Category Archive: Rights

  1. The right to refuse service? Business owners and gay marriage

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    Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, Oxford University Press, 352 pages, $21.95

    Steve Tennes, an orchard owner in Michigan, recently refused to host a same-sex wedding on his property, instead referring the couple to another orchard.

    Business owners have profound incentives to serve customers. It is a rare proprietor who will turn away a paying customer because of a religious conviction.

    Yet over the past few years, several business owners like Tennes have done just that. These men and women believe their faith prohibits them from participating in same-sex wedding ceremonies.

    Contrary to popular belief, what Tennes did is perfectly legal in Michigan. The Great Lakes State, like about half of the states, has no law prohibiting discrimination on the basis of sexual orientation.

    But the Michigan town of East Lansing, where Tennes brings his produce to the farmers’ market, has a local ordinance prohibiting such conduct. Because Tennes will not host same-sex weddings at his orchard, the city banned him from selling fruit at its market. He responded by suing the town for violating his religious freedom. Litigation is ongoing.

    Such cases are at the heart of Debating Religious Liberty and Discrimination, a new point-counterpoint book by John Corvino, Ryan T. Anderson, and Sheriff Girgis. All three authors value religious liberty and oppose unjust discrimination. But as they point out in their joint introduction, “The devil is in the details.”

    The Case for Limiting Religious Exemptions

    Corvino begins the debate by providing a reasonable case for severely limiting religious exemptions. In good libertarian fashion, he contends that laws restrict liberty and so they shouldn’t be passed unless there are very good reasons to do so. If such reasons exist, all citizens should have to follow the laws regardless of their religious convictions.

    So, for instance, his solution to the problem of Native Americans who feel compelled to use peyote in religious ceremonies is not to exempt them from laws banning its use but to eliminate the law altogether. Then anyone, religious or not, can use peyote for whatever reasons they desire.

    Corvino doesn’t like religious exemptions, but he doesn’t reject them altogether. He concedes, for instance, that the state should not compel citizens to kill. If the nation is conscripting soldiers, pacifists should be offered an alternative to military service. Similarly, medical professionals should not be forced to participate in abortions or euthanasia. These accommodations should be available to religious and nonreligious citizens alike.

    Other than in issues of life and death, most accommodations would disappear in Corvino’s ideal world. This is not to say he is entirely unsympathetic to florists, bakers, orchard owners, and others who believe they should not participate in same-sex wedding ceremonies. He suggests three different ways in which they could be protected without religious accommodations. His preferred method is to revise antidiscrimination laws to exclude small firms that offer expressive or wedding-related services.

    The Case for Religion as a Basic Human Good

    Anderson and Girgis, by way of contrast, make a robust but accessible philosophical argument for the importance of religious liberty. Drawing from the philosopher John Finnis’s work, they contend that religion is a “basic human good” and that the purpose of the state is to “protect the ability of people to pursue all the basic goods.”

    Anderson and Girgis recognize that no right is absolute. If the state has a compelling reason to prevent a religiously motivated action, it may do so. With respect to discrimination, they propose that antidiscrimination laws should trump religiously motivated actions only when private treatment of a particular group imposes material and/or social harms that the law can best cure, and the particular proposed antidiscrimination provision is drawn narrowly enough to (1) suppress interactions that inflict those material and social harms, (2) avoid banning too many legitimate or harmless interactions, and (3) avoid treading too far onto other interests like conscience, religion, and speech.

    Applying this test would protect the orchard owners, bakers, and florists who have been sued or prosecuted under antidiscrimination laws. But it would not exempt every religiously motivated action; for example, racial discrimination could still be prohibited.

    There is much, much more to this book. Collectively, the essays provide an excellent overview of the main issues in cases involving religious liberty and antidiscrimination statutes. Both sides offer reasonable and well-articulated arguments to support their positions.

    Far too often, debates about these matters degenerate quickly into impugning motives and calling names. A critically important contribution of the book is that Corvino, Anderson, and Girgis show that people with deeply held convictions can have a rational argument about controversial issues.

  2. What Charles Darwin owes Adam Smith

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    The following is a lightly edited, slightly condensed transcript of the talk “Adam Darwin: Emergent Order in Biology and Economics,” presented by Matt Ridley at the Adam Smith Institute in 2012.


    I’ve called my lecture “Adam Darwin” to stress how congruent the philosophies of Adam Smith and Charles Darwin are. The common theme, of course, is emergence — the idea that order and complexity can be bottom-up phenomena; both economies and ecosystems emerge. But my purpose really is to explore not just the history and evolution of this shared idea but its future: to show that in the age of the Internet, Adam-Darwinism is the key to understanding how the world will change.

    The Common Ancestry of Evolution and Economics

    Darwin’s debt to the political economists is considerable. He spent formative years in Edinburgh among the ghosts of Hume, Hutchinson, Ferguson, and Smith. When he was at Cambridge in 1829, he wrote, “My studies consist in Adam Smith and Locke.” At his grandfather Josiah Wedgwood’s house in Staffordshire, Darwin often met the lawyer and laissez-faire politician Sir James Mackintosh, whose daughter married Charles’s brother-in-law (and had an affair with his brother).

    On the Beagle, he read the naturalist Henri Milne-Edwards, who took Adam Smith’s notion of the division of labor and applied it to the organs of the body. After seeing a Brazilian rainforest, Darwin promptly reapplied the same idea to the division of labor among specialized species in an ecosystem: “The advantage of diversification in the inhabitants of the same region is in fact the same as that of the physiological division of labor in the organs of the same individual body — subject so well elucidated by Milne-Edwards.”

    Back in England in the 1830s, through his brother Erasmus, Darwin fell in with the radical feminist and novelist Harriet Martineau, who had shot to fame because of her series of short fictional books called Illustrations of Political Economy. These were intended to educate people in the ideas of Adam Smith, “whose excellence,” she once said, “is marvelous.” I believe it was probably at Martineau’s suggestion that, in October 1838, Darwin came to reread Malthus (a person with whom Martineau was on very close terms) and to have his famous insight that death must be a non-random and therefore selective force.

    Parenthetically, it’s worth recalling the role of anti-slavery in bringing Martineau and Darwin together. Darwin’s grandfather Josiah Wedgwood was one of the leaders and organizers of the anti-slavery movement, a friend of Wilberforce, and the maker of the famous medallion “Am I not a man and a brother?” which was the emblem of the anti-slavery movement. Charles Darwin’s aunt Sara gave more money to the anti-slavery movement than any woman in Britain. Darwin had been horrified by what he called, “The heart-sickening atrocities of slavery in Brazil.” Abolition was almost the family business. Meanwhile, Harriet Martineau had just toured America speaking against slavery and had become so notorious that there were plans to lynch her in South Carolina.

    Today, to a bien pensant intellectual, it might seem surprising to find such a left-wing cause alongside such a right-wing enthusiasm for markets, but it should not be. So long is the shadow cast by the top-down determinism of Karl Marx, with his proposal that the state should be the source of reform and welfare, that it’s often forgotten how radical the economic liberalism of the political economists seemed in the 1830s. In those days, to be suspicious of a strong state was to be left-wing (and, if you’ll forgive the pun, quite right, too).

    Today, generally, Adam Smith is claimed by the right, Darwin by the left. In the American red states, where Smith’s emergent decentralized philosophy is all the rage, Darwin is often reviled for his contradiction of dirigiste creationism. In the average British university by contrast, you will find fervent believers in the emergent decentralized properties of genomes and ecosystems, who nonetheless demand dirigiste policy to bring order to the economy and society. Yet, if the market needs no central planner, why should life need an intelligent designer, or vice versa?

    Ideas evolved by descent and modification just as species do, and the idea of emergence is no exception. Darwin at least partly got the idea from the political economists, who got it from the empirical philosophers. To put it crudely, Locke and Newton begat Hume and Voltaire, who begat Hutchinson and Smith, who begat Malthus and Ricardo, who begat Darwin and Wallace. Darwin’s central proposition was that faithful reproduction, occasional random variation, and selective survival, can be a surprisingly progressive and cumulative force. It can gradually build things of immense complexity. Indeed, it can make something far more complex than a conscious deliberate designer ever could. With apologies to William Paley and Richard Dawkins, it can make a watchmaker.

    Each time a baby is conceived, 20,000 genes turn each other on and off, in a symphony of great precision, building a brain of 10 trillion synapses, each refined and remodeled by early and continuing experience. To posit an immense intelligence capable of comprehending such a scheme, rather than a historical emergent process, is merely to exacerbate the problem — who designed the designer?

    Likewise, as Leonard Reed pointed out, each time that the pencil is purchased, tens of thousands of different people collaborate to supply the wood, the graphite, the knowledge, and the energy, without any one of them knowing how to make a pencil. Says Smith, if you like, “This came about by bottom-up emergence, not top-down dirigism.” In both cases, nobody’s in charge, and crucially, nobody needs to understand what’s being done.

    Why Innovation Happens

    So far, I’m treading a well trodden path in the steps of Herbert Spencer, Frederick Hayek, Karl Popper, and many others who’ve explored the parallels between evolutionary and economic theory. But the story has grown a lot more interesting in the last few years, I think, because of developments in field of cultural and technological evolution. Thanks especially to the work of three anthropologists — Rob Boyd, Pete Richardson, and Joe Henrich — we are beginning now to understand the extraordinary close parallels between how our bodies evolved and how our tools and rules evolve. Innovation is an evolutionary process. That’s not just a metaphor, it’s a precise description. I need you to re-examine a lot of your assumptions about how innovation happens to disenthrall yourself of what you already know.

