Steven Landsburg’s post on psychic harm has created a firestorm of controversy. Many people don’t understand thought experiments and that is part of the problem but it was also a bad idea to combine hypotheticals with a real case involving a real victim. Nevertheless, Landsburg’s post raised important questions about how pure psychic harm (“I don’t like the thought of other people having gay sex.”) differs from a physical transgression without physical harm (rape of someone who is unconscious and which leaves no trace). The point is not about rape but about whether and why (some?) psychic harms should count in the moral calculus. As David Friedman argues, how we answer this question has deep implications.
Moreover, Landsburg’s stark hypothetical is closer to a real policy question than many might imagine. Consider the issue of presumed consent for organ donation, the policy used by many European countries where someone who dies is presumed to have agreed to be an organ donor barring evidence that they opted out. There are good (not necessarily definitive) arguments for presumed consent, namely that it would save some lives at low cost. After all, what harm can be said to occur from taking organs from a dead person? The latter point is obvious to me but it’s only obvious because I think the dead can’t be harmed. Other people, think differently Many religions consider cadaveric organ donation to be a kind of desecration. In fact, some people liken presumed consent to rape of the unconscious. Professor Hugh V McLachlan for example writes:
if someone had sex with an unconscious woman and tried to justify his action by saying that, when she was conscious, she did not indicate that she did not want to have sex, we would not accept this as a reasonable argument. The notion of presumed consent to the use of our organs after our deaths is no more reasonable.
and another commentator on presumed consent in Britain says
The difference between voluntary consent and presumed consent is at least the difference between consensual sex and rape of a drunk person.
Evidently for some people being dead is similar to being unconscious. Thus in both cases physical harms without physical consequence can be wrong because they generate psychic harm, either in expectation or in the afterlife. Clearly, distinguishing which psychic harms are to be counted and which not quickly becomes a question of metaphysics.
My own view is that as far as possible psychic harms should not be counted at all. Instead I would let ethics dictate the assignment of property rights and economics dictate the allocation. In particular, I would assign body ownership to the individual on strong libertarian and autonomy grounds but I would let individuals sell a kidney (or sex).
One of the virtues of markets is that markets make people pay for their preferences, if only in terms of opportunity cost. My suspicion is that the psychic harm from the thought that after death one’s organs might be used by someone else would quickly dissipate once some cash was on the table. Indeed, it’s often the case that the least cost way to avoid a psychic harm is to change one’s mind and, to paraphrase Upton Sinclair, it’s easier to get a man to change his mind when his salary depends upon him changing his mind.