you make a habit of suing for trivial matters, your neighbors will return the favor. Also, your neighbors are, ultimately, your judges.

  • MARK_D_FRIEDMAN

    I think Sobel’s criticism is anything but “powerful.” A deontological libertarian can (and should) consistently hold that the “few particles of pollution” do NOT constitute a rights infringement: http://naturalrightslibertarian.com/2014/06/nozick-pollution-and-cost-benefit-analysis/. More detail in Chapter 6 of my Nozick’s Libertarian Project.

    • Irfan Khawaja

      Well, the criticism is powerful if you presuppose a certain conception of ownership. If you identify ownership with physical boundaries–like the boundaries of a person’s physical body–and treat any unwanted crossing of that boundary as an infringement on the right to ownership (like noise, particulate matter, light beams, etc.), then Sobel’s criticism makes a fair point and a great deal of sense. If not, then not. But the criticism is not an attack on a strawman. People do hold the view he’s criticizing. The point is, you can be committed to a form of self-ownership without holding the view he’s criticizing.

      • MARK_D_FRIEDMAN

        I don’t believe I said that his attack was on a strawman. As I think you know, I follow Nozick in deriving libertarian rights from “respect for persons,” which assigns a large disvalue to the coercion of autonomous agents. I have never found the self-ownership thesis compelling as a foundation, and thus Sobel’s critique does not touch my position or the Nozickian argument (see the link I provided and Chapter 6 of my book). If there are any Rothbardians out there, they can reply to Sobel if they like.

        • Irfan Khawaja

          Well, as I said: “If not, then not.” You’re a sample size of 1. Lots of people do hold the view he’s criticizing.

  • Irfan Khawaja

    The “thus” in the third sentence doesn’t follow. In order for particles of pollution from Smith’s car to “settle” in Jones’s lungs, Jones has to engage in an act–breathing. What Jones is breathing is the commons, which no one owns. In breathing and appropriating part of the commons, we could say that Jones assumes some of the risks of doing so–most obviously including the trivial risks of inhaling small bits of pollution. It’s a mischaracterization to say that Smith has infringed Jones’s rights at all in this example. Smith has polluted the commons and Jones has appropriated a part of it. There’s no rights infringement whatsoever.

    Change the example to something more passively imbibed, like noise. Smith makes a noise that Jones doesn’t like, in the street near Jones’s window. The noise “lodges” in Jones’s eardrum against Jones’s will (if you want to put it that way). I still don’t think that Sobel’s argument works, unless you adopt a very specific conception of ownership. The conception has to be one such that any unwanted crossing of the physical boundary of what is owned by anything generated by human action is an infringement simply qua unwanted crossing. There’s no reason to believe that.

    I agree that that would be a reductio of any conception of ownership that entailed it. But a theory of self-ownership is not a theory of ownership. It doesn’t specify the stringency of rights of ownership. It merely lays out the implications of what follows from an agent’s owning oneself, whatever that amounts to. It needn’t amount to anything as crazy as Sobel is suggesting. The problem is, since no one has ever worked out a full theory of ownership, no one really knows the exact contours or boundaries of what we own (including with respect to our own bodies). So we end up oscillating between extremes like Rothbard vs G.A. Cohen. People only oscillate between such ridiculous extremes when they don’t have mastery of the truth-conditions of claims about a certain concept. Ownership is a paradigm example.

    The last time I was in Lahore (Pakistan) it occurred to me that no one in Lahore regarded it as an infringement on one’s property if you lightly dinged their car in a traffic jam. It was considered far too trivial to be taken seriously–the way we regard a bit of street noise in mid afternoon or emission from the exhaust pipe of a car or smoke from a BBQ or water particulate from someone’s sprinkler that drifts over to your yard. No one stopped for it, and no one even thought about it. You just dinged someone, said sorry, and moved on. (By analogy, no one in the US thinks that the CO2 I emit when I breathe on your car compromises your property rights in it, even if some of my CO2 “settles” in the paint job. Whereas spitting on your car–or on you–would. There’s just a bit of cultural relativity here.)

    The implication would seem to be that ownership relations do NOT track obvious physical boundaries. They track normative boundaries. When it comes to so-called “trivial infringements,” there’s a mismatch between the physical and the normative boundary. You can cross the physical boundary but cross no normative boundary of any consequence. In those cases, there really is no rights infringement at all (nor was there any reason, ab initio, to think there was one). You only get such an “infringement” if you’re silent about what counts as a normatively significant boundary crossing, equate all physical boundary crossings with rights infringements, and then infer that everyone faces the problem of figuring out what to do about trivial rights infringements. If trivial physical boundary crossings aren’t rights infringements at all, the “problem” goes away. The “problem” arises from a misapprehension about–a dogmatically stringent conception of–what property rights are, and what they’re for.

    A more relaxed conception of ownership would still allow for self-ownership. It’s a non-sequitur to think that if you espouse self-ownership, the ownership in question has to be Rothbardian or Nozickian in character. It doesn’t.

    Incidentally, precisely because Rawls says so little about the exact character of rights of bodily integrity and personal property, he can’t be saddled with problems generated by a libertarian conception that insists on a very stringent conception of ownership. For all we know, Rawls might agree with what I said above, including what I said about dinged cars in Pakistani traffic jams. Rawls always writes at a level of abstraction that makes him hard to pin down on things like this. He doesn’t say enough to allow us to do more than guess. Whatever the faults of Rawls’s fuzziness, it gets him off of this particular hook.

    • murali284

      I think this also reveals that what is doing the normative work in self-ownership arguments are the ingredients of self ownership. One way we normally deal with ambiguity is to distinguish between SO1, SO2 etc. Rather trivially, what rights we end up with depend on which account of self ownership we start off with. All the interesting work is done at the level of settling which of SO1, SO2, SO3 etc apply to us.

  • Ed Ucation

    I find nothing compelling about this argument. In fact, I find it quite silly. There is clearly a threshold for any tort. That threshold is established by the courts. I don’t see how that invalidates self-ownership in any way.

  • Roderick T. long

    Why can’t the application of a deontological principle be consequence-sensitive, as in eudaimonist libertarianism?