Preventing someone from trespassing on my property is not necessarily a harm. When is it a harm? When should that override my property right?
All roads and other transportation infrastructure belong to someone. If they all unanimously refuse to allow Marvin to use their infrastructure to pursue his needs, can we say they have harmed him? How many or few options does Marvin need access to for their refusal to count as harm? So long as he has one viable effective alternative, other refusals might count as inconvenient but not harmful.
Only when all gatekeepers, however many there may be, agree that Marvin can’t pass would the harm take place. But this seems odd. If there are 100 alternatives, whether or not they are responsible for the harm depends on what others, perhaps one other, have done, not what each have done themselves. If I refuse and someone else allows Marvin to pass, I have done no harm. If no one else accepts him, we have all done harm. But only one person has done something different.
J.C. Lester has tried to address some of these questions in his book Escape from Leviathan. E.g., someone escaping from a natural disaster has a right to trespass. I am not entirely satisfied by his account, though my criticisms are too vague to include here. I prefer to think that disaster victims are still liable for trespassing, or any other torts they create, and should compensate the victim if a dispute results. But that leads to further questions: what sorts of defense am I entitled to raise against such trespassers? If I am obligated to allow them to pass, what is the basis of my obligation?
Bernard Gert's framework might be relevant, in that he allows that rules can be broken in emergencies if done “publicly.” I was not able to satisfy myself as to exactly what that involves, but I assume it means that many people know about the violation and regard it as a valid exception to the rule. Is Marvin facing an emergency?
Perhaps if I knew more about ethical intuitionism I would be able to answer all these questions.
I'm not familiar with Lester's account that you mention, but I will say that "right to trespass" is a contradiction in terms. Rights are (supposedly) universal and inalienable. Everyone has them at all times -- they're not things that come and go as circumstances permit.
A right to trespass would thus allow anyone to go anywhere at any time. But if you're allowed to go somewhere without other people's permission, then going there is not trespassing. Rather than a right to "trespass" you'd have a right to go wherever you darn well please.
If you are ever morally obligated to let someone pass over your land against your will, then it must be because the person's trespass is morally justified. For example, any person is morally justified in ignoring the "No Trespassing" sign on the empty cabin in the woods when the alternative is to freeze in a blizzard. They break in; they survive; they make recompense for the damages they've caused. The justified trespass brings with it an obligation to compensate, because they had no /right/ to do what they did, but only the need.
And if you were to find yourself out in the same blizzard and made your way to your cabin and found them already there, it would be wrong for you to send them out into the storm. Nor would it be right for you to leave them out in the storm had you arrived first -- even if there is another perfectly good cabin nearby that they could break into instead. And if you did tell them to go elsewhere, you would take on yourself the need to compensate your neighbour for the damages done. Those damages would not have been done if you'd simply taken the unfortunate in and charged them for services rendered. The person's need for shelter justifies them breaking into a place, but it's only your refusal to accept them that leads to the damages being done to your neighbour's place.
You are, of course, entitled to ask for a trespasser to be punished at law. Perhaps criminal laws of trespassing, vandalism and theft could be applied to violate their rights to property and/or liberty (fines and jail time for rights violators are often considered to be justified). I doubt you would get a jury to convict, if it even got that far. And doing so would void their obligation to make recompense, I'd say. Or you could sue them if you think their offered payment is too small.
And to bring it back around to the OP, suppose all that I said above were wrong -- that it were perfectly OK for the cabin owner to leave the unfortunate out in the blizzard to die. Then any analogy to the supposed "right to immigrate" fails. The cabin owner has a right to property that makes it OK (per hyp.) to leave the poor bastard to die. For the analogy to work, the government would need a right to prevent people from coming to the country. But governments don't have rights; people have rights (against the government). The government doesn't own the country in the same way that you own your cabin. It, like you, should not be in the business of telling other cabin owners whether they are allowed to give shelter to unfortunates.
(I recognize that perhaps you did not intend your post to be an argument against the supposed right to immigrate, but I think the analogy is one that someone so motivated could make. Please consider that my response is aimed at that person.)
