Joe:

“But the badness of rape isn’t from the pleasure of the rapist. It’s from the pain of the person being raped.”

Kennedy:

That’s easily factored out for the sake of argument: Rape a woman who’s passed out drunk. She’ll never know.

No pain. Is that pleasure good?

Joe:

Maybe this deserves its own post, but what many of you are discussing (e.g., Constant’s game show, or JTK’s passed out woman) are problems if and only if one interprets utilitarianism to mean that one ought always perform whatever action has the greatest utility.

There are, however, good reasons for thinking that direct, act-utilitarianism is self-effacing. That is, there may well be (and I think are) good utilitarian reasons for abandoning act-utilitarianism. That’s why I said in an earlier comment that I think utilitarianism actually justifies rules that cannot normally be violated. We call these rights. And the most important of those rights is best expressed by something very much like the harm principle.

So, to JTK, the reason I don’t rape the drunk passed out woman who won’t know is that doing so violates the harm principle. And obeying the harm principle is what all-things-considered will maximize utility over the long run. And to Constant, the problem with the game show is not infinite pain of rape (which you rightly criticize); it’s that the game show violates the harm principle.

Joe, you just changed the subject.

Kennedy didn’t ask you whether or not you would rape someone who was drunk and passed out. (Or what your reasons for doing so or not doing so would be.) He asked you whether the pleasure that you would gain from the rape would be a good thing. (Or, more precisely, whether the fact that you received pleasure while no-one else received pain, would make for a net increase in the preponderance of good things over bad.) Gesturing at rule-utilitarianism, or to other forms of indirect utilitarianism, does not answer the question, unless making the gesture is also meant to imply “Yes, it would be for the best, but that’s only a problem if you think its being for the best would license me to do it. It wouldn’t, and here’s why.”

I can’t speak for Kennedy, but I certainly think that treating a sufficiently stealthy rapist’s pleasure as any sort of good at all is a problem, whether or not that conclusion would license actually trying to secure the good in particular instances. Whatever you may think of stupid or hollow pleasures (such as the ones you mention in your post), the idea that the depraved pleasures taken from wicked acts should not be dignified as “goods” is hardly wacky, spooky, or elitist. On the contrary, I’d suggest that denying such an evident truth can be explained by little other than dogmatic shamelessness.

Kurtiss,

As far as the phrase “Free Culture” goes, while it’s true that Lawrence Lessig in particular is not identical with Creative Commons as an organization, I think it’s still the case that, given his extremely influential role with CC, the rhetoric he likes to employ in speech, writing, and titles — for example, “Free Culture” — can be fairly associated with the general temper of Creative Commons’ rhetoric and self-descriptions.

In any case, I don’t think you’ve answered my point. Giving your project a name such as “Creative Commons” conveys a particular impression of what your project is about. To wit, building a creative commons. To have a creative commons you actually need to make works available freely for common use (i.e. not limited to the proprietary control of the creator or copyright-holder). Many Creative Commons licenses — and NC licenses in particular — do not do that. Replying that CC actually aims at giving creators more precise control over the permission profiles on their works, rather than on making works freely available, does not answer the objection. If CC wants to focus on helping creators express precisely what sorts of general permissions they want to grant, and what sorts of control they want to exercise, then they can go right ahead and do that. But they ought to pick a less misleading name. Perhaps “Creative Control” or “The Content License Repository” or somesuch would do. “Creative Commons” does not, because it dilutes the idea of a commons and conflates it with restrictionist licenses (such as NC, or Founder’s Copyright), which do not actually put works in the commons. (They only “enclose” a smaller “plot,” or enclose it for a shorter time, than conventional copyright arrangements do.)

I just think the best way to get there is by opening up choice and creating an efficient market, not promoting a single ideal. Why? Because I very well could be wrong. Only the market can tell.