    First, innovation happens mainly by trial and error. It’s a tinkering process, and it usually starts with technology, not science, by the way, as Terrence Keeley has shown. The trial and error may happen between firms, between designs, between people, but it happens. If you look at the tail planes of early airplanes, there’s a lot of trial and error, there’s a lot of different designs being tried and eventually one is decided.

    Exchange is crucial to innovation, and innovation accelerates in societies that open themselves up to internal and external exchange through trade and communication — Ancient Greece, Song China, Renaissance Italy, 16th century Holland, 19th century Britain — whereas innovation falters in countries that close themselves off from trade — Ming China, Nero’s India, Communist Albania, North Korea.

    More ever, every innovation, as Brian Arthur has argued, is a combination of other innovations. As L.T.C. Rolt, the historian of engineering put it, “The motorcar looks as if it was sired by the bicycle out of the horse carriage.” My favorite example of this phenomenon is the pill camera, which takes a picture of your insides on the way through. It came about after a conversation between a gastroenterologist and a guided missile designer.

    Adam Smith in other words, has the answer to an evolutionary puzzle: what caused the sudden emergence of behaviorally modern human beings in Africa in the past hundred thousand years or so? In that surprisingly anthropological first chapter of The Wealth of Nations, Smith saw so clearly that what was special about human beings was that they exchanged and specialized.

    Neanderthals didn’t do this — they only ever used local materials. In this cave in Georgia, the Neanderthals used local stone for their tools. They never used tools from any distance away, from any Neanderthal sites. But when modern human beings move into this very same area, you find stone from many miles away being used to make the tools, as well as local stone. That means that moderns had access to ideas, as well as materials from far away. Just as sex gives a species access to innovations anywhere in its species, so exchange gives you access to innovation anywhere in your species.

    When did it first happen? When was trade invented? At the moment, the oldest evidence is from about a 120,000 years ago. That’s when obsidian axes in Ethiopia and snail-shell beads in Algeria start traveling long distances. These beads are made from marine shells, but they’re found a hundred miles inland. And we know from modern Aborigines in Australia that long-distance movement of man-made objects happens by trade, not migration. So it’s not that people are walking all the way to the Mediterranean and picking up shells and walking all the way back again; they’re getting them hand-to-hand by trade.

    Now that’s 120,000 years ago — ten times as old as agriculture — but I suspect it goes back further still. There’s a curious flowering of sophisticated tool kits in Africa around a 160,000 years ago, in a seashore dwelling population, as evidenced by excavations at a place called “Pinnacle Point.” It came and went, but careful modeling by some anthropologists at the University College London suggests that this might be a demographic phenomenon: a rich food supply led to a dense population, which led to a rich toolkit. But that’s only going to be true if there is exchange going on, if the ideas are having sex — dense populations of rabbits don’t get better tools. Once exchange and specialization are happening, cultural evolution accelerates if population density rises, and decelerates if it falls.

    We can see this clearly from more recent archeology in a study by Melanie Klien and Rob Boyd. In the Pacific, in pre-Western contact times, the sophistication of fishing tackle depends on the amount of trading contact between islands. Isolated islands, control for island size, will have simpler fishing tackle than well-connected islands. And indeed, if you cut people off from exchange networks, human progress not only stalls, it can go backwards.

    The best example of this is Tasmania, which became an island ten thousand years ago when sea levels rose. Not only did the Tasmanians not get innovations that happened after this time, such as the boomerang, they actually dis-invented many of their existing tools. They gave up making bone tools altogether, for example. As Joe Henrich has argued, the reason for this is that their population was too small to sustain the specialization needed to collaborate in the making of some of these tools. Their collective brain was not big enough — nothing to do with their individual brains, it’s the collective intelligence that counts.

    As a control for this idea, notice that the same thing did not happen in Tierra Del Fuego. The Fuegan Indians continue to progress technologically. The reason for this is that the Magellan Strait is narrower than the Bass Strait, so trade continued and the Feugan Indians had access to a collective brain the size of South America. Whereas, as the Tasmanians had access to a collective brain only the size of Tasmania.

    The Collectivism of Markets

    Now for me one of the most fascinating implications of this understanding of the collective brain is just how touchy-feely liberal it is. I’m constantly being told that to believe in markets is to believe in selfishness and greed. Yet I think the very opposite is true. The more people are immersed in markets, the more they collaborate, the more they share, the more they work for each other. In a fascinating series of experiments, Joe Henrich and his colleagues showed that people who play ultimatum games — a game invented by economists to try and bring out selfishness and cooperation — play them more selfishly in more isolated and self-sufficient hunter-gatherer societies, and less so in more market-integrated societies.

    History shows that market-oriented, bottom-up societies are kinder, gentler, less likely to go to war, more likely to look after their poor, more likely to patronize the arts, and more likely to look after the environment than societies run by the state. Hong Kong versus Mao’s China, 16th century Holland versus Louis the XIV’s France, 20th century America versus Stalin’s Russia, the ancient Greeks versus the ancient Egyptians, the Italian city-states versus the Italian papal-states, South Korea versus North Korea, even today’s American versus today’s France, and so on.

    As Voltaire said, “Go into the London stock exchange and you will see representatives of all nations gathered there for the service of mankind. There the Jew, the Mohammedan, and the Christian deal with each other as if they were of the same religion, and give the name of infidel only to those who go bankrupt.”

    As Deirdre McCloskey reminds us, we must not slip into apologizing for markets, for saying they are necessary despite their cruelties. We should embrace them precisely because they make people less selfish, and they make life more collective, less individualistic. The entire drift of human history has been to make us less self-sufficient and more dependent on others to provide what we consume and to consume what we provide. We’ve moved from consuming only as widely as we produce to being much more specialized as producers and much more diversified as consumers.

    That’s the very source of prosperity and innovation. It’s time to reclaim the word “collectivism” from the statists on the left. The whole point of the market is that it does indeed “collectivize” society, but from the bottom-up, not the top-down. We surely know by now after endless experiments that a powerful state encourages selfishness.

    Let me end with an optimistic note. If I’m right, that exchange is the source of innovation, then I believe that the invention of the Internet, with its capacity to enable ideas to have sex faster and more promiscuously than ever, must be raising the innovation rate. And since innovation creates prosperity by lowering the time it takes to fulfill needs, then the astonishingly rapid lifting of humanity out of poverty that has happened all over the world, particularly in the last 20 years, can surely only accelerate. Indeed, it is accelerating. Much of Africa is now enjoying Asian Tiger-style growth. Child mortality is plummeting at a rate of five percent a year in Africa. In Silicon Valley recently, Vivek Wadhwa showed me a $35 tablet computer that will shortly be selling in India. Think what will be invented when a billion Indians are online.

    In terms of human prosperity, therefore, we ain’t seen nothing yet. And because prosperity is an emergent property, an inevitable side effect of human exchange, we could not stop it even if we wanted to. All we could do is divert it elsewhere on the planet (which is what we in Europe seem intent on doing). “Adam Darwin” did not invent emergence: his was an idea that emerged when it was ripe. And like so many good ideas, it was already being applied long before it was even understood. And so I give you Adam-Darwinism as the key to the future.

  3. Sports betting should be legal across the country. Here’s why.

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    The Oakland Raiders’ impending move to Las Vegas has reignited debate about the legality of betting on sports. Most states ban betting schemes (although Nevada is an exception), and NFL Commissioner Roger Goodell supports these bans. Other commissioners, like the NBA’s Adam Silver, oppose them. As for the general public, a 2011 study from Fairleigh Dickinson University shows that Americans are split on the issue. So, should we lift the bans or not?

    The Paternalist Argument

    As far as I can tell, the main arguments against legalizing betting are paternalistic: the state should ban gambling to protect gamblers from themselves. For instance, a ban could prevent gamblers from becoming addicted.

    But outright prohibition is not the only way to address gambling addiction. For instance, some states offer self-exclusion programs, which enable people to voluntarily ban themselves from certain gambling activities. Gambling facilities must then refuse wagers from and deny gaming privileges to these people; facilities can even arrest self-excluded patrons for trespass if they enter the gambling floor.

    What’s more, other activities like drinking alcohol present a considerable risk of addiction and yet remain legal. Rather than imposing a general ban on drinking, we take a more targeted approach and offer treatment to those particular people who suffer from an addiction (and ban drinking for minors, too). I see no reason to treat sports betting differently.

    Your Money, Your Decision

    Here’s a positive argument for legalizing sports betting: people generally have the right to spend their money as they see fit, so they should be allowed to spend their money on gambling. If you may spend your paycheck on a sports car to chase thrills, why aren’t you allowed to spend it betting on the Super Bowl for the same reason?

    Alternatively, you could bet on sports in an attempt to make money. In this respect, betting on sports seems similar to other, perfectly legal activities. Someone who buys stock in General Motors is “betting” that the company will sell lots of cars, just as someone who puts money on the New England Patriots is betting that they’ll win the game.