“ "right to trespass" is a contradiction in terms. “
You are correct. I should have spent more time composing my thoughts to be more strictly accurate. I hope it was clear what I had in mind, the idea that in some cases property rights admit exceptions during emergencies. So instead of a “right to trespass,” I should have said that the right to exclude is sometimes not applicable, or that we have a right to disregard property boundaries under certain circumstances (according to Lester).
By the way, I am not sure I agree with Lester on this point. I suspect that it is a fairly short jump from making exceptions for emergencies to making exceptions for any sort of misfortune (which is arguably a kind of emergency), making property rights meaningless. Lester would have a rather technical response that I don’t quite understand or just am not comfortable with.
“Rights are (supposedly) universal and inalienable. “
Natural rights might be. Legal rights are not. Many people accept the idea that natural rights are universal. I’m not sure what the argument is though. Perhaps people who don’t accept this assumption should be thought of as denying the existence of natural rights. This doesn’t seem obvious to me. They certainly are not universal in the sense of applying to a rock or a bacterium. What precisely are the criteria that distinguish things with rights from things with no rights? Why are those criteria important?
“Everyone has them at all times -- they're not things that come and go as circumstances permit. “
Even if this is correct, such rights must be interpreted. Interpretations can vary from time to time, place to place, circumstance to circumstance, and arbitrator to arbitrator. And circumstances also change. The owner of a car has different rights from other people. Perhaps these are only legal rights, and not natural rights?
“A right to trespass would thus allow anyone to go anywhere at any time.”
Lester discussed a situation where due to an emergency, the assumptions he makes regarding property rights are no longer in effect. Perhaps your conception of the basis for property rights is different.
“, any person is morally justified in ignoring the "No Trespassing" sign on the empty cabin in the woods when the alternative is to freeze in a blizzard. “
What does “morally justified“ mean in this instance? Certainly, they are practically justified. Violating someone’s property rights is usually preferable to freezing to death. But violators remain. What does moral justification get us in addition.?
I might be wrong, but I think Lester thinks the cabin owner may exclude visitors from the cabin, but not from the land. The land is a natural resource, which in the state of nature would be open to anyone. The cabin is a benefit created by the owner, which, presumably, would not be there without someone having built it. Preventing persons escaping a disaster from using land to escape would create a harm, but excluding them from the cabin would be the denial of a benefit. He draws a strong distinction between creation of harm and denial of a benefit.
“ it would be wrong for you to send them out into the storm. “
What would my obligation be if there were 200 of them, and my cabin could only hold 30 at the most.?
“, you would take on yourself the need to compensate your neighbour “
You are delivering a sequence of conclusions, without providing an argument or explanation. At best, you’re offering a theory of causation and liability, again without much explanation.
“The government doesn't own the country in the same way that you own your cabin. It, like you, should not be in the business of telling other cabin owners whether they are allowed to give shelter to unfortunates. “
This would make sense in a society that had genuine liberty and limited government. Existing governments don’t quite act like they own everything, and certainly don’t claim to, but they feel free to make exceptions to property in fairly arbitrary ways, which brings them awfully close to acting like they own everything. Immigration is just an example.
In an ideal world, land owners could get together and form a union, to monitor and regulate the arrival of new persons. But individual landowners would also have the right to resign or secede from this union so they could decide for themselves who would visit them. In a non- ideal world, the government has “delegated” those rights to its agents.
Great post, Mike. I’m all for open borders but here are two more objections I’m interested to get your take on. (The first is related to duties to citizens and anti-overwhelming the state objections):
(1) Citizens, in countries with universal benefits like Canada (e.g. healthcare, retirement, etc), have in some way contributed to the benefits they can expect to receive from the state. In this sense, the state is a kind of public service provider which citizens pay into and take from as needed. However, immigrants haven’t yet contributed to the state but may nonetheless expect to receive such benefits once they arrive. The person who is against immigration may say that those people immigrating into the country have not contributed and will negatively impact the quality of those services (relates to the objection about overwhelming the state). So if immigration is allowed, then doesn’t such benefits to the immigrant unjustly harm the person who contributed to the state? A potential reply is that it’s not the immigrants who have harmed citizens but the government who has unjustly taxed its citizens and monopolized those services, preventing competition for those services by the private sector.
