Psychic Harm, Repugnant Conclusions and Presumed Consent

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.


I'm going to write on my license: "please don't expedite my demise so you can steal my organs."

You joke, but this highlights the gap above. An opt-out system is not mandated consent. Evidently some commentators would rather gnash their teeth than sign the form, and opt out. Or perhaps they even "presume consent" from other dead people that they will share their values. Funny that.

I jest BARELY.

Upon reflection, I think Landsburg’s main trick here was to replace "opt-out" with "presumed consent," and then to act as if "presumed" meant "mandated." From there on out he acts completely as if choice has been removed. That is a very dishonest way to present opt-out systems, especially ones with clear and easy methods for opting out.

Well, you mandate that people can't sell their organs, then that makes it easier to pretend they don't own them. If people could sell them, they could pre-sell them, and then noone would be arguing about whether a dead person has rights or can be harmed, etc.

The question of a market is actually orthogonal to the question of opt-in or opt-out. I mean that in practice. Countries which refuse markets in organs do both defaults. When very similar cultures, both without organ markets, choose opt-in or opt-out, they get very different organ donation rates.

I personally would have no problem with opt-for-markets. I probably would not let my insurance company buy my organ option though. In fact, I'd feel much safer with my organs going as "charity" to an independent non-profit.

I'm still trying to opt-out of telemarketers and junk mail. There is presumed consent because of some "business relationship", or just straight fraud.

Opting out does not always opt one out.

As petty as the "do not call list" issue is relative to organs, I think a real world example that is a market driven business with government regulated opt-out system could be used to see the likelihood of our rights being adequately addressed.

One should opt to surrender one's rights, rather than opt to regain one's rights.

For what it's worth, the experiments and changes done for organ donation used the same form in both cases. They were tested with strict neutrality. The opt-in and opt-out forms were both short and sweet.

I have no problem with a demand that all the forms in our lives should be short and sweet. Again, that is orthogonal to default.

"they get very different organ donation rates."

Under the regime where your organs are either stolen or wasted. I'm not sure I'd call that orthogonal.

Tyler always says to look for self-indicting comments. And I think you just suggested that default-charity was "the regime" where organs might be stolen, as opposed say to the one with an operating cash market!

It also does not appear as settled as you think:

“It does not appear that by simply having presumed consent legislation on the books that donation rates will rise,”

"They also found that the United States ranked third among the nations surveyed in rates of organ donation from the deceased, with 26.3 deceased donors per million population. Only Spain (34.1) and Portugal (26.7) did better."

Perhaps because, as they say: “With opt-out the perception becomes, We will take your organs unless you take the time to fill out a form. That’s a dangerous perception to have. We only want to use donated organs from people who intended to donate.” Enforcing an opt-out policy raises tricky ethical questions and could challenge the relationship between the transplant community and the general public, which should be mutually supportive, Segev adds."

Here is the striking difference reported by Ariely. Note especially the contrast between Belgium and The Netherlands. In contrast, your John's Hopkins link seems more an opinion piece.

That's not "my piece." And it's not apparently an opinion piece. They did an investigation and determined that the formal designation of opt-in and opt-out don't matter as much as the actual customs such as whether the doctor talks to the family. Studying two different countries based on formal designation as the supposed independent variable may be completely meaningless. This empirical fetishism is getting on my nerves.

That graph in your link paraphrased from Ariely, can't actually be accurate.

See my link, some lives saved, 25-30% increase is best estimate..

Significant in terms of all-else-equal, but tiny in terms of absolute numbers (single digit parts per million versus almost everyone carrying a spare kidney). Ethically, it seems problematic that opt-in isn't hitting the mark of donor desire but that opt-out would. I'm not arguing against it in the all-else-equal sense, but when dealing with tiny absolute numbers, the biggest impact will be when all else isn't equal.

My book "donor list" on amazon kindle addresses these issues.

Maybe the problem is that Landsburg demonstrates an unfathomably stupid understanding of what rape actually is, even though he is *also* doing the super-hard-question-asking that only economists are brave enough to engage in.

Or, yeah, maybe it's that some people don't understand thought experiments.

I sometimes don't understand landsburg's style. he often has good arguments and solid logic, but he also does a disservice to said arguments and logic by being so purposefully provacative. perhaps he is able and simply aiming to get an issue discussed and lets others, a more sensible voice like tabarrok, do the heavy persuading....

