Was Friedman right?
Both the Law and Moral Intuition are unambiguous in determining that the State and/or Community takes guardianship of a person who lacks competence and is duty bound to take action against any transgression of that person's rights. It is of the essence of both Property and 'Natural' rights that they do not cease to exist in the absence or incapacity of the owner. If this weren't true, deontics would be as impossible a project, for rational Public Discourse, as Witchcraft or Vodoo. This being the case, for deontics not to be empty it must minimally be the case that a deontically legitimate State and or Community has an over riding duty to punish transgression of rights otherwise unenforceable by reason of absence or incompetence of the agent concerned.
Yet, it is a fact that Friedman has argued differently. What were his arguments?
Turning to his first post on the topic, we find he makes the following claims
1) that there is some similarity between some argument to be found in Landsburg's post and a principle enunciated in an essay by the Originalist legal scholar Robert Bork.
2) that the conjunction of Bork's essay and Landsburg's post somehow raises the bogey that the 'libertarian principle that I have a right to engage in what Mill referred to as self-regarding actions, actions that only affect me, is either false or empty.'
3) That there is in Law or lay Moral intuition some distinction between physical and mental harm. Friedman writes '"knowledge that pains you" isn't injury in the same sense as causing you to get cancer is.
On the basis of his intuition of the truth of these 3 claims, Friedman feels able to say-
Bork was arguing that the harm caused by the use of contraception and the harm caused by air pollution were ultimately of the same sort, that it was legitimate to ban pollution hence legitimate to ban contraception—his article was in part an attack on Griswold v. Connecticut, the Supreme Court case that legalized contraception, a fact I had forgotten when I started writing this post. Landsburg is arguing that rape that does only subjective harm is of the same sort as reading pornography that does only subjective harm (unlike Bork, it isn't clear that he is thinks his argument is right, only that he thinks it interesting), that it is not legitimate to ban the reading of pornography hence not legitimate to ban that particular sort of rape.
Let us now examine Friedman's 3 claims before evaluating his conclusion.
1) Is there a similarity between Landsburg's post and Bork's essay?
No. A similarity between two texts can arise in the following ways
a) if they address the same issue or audience- this isn't the case.
Bork is talking about the need for Supreme Court Justices to have a theory of the Constitution for Constitutional reasons. Landsburg isn't talking about any such thing. Furthermore, Bork wasn't against Contraception. On the contrary, he argued that the Statutory ban on it in Connecticut had fallen into desuetude and that it was ludicrous to pretend otherwise. What was mischievous about Grisworld vs. Conecticut was that the Judge had created a general right to Privacy which had no basis in the Bill or Rights, by pretending that the Connecticut statute still had some sort of force and thus presented an injury to the right of privacy. Friedman goes on saying 'Bork was against Contraception'. This is false. Bork says it would have been as ridiculous to enforce the relevant dusty old Statute as it would have been to arrest a Catholic priest under the Statute relating to Gambling just for hosting a Bingo night. To be clear, Bork was for Contraception or, at least, considered it as inoffensive as Bingo. There is not one iota of evidence for Friedman's claim yet he has made it on several occasions and on different fora. Bork's objection is to substantive due process as tending to the Judiciary's usurpation or unjust restriction on the proper operation of an essential function of the Legislature. Friedman does not understand this. He writes-
Bork's argument, in my words not his, goes as follows:
When I pollute the air I am injuring other people, so it is legitimate for the legal system to respond by penalizing me. What makes it an injury is not the fact that I affect the air but that the effect does harm; one could imagine an effect, such as a change in the ratio of two stable isotopes of trace gases in the atmosphere, that would not matter to anyone and so would not be seen as an injury or a proper subject for legal action.
Friedman is writing about what Lawyers call Justiciability which only arises when someone somewhere is injured either physically or feels a sense of moral outrage or affront or has some other objection to what is happening. The scenario Friedman puts forward- viz. one in which a harmless change in the ratio of stable isotopes occurs- is not justiciable because the point at issue is 'unripe'. Bork does not make this observation. It would have been ludicrous for him to do so since he was writing for Lawyers and Legal theorists perfectly familiar with this notion.
b) they share some premise or reflect upon a common history as happens if they have an intertwined intellectual genealogy- i.e Landsburg post encodes an intellectual tradition with which Bork had interacted in his essay. This is not the case. Friendman's reference to a chapter in his own book, on optimal punishment theory, is totally beside the point because Bork was an Originalist not a Utilitarian, and so, not surprisingly, there is nothing in his essay which shows an interaction with either Landsburg's intellectual precursors or those of Friedman.
c) they share a property of 'salience'- i.e. are important intellectual landmarks within a specific inter-subjective cognitive map. This is not the case. Bork's essay has salience- it was published in a respected Journal. Landsburg's blog post was a mere jeu d'esprit of a particularly juvenile and attention seeking sort.
Clearly, Friedman's claim is easily defeated by methods he must have some inkling of. The fact that he makes it anyway is evidence of either bad faith or mental impairment.
2) Even if there is no inter-subjective similarity between Bork and Landsburg, still subjectively Friedman has found, in their heteroclite conjunction, that a threat exists to the Libertarian principle re. self-regarding actions (i.e. those which have no 'externalities' i.e. impose no cost or benefit to others other than through the market).
Is this claim reasonable?