(2) This objection deals less with immigration and more with regulating movement, so it’s more an objection to free movement per se. Citizens might complain that allowing open borders can have negative environmental consequences if people who come over introduce species that have a negative ecological impact, like changing ecosystem properties, causing trophic cascades, outcompeting native species which change the ecosystem and in turn affect ecosystem services that the citizens depend on. So, though people are allowed to immigrate, they cannot bring anything they want into the country. Potential reply: this problem isn’t specific to immigrants and could also be introduced by citizens who travel.
I think preventing the introduction of invasive species is a completely separate and less difficult question. Even if we feel we are obligated to allow Marvin access, it seems reasonable to prohibit him from bringing his pet venomous snake.
I suppose someone could argue otherwise, that one person's invasive species is another person's biological business plan or personal passion project. Or that such a prohibition requires an invasion of privacy, as otherwise no one would know what is being transported. But even then, this could be hashed out in the usual way, or by dispute and arbitration. No one, I think, would insist that local rules don’t apply to visitors, and if inhabitants are not allowed to possess something (e.g. venomous snakes), visitors should not be allowed to import them.
I don’t think you have steelmanned the culture argument. I think that argument is more like.
1. Either:
A. America’s governmental system is a unique force for good in the world. Such that it’s value outweighs the value that immigrants would have received by coming here.
B. America’s governing system uniquely protects freedom as a value. In its absence, the entire world will become like the placed immigrants want to leave.
2. America’s governmental system’s ability to deliver that is dependent for its survival on America’s current culture.
3. Letting in loads of immigrants would prevent America’s governmental system from surviving.
To my mind, when you express the steel man version, you start introducing lots of empirical assertions that are at least contested.
Read the article: i was pro open borders before reading it, and is pro open border after
I have a relative that is anti immigration, and i think his response to this would be that this all sounds nice, but the practical effects of immigration are disastrous, and that humans morally care more about their own kin and nationality, and that there is an overriding moral responsibility for nationalism
So he would probably say this article is living with its head in the clouds, and ignoring the real world.
He has said things like nationalism being the thing that got rid of despots, got us economic and social freedom, and been a force for great good historically, and thus encouraging GB less of it is very shortsighted and gambling with humanities potential
From what i can tell he also has a deep intuition that life is tok sensetive to risks to allow risky immigrants in, and that its obviously wrong to change society
Agreed with everything here but I'd just like to draw attention to 4.4 which I've always thought the worst objection of all. Many migrants are poorer than even the poorest Americans, so how on earth do immigration restrictions "prioritise the poor"?
Many people feel obligation to be nice to their ingroups poor, but no obligation to help outsiders/strangers
So unless a rule literally causes direct intentional harm, helping the ingroups poor is infinitely more important to many people unless theres an disaster happening.
Most people also dislike being reminded that people are poor globally. And they dislike seeing poor people. Local poor people are more likely to be seen. Thus theybare higher on their list of concerns. And bringing up foreigners that are poor makes them upset, and likely to scorn you
havnt read this yet, just wanted to comment that several socialists i have read seem to consider capitalism as the equivalent of someone standing over people and stopping them from getting food and neccessaties. they seem to view a lot of work as obstacles to wellness, and as capitalists and employers as highway robbers leeching things from workers
they also seem obsessed with the idea of the commons, specificlly the english commons. they love to say something along the lines that in the past people had the option of not participating in the markets as the commons had materials and foods that people could use and share freely. but that the enclosure of the commons from capitalists and goverments were the equivalent of robbery and forcing everyone to participate in the market economy, essentially why they consider having to work jobs and private property as theft and exploitation.
So basically, the natural uncoerced state was positive freedoms, non-hierarchys, and communal sharing . Then supposedly capitalists either via force, trickery, or disregarding the wishes of the community makes it an coerced state of being. And so in their minds Revolution is turning it back into the natural state of the commons
i think so at least. im not sure if i fully understood them
Preventing someone from trespassing on my property is not necessarily a harm. When is it a harm? When should that override my property right?