    Skill vs. Chance, Investing vs. Gambling

    Maybe investing in the stock market is different than betting on the NBA playoffs because the proceeds of the latter are “predominantly subject to chance.” Suppose this is true — whether you win money from your bet on the Golden State Warriors is mostly a matter of luck, whereas whether you win money from your “bet” on General Motors is mostly a matter of skill.

    Why should this matter when it comes to legality? The thought might be another paternalistic one: in games of chance, your odds of winning are “too low,” so the state must stop you from gambling away your money.

    But people often have higher odds of winning games of chance than games of skill. Suppose a local pub charges a $100 entry fee for its dart contest. The winner receives $1,000. Darts is a game of skill, not luck. The trouble is, I don’t have the skill. So I have virtually no chance of winning. Crucially, I have a significantly lower chance of winning the dart contest than winning my bet on the NBA Finals (which hovers around 50%). It’s strange, then, that I may enter the dart contest but I may not bet on the NBA Finals.

    Lastly, I may legally perform actions that have a 100% chance of financial loss, so why isn’t it legal to perform actions that only have, say, a 50% chance? For instance, I am within my rights to simply hand over $500 to Brooke the bookie as a birthday gift. So why may I not hand over $500 to Brooke when there is at least a chance that I’ll get some money back on a bet?

    Of course, betting $500 on sports could be a bad idea. But then again, gifting Brooke the $500 could be a bad idea, too, and that’s perfectly legal. Even if sports betting is unwise, that’s not nearly enough to make it criminal.

  4. Ritual sacrifice of chickens: religious freedom vs animal cruelty laws

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    I love animals as much as the next person — just ask my dog, Sammy, or the baby swallows my wife and I have been protecting (from our dog, among other things) on our front deck.

    But I understand that some religious citizens believe it is necessary, on occasion, to kill animals in a ritualistic manner. This should come as no surprise to anyone who has read the Torah (the first five books of what Christians call the Old Testament).

    Most Jews, Christians, and Muslims no longer sacrifice animals, although some continue to practice rituals that include killing them in specific ways. For instance, a federal judge recently protected the ability of orthodox Jews in California to practice Kapparot, an ancient atonement ritual associated with Yom Kippur that usually includes the slaughter of chickens.

    Court Decisions on Ritualistic Slaughter

    The most famous case involving ritualistic slaughter involved practitioners of Santeria, an Afro-American religion of Caribbean origin. More than two decades ago, the city of Hialeah, Florida, attempted to prohibit Santerians from sacrificing animals, even as it allowed animals to be killed for a variety of other reasons. A unanimous Supreme Court declared the ordinance to be unconstitutional in 1993.

    Hialeah’s ordinance was clearly unconstitutional because it prohibited animal slaughter in religious contexts while still allowing it in secular contexts. Such ordinances and laws are constitutional only if they are “justified by a compelling interest and [are] narrowly tailored to advance that interest,” as Justice Anthony Kennedy stated when delivering the court’s opinion.

    Almost no statute meets this test. Nevertheless, to this day, Louisiana bans the ritualistic slaughter of animals. So, for instance, if you owned a farm in the state, it would be legal for you to slaughter a chicken there under normal circumstances, but not if you did so as part of a religious rite.

    Kentucky’s Religious Reptile Ban

    The only statute I’m aware of that specifically targets a religious practice and might survive this level of judicial scrutiny is Kentucky’s law against handling “any kind of reptile in connection with any religious service or gathering.” The statute is aimed at prohibiting the rare religious practice (primarily confined to Appalachia) of handling venomous snakes in church services. Presumably, it is legal to handle them for fun or profit!

    Because the state has a “compelling interest” in the health of its people (even those who choose to pick up rattlesnakes) this law might be upheld in a court challenge. But the law would be far more defensible if it were neutral with respect to religion — that is, if it simply banned the handling of venomous reptiles in all contexts.

    Religiously Neutral Bans on Animal Slaughter

    Such neutral laws, especially those regarding the humane treatment and slaughter of animals, may still have the unintended effect of restricting religious citizens’ liberty. For instance, humane slaughter laws in Denmark and other Scandinavian countries have “effectively ban[ned] the ritual slaughter methods prescribed in both Muslim and Jewish tradition,” NPR reports.

    In America, because such a law is neutral, it would not violate the First Amendment. Fortunately, many states proactively craft accommodations to protect ritualistic slaughter. These states properly recognize that whatever interest they have in prohibiting animal cruelty, this interest should not override the religious convictions of their citizens.

    It is not unreasonable for states to prohibit animal cruelty or to require the humane slaughter of livestock. However, when these laws interfere with the ability of sincere citizens to practice their faiths, legislatures should craft narrow accommodations to protect citizens’ ability to act according to their religious convictions.

  5. The State of Free Speech among High School Students

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    As recently reported in the New York Times, a recent Knight Foundation survey of nearly 12,000 high school students has found that such students’ support for the First Amendment’s free speech protections is “stronger today than it has been in the last 12 years.”

    As far as it goes, this is good news given the avalanche of unfriendly free speech policies and actions that have swept over higher education in recent years—e.g., trigger warnings; micro-aggression stipulations; speaker disruptions and “dis-invitations;” overly intrusive and chilling “bias reporting” systems; and the relegation of student expression to tiny “free speech zones” on campus. According to the Times, 91 percent of the high school students believe that “individuals should be allowed to express unpopular opinions.”

    That said, the support is limited to “the First Amendment as a general concept.” As Jonathan Sotsky of the Knight Foundation told the Times, “Their support is tempered depending on the kind of speech and where it’s delivered…the devil is in the details.” In particular, support for free speech falls precipitously to 45 percent when the speech “is offensive to others and made in public,” and falls even lower, to 43%, when the offensive speech is on social media.

    We can derive at least four points or lessons from these findings. First, the difference between support for free speech in the abstract and in particular cases is nothing new under the civil liberty sun. Such sociologists and political scientists as Samuel Stouffer, Herbert McClosky, and John Sullivan have repeatedly found it since the beginning of serious survey research on civil liberties in the 1950s. Reflecting the preoccupations of the time, general support in the past dropped off when subjects were asked about the speech rights of such political outsiders as communists and hate groups. Today young people are concerned about personal identity and self-respect, so drop offs are most prominent in domains dealing with personal social media. Furthermore, it is not surprising that people are more willing to support a right in the abstract than when its application entails either controversy or potential harm to others or society.

    That said, it is also true that the defense right of free speech matters only when there is pressure to censor it. Speech expressing popular viewpoints has no need of protection. As Justice Oliver Wendell Holmes’ wrote, “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” (U.S. v. Schwimmer, 1929, dissenting opinion)

    Second, we need to recognize the special concerns for free speech posed by social media. Many colleagues and students have told me that the most significant reason for expressive conformity on campus is the fear of being bullied on social media—a claim backed up by commentators more generally. On the one hand, social media has expanded the forum for discussion and debate. On the other hand, its misuse by moral and political bullies has cast a pall over the incentive to dissent and speak with intellectual honesty. We are only beginning to fathom how to deal constructively with this paradox. Young people today also appear to be more conflict averse than their predecessors were, which compounds the dilemma.

    Though the survey did not delve into more specific or nuanced aspects of this concern, we should acknowledge that it is important to distinguish genuine bullying and intimidation from simply strongly disagreeing with someone. And there are shades of bullying. When bullying becomes harassment or a threat, it crosses into potential criminality. If it is painful yet not a threat or harassment, it can be normatively wrong but not illegal. The best remedy here is to encourage and educate people how to be civil with their disagreements, making sure that such education does not constitute bullying in its own right.

    Third is the need to recognize the distinction between bullying, which is personally direct and meant to shame rather than inform, and causing “offense” by expressing unorthodox or controversial thoughts and ideas. As Jonathan Rauch has powerfully elucidated in his neo-classic work, Kindly Inquisitors: The New Attacks on Free Thought (1993), the “humanistic principle” that no one should be allowed to express an idea that might offend or hurt someone else because of its ideational content is anathema to free speech and an open society. Truths or honest opinions are often very offensive to people. For example, evolution was deeply upsetting to many fundamentalists. (And I doubt that monkeys felt very good about linked to human beings!) Indeed, the Supreme Court ruled in a famous 1971 case that the First Amendment protects offensive expression as a general matter. (Cohen v. California) As free speech philosopher Alexander Meiklejohn declared in Free Speech and Its Relation to Self-Government (1948), “To be afraid of an idea, any idea, is to be unfit for self-government.”

    Finally, the survey suggests something that is a recurrent problem: the need for education in free speech and First Amendment principles. Protecting highly controversial and offensive expression is counter-intuitive in many ways, but it is a counter-intuition that is necessary in a free society. It is also counter-intuitive to many to extend trial rights to criminals or to require the state to get search warrants in criminal cases. But the counter-intuition goes away once one is educated regarding the reasons why, which include the consequences of doing otherwise. Such education is a proper part of civic education—the long-term weakening of which is another topic deeply worthy of discussion. Teaching civility in a manner that encourages vibrant debate rather than discouraging is also a matter of civic education.

    Only with proper education will we be able to draw the appropriate lines—legal, or simply normative, depending on the issue—between protecting upsetting speech and unjustified bullying.

    This piece was originally published at The Open Inquiry Project.

  6. Immigration policy is first and foremost about property rights

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    What rights are at stake in immigration? The issue is often framed as an either-or question of whether would-be immigrants have a right to immigrate or the native-born have a right to exclude them.