Just to be clear, I don’t think that any form of unilateral copyright restrictions (as a form of State-enforced monopoly) are compatible with free markets, efficient markets, or market choice. (Cf. [1] and [2] for the whys and hows). But the point of my remarks does not actually depend on that claim. It doesn’t have anything to do with whether or not I think that *-NC licenses (for example) are a good idea, or legitimate from the standpoint of individual rights. The point is, rather, that it’s misleading to pass yourself off as advocates for a Creative Commons if you’re also promoting licenses that restrict Freedom 0. If that’s part of what they want to promote, fine, but it’s not a commons, and they ought to reconsider how they’re trying to brand themselves.

fontor: “The Constitution is a document that has held this country together.”

I seem to recall some minor unpleasantness in which the Constitution failed to hold the country together. And the reasons that the country came to be “held together” again at the end of it had a lot more to do with bayonet-points, cannon, and warships than it had to do with the paper Constitution.

In any case, I do not see why it should be presumed that holding the country together is a valuable service to begin with. If the compromises necessary to maintain the union under the terms of the Constitution result in complicity with overt wickedness — as they certainly did for the eight decades before the ratification of the Thirteenth Amendment, and as they arguably do now, given the federal government’s ever-growing ambition and abusiveness — then the Constitution and the union based on it are nothing more than a covenant with death and an agreement with Hell.

Thanks for this post.

I’m certainly inclined to agree that market underdevelopment is the problem here. Provided that we take a sufficiently broad view of what counts as a market mechanism. (The problem with many would-be free marketeers is that they don’t actually pay attention to all the sorts of institutions a free market might feature.)

It used to be, back in the day, that the Left exhorted working folks to form fighting unions, co-ops, and mutual aid societies in order to help counteract both routine exploitation and the dangers of economic downturns. The idea being that when working folks united, they were more powerful than the bosses and more reliable for each other than the functionaries of the welfare state.

This sort of statist nonsense, endlessly celebrated and agitated for by most of the contemporary Left, poses as ameliorating exploitation within the existing market system. All it actually does is transfer control over more workers’ lives to the civil service bureaucracy, and further regiments the economy under the dubious command of the managerial State. All in all it’s pretty weak tea compared to the good old end of the industrial republic of labor and the good old means of building a new society within the shell of the old through the economic means of mutual aid and direct action.

Well, yes, it is, actually.

Which is why George W. Bush has no legitimate authority over anyone.

“But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” — Lysander Spooner (1870)

And that’s why I celebrate every September 17th by ignoring the Constitution.

Personally, I celebrate “Constitution Day” by ignoring the Constitution.

Kirk: Bush has already stated his position on the Constitution and, as a corrollary, what the document means. His quote: “It’s just a goddamned piece of paper.”

Well. Isn’t it just a goddamned piece of paper?

Kirk: After calling our founding document that assures our freedom a “goddamned piece of paper”, …

You count on the United States Constitution to assure your freedom? Really? How’s that been working out for you lately?

Jim: Unfortunately, almost everything that the government does regarding alleged narcotics violators has been exempt from the Constitution since about 1986.

If they passed a Constitutional Amendment that would make it constitutional for the narcs to arbitrarily harass, search, seize, beat, restrain, storm the houses, and confiscate the property of people in order to carry on the War on Unauthorized Drugs, would that make it somehow O.K., or even one jot less evil?

“… whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” — Lysander Spooner (1870)

Lindsay,

Benedict doesn’t contradict or take issue with Manuel’s polemic against Islam (at least not in the text he read; the footnotes are supposedly forthcoming), but he does state explicitly that the relationship between Christianity rightly understood and Islam rightly understood is actually not a topic that he intends to address in the lecture.

The dialogue ranges widely over the structures of faith contained in the Bible and in the Qur’an, and deals especially with the image of God and of man, while necessarily returning repeatedly to the relationship between – as they were called – three “Laws” or “rules of life”: the Old Testament, the New Testament and the Qur’an. It is not my intention to discuss this question in the present lecture; here I would like to discuss only one point – itself rather marginal to the dialogue as a whole – which, in the context of the issue of “faith and reason”, I found interesting and which can serve as the starting-point for my reflections on this issue.