More of Landsburg's thoughts on unconscious women:

Now on to the preferences of her husband and parents. This is essentially a fight about what to do with her body: He wants to dispose of it; they want to feed it. And the question arises: Once someone has decided to dispose of a resource, why would we want to stop someone else from retrieving it? If I throw out a toaster, and you want to retrieve it from my trash, there's a net economic gain. If Michael Schiavo essentially throws out his wife's body and her parents want to retrieve it, it seems pointless to prevent them.


Now, Michael Schiavo, it seems to me, is in something very like the bluenose position here. If he had a use for his wife's body—if he wanted to cook it up for dinner, let's say—then I'd have more sympathy for him. (On the other hand, I don't think we should make a habit of letting people cook their spouses up for dinner, because it creates very bad incentives with regard to keeping your spouse safe and healthy.) But in fact, he doesn't want to do anything at all with the body, except perhaps to bury it in accord with what he perceives to be the wishes of an essentially dead woman whose wishes have long since ceased to count. All he wants to do is stop someone else from feeding this body, and I see very little difference between that and wanting to stop someone else from reading William Saletan.

This is similar Walter Block's description of "evictionism."

I feel like he would have got away with it if he'd expressed no problem with being raped himself if he suffered only psychic harm. Describing it happening to a woman makes it sound very different.

If you read the original post, the scenario was:

"Let’s suppose that you, or I, or someone we love, or someone we care about from afar, is raped while unconscious in a way that causes no direct physical harm — no injury, no pregnancy, no disease transmission. (Note: The Steubenville rape victim, according to all the accounts I’ve read, was not even aware that she’d been sexually assaulted until she learned about it from the Internet some days later.) Despite the lack of physical damage, we are shocked, appalled and horrified at the thought of being treated in this way, and suffer deep trauma as a result. Ought the law discourage such acts of rape? Should they be illegal?"

The only reference "to a woman" is the note about the Steubenville victim.

My initial thought was 'what did he really do that people want an opportunity to get him fired for' and one candidate at the bottom of the story is his previous post on Rush Limbaugh.

If only there was a marketplace for dead body parts - that would probably solve all of these so deeply considered problems.

(Sadly, I wrote that before actually reading the paragraph where exactly that solution is proposed.)

'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.'

So, religious belief is just a matter of enough cash on the table? Tell that to the Jehovah's Witnesses/7th Day Adventists, the Christian Scientists ....

Though I have to admit, Judaism is fascinating, to the extent that wikipedia can be considered reliable - 'In some cases, rabbinic authorities believe that organ donation may be mandatory, whereas a minority opinion considers any donation of a live organ as forbidden.' Talk about mixed messages, with neither being addressed by the idea of a marketplace.

My uninformed "guess" is most religions would encourage organ donations.

I've heard it alleged that there's one religious group that won't donate organs but is happy to accept them. I've not heard the evidence, though - it may just be based on observation of hospital life, I suppose.

Anyway, suppose it's true. What then?

So, I went looking, and found this, worth pulling a few quotes from -

- Buddhism
Buddhists believe organ donation is a matter that should be left to an individual's conscience. (Cash on the table should be an incentive.)

- The Church of Christ Scientist
Christian Scientists do not take a specific position on transplants or organ donation. They normally rely on spiritual, rather than medical means for healing. Organ and tissue donation is an issue that is left to the individual church member. (I still don't think a religion whose members have fought for the right to have their own child die instead of receiving medical attention is that open to cash, but things change over time, of course.)

- Gypsies
Gypsies tend to be against organ donation. Although they have no formal resolution, their opposition is associated with their belief in the after-life. Gypsies believe that for one year after a person dies, the soul retraces its steps. All parts of the body must remain intact because the soul maintains a physical shape. (This being an American text, and me being an American, I'll give this passage a certain pass that I would never give to any European. But it seems as if this group maintains its distinctive approach, regardless of what other groups they live among believe.)

