Why Landsburg's Puzzle Is Interesting

I have seen two sorts of defenses offered for the virulently hostile response that many people gave to Steve Landsburg's recent post. One is that one shouldn't talk about rape, or shouldn't use it in hypotheticals,  because it will rouse bad memories in people who have been victims of rape or for other reasons along similar lines. I find that argument unconvincing, and suspect that most of those using it would reach a different conclusion if they were doing the talking and expressing the proper views on the subject. 

The other defense is that Landsburg was not offering an interesting puzzle, since the answer was obvious, hence that the only explanation of his post was that he was trying to shock people, and trying to shock people by talking about a sensitive subject is juvenile and rude. Alternatively, that Landsburg was not offering an interesting puzzle but thought he was, which shows how stupid he is.

Hence this post.

Argument 1 for why the answer is obvious, popular with libertarians:

The unwanted but physically harmless rape is obviously wrong because it violates the victim's property right in her own body.

When I look out the window and see the light in a neighbor's window, the fact I can do so shows that photons whose existence he caused have trespassed on both my property and my retina. We don't see that as obviously wrong.

Why? One obvious answer, although not the only possible one, is that the trespassing photons do no damage—we would react differently if what was trespassing was a megawatt laser beam. But that answer gets us back to Landsburg's puzzle: If physical trespass to someone's body did no damage, would it also not count as a violation of the victim's rights? More generally, how do we figure out what rights, in property or anything else, who has? 

In my view, anyone who thinks that problem is trivially easy has not thought very hard about it. Any philosopher who thinks so should find another line of work. Which brings me to ...

Argument 2, popular with philosophers:

The puzzle is uninteresting because we already know that utilitarianism, at least of a simple sort, is obviously wrong.

Perhaps I missed it, but I am not aware of any proof, by philosophers or other people, of what moral philosophy is the right one. Absent such a proof, the fact that a particular candidate implies a conclusion that feels wrong to us admits of at least three different explanations:

A. The candidate is wrong.

B. Our moral intuition is wrong.

C. The argument from assumptions to conclusion is wrong. 

Part of what makes an argument like the one Landsburg offered interesting is that it forces us to think about those explanations. Responding with "we already know the right answer to the fundamental questions of moral philosophy," which is not what anyone I saw said but what a number of people appeared to be implying, is not a good answer. My long post on the subject was arguing C—that the conclusion Landsburg sketched did not follow from the implicit assumptions, for somewhat complicated (and, I thought, interesting) reasons.

I could go on to list other arguments for why the answer to the puzzle is obvious, but I have not seen any that struck me as convincing, and two unconvincing ones are sufficient.

Showing why particular arguments that his puzzle is uninteresting are wrong does not tell us what is interesting about it. One answer to that question is that one of the most intriguing facts that comes out of the economic analysis of law is that the legal rules that economic theory implies are efficient—loosely speaking maximize utility—often if not always resemble the rules implicit in both existing law and existing moral beliefs. If that is true, it is surely interesting, in part because it suggests some possible conjectures about where law and moral beliefs come from. And it also suggests the project of looking at places where law or moral beliefs fail to fit what economic efficiency appears to imply, and trying to see if one of my answers A, B, or C explains the difference.

One implication of that project is that  it is a mistake to claim, as some philosophers (and economists) do, that wicked pleasures ought not to count in the utilitarian calculus. If you put your moral beliefs in at the beginning of the analysis, it is not very interesting to get them out at the end. It is much more interesting if you put in something much simpler, if you treat the benefit that the pickpocket gets from the money he steals from you on precisely the same terms as the loss to you from having it stolen, and yet end up with something that looks like rather like your intuitions of right and wrong. As you do—for a defense of that claim, see my Law's Order.

It is possible that I am being unfair to Landsburg's critics, since this is an area I have worked and written in for many years, so the point may be more obvious and interesting to me than to them. On the other hand, if an intelligent academic makes an argument that seems pointless to you, trying to figure out why he thinks it interesting, even asking him, seems a more appropriate response than most of the responses Landsburg got.

And even for someone who has never thought about the economic analysis of law, figuring out why we make the moral judgements we do, why we reach different conclusions about what can be seen as similar cases, ought to be interesting.