    I think that’s an unhelpful way of framing it; it’s collectivist. It seems to ask whether any and all immigrants should be free to go anywhere they wish, or whether (a majority of) the native-born may exclude all immigrants from going anywhere in the country. Isn’t there some middle ground, whereby some of the native-born may admit some immigrants to some places but not others?

    A property rights approach can help us answer this question.

    Imagine a representative scenario:

    A group of poor immigrants heads for some US town to work on the farms there. They arrive at the US border. If they are allowed in, they get on a bus that takes them to the town, stopping at rest stops along the way to eat and stretch their legs.

    When the immigrants arrive at the town with the jobs, they walk to a boardinghouse offering bunk rooms and simple cooking facilities. They pay their rent to the boardinghouse owner and get some rest.

    The next day they go to the job sites in pickup trucks from the farms. They agree on wages with the farm owners; they go to work. In the evening, they go back to the boardinghouse. Soon they will be able to wire some money home to their families.

    Whose rights are involved here?

    Let’s answer that indirectly. Suppose it’s not an immigrant, but an American citizen, I myself, for instance, who wants to get on the bus, have meals at the rest stops, sleep in the boardinghouse, and work on the farm. Do I have a right to do that, as I have a right to “life, liberty, and the pursuit of happiness”?

    No. I have no inherent right to get on someone else’s bus. But when the bus owner sells me a ticket, he grants me the contractual right to ride his bus on the route specified. I have no right to enter the rest stop restaurant for a meal unless I agree (the contract is implicit in this case) to pay the rest stop owner for the privilege.

    Similarly, I have no right to sleep in a room in someone’s boardinghouse unless I get the landlord’s permission through a rental contract. And I have no right to a job at someone’s farm unless he or she hires me, in an implicit or explicit labor contract.

    In each of these cases, any right I might acquire to ride the bus, have a meal, sleep in the room, or work on the farm depends on the agreement of the owner of the bus, rest stop, boardinghouse, or farm. The owners do have the right to determine who comes onto their property, so if they agree to do business with me, then I have a right, not an inherent right but a contractual right, to make the trip and take the job as described. The owners’ rights and choices to deal with me determine my acquired, contractual rights.

    Should property owners be allowed to hire across national borders?

    Now we come to the crucial question: Do those property owners have the right to contract not just with me, but with any people they wish, even if their home addresses happen to be in some other country?

    I think the answer has to be yes. It’s the owners’ property. They get to decide who comes there and who doesn’t. If so, the immigrants they choose to welcome have a right to immigrate in the manner described.

    The error in the claim that “we” have a blanket right to exclude immigrants from coming into the country at all, “to protect our border,” is that it ignores the property and free association rights of current citizens. The borders relevant to individuals’ rights are the borders of their property, not of political jurisdictions. Property owners have the right to control their own property’s borders – to exclude whom they choose and admit whom they choose.

    Any government’s number one job is to protect the rights of the individuals who live within its jurisdiction. That includes the rights of those who own buses, rest stops, boardinghouses, farms, and the like to use their property as they see fit, admitting those they choose to admit. Accordingly, would-be immigrants have a right to immigrate as long as they have the invitation of the various property owners they deal with along the way. To block such immigration is to violate the rights of the native-born citizens.

    What about the consequences of free immigration?

    As for its practical consequences, this perspective should reassure those who worry that free immigration would lead to overcrowding. Property rights include the right to exclude. The boardinghouse owner in our example has only so many rooms. When they fill, he may and will turn people away. The farmer needs only so many laborers; when he has all he needs, he may and will turn people away.

    Congestion naturally checks immigration. Word gets back to the immigrants’ home country that there are no more rooms available in that town and no more jobs at the farms. The flow of immigrants will naturally stop.

    One might object that immigrants have no right to use the public roads because they have not paid taxes to build the roads. But that argument also ignores the rights of current citizens. They have paid taxes for the roads to facilitate the business of their lives, including their interactions with others – to drive their buses on, to allow others to rent their rooms, and to get to the jobs they offer. And that includes the riders and renters and employees they’d like to deal with who happen to have been born in other countries.

    In this way of thinking, immigration policy is first and foremost about the property rights and freedom of association of those in the destination country. They have a right to welcome immigrants onto their property, or exclude them from it, as they choose.

    As with most other areas of human affairs, immigration decisions should be made in a decentralized manner by property owners rather than centrally by governments.

  7. Full Debate: Is Immigration a Human Right?

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    Bryan Caplan and Christopher Wellman debate immigration. Is there a human right to immigrate to any country in the world?

    Debate sponsored by IHS, the John Templeton Foundation, and University of San Diego’s Center for Ethics, Economics, and Public Policy.

  8. Is victim culture spreading beyond the university?

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    I’ve received a lot of great, thought-provoking feedback about my recent article on the culture of victimhood. My argument in that post was that many American universities like Yale are descending into a victim culture, in which insults are treated as major, political threats to historically marginalized groups, which require an administrative or legal crackdown.

    Victim culture threatens to undermine the important modern achievement of a dignity culture, in which insults are treated as minor, personal affronts to individuals, affronts that should be addressed quietly or even ignored.

    And while members of various minority groups at Yale certainly experience a sundry of insults in their daily lives, I doubt that in the aggregate, they are less privileged than, say, a white male born into poverty in rural West Virginia.

    But while Yale minority students are undeniably privileged, I would certainly not say the same about most members of minority groups. Robust correlations undeniably exist between race and poverty, due partially to discrimination.

    My problem is that the students in the Yale Halloween costume protest video seem to think that their minority status is the only aspect of their identity that matters — that cognitive ability and the fact that they are receiving a top-tier education don’t matter.

    Moreover, this is ultimately an empirical question: would people prefer to be members of a minority group while possessing above-average intelligence and above-average educational and economic opportunities? Or would they prefer to be members of a majority group while possessing average or below-average intelligence and having its accompanying economic and educational opportunities?

    I suspect most people would prefer the former, but I’m willing to be proven wrong. In fact, my lab will begin investigating this question in the fall. Stay tuned.

    Is victim culture unique to college campuses?

    Some readers objected to my characterization of victim culture and its associated lack of respect for viewpoint diversity as unique to college campuses. As one commenter put it, “If you think this culture hasn’t permeated every level of business then you have been in academia too long friend. HR in modern companies is a joke and reflects exactly what you write about.”

    This commenter makes a fair point, and it’s certainly true that my own experience is primarily in academia. My only reply is that the feedback loop in the private sector is much more direct, so firms have an incentive to keep the nonsense to a minimum. It seems to me that this is less true for universities, but I may be wrong.

    Another commenter argued that it was inappropriate to paint this generation (I suppose we’re calling them Millennials?) with a broad brush and that they are in no way unique. Here, I disagree.

    The best data we have on this question (to my knowledge) come from the Pew Research Center, which indicates that US millennials report a unique hostility to the concept of free speech. Specifically, they are open to the idea that speech offensive to minority groups should be censored. This hostility is by no means definitive evidence of the victimhood culture thesis, but I think it speaks volumes.

    Free speech improves the human condition.

    Past generations of protesters — here, I am referring primarily to the civil rights movement and the antiwar protesters of the 1960s — explicitly favored free speech. They did so by necessity, as their left-wing views were in opposition to the views of those in power.

    As journalist, activist, and Yale alum Jonathan Rauch has argued in his excellent book Kindly Inquisitors: The New Attacks on Free Thought (and elsewhere), freedom of expression has been necessary for the advancement of minority rights; the disadvantaged are more likely to benefit from a free, open, and peaceful exchange of ideas than to be harmed by it.

    When self-appointed oracles of social orthodoxy loudly demand that speech be restricted, I can only assume that they (a) know nothing of history, or (b) are more interested in assuring themselves of their own virtue (and broadcasting it as loudly as possible) than they are concerned with the human condition.

    I should insert a statement that I omitted from my original post for the sake of brevity: private colleges have every right to restrict speech. Along the same lines, I have every right to tell my children that I will not pay for them to attend such institutions (and yes, this includes both Yale and Liberty University — I’m an equal-opportunity shill for free expression). Public institutions are bound to abide by the First Amendment, so that’s another story. Either way, an institution that blocks the expression of controversial ideas (or allows them to be blocked) is hardly one of “higher education.”

    Who should constrain free speech — and when?

    Finally, the one question no one has been able to answer in all the discussion on my last piece is as follows: If speech must be constrained, who is to do the constraining? Decades (if not centuries) of jurisprudence and scholarly attention have failed to produce a reasonable answer, which suggests to me that one is not to be found.

    Still, we can draw an obvious line: when the speech directly and purposively incites physical violence, it should be prohibited.

    Yes, words can cause psychological distress, but this is largely dependent on perception and individual differences and is categorically different from physical aggression. A simple example is instructive: Would you rather be punched in the face or called an ethnic slur?

    Neither is pleasant. Both are reprehensible. But only the former should be prohibited.

  9. The Constitutional Rights of Noncitizens

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    Immigration restrictionists sometimes claim that noncitizens have no rights under the Constitution, and that the US government is therefore free to deal with them in whatever way it wants. At least as a general rule, this claim is simply false.

    Noncitizens undeniably have a wide range of rights under the Constitution. Indeed, within the borders of the United States, they have most of the same rights as citizens do, and longstanding Supreme Court precedent bans most state laws discriminating against noncitizens. There is little if any serious controversy among experts over this matter.