- Jehovah's Witnesses
Jehovah's Witnesses believe donation is a matter best left to an individual's conscience. All organs and tissue, however, must be completely drained of blood before transplantation. (Seems as if most of what we consider organ donation is out - cash is unlikely to be a major incentive for the religious group that fought for the right not to recite the American Pledge of Allegiance. Fascinating stuff - 'Minersville School District v. Gobitis, 310 U.S. 586 (1940), was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution. The Court ruled that public schools could compel students—in this case, Jehovah's Witnesses—to salute the American Flag and recite the Pledge of Allegiance despite the students' religious objections to these practices. This decision led to increased persecution of Witnesses in the United States. The Supreme Court overruled this decision a mere three years later, in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).' - It must be further noted, this is before the words 'under God' were added to the pledge, which probably is even more blasphemous from the perspective of a Jehovah's Witness, though I am not one myself, and the one I know best is not American, and I have no plans to ask anyways.)

- Seventh-Day Adventist
Donation and transplantation are strongly encouraged. Seventh-Day Adventists have many transplant hospitals, including Loma Linda in California, which specializes in pediatric heart transplantation. (Man, was I completely wrong on that one - I thought they and the Jehovah's Witnesses shared more theological foundations than is the case here.)

However, since the vast majority of listed religious denominations leave the decision up to the individual, cash is the way to go. Though why stop with the dead? - I believe that paying the living for body parts is a recent topic here anyways. Not that I am a loyal reader, god forbid.

If unconscious rape we treated differently by the legal system then the use of date rape drugs would spike. I mean, what part of the no-psychic-harm argument doesn't also apply to drugs that make you an amnesiac. That at the very least is an act-consequentialist argument against treating the cases differently. Yet surely this is a case where preference utilitarianism dominates simplistic harm utilitarianism, namely the unconscious persons meta-preference not the be raped while unconscious!

Friedman's post is confusing for bringing up libertarianism, and then focusing the discussion on a narrow definition of utility. More important central than Mill's "self-regarding action," libertarians believe in respect for property rights and self ownership, including the right to dictate who gets to penetrate our bodies. On the other hand, why not let gov't drones monitor our every move and let the TSA full body scan us with impunity. After all, if we don't even know we're being surveilled whats the harm? Privacy shmrivacy.

Well, for one thing you are being harmed, even if it doesn't give you cancer. For example, you can't very well plot to overthrow the government.

And on rape, what if we went the other way? Wouldn't it be obvious that there should be a greater punishment if someone raped you to intentionally give you AIDS? You might CALL that something else, but it is an act of rape. There is rape, then there is rape rape, and then there is rape rape rape.

...and then there is banking...

"If unconscious rape we treated differently by the legal system then the use of date rape drugs would spike."

Actually, drugging someone against their will is a pretty serious crime by itself no matter what you do afterward.

Exactly. Because, I argue, the law has a presumption that we own our own bodies and the choice about what we put in them (As a rule).

Using Landsburg's "2nd attempt" argument, drugging someone with a Roofie that knocks them out, numbs them, and makes them forget anything even happened when they wake up, is of no great cost and therefore permissible. After all, there may be some benefits for others to "reap" in the interim.

You say that use of date rape drugs would spike. But maybe they already spiked. I don't know why people use date rape drugs, but maybe it is less to reduce resistance but more to reduce the odds of accusation and prosecution.

Your right to thought experiments end where feminists' feelings begin.

I don't really wonder why this type of rape is damaging, but I do wonder why progressives think it is damaging.

Because rape is a crime, and not a political issue?

Because rape happens to men and women and children, and is a crime?

Because anyone who does not consider rape as a crime is someone whose beliefs mark them as someone very likely to rape other men, women, or children?

Just a quick three - admittedly, what any of those have to do with progressive or conservative or centrist beliefs seems beside the point that raping men, women, and children is a criminal act. A point which an overwhelming number of men and women can agree on (children being somewhat harder to categorize - raped children have the experience to make an informed opinion about rape, while unraped children are generally unaware of what rape is).

Except none of those seem to make sense or are relevant, or are not some form of pretzel logic. My point is that 50 years ago noone would be posing the question Landsburg is raising. It would be so obvious to people at that time why someone would be harmed by a violation of their sanctity. Now that people think sex is just sex, it is less clear as to what is being damaged. I suspect that feminists still hold to some currency value, but I'm not sure what they would say it is.

'My point is that 50 years ago noone would be posing the question Landsburg is raising.'

Raping men, women, and children was as much a crime 50 years ago as it is now.

'Now that people think sex is just sex, it is less clear as to what is being damaged.'

Raping men, women, and children is as much a crime now as it was 50 years ago.

There is no pretzel logic involved.