For two items in your train of thought to be related by succession does not constitute, except perhaps in Mantic poetry, a publicly justifiable claim that the terminus of that train of thought is indeed, objectively and for the purpose of rational discussion, inter-related with what went before. In this particular case, Bork's Originalism goes hand in hand with something else- viz. the Constitutional right of Americans to change the Laws of their Country by putting pressure on their Legislators whose rights Bork defends against curtailment or usurpation by the Judiciary through his critique of substantive due process. Hirshcman would call this having 'Voice'. Suppose, for some reason, Hirschman 'Voice' is ineffective, then Americans have a Constitutional right to leave that country, renounce their citizenship, and thus cease to be bound by the Constitution created by its Founding Fathers. But, since such emigration (Hirschman 'Exit') can occur through the market, no externality arises. Thus Bork's essay is not relevant to the bogeyman that Friedman has raised.
It appears that Friedman's invocation of the name and fame of the great Robert Bork- a hero to many- in the context of Landsburg's puerile exhibitionism arises either from mental infirmity or bad faith.
3) Neither the Law nor Moral Intuition makes any distinction between purely mental and physical pain. Why? If I make a credible threat that I will kill or torture you unless you do what I want, a crime has occurred, your rights have been violated, even if, by reason of your compliance, I do not actually carry out that threat. A little thought will show why a distinction between mental and physical injury- even if the two can be meaningfully distinguished- utterly vitiates any regime capable of enforcing Property or Natural Rights meaningfully.
Friedman's motivation, it appears, is to isolate spurious from genuine claims of Psychic harm. In Economics, this is termed the problem of Preference Revelation. Yet neither Bork nor Landsburg nor Friedman himself address the topic. Instead, he uses the fact that this problematic is a feature of any Human Society to pretend to be a deep thinker. Once again, this is evidence of either mental infirmity or bad faith.
Having shown that Friedman's claims are false, and false in a particularly stupid and self-serving manner, we are in a position to pass judgement on his conclusion- viz that there is an intellectually plausible argument such that in our Society- 'rape that does only subjective harm is of the same sort as reading pornography that does only subjective harm'
This is false.
Rape, by definition, is a Rights Violation. The State or the Community or whatever body it is that takes cognizance of Rights, has a duty to punish the transgressor of those Rights though that duty may be defeasible for all sorts of reasons. Bork's Originalist theory re. Constitutional Law is perfectly compatible with the view, which is now the mainstream view, that the Right to Privacy covers reading certain kinds of Porn- or indeed Landsburg's blog- but not others.
Friedman's own optimal punishment theory, without ambiguity or encountering any philosophical aporia, militates for this 'common sense' view. Even if the Local Govt. of Stuebenville had sold its right to Law enforcement back to the Community, rape that did not physical damage but 'only subjective harm' would still be punished.
Now, to fully 'internalize' -in the Coasian sense- the benefit to the criminal of the crime as well as the benefit to others of his remaining free it is possible to stipulate- as happens in some Islamic regimes- that blood money or other compensation has to be offered the relatives of the criminal you want to execute or imprison. True, that is a possible market solution. But that doesn't militate against the principles involved here or my conclusion that Friedman's blog post evidences either bad faith or incapacity to reason.
Friedman's subsequent posts
Friedman's second post on this topic seeks to make a case that there is a fundamental distinction between 'property rules' and 'liability rules'. I have asked him to explain why this might be the case and if any relevant literature exists which supports his claim. He has not bothered to reply. I suggested reasons why Friedman is wrong in an earlier post.
I think I have now answered Steve Landsburg's puzzle. The difference between his example (or mine) of an action that imposes only subjective costs and his example of an activity such as reading pornography, or Bork's of using contraception, that imposes only subjective costs, is not the nature of the harm. The difference is that in the one case the cost is of a sort that can be measured, the action controlled, via a property rule. In the other, it is not.
This is sheer nonsense. The same difficulties in imputing costs arise regardless of whether it is a property owner claiming damages or an appellant seeking compensation under a liability rule. Indeed, the distinction becomes meaningless if liability rule damages are assignable and survivable as is indeed the case for offences against the Right to Publicity, as opposed to that of Privacy.
In his third post on this topic, Friedman says that Landsburg's post is philosophically interesting and not trivial at all. Why? Well, it turns out he believes that Rights only obtain against the action of humans. If a bear attacks you, no question of Rights arise. If a human attacks you, the reverse is the case.
This is nonsense. It is of the essence of a Right that it arises independent of the species of the transgressor. I have a right to kill a bear who threatens me even if that bear belongs to someone else. I don't have the right to kill that bear, even if it belongs to no one, absent either a recognition that the act occurs in terra nullis or that the right has been ceded me either by Custom or Statute or some defeasible process of Public Reasoning.
In his fourth and final post on this topic, Friedman makes some disconnected references to issues in the Philosophy of Mind to suggest that at the root of his intervention in the Landsburg affair is some 'frightening idea' such that Moral Intuitionism cashes out as Nihilism or some other such Nasty. However, Friedman has never demonstrated any awareness or engagement with the areas of Philosophy which might make his claim plausible. Here, more nakedly than elsewhere we see Intellectual mediocrity, if not meretriciousness, strutting its stiff on the catwalk or fashionable inanity as part of the 'Blogging Professor's collection' brought to us by the 'Emperors without Clothes' Couture House or Designer Label.
Shame on David Friedman. He comes of distinguished stock. He has great talents- not least as a story teller.
Still, at least he isn't quite as awful as Landsburg. But Landsburg has worked hard to lower standards. Friedman can't hope to permanently boost his Blogger stats simply by becoming a free-rider on Landsburg's gadarene gravy train of thought.