    The more controversial issue is whether the Constitution provides any protection for noncitizens outside US borders, particularly in regard to immigration issues.

    Rights That Protect Aliens and Citizens Alike

    The First Amendment prevents the government from censoring noncitizens’ speech or suppressing the practice of their religion. The Fourth Amendment protects them against unreasonable searches and seizures. The Fifth Amendment ensures that noncitizens’ property can only be taken by the government for a public use, and only if just compensation is paid.

    Should a noncitizen be charged with a crime, he has exactly the same Fifth and Sixth Amendment procedural rights as a citizen, including the right to a jury trial, the right to counsel, and protection against self-incrimination. If convicted, the Eighth Amendment prevents the government from subjecting aliens to “cruel and unusual punishment” in exactly the same ways as it does with citizens.

    Rights Reserved to Citizens

    The Constitution reserves a few rights for citizens alone. Most notably, the Privileges and Immunities Clause of Article IV, Section 2, and the Privileges or Immunities Clause of the Fourteenth Amendment both protect the “privileges” and “immunities” of US citizens against various types of interference by state governments.

    The Second and Ninth Amendments indicate that the rights they protect are those of “the people.” While the Supreme Court has never addressed this issue, lower courts have disagreed over whether “the people” entitled to the Second Amendment right to keep and bear arms includes noncitizens, especially undocumented immigrants.

    That a few constitutional rights may be specifically reserved to citizens underscores the broader principle that the vast majority are not. There would be no need to specify such a reservation if the Constitution had a default rule limiting rights to citizens.

    In reality, the vast majority of rights outlined in the Constitution are phrased as general limitations on government power, not special protections for a specific class of people — be they citizens or some other group.

    Constitutional Constraints on State Discrimination against Aliens

    Not only does the Constitution grant noncitizens most of the same rights as citizens, but longstanding Supreme Court precedent also forbids many state laws discriminating against aliens. In cases such as Bernal v. Fainter (1984), the court has ruled that laws discriminating on the basis of alienage are subject to “strict scrutiny” — that is, they will be struck down unless the government can prove that they are “narrowly tailored” to the promotion of a “compelling state interest.”

    Under that doctrine, courts have invalidated state laws excluding noncitizens from entering various professions, including becoming lawyers. Bernal, for example, struck down a Texas law preventing non-citizens from becoming notaries public. An important exception to the principle applies to laws excluding aliens from “political functions,” such as voting and holding elected office.

    Some conservatives criticize court decisions restricting discrimination against aliens as left-liberal “judicial activism.” But such decisions have a substantial basis in the Fourteenth Amendment.

    Representative John Bingham, one of the principal framers of the amendment, emphasized that one of the purposes of the amendment was to ensure “that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property.” While the framers were especially concerned with ending discrimination against African-Americans, they also sought to curb growing state discrimination against immigrants.

    State governments are also forbidden to discriminate against immigrants based on national origin. In a recent high-profile decision, a federal court struck down an Indiana policy, enacted by then-governor Mike Pence, that denied state services to Syrian refugees that were made available to refugees from other nations.

    The trial court ruled that this practice was “national origin” discrimination, forbidden by the Fourteenth Amendment. Its decision was later upheld by an appellate court panel that included prominent conservative judges Frank Easterbrook and Diane Sykes (the latter generally considered to be a likely future Republican nominee to the Supreme Court).

    The Pernicious “Plenary Power” Doctrine

    By far, the biggest exception to the courts’ generally favorable attitude toward extending constitutional rights to noncitizens is the so-called “plenary power” doctrine, which gives the federal government broad power to adopt otherwise unconstitutional policies in its treatment of aliens, when it comes to immigration policy.

    Since the late 19th century, the doctrine has been understood as giving Congress very broad power to authorize the exclusion of aliens for almost any reason, including many rationales that would be forbidden in virtually any other context.

    The plenary power doctrine has no basis in the text or original meaning of the Constitution. With a few exceptions noted above, none of the rights protected by the Constitution are textually limited to citizens. And none include a blanket exception for immigration cases.

    The doctrine traces its roots to the highly racist and xenophobic era of the late 19th century. The animating ideology had a close connection to the judicial tolerance of Jim Crow segregation at home, which intensified around the same time. The origins of the plenary power doctrine lie not in the text of the Constitution but in the racial and ethnic prejudice of the same era that gave us Jim Crow and Plessy v. Ferguson.

    Some argue that the plenary power doctrine is sound because aliens have no legal right to enter the United States in the first place; such admission is at the discretion of the US government. Whether the Constitution gives the federal government a general power to restrict immigration is debatable. But even if it does, it does not follow that this authority is exempt from the constitutional limitations that apply to every other exercise of federal government power.

    For example,  few doubt that Congress has the power to give or withhold Social Security benefits. That does not mean it is free to discriminate on the basis of race or religion in doing so, or that it can withhold benefits from individuals who engage in speech critical of the government.

    While would-be recipients have no legal right to Social Security benefits as such (at least none that Congress cannot take away), they do have a right to expect that the government will not allocate benefits in ways that violate constitutional constraints on its authority, including by engaging in prohibited discrimination. There is no good reason why federal power over immigration should be treated any differently.

    The Future of Plenary Power

    It is unlikely that the plenary power doctrine will be fully overturned in the near future. But, as leading immigration law scholars Peter Spiro and Adam Cox have explained, recent Supreme Court decisions suggest that it may not be as robust as it once was and that it might be subject to various constraints.

    The reach of the plenary power doctrine is the main issue in the ongoing litigation over President Donald Trump’s “travel ban,” the executive order barring citizens of several Muslim majority countries from entering the United States. In any context other than immigration, Trump’s order would likely be dead in the water.

    It was clearly motivated by a desire to discriminate against Muslims, as evidenced by Trump’s own statements and those of his advisers, as well as by its laughably weak  security rationale.  Discrimination on the basis of religion is clearly unconstitutional in nearly any other context. The initial order was also vulnerable because it forbade entry even to citizens of the affected countries who had preexisting visas or legal permanent resident status.

    Legal challenges to the initial order won a series of victories in court that soon forced Trump to withdraw it and replace it with a somewhat less egregious version. But the new order  still reflects the discriminatory intent that animated the original and still has a security rationale so transparently weak as to make it implausible that discrimination was not its true purpose.

    So far, two federal trial court decisions have ruled against the revised order, while another has ruled in its favor. The litigation will surely continue, perhaps all the way to the Supreme Court. Whatever ultimately happens, the litigation over the two travel ban orders has shown that the plenary power doctrine is not as firmly established as its most fervent defenders like to think.

    Over time, perhaps courts will further rethink this indefensible exception to the principle that the rights protected by the Constitution are general limits on government power that protect citizens and noncitizens alike.

    With a few exceptions noted above, none of the rights protected by the Constitution are limited to citizens. And none include a blanket exception for immigration cases.

  10. The Long History of Music Piracy

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    When you’re a historian, people expect you to write history. So, twelve years ago, when I told people I was writing a dissertation about music piracy, the typical response was, “But… that’s not history.”

    I couldn’t blame them. The dirt was still fresh on Napster’s grave at the time, and challenges to online services such as Grokster, Limewire, and even YouTube were still wending their way through the courts. The days of using cassettes to make mixtapes or lurching to press the “record” button to capture songs from the radio were not far behind. If anything, a few older folks might have dim memories of shaggy-haired hippies swapping Grateful Dead bootlegs in the 1970s.

    All of this seemed too fresh to be “History” in the way of Adolf Hitler and the Peloponnesian War and the like. But, in fact, piracy has a history as long as sound recording — even as long as written music itself. Jazzheads swapped copies of shellac discs in the 1930s, and shady operators even copied music in the wax cylinder era of the 1910s. Sheet music was bootlegged in the nineteenth century, just as printed materials had been since Gutenberg unleashed the printing press four hundred years earlier.

    Music, though, has proven more vexing to regulate than other copyrighted works. A piece of sheet music is cheaper and easier to photocopy than an entire book. And anyone can play his own version of a song in a way that another writer cannot “play” The Grapes of Wrath. American copyright law did not even cover music until 1831 — originally, only books, maps, and charts were protected.

    As a matter of fact, I discovered that sound recordings were not protected in the United States until 1972. How could this be?

    The Enlightenment Origins of American Copyright

    Part of the reason lay in the United States Constitution itself. Our founding document is a notoriously succinct one, outlining the structure of government and spelling out a handful of basic responsibilities for federal authorities — one of which was copyright. The founders empowered Congress:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Children of the Enlightenment, the founders believed that the spread of knowledge contributed to the public good, and government ought to encourage it. (As Thomas Jefferson put it in 1813, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”) Thus, government should incentivize “Authors and Inventors” to create — but rights to their works should also be “limited,” so as not to strangle the free exchange of art and ideas.

    And when they said “limited,” they meant it. The first copyright term lasted a measly fourteen years, and Congress only reluctantly added new kinds of works — written music, photography, film — to the scope of copyright over the course of the nineteenth and early twentieth centuries. Seeing copyright as a monopoly, a sort of necessary evil, they were loath to expand its domain unless absolutely necessary.