The pretzel logic is you keep saying "it's a crime because it's a crime because voters are aware it is a crime." And no, I'm not sure it's 'just as much a crime' and well it shouldn't be. Just as someone who trashes your house in the process of trespassing is more guilty than a cleaning lady who accidentally comes on the wrong day and leaves your rental house spotless, there are different degrees of damage in various scenarios of rape.

Do you think a woman would prefer a rapist ejaculate inside or use a condom? Should the crime and penalty be different? Considering or irregardless of the incentive effects?

'The pretzel logic is you keep saying “it’s a crime because it’s a crime because voters are aware it is a crime.” '

No, I said it is crime because the vast majority of human beings throughout history have considered it a crime, especially when it concerns raping children. There is no pretzel logic involved in stating a plainly verifiable fact.

'Do you think a woman would prefer a rapist ejaculate inside or use a condom?'

Why do you think rape is a crime that only concerns women? There may be more physical acts of rape against men in the U.S. than women (cite - ) And obviously, children being raped is not really a matter of gender in terms of both boys and girls not yet being sexually mature. And in the case of raping children, I think the use of a condom is utterly irrelevant.

But if you think that trashing a house is the same as raping a man, woman, or child - well, my mistake to deal with someone with your clearly displayed sense of morals.

Well, because raping a man and raping a woman are very different. In fact, I think there are different criminal designations depending on which orifice is utilized.

Who is the rightholder whose rights have been damaged in both cases (unconscious rape and organ extraction from a dead person)? In the first case, the rightholder is still there after the rape. In the second case, there is no rightholder at all because dead people have no rights. psychic harm can be made whole in the first case but not in the second one since there is no victim to indemnify.

Well, maybe there should be a waiting period, like 3 days, Jesus.

Wait a second, why don't the organs go to the estate?

"Because we wants it, precious!"

Remember, opt-in and opt-out systems are logically equivalent. In a rational world each would have the same outcome, as people made their true choices, regardless of the default. You could opt for some system (business opportunity) by which a designee reached your body first, harvested your organs, and contributed the proceeds to your estate. That is completely independent of "default." In fact, it sounds like the default wouldn't slow you down much.

Except that people use such things for the very reasons that inertia, transactions costs, social pressure, etc. do influence behavior. They aren't really interested in helping people rationally achieve their true desires.

I don't think that is the main issue here. What Ariely and others suggest is that there really are a lot of people in the "don't care" territory. Those are the ones who leave defaults alone. People who have an active interest will make that heard. Of course, yes, forms should be "honest" whether or not they are opt-in or opt-out. They should be easy and transparent. But even so, I think there is a good argument that "default" should be "public good enhancing."

Well, they are wrong. And I shouldn't have to say anything more than "kids." Plowing through bullshit was hard enough without additional humans who can't even sleep on their own.

Have you ever tried to opt out of spam email?

Not exactly fun, or oftentimes effective. Imagine that kind of mechanism for important aspects of your life. Entities often have an incentive to make opt-out a hurdle or series of hurdles fhat consumers need to navigate. Opt-ins by contrast are almost always easy and inviting processes (assuming opt-in is a situation where the offering entity benefits from it).

So yes, logically opt-in and opt-out should achieve the same end but in practice they are not in the slightest. Especially for the elderly or the (technologically) unsophisticated.

I'm not really sure where that came from, but here is a thought from my shower ... I am a moderate and libertarian leaning guy. I have been reading the behavioral stuff for a while now, and I get a kick out of it. For me it confirms a pretty positive human nature. We are not Mr. Spock, but the ways we are not are often humane. It was very disappointing therefore to learn that behavioral economics has picked up a tribal binding among the more ideological. I am afraid that people who are strongly libertarian simply cannot process the behavioral experiments unemotionally. They strike at something for them, and generate anger. I honestly don't know why that should be. If you are a sound economic agent, you can certainly navigate a territory with any defaults, given open choices. Why the heck would believers in free agents believe that choice is not enough? It is a strange thing.

Well, sure there might be "a lot" of people who don't care. But it may be critical that those people don't care in the current regime where people are not allowed to fully own (and thus offer for sale) their organs. And I've never had anyone attempt to explain to me exactly what my choice is. As in, when is death presumed and the organs harvested? What is the assurance that the race to harvest organs has zero influence on the pronouncement of death? Who gets the organs? Who benefits from the organ donations, and are you guys in favor or against organ sales? Etc.

