April 9, 2013

Psychic harm

Filed under: Law, Liberty — Tags: , , , , , — Nicholas @ 10:16

David Friedman comments on a controversial blog post by Steve Landsburg:

Steve Landsburg’s piece [link], responding in part to the Steubenville rape case, makes the same argument from the other side. We — at least Steve (and I) — don’t feel that the argument for banning pornography or contraception is a legitimate one. Our reason is that the “harm” in those cases is purely subjective — I haven’t actually done anything to you, so your unhappiness at my self-regarding behavior is your problem, not mine, and you have no right to use the legal system to make me conform to your wishes. And even if you argue that I have done something to you — acted in a way that resulted in your knowing what I was doing, knowledge that pained you — that doesn’t count, because “knowledge that pains you” isn’t injury in the same sense as causing you to get cancer is.

Which gets us to the part of Steve’s post that gives lots of people reason, or excuse, to attack him. Suppose an unconscious woman is raped in a way that results in no injury — in the Steubenville case, “rape” actually consisted of digital penetration. She only finds out it happened several days later, at which point the harm is purely subjective, consists of her being offended at the knowledge that it happened. Why is this different from the subjective harm suffered by the person offended at someone else reading pornography? It feels different — to me and obviously, from his post, to Steve. But is it different, and if so why?

That, it seems to me, is an interesting question, one relevant to both law and morality. It is ultimately the same question raised by Bork, although from the other side. Bork was arguing that the harm caused by the use of contraception and the harm caused by air pollution were ultimately of the same sort, that it was legitimate to ban pollution hence legitimate to ban contraception — his article was in part an attack on Griswold v. Connecticut, the Supreme Court case that legalized contraception, a fact I had forgotten when I started writing this post. Landsburg is arguing that rape that does only subjective harm is of the same sort as reading pornography that does only subjective harm (unlike Bork, it isn’t clear that he is thinks his argument is right, only that he thinks it interesting), that it is not legitimate to ban the reading of pornography hence not legitimate to ban that particular sort of rape.

I agree with both Bork and Landsburg that there is a real puzzle in our response to the legal (and moral) issues they raise. Hence I disagree with the various commenters whose response to the Landsburg piece was that it showed he was crazy, evil, or both.

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