    The Trouble with Music… and Sound

    John Philip Sousa

    The fate of sound recording shows how true this is. After Thomas Edison worked out the first truly effective method for inscribing and replaying sound waves in 1877, an era of freewheeling piracy ensued. By 1905, Congress was besieged by songwriters, music publishers, and “talking machine” companies with cries for help. Famous composers such as Victor Herbert and John Philip Sousa pled their case, citing the unfairness that a band of rogues profited off their works. (Of course, Sousa also slyly conceded, “I can compose better if I get a thousand dollars than I can for six hundred.”)

    A player piano roll

    But there was a rub. How exactly would copyright reform work? The songwriters were mad because the companies making disks, wax cylinders, and player piano rolls used their music without authorization or compensation; they demanded both. The talking machine companies wanted to record performances of the written music for free. If forced to pay royalties to composers, then they wanted to have a copyright for their own recordings too.

    Congressmen were perplexed. If Sousa owns the copyright for his written composition, then how could the talking machine company own a separate copyright for a recorded performance of it? Isn’t it the same music? What if two different companies recorded two different versions of the same song? Were there copyrights for each recording?

    The debate may seem technical, arcane, even alien to twenty-first century ears, but the politicians contemplated the question long before there were music videos or sampling or remixes. It seems obvious to us today that Frank Sinatra and Sid Vicious’s versions of “My Way” are two distinct works. Obviously, one work — a song — can exist in an almost infinite number of unique permutations.

    Muddling through in the Age of Jazz

    Congress decided to punt on the issue (as it does) — and it turned out to be a good deal for songwriters, record companies, and consumers. With the Copyright Act of 1909, lawmakers set up a system that let songwriters and music publishers earn a royalty when their songs were recorded — but the rate for each “use” (each disk or piano roll manufactured and sold) was a flat one, set by the government. And artists and labels were more or less free to record versions of songs as they pleased.

    What Congress did not decide to do was to provide copyright for sound recordings themselves. It was just too confusing, and in the Progressive Era, anti-monopoly sentiment remained strong in American society. Copyright still looked like too much of a monopoly.

    The curious result was that sound recordings seemed to lack copyright protection — and pirates noticed. For decades, bootleggers operated in the shadows of the US economy, recording live performances of operas, copying out-of-print jazz and blues records for connoisseurs, and sometimes simply making a quick buck. (The Mafia occasionally pirated pop hits, though many bootleggers were just enthusiasts of hard-to-find music.) Throughout, they could point to the law and say they were not violating it — because sound recordings weren’t protected under the Copyright Act.

    The arguments may seem flimsy, but both courts and lawmakers struggled from the 1930s to the 1960s to figure out how to square the circle. Sometimes judges ruled against bootleggers under the doctrine of “unfair competition,” arguing that the pirates freeloaded off the original label’s financial investment in producing and promoting a record. (By making a record or an artist popular, judges reasoned, the label generated “good will” with the public, which the pirate unfairly exploited.)

    The Rise of Stronger, Longer Copyright

    But the problem remained, since Congress was still reluctant to act on copyright reform. It took the outbreak of widespread bootlegging in the rock counterculture of the 1960s to push the issue to the front burner. Armed with cassette tapes, hippie bootleggers copied unreleased Bob Dylan recordings (“the basement tapes”) and captured Jimi Hendrix concerts for an eager youth audience.

    Finally, in 1971, Congress passed a law that provided record labels with protection for their products. And in 1973, the Supreme Court ruled that states could pass their own anti-piracy laws, even though copyright had traditionally been understood as a responsibility of the federal government, and state laws potentially allowed infinite protection for recordings — arguably violating the “limited times” provision of the Constitution.

    In a deindustrializing America of the 1970s, though, the cries of the record industry resonated — as did those of other “information” businesses. Makers of albums and movies and software argued that their firms needed protection more than ever in a post-industrial economy, where information was the currency of the age.

    The old anti-monopoly sentiments of the Progressive Era melted like butter. Beginning in 1976, Congress embarked on a program that lengthened the term of copyright from 56 years to the life of the author plus 50 years; increased penalties for infringement; and expanded the scope of what could be copyrighted and patented (for example, software and genetically modified organisms).  Congress even arbitrarily added 20 years to the length of copyright in 1998 — a law critics dubbed the “Mickey Mouse Protection Act,” since the beloved cartoon character’s copyright was about to lapse at the time.

    The Future of Piracy

    Where does this story leave us today — in a post-Napster world of YouTube, SoundCloud, and BitTorrent? A fan could illegally download Prince’s entire discography within minutes of the artist’s passing in 2016, but he or she could not stream his songs on Spotify because the Purple One had the legal right to keep them off all streaming platforms.

    Prince’s case illustrates the paradox: copyright is stronger and longer than it has ever been before, and yet it is arguably flouted more often than ever too. The US economy still generates a great deal of “information,” but information travels more or less freely. One could argue that the postindustrial economy thrives on the very fact that it is as easy as pressing ctrl-C to copy a word, image, or sound.

    America and the world could do with a bit more of the anti-monopoly spirit of old. I do not need the incentive of a lengthy copyright term to write. (If I live another 50 years, the copyright for this article would not lapse until 2137. Is that really necessary?) And the penalties for copyright infringement do not need to be so punitive that so-called “copyright trolls” can use the law to intimidate a lowly blog out of existence with extortionate demands for using a photo without permission.

    Congress once actually had it right — as hard as those words are to type. Copyright ought to be a pragmatic bargain between artists, business, and consumers that promotes creativity, not a right of vast scope, consequence, and duration that stifles it. Hopefully lawmakers will realize that less state-enforced monopoly power, rather than more, would be good for both the economy of innovation and the public interest as a whole.

     

  11. Debate: Is Ayn Rand right about rights?

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    [Here, Professor Matt Zwolinski provides three essays that argue there are problems with Ayn Rand’s Objectivist philosophy. After each, Professor Stephen Hicks responds with an essay of his own that clarifies and defends the Objectivist point of view.]

    Ayn Rand’s Ethical Egoism — Matt Zwolinski

    Ayn Rand is, quite famously, an advocate of ethical egoism — the idea that each individual’s own life is the ultimate standard of value for that individual. She is also, quite famously, an advocate of individual rights — the idea that each individual has a morally protected sphere of freedom against which other individuals must not intrude. Figuring out how, or whether, these two things fit together is one of the major puzzles involved in making sense of Rand’s philosophy. If my life is the standard of morality, then why should I refrain from interfering with your freedom if doing so will advance my interests?

    In her “synoptic statement” on rights, Rand makes the following series of claims:

    If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational.

    But there seems to be a fallacy of equivocation going on here. In the first three uses, Rand uses the term “right” to assert that certain actions are morally permissible (it’s not wrong to do them) or even obligatory (it would be wrong not to do them).[i] So, for example, when Rand says that it is right for man to work for his values, she seems to mean at least that it is not wrong for him to do so, and perhaps more strongly that it would be wrong for him not to do so.

    The other kind of “right”

    Rand’s fourth usage of the word “right,” however, is significantly different. When she says that man “has a right” to live as a rational being, she is not merely saying that it is right for man to live as a rational being. She is saying that man has a right to live as a rational being. And these are two very different claims.

    To have a right is to have a certain kind of claim against others. That claim could be a purely moral one (in which case the right is a moral right), or it could be one enforceable by law (in which case it is a legal right). It could be a claim against others that they perform certain positive actions such as repaying a debt (in which case it is a positive right), or it might simply be a claim that others refrain from performing certain kinds of actions like taking one’s property without one’s consent (in which case it is a negative right).

    The important point, for our purposes, is that rights in this sense are claims on other people. To say that one person, A, has a right against another, B, doesn’t say much at all about what it would be wrong or right for A herself to do. What it says, instead, is that it would be wrong for B to act (or fail to act) toward A in certain ways.

    If any person has a right, then as a matter of moral logic, some other person must have a corresponding obligation.

    And this is the puzzle for Rand and her followers: Where exactly are these obligations supposed to come from? In order to remain consistent with egoism, it seems that Rand must claim that A’s right against B must be grounded not in A’s interests, but in B’s. In other words, B only has an obligation to refrain from interfering with A if it is good for B to do so. But as Mike Huemer has argued, it’s very hard to see why this restraint will always turn out to be in best interests of B.

    It certainly doesn’t look that way in “lifeboat” cases like the situation described in Joel Feinberg’s story of the lost hiker — cases that I think are not as easily dismissed as Rand believed them to be. But we don’t need to go to the lifeboat to find cases that give us reason to doubt Rand’s claim. Even in ordinary life, there would seem to be plenty of situations in which B can advance his real, rationally defensible interests by violating A’s rights: stealing her lost wallet, lying on a resume he submits to her business, or littering on her property.

    Objectivists must, for each and every one of these cases, deny either that (1) the action is actually a rights violation, or (2) that B’s interests would actually be advanced by the violation. In certain cases, this might work — B might not correctly anticipate the guilt he will feel after stealing, or his chances of being punished. But whether the expected costs of a rights-violation outweigh the expected benefits is an empirical question. And as far as I can tell, neither Rand nor her followers have given us sufficient reason to believe that the answer to that question is always going to be that they do.

    Zwolinski and Rand on Egoism and Rights — Stephen Hicks

    Two points are most important here, one about content and one about method.