All roads and other transportation infrastructure belong to someone. If they all unanimously refuse to allow Marvin to use their infrastructure to pursue his needs, can we say they have harmed him? How many or few options does Marvin need access to for their refusal to count as harm? So long as he has one viable effective alternative, other refusals might count as inconvenient but not harmful.
Only when all gatekeepers, however many there may be, agree that Marvin can’t pass would the harm take place. But this seems odd. If there are 100 alternatives, whether or not they are responsible for the harm depends on what others, perhaps one other, have done, not what each have done themselves. If I refuse and someone else allows Marvin to pass, I have done no harm. If no one else accepts him, we have all done harm. But only one person has done something different.
J.C. Lester has tried to address some of these questions in his book Escape from Leviathan. E.g., someone escaping from a natural disaster has a right to trespass. I am not entirely satisfied by his account, though my criticisms are too vague to include here. I prefer to think that disaster victims are still liable for trespassing, or any other torts they create, and should compensate the victim if a dispute results. But that leads to further questions: what sorts of defense am I entitled to raise against such trespassers? If I am obligated to allow them to pass, what is the basis of my obligation?
Bernard Gert's framework might be relevant, in that he allows that rules can be broken in emergencies if done “publicly.” I was not able to satisfy myself as to exactly what that involves, but I assume it means that many people know about the violation and regard it as a valid exception to the rule. Is Marvin facing an emergency?
Perhaps if I knew more about ethical intuitionism I would be able to answer all these questions.
I'm not familiar with Lester's account that you mention, but I will say that "right to trespass" is a contradiction in terms. Rights are (supposedly) universal and inalienable. Everyone has them at all times -- they're not things that come and go as circumstances permit.
A right to trespass would thus allow anyone to go anywhere at any time. But if you're allowed to go somewhere without other people's permission, then going there is not trespassing. Rather than a right to "trespass" you'd have a right to go wherever you darn well please.
If you are ever morally obligated to let someone pass over your land against your will, then it must be because the person's trespass is morally justified. For example, any person is morally justified in ignoring the "No Trespassing" sign on the empty cabin in the woods when the alternative is to freeze in a blizzard. They break in; they survive; they make recompense for the damages they've caused. The justified trespass brings with it an obligation to compensate, because they had no /right/ to do what they did, but only the need.
And if you were to find yourself out in the same blizzard and made your way to your cabin and found them already there, it would be wrong for you to send them out into the storm. Nor would it be right for you to leave them out in the storm had you arrived first -- even if there is another perfectly good cabin nearby that they could break into instead. And if you did tell them to go elsewhere, you would take on yourself the need to compensate your neighbour for the damages done. Those damages would not have been done if you'd simply taken the unfortunate in and charged them for services rendered. The person's need for shelter justifies them breaking into a place, but it's only your refusal to accept them that leads to the damages being done to your neighbour's place.
You are, of course, entitled to ask for a trespasser to be punished at law. Perhaps criminal laws of trespassing, vandalism and theft could be applied to violate their rights to property and/or liberty (fines and jail time for rights violators are often considered to be justified). I doubt you would get a jury to convict, if it even got that far. And doing so would void their obligation to make recompense, I'd say. Or you could sue them if you think their offered payment is too small.
And to bring it back around to the OP, suppose all that I said above were wrong -- that it were perfectly OK for the cabin owner to leave the unfortunate out in the blizzard to die. Then any analogy to the supposed "right to immigrate" fails. The cabin owner has a right to property that makes it OK (per hyp.) to leave the poor bastard to die. For the analogy to work, the government would need a right to prevent people from coming to the country. But governments don't have rights; people have rights (against the government). The government doesn't own the country in the same way that you own your cabin. It, like you, should not be in the business of telling other cabin owners whether they are allowed to give shelter to unfortunates.
(I recognize that perhaps you did not intend your post to be an argument against the supposed right to immigrate, but I think the analogy is one that someone so motivated could make. Please consider that my response is aimed at that person.)