"you guys?" You see a tribe here?

I have no guys, but my personal choice would be default donation of organs to the red cross, option for no donation, option for contract with an independent for-profit or non-profit. Does that cover everything?

FWIW, I will leave an estate. I can regard my body as part of that estate, and give it to charity. In fact, I've been thinking I should do the paperwork to "leave it to science." It will be kind of gross if I end up on a pathologist's body farm .... but in the end, that's fine. Or as the song goes, there's a coyote that needs a meal.

(I don't think we should fear "public good enhancing" defaults just because they are good, nor that "good" is a slippery slope to communism, etc.)

But they aren't always good. They are presumed good by people who are not disinterested in any way whatsoever.

Is that a rational concern? Think about it. The "behavioral" stuff always gives you the choice. So authority figures (in business and government) try to set defaults to the good. Is that actually the problem? Or should you really be focusing on easy options to your personal preferences?

The irrational thing here from my perspective is that "freedom" types don't concentrate on their freedom. They want to argue other people's defaults.

They set the defaults to the good? Are you serious? Only if we set their default choices that make it really hard for them to set our defaults for their own self-interests. I would bet that some of the people who want an opt-out default because it results in more organs available also want to make sure that they are the bottleneck and capture the profits.

As I've relayed many times, we sat down with a surgeon to discuss donating a kidney to a relative. Literally after 10 minutes he said "well, if you aren't comfortable then you shouldn't do it." Certainly, there was probably a more efficient way to obtain the information, but the hospital rep was only interested in screening our litigation potential. The bottom line is they don't give a rat's ass because they don't have to with the racket they are running. Now they just want more organs and I think that does hinder the real solution.

I talked about the goal of the good. You have reduced yourself to arguing against the goal, simply because it might not always be reached.

Well, what the heck is the alternative? Are you claiming that by always selecting the anti-public-good choice we somehow benefit?

No, I think you are defining the "good" as more kidneys available. For me, considering that I think the good lays before us (e.g. we'll soon be able to have live liver donors, etc.) anything that hinders dramatic progress is not for the good, just on utilitarian terms, which I don't fully accept.

Isn't this a distinction between what a prototypical libertarian would recognize as a positive vs a negative freedom?

I don't know what we arguing about anymore. It is interesting, on a meta level, how we can ponder shifting to an opt-out default, but simply defying the opt-in would be out of the question. If you believe in the behavioral frictions, then the opt-out is not addressing the rational desires of the potential donors, it's just shifting the inertia losses to the other side. You are just legally greasing the skids to get more organs. It's awesome if you need a kidney. You are a very concentrated interest- nothing like needing a kidney to sharpen the focus. But if you are in the vast majority of people who have two good kidneys and a diluted interest in a kidney market, then you are not necessarily benefited by an opt-out default.

My question is whether it would have even occurred to a guy like Landsburg to use an example where some people break into your weekend mountain cabin on Monday and stay there all week, sleeping in your bed, relaxing in your hot tub, but leave the place spotless and put some cash on the kitchen table to pay for the electricity they used. Presumably, they wouldn't be guilty of trespassing, right, Steve?

Of course I'm kidding: that's a trespass against _property_, and Landsburg was only talking about the comparatively minor issue of trespass against female bodies...

+1 you hit the nail on the head

These examples actually keep making it clearer that what we label 'rape' or 'trespass' can be vastly different.

For example, I used to own a house that it was convenient for people to walk through the yard to get to the pool. Invariable they'd be halfway through my yard and then see me and say "do you mind if we cut through your yard?" I'd say, well, I'd rather you didn't, but what really irritates me is you using my pool.

And one is a major crime, while the other is considered a minor infraction. Probably because the rape of men, women, and children is considered a much worse action, one where 'unintentional' does not even enter into the equation, and where there are no mitigating circumstances. 'Trespassing' to get out of the rain may be as understandable as 'violating an unconscious human sexually' at one level, but both the law and a majority of people are very aware of the difference in degree.

That's more or less the idea behind a lot of Dynamic Spectrum Access schemes being considered by the FCC and others.

I've been to conferences where the analogy of if you trespass and no one knows you've trespassed, then you didn't really trespass.

This is the most uncharitable possible reading of Landsburg. He wanted to provoke contradicting moral intuitions so he chose the example the most people would find most repulsive.