The idea that Islam demands a faith spread at sword-point, or even a faith that transcends and overwhelms the categories of reason, is not put forward in propia voce at any point, as far as I can tell, and plays no significant role in his argument (which is about faith and reason in Christianity, and mainly takes issue with certain tendencies in modern Christian theology). The quotation from Manuel is scholarly scene-setting for a discussion of the relationship between faith and reason. It’s not uncommon for philosophers and theologians to use quotations, epigrams, stories, myths, etc. as spring-boards for reflection without fully endorsing the content.

For all I know, it may very well be true that Benedict’s views about Islam are false, narrow, ignorant, or any number of other things. It is certainly true that, given his public position as Pope, it was jaw-droppingly impolitic to use this polemic as his spring-board. But I don’t think that it’s charitable to treat the use of the quotation, in context, as straightforward evidence that he believes the contents of it to be true. Maybe he does, but we’d have to look elsewhere for reasons to conclude that.

Genius,

Serendipitously enough, I do make and sell pizza for a living.

However, you are dropping two essential parts of my statement when you describe the way I pay my bills as “living off the labor of others.”

First, to drag out an old saw, while it is true that I treat other people’s labor as a means to my ends, I do not treat them as a means only. The fact that (as you note) the exchange is reciprocal means that I am exchanging the fruits of my labor for the fruits of many other people’s labor (in various roundabout arrangements). This is not adequately described as “living off someone else’s labor,” at least not in the sense that I was using that phrase. To live off someone’s labor does not mean to cooperate with them for mutual benefit; it means to use the fruits of their labor and give them nothing in return for it.

But, secondly, and more importantly, the exchange involved is not only reciprocal, but also voluntary. There are ways to live off the labor of others, in the sense that I used the phrase, without violating libertarian norms: trust-fund babies are an example, provided that the sources of their inherited wealth were legitimate to begin with. But I made the issues of coercion and consent quite explicit in my remarks. Rights are enforceable claims; if you had a positive right to live off someone’s labor then you would have the right to force her to work for your own profit, against her will. But nobody has such a right. You have no right to do that yourself, and you have no right to authorize the government to do it for you. The fruits of another person’s labor are not yours to give.

As for “rules” and “results,” I am a virtue ethicist, so I think that the dichotomy is misleading at best. (I think that forcing others to work for the profit of yourself or others is a form of slavery, and slavery is one expression of the vice of injustice. The content of that vice informs the rules of conduct you should follow, and also informs what could count as a good consequence. (If some given set of results involves enslaving another human being, then they are ipso facto bad results, consequences that are not worth effecting.)

But whatever the exact form of your moral theory, I take the illegitimacy of slavery to be one of the starting-points of ethical philosophy: it is part of the data that a good ethical must explain, not some theoretical point that can be revised or tossed out for the sake of some other consideration. If your ethical theory could legitimize slavery, then your theory needs to be chucked out. Sorry.

One more thing.

“There’s another way in which classical liberals are strangely Stalinist. They seem to want to over-ride the huge public demand for state intervention.”

How is this argumentative maneuver any different from, say, deriding the civil rights movement in the American South, on the grounds that it’s “strangely Stalinist” to want to over-ride the demands of the large majority of the population of the Southern states for white supremacy and the public humiliation and political control of black and mixed-race Southerners?

Popular demands are not always legitimate. The mere fact that great numbers of people will vote for something is no guarantee whatsoever that they have any right to it.

“To justify inequalities of property, you must demonstrate that the poor have a duty to respect the rich’s property. How can this be done?”

Because it’s their property.

The claim is a specific application of the general principle that any given person is obliged not to take the fruits of another person’s labor from her. To do that is to treat her as if you had a right to force her to labor for your own profit. That is treating her as if she were your slave. But slavery is illegitimate. The proper question is not where she got a right to her property, but rather where you would get a right to live off her labor.

Note that this applies not only to the immediate wage or product of labor, but also to the things that she buys with them: helping yourself to someone’s larder, without her permission, is effectively forcing her to work for your benefit as much as taking her money directly is. After all, it is only for what she could buy with it that she was interested in the wages to begin with.