“ "right to trespass" is a contradiction in terms. “
You are correct. I should have spent more time composing my thoughts to be more strictly accurate. I hope it was clear what I had in mind, the idea that in some cases property rights admit exceptions during emergencies. So instead of a “right to trespass,” I should have said that the right to exclude is sometimes not applicable, or that we have a right to disregard property boundaries under certain circumstances (according to Lester).
By the way, I am not sure I agree with Lester on this point. I suspect that it is a fairly short jump from making exceptions for emergencies to making exceptions for any sort of misfortune (which is arguably a kind of emergency), making property rights meaningless. Lester would have a rather technical response that I don’t quite understand or just am not comfortable with.
“Rights are (supposedly) universal and inalienable. “
Natural rights might be. Legal rights are not. Many people accept the idea that natural rights are universal. I’m not sure what the argument is though. Perhaps people who don’t accept this assumption should be thought of as denying the existence of natural rights. This doesn’t seem obvious to me. They certainly are not universal in the sense of applying to a rock or a bacterium. What precisely are the criteria that distinguish things with rights from things with no rights? Why are those criteria important?
“Everyone has them at all times -- they're not things that come and go as circumstances permit. “
Even if this is correct, such rights must be interpreted. Interpretations can vary from time to time, place to place, circumstance to circumstance, and arbitrator to arbitrator. And circumstances also change. The owner of a car has different rights from other people. Perhaps these are only legal rights, and not natural rights?
“A right to trespass would thus allow anyone to go anywhere at any time.”
Lester discussed a situation where due to an emergency, the assumptions he makes regarding property rights are no longer in effect. Perhaps your conception of the basis for property rights is different.
“, any person is morally justified in ignoring the "No Trespassing" sign on the empty cabin in the woods when the alternative is to freeze in a blizzard. “
What does “morally justified“ mean in this instance? Certainly, they are practically justified. Violating someone’s property rights is usually preferable to freezing to death. But violators remain. What does moral justification get us in addition.?
I might be wrong, but I think Lester thinks the cabin owner may exclude visitors from the cabin, but not from the land. The land is a natural resource, which in the state of nature would be open to anyone. The cabin is a benefit created by the owner, which, presumably, would not be there without someone having built it. Preventing persons escaping a disaster from using land to escape would create a harm, but excluding them from the cabin would be the denial of a benefit. He draws a strong distinction between creation of harm and denial of a benefit.
“ it would be wrong for you to send them out into the storm. “
What would my obligation be if there were 200 of them, and my cabin could only hold 30 at the most.?
“, you would take on yourself the need to compensate your neighbour “
You are delivering a sequence of conclusions, without providing an argument or explanation. At best, you’re offering a theory of causation and liability, again without much explanation.
“The government doesn't own the country in the same way that you own your cabin. It, like you, should not be in the business of telling other cabin owners whether they are allowed to give shelter to unfortunates. “
This would make sense in a society that had genuine liberty and limited government. Existing governments don’t quite act like they own everything, and certainly don’t claim to, but they feel free to make exceptions to property in fairly arbitrary ways, which brings them awfully close to acting like they own everything. Immigration is just an example.
In an ideal world, land owners could get together and form a union, to monitor and regulate the arrival of new persons. But individual landowners would also have the right to resign or secede from this union so they could decide for themselves who would visit them. In a non- ideal world, the government has “delegated” those rights to its agents.
Great post, Mike. I’m all for open borders but here are two more objections I’m interested to get your take on. (The first is related to duties to citizens and anti-overwhelming the state objections):
(1) Citizens, in countries with universal benefits like Canada (e.g. healthcare, retirement, etc), have in some way contributed to the benefits they can expect to receive from the state. In this sense, the state is a kind of public service provider which citizens pay into and take from as needed. However, immigrants haven’t yet contributed to the state but may nonetheless expect to receive such benefits once they arrive. The person who is against immigration may say that those people immigrating into the country have not contributed and will negatively impact the quality of those services (relates to the objection about overwhelming the state). So if immigration is allowed, then doesn’t such benefits to the immigrant unjustly harm the person who contributed to the state? A potential reply is that it’s not the immigrants who have harmed citizens but the government who has unjustly taxed its citizens and monopolized those services, preventing competition for those services by the private sector.