Exactly. I had my car stolen and when the police recovered it there was a large number of oil bottles (it seems weird not saying 'cans') in the trunk. I had an oil leak and the thieves had been keeping the oil topped off. They had also busted a nut all over the hood. The first part is absolutely true. Then I got raped by the impound yard.

I don't feel much obliged to give Lansburg a charitable reading. And I do give him enough credit for integrity to think that he would not ask for one. He speaks harshly about people and their motivations, whether explicit or hidden. Sauce for the proles is sauce for the professor, I say.

Landsburg's the one who referred to a passed-out minor as a "benefit" to be "reaped," so let's stop pretending that people who object to that characterization are simpletons who just can't grasp the subtlety of Landsburg's beautiful mind. His "there's nothing special about vaginal penetration, because after all we allow photon penetration" argument is far below the quality of argument i'd expect to hesr in a PHIL 101 discussion group. Why this guy has a reputation for deep thought is beyond me.

The problem with Landsburg's post is that it was simply bad. Issues like these are a staple of undergraduate moral philosophy classes and the old consequentialist v. non-consequentialist debates and Landsburg's post wouldn't get a passing grade in any such course. A better post would have discussed some of moral frameworks philosophers have proposed over the years and how they would view the rape of an unconscious person.

Landsburg represents the increasingly tiresome "Freakonomics" tendency within economics. This consists of 1) picking a topic you have no expertise on, 2) ignoring just about everything that real experts on the subject have ever written, and 3) coming to some Krazy, Freaky, counter-intuitive conclusion [especially if it's a Slate column].

Do note that David Friedman used exactly that example.

I thought that the whole point of the post was to demonstrate how repugnance affects your logic. I think he either failed to consider that #3 is the only one where a private property right is trespassed upon or, for whatever reason, he doesn't think that the difference between private property (self-ownership) and a commons (common ownership of landscapes and everyone else's behavior) matters, and so the argument falls apart even before you get to repugnance.

If you had a different answer to the question of the mountain cabin vs. unconscious rape, though, _then_ his point would be valid, but I don't think there are many people who would be OK with one and not the other.

Of course, another big problem with even that hypothetical is that he's trying to get at our moral intuitions and why they might be flawed and/or influenced by cultural taboos - which is an interesting enough avenue of discussion - but I would suggest that the much bigger problem is that people don't "trust" hypotheticals, in a sense. Or, to put it another way, the very definition of these hypotheticals makes them almost useless for real decisionmaking because they assume the outcome. The most likely reason that even in the identical (from a property rights perspective) case of the cabin vs. rape situation you might see some difference in opinions is probably something to do with the error tolerance. If you compare say the mountain cabin example to a similar example of allowing people to steal cars as long as they return them before the owner gets back and they leave enough compensation to cover all expenses like gas, time spent getting more gas, wear, time spent having that wear fixed - you can imagine people being much more willing to allow people to break into mountain cabins than steal and use a car, but why? Because you're looking at the zero-order "no harm" scenario, but the 1st order "least bad thing going wrong" scenario for the stolen car is much more likely to happen and much more inconvenient than the 1st order "least bad thing going wrong" scenario. The rape case is more like the stolen car situation than the borrowed cabin in that sense.

"I think he either failed to consider that #3 is the only one where a private property right is trespassed upon..."

That is my belief as well, and I think it is illuminating. Now I'm a wild-eyed lunatic Kantian, so I don't take property as my axiom in building a system of ethics. But I thought that was what "hard-core libertarians" (Landsburg's phrase) were supposed to do just that, and self-ownership is the first and highest form of property. That Landsburg has to be reminded of this in the case of rape suggests unflattering things about the foundations of such a philosophy.

Is Al Roth's point about "repugnance" just a euphemism for "psychic harm"? If enough people share a certain feeling of repugnance, i.e. if enough people feel the same psychic harm, why not allow them to impose their preferences into law (so long as they enough votes to impose their preferences on society). -- isn't this behavior just a form of ideological rent-seeking? Certain groups get satisfaction when their preferences are imposed on e rest of us through law (e.g. Not just Feminists and gay rights activists, but also anti-feminists and anti-gay rights groups) -- ps: doesn't abortion impose a real harm in unborn children, while anti abortion law imposes a mere psychic harm on (some) women

Re: "rape of someone who is unconscious and which leaves no trace"

Yeah, sure, like Immaculate Conception..