    At first sight, rights do seem egoistic: I have a right to my life, my liberty, my property, and as a matter of robust, jealously-guarded principle I want those rights to be respected by others.

    Rand in particular argues that our rights are based in our needs and capacities as human beings. Human life is a process of thinking, producing, and consuming, and to survive and flourish each individual must take responsibility for the process. The creation and consumption of human value requires freedom of thought and freedom of action — individuals need to think and discover what is good for them, they need to act on their knowledge to produce those good things, and they need to consume the goods they produce.

    In a social context, other people can be beneficial to the process: we can learn from each other, act jointly to be more productive, and trade to mutual advantage as consumers.

    But other people can also be threats to the process: censorship, kidnapping, enslavement, theft, and so on undercut the affected individual’s ability to think, act, and consume. Those actions are therefore social wrongs, on principle, so their opposites are social rights.

    That is what Rand means in the lines in which right is repeated, which Professor Zwolinski sees as problematic (paragraph 2): rights are a type of moral principle; they are part of a family of concepts that link individual right to social right to political right. The connection is maintaining the identification of what is moral in each increasingly-narrow context.

    But, as Zwolinski questions (paragraph 6), why does it follow egoistically that I should respect others’ rights? I want my rights to be respected by others, yes — but why should I want others’ rights to be respected by me? Where does the principled commitment to universal and symmetrical application come from?

    Rand argues that as human beings we are not able to survive by instinct or by range-of-the-moment action. We are rational beings, and we survive and flourish by making principled, categorical identifications and acting on them. I need to be self-responsible. I need to be productive. I need to plan long-range. And I need to do all of that in a world in which much of my living is social. So what principles should I adopt in my dealings with others?

    So the relevant questions about respecting others’ rights are these:

    • Can I recognize that others are humans?
    • Can I recognize that they have the same general needs?
    • Can I understand that, as a general rule, their respecting certain principles in their dealings with me is good for me?
    • Can I understand that, as a general rule, my respecting certain principles in my dealings with them is good for them?
    • Can I understand that both or all of us will be better off if certain principles are respected?
    • Can I grasp that the same facts that make those principles right for me also make them right for others?

    Rand’s answer to all of those questions is Yes. Moral self-education, then, hopefully guided and encouraged by good parenting and other socialization, is a matter of thinking through those questions and testing various answers to them in one’s dealings with family members, neighborhood kids, schoolmates, and others as one grows—until one is in a position to conceptualize and commit to principles as a mature individual.

    Rational egoism is thus Rand’s grounding of political rights.

    (This is not yet to presuppose answers to questions about emergency situations, whether to be a selective predator, how to deal with non-respecters of rights, determining degrees of violations of rights, or the status those not capable of grasping principles. Rand’s theory of rights is about contextual principles applied with practical wisdom; it’s not one of contextless absolutes to be mechanically followed. So more needs to be said.)

    The emphasis on rational above indicates that for Rand epistemological matters are central to normative issues, for Rand is in a minority of thinkers who so emphasize the importance of fundamental philosophy. This brings us to a second important point.

    Permissible to Whom?
    In characterizing Rand’s position, Zwolinski asks at one point (paragraph 3) whether the claim of rights is to be interpreted as permissible or obligatory. That distinction should give us pause, for what kind of morality frames things in terms of permissions and obligations?

    If we are to speak of permissible, then we should ask from whom we are seeking permission; and if we are to speak of obligatory, then we should ask to whom or what we are so obligated. Yet if we know anything about Rand’s ethics, then we should sense that we such a taxonomy is alien to it.

    The point is that when interpreting a thinker’s position, it is weak methodology to state a thinker’s claim, interpret it by a distinction taken from some other philosophical framework, note that the resulting mix makes no sense, and then criticize the original claim.

    Other moralities’ distinctions may be useful in criticizing a thinker’s position after one has figured out what it is. But when initially trying to interpret a position, we should beware of importing highly abstract distinctions from foreign moral theories.

    Property and Value — Matt Zwolinski

    Ayn Rand was a firm believer in property rights, holding them to be essentially a corollary of the right to life. After all, if the right to life is a right to act in order to preserve one’s life, then this right would be ineffectual if man did not also have the right to the product of his action — to that which he has produced.

    The problem is that everything we produce is, ultimately, made out of raw materials that were not themselves produced by anybody. So even if it’s easy to justify why I should be morally entitled to the cake I’ve baked out of the flour and butter I owned, it’s not so easy to justify why I should be morally entitled to the patch of land I simply found and quickly put a fence around. In political philosophy, this is known as the problem of “original appropriation.”

    The problem of original appropriation strikes many philosophers as serious because of the seemingly zero-sum nature of natural resources. There’s only so much land to go around. Therefore, whatever land you take and claim as your own leaves less land for me. Your interests might be served by your act of appropriation, but mine seem to be set back. Original appropriation, it has seemed to many philosophers, involves a real conflict of interests between the appropriators and everyone else.

    Now, I think there are ways out of this problem — the most promising of which is developed in a wonderful essay by David Schmidtz. But Rand herself never grapples with the problem directly.

    I suspect the reason why is that she didn’t see it as a genuinely serious problem. Rand did not believe that land and other natural resources were the true source of value. And thus, one person’s appropriation of some of that stuff did not really set back the interests of others in any serious way.

    Mind and Value
    For Rand, man’s mind is the fundamental source of values that sustain his life.

    Physical stuff by itself can be no aid in man’s survival unless it is first understood by the mind and then put to work through deliberate, rational, productive action. Before man figured out what to do with it, crude oil was a pollutant, not a value. It was the human mind that transformed oil from an annoyance into a resource.

    I think that there is a tremendously important insight in this analysis of value. But I also think it’s possible to stretch that insight too far. And I think that Rand, unfortunately, is guilty of doing precisely this.

    After all, even if it’s true that nothing of value would exist without the human mind, it’s equally true that nothing (or at least almost nothing) of value would exist without physical resources for the mind to operate on. Both the human mind and physical resources are thus necessary for the production of value. Objective value is an aspect of reality in relation to man. So without the reality, or without the man, there is no value.

    Thus, even if we accept Rand’s idea that natural resources have no intrinsic value in themselves, we must nevertheless recognize that they are a necessary component in the production of value. And so when we take those natural resources and put a fence around them, we are depriving others of something important. We are depriving non-owners of the liberty they once possessed to use that resource in their own productive activities. We are imposing upon them an obligation to refrain from using that resource without our consent — an obligation that we will enforce with the use of physical violence, if necessary. And this calls for justification.

    I am enthusiastic supporter of property rights. And thus I do believe that such justification can be provided. But — and here I return to my earlier point about rights and egoism — providing a justification to one person of another person’s property right in X would seem to require doing more than simply showing how such rights are good for the first person. Since A’s property right imposes an obligation on B, we need to show how such an obligation is good for B as well. If A’s property right in X is good for A but bad for B, then for B to respect that right would be an act of self-sacrifice, and fundamentally incompatible with his rational pursuit of his own self-interest.

    Property Rights and Value: Zwolinski and Rand and Locke and Rousseau — Stephen Hicks

    Professor Matt Zwolinski raises a fun and deep issue about property rights. It has a long history before Rand, with Locke and Rousseau staking out near-opposite positions, and with post-Rand thinkers such as Robert Nozick and David Schmidtz making strong contributions.

    Why did Rand not engage with it? I agree with Zwolinski that from the perspective of her robust creation ethic, it is either trivial or a non-problem. So the question is whether it really is a problem and/or a more serious one than she judged.

    Value results from raw materials plus human agency. How much comes from each? Raw materials can be more or less plentiful, and human agency can be more or less creative. So we can play around with the variables by considering examples.

    1. A writer uses 1,000 sheets of paper to write a great novel. In this case, the raw material is plentiful and the contribution of human creativity is huge, so we are not inclined to complain that her taking 1,000 sheets of paper leaves less available for the rest of us.
    2. A hiker discovers easily accessible platinum deposits in unowned territory, stakes it out, and becomes rich after relatively minimal effort. In this case, the raw material is relatively scarce and the contribution of human creativity is much less, so we are more likely to hear complaints that his appropriation is questionable.

    So if one emphasizes the value-adding power of human creativity, as Rand and her great near-contemporary Julian Simon are noteworthy for doing, then one acquires an opportunity mindset. The issue of raw materials becomes more trivial, as intelligent people can always create value out of what is available.

    But if one is struck by a relative scarcity of certain raw materials, then, as Zwolinski points out, one is pushed into a zero-sum mindset, and that mindset tends to seeing others’ gains as its deprivations and others’ rights as imposing unwanted obligations.

    Perspectives on Property
    Two points are worth making here, so let’s work with the most popular example—land—to get to the core assumptions, for as always in philosophy the basic assumptions are the most important.

    Suppose I look at the Manhattan skyline, as Rand did from her apartment. Do I see opportunities for me, given what others have done with the land? Or do I see deprivation, as others got to Manhattan Island long before I did and acquired it all for themselves? If I scale out to the United States as a whole, I find that almost half of its land is owned by local, state, and federal governments and the rest by private individuals and organizations — all of it acquired long before I immigrated. Should I say that opportunities have been taken away from me and/or that obligations have been imposed on me?

    The first important point about such examples is one made by Locke in the Second Treatise, where he states that “he who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind.” (I see Schmidtz as working out in more welcome detail what was only sketched by Locke.)