(2) This objection deals less with immigration and more with regulating movement, so it’s more an objection to free movement per se. Citizens might complain that allowing open borders can have negative environmental consequences if people who come over introduce species that have a negative ecological impact, like changing ecosystem properties, causing trophic cascades, outcompeting native species which change the ecosystem and in turn affect ecosystem services that the citizens depend on. So, though people are allowed to immigrate, they cannot bring anything they want into the country. Potential reply: this problem isn’t specific to immigrants and could also be introduced by citizens who travel.
What do you think?
Anyway, happy Fourth of July (:
I think preventing the introduction of invasive species is a completely separate and less difficult question. Even if we feel we are obligated to allow Marvin access, it seems reasonable to prohibit him from bringing his pet venomous snake.
I suppose someone could argue otherwise, that one person's invasive species is another person's biological business plan or personal passion project. Or that such a prohibition requires an invasion of privacy, as otherwise no one would know what is being transported. But even then, this could be hashed out in the usual way, or by dispute and arbitration. No one, I think, would insist that local rules don’t apply to visitors, and if inhabitants are not allowed to possess something (e.g. venomous snakes), visitors should not be allowed to import them.
What about criminality? Check europe stats. Immigrants are overrepresented. Sweden is the European capital of rape. Guess the demographics.
I don’t think you have steelmanned the culture argument. I think that argument is more like.
1. Either:
A. America’s governmental system is a unique force for good in the world. Such that it’s value outweighs the value that immigrants would have received by coming here.
B. America’s governing system uniquely protects freedom as a value. In its absence, the entire world will become like the placed immigrants want to leave.
2. America’s governmental system’s ability to deliver that is dependent for its survival on America’s current culture.
3. Letting in loads of immigrants would prevent America’s governmental system from surviving.
To my mind, when you express the steel man version, you start introducing lots of empirical assertions that are at least contested.
Read the article: i was pro open borders before reading it, and is pro open border after
I have a relative that is anti immigration, and i think his response to this would be that this all sounds nice, but the practical effects of immigration are disastrous, and that humans morally care more about their own kin and nationality, and that there is an overriding moral responsibility for nationalism
So he would probably say this article is living with its head in the clouds, and ignoring the real world.
He has said things like nationalism being the thing that got rid of despots, got us economic and social freedom, and been a force for great good historically, and thus encouraging GB less of it is very shortsighted and gambling with humanities potential
From what i can tell he also has a deep intuition that life is tok sensetive to risks to allow risky immigrants in, and that its obviously wrong to change society
Agreed with everything here but I'd just like to draw attention to 4.4 which I've always thought the worst objection of all. Many migrants are poorer than even the poorest Americans, so how on earth do immigration restrictions "prioritise the poor"?
Many people feel obligation to be nice to their ingroups poor, but no obligation to help outsiders/strangers
So unless a rule literally causes direct intentional harm, helping the ingroups poor is infinitely more important to many people unless theres an disaster happening.
Most people also dislike being reminded that people are poor globally. And they dislike seeing poor people. Local poor people are more likely to be seen. Thus theybare higher on their list of concerns. And bringing up foreigners that are poor makes them upset, and likely to scorn you
havnt read this yet, just wanted to comment that several socialists i have read seem to consider capitalism as the equivalent of someone standing over people and stopping them from getting food and neccessaties. they seem to view a lot of work as obstacles to wellness, and as capitalists and employers as highway robbers leeching things from workers
they also seem obsessed with the idea of the commons, specificlly the english commons. they love to say something along the lines that in the past people had the option of not participating in the markets as the commons had materials and foods that people could use and share freely. but that the enclosure of the commons from capitalists and goverments were the equivalent of robbery and forcing everyone to participate in the market economy, essentially why they consider having to work jobs and private property as theft and exploitation.
So basically, the natural uncoerced state was positive freedoms, non-hierarchys, and communal sharing . Then supposedly capitalists either via force, trickery, or disregarding the wishes of the community makes it an coerced state of being. And so in their minds Revolution is turning it back into the natural state of the commons
i think so at least. im not sure if i fully understood them