As an economist would say, while stranded on an island with cans of food, "assume a can opener..."

Also, why doesn't Alex tell this audience that "presumed consent" under EU law has opt out provisions, which then makes it distinguishable from the examples he gives.

The only equivalance I could imagine is if, as you entered a bar, as a condition for entering, you signed a form which says I consent to being raped if drunk unless I opt out by signing below. It would either make you read what you sign when you enter the bar,

or keep you sober.

Let's keep it hypothetical. Let's say you and your wife meet Mike Tyson and he's wearing an "I'm with Presumed Consent >>>" T-shirt. On which side of Mike do you stand? And on which side do you have your wife stand?

Bill, he did

"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."

No he didn't in that he analogized presumed consent in organ donation (with opt out)to something else which did not have that feature. Quoting the other source: "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." It's not analgous, and by making the anology you are transfering the term "presumed consent" in one context to "presumed consent" in another--ignoring the difference: opt out. You are right that he does say opt out in his sentence, but then goes on to equate both conditions.

Immaculate conception refers to the conception of Mary without original sin. You are perhaps thinking of the Virgin Birth, which refers to conception and birth of Jesus. However, both of these left a trace, since they resulted in people being born. Also, while details on the conception of Jesus by god and Mary are sketchy, as befits a thing that did not actually happen, she is not described as having been unconscious.

Bill Refers to immaculate contraception.

Good point. I thought it was the spirit which filled Mary, but I guess not.

The thought experiment is not intended to be a realistic scenario. It abstracts away things that would normally be enough to determine a conclusion so that it can highlight other aspects. Landsburg is really acting more like a philosopher/legal scholar than an economist here (David Friedman brings the economics of law angle).

But he simply isn't very effective at philosophy or legal thought. For instance, one of the most well-known rebuttals to hedonistic utilitarianism -- in which good and bad are reduced to the sum total of pleasure and pain -- is Nozick's "experience machine" thought experiment. It ought to warrant at least a shout-out in a post that implicitly assumes a hedonistic utilitarian framework (in which the rapists' pleasure may well out-weigh the "merely" psychic harm done to the victim).

More generally, he does nothing to defend his implicit view only that the experience of physical pain or material deprivation ought to be legally actionable. By this standard, the murder of a person with no family or friends shouldn't be illegal provided the victim is unconscious at the time he is killed. Hey, photons penetrate your body everyday so what's wrong with a bullet penetrating your brain if you aren't around to experience it? And if souls or an afterlife don't exist (which I think is Landsburg's view), the victim won't be able to appreciate his loss of life because he won't exist. When we start from a premise of individual autonomy and from the view that you ought to be protected from people doing certain kinds of things to you and your body, these questions have solutions that seem to track the average person's intuition much more closely.

The point is not about rape but about whether and why (some?) psychic harms should count in the moral calculus.

The real lesson of the example is about how physical transgressions without psychic harms should count in the moral calculus.

So, all rapists should be required to obtain release forms: "If I were to drug and rape you while unconscious, purely hypothetically speaking, would you prefer that I do or do not inform you of the act?"

I'm pretty sure that you've misunderstood me. My point is that the physical transgression is wrong with or without psychic harm.

As Landsburg points out, that doesn't get you there. You need an argument for why it's a physical transgression.

The argument is that the physical transgression happened. We do not need to be aware of a physical act for it to have existed.

Not everything physical is a transgression--that's what the question is about!

Given a conditional like
If there's no more to right and wrong than physical and psychological harms, then it's ok to have sex with a child so long as she never finds out about it.
there are two reactions you can have.

1. There's more to right and wrong than physical and psychological harms
2. It's ok to have sex with a child so long as she never finds out about it.

Two is crazy, so let us adopt 1. It isn't a hard case.

I think Landsburg grants that physical transgression occurs, but he denies that that's a prima facie reason to object to something, since no one objects to being penetrated by photons.

Part of the issue is that there is a problem BECAUSE it confers benefit to the rapist regardless to the cost to the victim. One simply does not get to enjoy sex with someone else without invitation.

(see also simulated child porn...on second thought, you'd better not see it.)

What about the psychic harm of a hypothetical argument viewed by some as offensive?

I don't think these are similar scenarios in the way that he is trying to paint them. The first two are clear cases of pure psychic harm, but the third... a rape or any assault that happens if you are unconscious and there are not physical repercussions to the victim (and yes, I still use that word) is still an assault and still morally offensive. The fact that the victim was not aware of the transgression against their body does not excuse the rape/assault!