You might complain that not all property is gained by labor: sometimes people just have the good fortune of having natural resources or other valuable commodities on their land. But finding and gathering these resources are a form of labor like any other, and the land is a possession like any other. You cannot claim the right to exploit another person’s land without claiming a right to the labor she put into acquiring, using, and maintaining that land. And you cannot claim the right to take the windfalls without claiming the right to live off the labor involved in discovering and gathering them.

Further, this applies to gifts and inheritances, too. You cannot take a gift from someone without living off the labor of the gift-giver. If I want my friend to have a wrist-watch, and she wants to have it, then I have every right to give it to her for her to enjoy. She may not have received it through any labor of hers, but I acquired it through my own labor, and part of enjoying the fruits of my labor is being able to transfer them to other people as I see fit. Robbing from my beneficiaries means treating me as your milk-cow.

You might, finally, object that riches do not always come from any legitimate form of labor at all, but rather from conquest or plunder. Why should poor people respect the property claims of people who have accumulated their fortunes through gangsterism, or—what is no better, but far more common and more socially “respectable” in this day and age—through expropriating wealth in the form of tax subsidies, or “eminent domain” seizures and transfers, or by forcing would-be competitors out of business through government-backed monopoly privileges. Well, they shouldn’t. There is no duty whatsoever to respect the piratical titles of freelance or government-approved robber barons. And many libertarians (e.g. Murray Rothbard, Karl Hess, etc.) have openly recognized and argued for exactly this point.

I should note in passing that the Saudi “princes,” whose claim to the petrochemicals of Saudi Arabia rests entirely on conquest and shameless seizure, are clearly in this last class. (For what it’s worth, I am anti-copyright and anti-patent, so I regard both Bill Gates and Paul McCartney as being at least partial members of this last class as well. Whatever portion of their immense wealth is derived from the fruits of their honest labor is dwarfed by the wealth they have extracted through government grants of monopoly privilege over the use and distribution of software and music.)

“A cornerstone of Nozick’s libertarianism is the principle that we own ourselves, so that any effort to tell us what to do is a form of slavery. This principle, though, doesn’t justify inequalities of income, because incomes are jointly produced by individual talents and social circumstances. Thierry Henry’s skills as a footballer, Bill Gates’ as a software developer or Paul McCartney’s as a songwriter would have earned them little 100 years ago. Even if they own their talents, they’ve no right to the social conditions in which these talents can thrive.”

This is a bizarre red herring. Since when did Nozick or anybody else claim that Henry, Gates, or McCartney does have a “right to the social conditions in which these talents can thrive”? The claim is only that they have a right to enjoy such fruits as they can earn by those talents under social conditions as they are, not that they have some kind of right to force other people to sustain the conditions they enjoy.

Maybe you could explain a bit more what you mean here?

“These market failures are another case for redistribution as insurance. The trick is to design the redistribution so as to minimize the disruption to markets that work well.”

I think that the claims you make are economically absurd, and ignore a great deal of important left-libertarian work on the effects of government constraints on market economies. (Just as one example, the New Left historian Gabriel Kolko extensively documented how the “robber baron” capitalism of late 19th and early 20th century America promoted “Progressive” regulation as a means of gaining and controlling monopolies. The tendency of free markets at the time was towards greater decentralization and competition, not towards amalgamation and monopoly. Murray Rothbard, in “Left and Right,” Roy Childs, in “Big Business and the Rise of American Statism,” and Kevin Carson, in “Studies in Mutualist Political Economy,” have talked at length about this within the libertarian tradition.)

But suppose for a moment that these claims were true: suppose it were true that free markets sometimes tended towards inefficient centralization or greater overall poverty or greater precarity in most people’s economic prospects or whatever. Still, so what? Would that then give you the right to use violence to make other people dispose of their property differently, so as to get the better results? Since when did you get the right to coerce other people in order to secure a more comfortable standard of living for yourself, your family, your friends, or your neighbors?