    If, for example I had arrived in 1600 in what is now New York, then some opportunities would have been available to me then that are not available now. True. But some opportunities are available now that were not available then. At which time was the net value of the opportunities greater? If the net opportunities are greater now, then the language of deprivation and imposition is misplaced. (And if my goal is to acquire land in New York, then that opportunity is still available to me, as it has a lively real-estate market.) So property rights are win-win, contrary to the zero-sum thinkers.

    But here is what I take to be the second and deeper point. We can speak of the mutually-beneficial nature of property rights, and that is a value of them to each of us. But that value of property rights should not be taken as part of the justification for initial appropriation, because raw materials in their unowned state are not items to which anyone has a claim.

    Here we can take Rousseau as the foil, with his famous line against appropriators that initially “the fruits of the earth belong to us all.” His assertion is that, prior to property rights, we all have a claim in common to everything that exists, so anyone who appropriates incurs an obligation to make good on his or her lessening the common stock held by the rest of us.

    But initially the raw materials of the universe are unowned, not owned in common, which means that nobody has any sort of claim to them with respect to anyone else. It’s the difference between saying:

    1. The raw materials are unowned, so everybody has a claim to them.

    and

    1. The initial raw materials are unowned, so nobody has a claim to them.

    To put the point in metaphysical terms, when one comes into existence, one has no claims on anything in the world. A just-born child has no entitlements with respect to the world at large, including both the as-yet unowned raw materials and the properties of others.

    The child’s parents have obligations to provide for it on its growth journey to adulthood, but the governing assumption is that everything has to be earned. That includes that first breath of air the child appropriates from the commons by his or her own effort—for which the child need present no justification. At the same time, the preexisting property arrangements are not an imposition upon the just-born child that must be justified to the child.

    Force and Freedom — Matt Zwolinski

    Ayn Rand endorses a form of the libertarian “nonaggression principle,” which holds that the use of force should properly be banished from human relationships. For Rand, force is evil because it prevents individuals from acting according to the dictates of their own reason.

    Thus, force violates man’s fundamental right to life — his right to act in pursuit of his values according to his own judgments, uncompelled by the judgment of any other. As Rand puts it, “To violate man’s rights means to compel him to act against his own judgment, or to expropriate his values. Basically, there is only one way to do it: the use of physical force.”

    For Rand, then, “the basic political principle of the Objectivist ethics is: no man may initiate the use of physical force against others.” But how exactly are we to understand the meaning of the key term “force” in this principle?

    Traditionally, libertarians and Objectivists have taken one of two broad approaches to defining “force.” One approach, which we can call the “moralized approach,” defines force in terms of an underlying theory of rights. The other approach, the “nonmoralized approach,” defines force in a way that makes no essential reference to rights or other moral terms.

    To see the difference, imagine a case in which A violates B’s rights, but does so without so much as physically touching B. Perhaps B leaves his car unlocked on the street, and A lets himself in and drives away with it. Has A initiated force against B? If we accept the nonmoralized definition of force, we will have to say “no.” After all, A didn’t touch B at all. The only way we can explain the way in which A’s action affects B is in terms of the property right B has in his car. But if this is our basis for claiming that A has initiated force against B, then we are implicitly relying on a moralized definition of force. A’s action initiates force against B because it violates B’s (moral) rights.

    It matters a great deal which of these understandings Objectivists rely on to inform the nonaggression principle. But neither understanding is entirely without its own peculiar difficulties. If, for instance, we accept a nonmoralized definition of force, then we abandon the tight, conceptual connection between force and the violation of rights, and must accept the possibility that some violations of rights will not involve the initiation of force, and the possibility that some cases of the initiation of force will not involve rights-violations.

    And this means that we must take seriously the socialist argument that property rights themselves involve the initiation of force. After all, if I put a fence around a piece of land and threaten to arrest anybody who walks across it without my consent, it certainly looks like I’m initiating force when I grab a peaceful trespasser and slap a pair of handcuffs on him. The only way to deny that my action constitutes the initiation of force, it seems, is to argue that it was really the trespasser who initiated force. But that move is available only if we abandon the nonmoralized conception of force, and adopt a moralized understanding instead.

    Suppose we do that. Adopting a moralized definition of force allows us to explain why the individual who steals someone’s car is initiating force, and why the landowner who enforces his property right isn’t. So, so far, so good.  But the moralized approach to force comes with a serious drawback of its own.

    For if we define the initiation of force in terms of the violation of rights, then we cannot define the violation of rights in terms of the initiation of force, lest we be guilty of circular argument. In other words, if we say that force is just any activity that violates individual rights, we cannot turn around and then say that our rights are to be understood in terms of freedom from the initiation of force.

    Both ways of understanding force, then, appear to generate problems for Rand’s use of the nonaggression principle. And Rand’s frequent claim that force severs the connection between man’s mind and his actions seems to lead to further difficulties: Is the claim that force eliminates our ability to act on the dictates of our reason or merely that it limits it? The former claim is quite implausible, but the latter forces us to notice that a great number of other things also limit this ability, such as, well, other people’s property rights.

    As I have argued at greater length elsewhere, the non-aggression principle is a poor basis on which to build a libertarian philosophy. But for the reasons described above, Rand’s invocation of it appears to be especially problematic.

    Force, Rights, and Zwolinski’s Questions for Rand — Stephen Hicks

    Let’s start with four scenarios involving a man running on a field who is suddenly tackled to the ground by another man.

    1. The tackler, it turns out, was a policeman, and the tackled man was escaping from a house he had burgled.
    2. The tackler, it turns out, was a defensive football player, and the tackled man was an offensive football player carrying the ball.
    3. The tackler and tackled were playing football, but the tackled man was outside the field’s white borderline when he was hit by the tackler.
    4. The tackled man was jogger and the tackler was a weirdo who liked randomly assaulting people.

    In case 1, the tackled goes to jail. In case 2, the tackler and tackled try again. In case 3, the tackler’s team is penalized. In case 4, the tackler goes to jail.

    Professor Zwolinski’s questions about force and rights again raise issues of content and method. Let’s focus on the method issues, as they are more relevant to his apparent puzzles. Zwolinski is in at least broad agreement with Rand that individual rights exist but has questions about how she derives them that seem to me driven by a methodological tangle.

    In the four scenarios above, the physical actions are identical — one man tackles another to the ground — yet they have very different consequences. Understanding why those consequences are normatively appropriate requires attending to the broader complex context within which those actions and consequences occurred.

    That in turn means that the proper place to start is not by specifying contextless definitions of force (e.g., as moralized or non-moralized) and then trying to deduce correct answers about particular circumstances. The method is not to present an abstract dichotomy of definitions, ask for a commitment to either, and then find a problematic case for whichever one is chosen.

    Zwolinski is certainly correct that non-moralized definitions won’t work, and his objection here seems a variation on the classic Is-Ought problem: if we define force only non-morally, then we will face a gap when we want to define rights as moral principles. And at the same time we of course should heed Zwolinski’s warning about using moralized concepts in circular ways.

    But the key content point is that all human action is “moralized.” We are always in a context of judging good and bad, right and wrong, better or worse. Consequently, by the time we get to high philosophy and are identifying principles such as rights, we are deeply embedded in moralized contexts.

    (In his closing paragraph, Zwolinski was perhaps speaking loosely in saying that the NAP is a poor principle upon which to base a libertarian philosophy. But certainly Rand’s invocation of something like an NAP is not basic to her philosophy. It’s not even basic to her ethics or to her social philosophy. Rather it is a derivative, specifying a bridge principle between ethics and social philosophy and politics.)

    Actions necessary for human life
    Yet as Zwolinski also properly states, Rand begins by specifying the individual actions that are necessary for human life (thinking, production, etc.). She identifies ways in which others’ actions can be beneficial to our lives (teaching, friendship, economic trade, etc.). Then she identifies the types of actions by others that interfere with those necessary actions — and within that very broad category she identify the subset of interferences that are major enough to justify physical retaliation (theft, rape, kidnapping, assault, etc.).

    The process is empirical, and at each stage of identification an argument from cases is necessary to establish the principle involved. We see this argument, for example, among philosophers about defining that final category of cases in which the retaliatory principle kicks in — where exactly is the demarcation?

    John Stuart Mill offers the broader Harm Principle (On Liberty, I.9) while Rand specifies the narrow initiation-of-physical-force principle. Mill eschews the rights label while Rand embraces it. But the method for both is inductive by investigating a large number of particular cases and abstracting the relevant similarities and differences. Or to put it in modern-philosophy epistemological terms, their approach is empirical-and-bottom-up-abstraction — rather than rationalist-abstract-definitions-and-downward-branching-decision-trees.

    But even here “initiation of force” is all by itself not a definitive guide, as many initiations of force are legitimate. Parent initiate force regularly with their infants — every time the kid’s diaper needs changing he or she is man-handled (or woman-handled) without consent.

    Boxers are encouraged to initiate massive physical force upon each other until the bell rings. If you see your girlfriend about to step in the path of an onrushing bus, you will grab her and haul her back.

    So we always need to identify what legitimate values are being pursued or possessed and by what means. Then we can exercise judgment whether the initiation of physical force in a particular case is an inappropriate interference with that legitimate pursuit or possession.

    [i] This is what analytic philosophers refer to as the “deontic status” of an action.