Is Mr. Landsburg saying that rape is okay if we simply first ensure that the victim is unconscious and that we are disease free and ensure that pregnancy does not happen?

He deserves all the attention that he is getting on this.

1) When you say "they're different because...the rape is morally offensive," you are engaging in something called "begging the question."
2) He's not saying that it's ok, he's engaging in what's called a "thought experiment," the goal of which is to prompt us to explain our intuition regarding one of those things being morally offensive in a way that the others aren't.

He is not simply asking us to explain our intuition... he is saying that he does not think that the scenarios are not meaningfully different (see section c of his "my thoughts").

Ethics won't give you an assignment of property rights in these cases unless you directly address the question of offense--that's Landsburg's point! The dodge doesn't work. If you think that offense isn't enough to, say, criminalize conduct, then bite the bullet. Don't go sneaking offense in somewhere else though. Property rights can be defined so that offense is not an injury, and if offense isn't legally cognizable, then property rights should be defined so that offense is not an injury. A default to property rights then won't answer the question.

With regard to opt-out vs opt-in and how difficult opting out is, there is a practical problem. Once you establish an opt-out system for something that the people controlling the system don't want people to opt out of, they have an obvious incentive to make opting out as inconvenient as possible.

I described a real world example of the phenomenon that my family had encountered twice, at the same college, over a very long period of time--once by my wife when she went there, once by our daughter when she did.

What example? In the abstract, why is opt-out as a default any more freedom-reducing than opt-in? What really matters is what penalty or reward you are being asked to opt-out of (or opt-into, as the case may be), and your view on this question will invariably depend on your normative preferences. So e ultimate question is, why should your normative preferences count for more than mine? Isn't this why we have ballot boxes? Not to determine who is normatively right or wrong, but to determine who is in the majority.

What about dogshit? Where does dogshit fall on the psychic harm-tangible harm continuum? Not cleaning after my dog's dogshit may impose a harm on others, but my having to clean up after my dog's dogshit imposes a real harm on me ! Isn't this Coase's whole point in "The Problem of Social Cost"?

"Once you establish an opt-out system for something that the people controlling the system don’t want people to opt out of, they have an obvious incentive to make opting out as inconvenient as possible. "

Didn't I just say the exact same thing as a professional? It's either time for me to admit total victory or total abject failure.

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.

Then why use rape? Landsburg begins with the assumption that rape, as he describes it does no non-psychic harm. But the first thing wrong with his argument is that there s no way to know that ex ante. OK, there was no pregnancy, no STD, no physical harm, maybe. But at a minimum the rapist puts his victim at risk of those things, and if they occur the victim really suffers. Imagine being pregnant and having no idea when conception happened, or who the father might be. Imagine having to get treated for an STD without know how you may have contracted it. Imagine lots of things. Is it Landsburg's idea, or yours, that putting someone at needless risk without their consent is just fine, as long as the dangers are averted?

And let's talk about "psychic harm." Have either of you ever heard of "degree of harm?" Landsburg , for all his presumed cleverness, tries a childish trick. Take two cases that can somehow be squeezed into the same category, even though they differ hugely in the degree to which they fit, and argue that they are the same, or that we must come up with some simple rule to distinguish them. Why? Who says so?

On top of all that, it's really pretty easy to distinguish the cases. In the rape case the criminal is intentionally using the woman's body without her consent for his own pleasure. If, as Alex says, we have autonomy over our bodies, that's plainly wrong. (By the way, it makes no sense to combine this opinion with "ignoring psychic harm." If I have autonomy over my body then it's nobody's business what the nature of the harm, if any, I suffer from some assault is. Psychic harm counts too.) In the other two cases the damage is incidental to the act causing it. Neither the pornography reader nor the environmental despoiler is trying to do anything to the alleged sufferer, or to use their victim for their own purposes.

What if we can resurrect people in the future? They'd definitely want their organs.

Its VERY simple. If you don't sign up to be an organ donor, you are last in line if you end up needing a transplant.

Perhaps a dead person suffers no harm from necrophilia, nor from organ harvesting. In the first case the "harmer" is really not someone I'd want around, but in the other?

A bit like animal cruelty: I am less concerned about the needlessly suffering animal than the person causing the suffering.

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