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TGIF: Rights Violations Aren’t the Only Bads

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More than a few libertarians appear to hold the view that only rights violations are wrong, bad, and deserving of moral condemnation. If an act does not entail the initiation of force, so goes this attitude, we can have nothing critical to say about it.

On its face, this is strange. If you observe an adult being rude to his elderly mother, it is surely reasonable for you to be appalled, even though the offender did not use force. And, being appalled, you may be justified under the circumstances in responding, such as by cancelling a social engagement or telling others of his obnoxious behavior. One can reasonably say that this person’s mother is owed better treatment, without the word owed implying legal, that is, coercive, enforceability. (Words can have different senses, of course.) Therefore, the rude son may be judged culpable.

This example may be uncontroversial, but observe the attitude in another context. I recently argued that “intellectual property” (IP) can’t really be property (as can land, cars, and socks) and that it is, rather, a government grant of monopoly power over expressions of ideas, which perforce limits other people in the use of their property, while creating scarcities where there would have been none.

The article brought vigorous critical responses, one of which informed me that if I don’t believe that expressions of ideas can be owned, I would have no right to object if someone were to plagiarize or adulterate my written work.

Before diving in, I’d like to draw attention to the strange habit IP proponents have of bringing up plagiarism (or adulteration) as soon as the legitimacy of copyright is challenged. This is strange because so-called copyright infringement per se differs in a crucial respect from plagiarism. The publishing industry doesn’t strenuously lobby the government for fortified copyright laws because it is worried I will publish Atlas Shrugged with my name on the cover. (Who’d buy it?) On the contrary, it worries that I (or someone else) will publish the novel with Ayn Rand’s name on the cover. Copyright and plagiarism must be considered apart from each other.

Be that as it may, the premise of my critic’s claim — that I cannot logically object to plagiarism or adulteration because I don’t believe expressions of ideas can be owned — must be that the only legitimate ground for objection would be that these activities are property violations. So if they are not property violations, there is no basis to complain.

With all due respect, this is ridiculous. One who rejects the legitimacy of intellectual property can still have perfectly good moral grounds for objecting to the plagiarist’s or adulterator’s misconduct. Libertarians ought to think long and hard before buying the idea that rights violations are the only species of wrongful conduct.

If someone attaches his name to something I wrote, the plagiarist’s declaration that he is not a thief (because expressions of ideas cannot be owned) is hardly germane. I would not accuse him of being a thief. Rather, I’d accuse him of being a fake — of pretending to have accomplished something he in fact did not accomplish. Likewise, the adulterator is not a thief, but a fraud who misrepresents what he sells. Both are to be held in contempt for they have violated Kant’s maxim to treat each person “never merely as a means to an end, but always at the same time as an end.” Their assertions that they are not thieves are as relevant as a burglar’s assertion that he is not a murderer.

Slight digression: Metaphor pervades all language. When one says that a copyright infringer “stole” from an author or publisher, one cannot mean this literally (no pun intended), for what was actually stolen? We can easily imagine an “infringement” that entails no physical violation whatsoever. IP has the impossible premise that an author or publisher owns a Platonic form of a work, which is embodied in, yet transcends, every physical instantiation of that work, even those owned by other people. In other words, you can buy a book, but you cannot buy the book. The anti-IP response is that abstractions cannot be owned.

The upshot is that a rejecter of IP may justly take offense at the plagiarism or adulteration of his work and expose the fakes and scoundrels. “The same mechanisms that make copying easy make plagiarism very difficult,” Karl Fogel writes in “The Surprising History of Copyright and The Promise of a Post-Copyright World.”

I should add that customers may justly claim they are victims of fraud. On what grounds? On the same grounds that any fraud victim has: The buyers were tricked into entering transactions on terms other than those they would have agreed to. The remedy might come through a class-action suit, the award being a refund plus costs. (Context is crucial. Someone who buys a $10 Rolex on the streets of Manhattan probably cannot credibly claim that he thought he was buying a genuine Rolex.)

What I’m arguing for is a commonsense category of noninvasive moral offenses, wrongful acts that do not involve force. Since force plays no part, the remedies must not entail force (state-backed or otherwise) either. But forced-backed remedies are not the only — or even the best — remedies available. Nonviolent responses, including boycotts, shunning, and gossip (PDF), can be highly effective.

Libertarians ought to beware of embracing such a narrow view of morality that only forceful invasions of persons and property are deserving of moral outrage and response. Think of all the cruel ways people can treat others without lifting a hand. Are we to remain silent in the face of such abuse?

The erroneous belief that only conduct for which a coercive response is appropriate — that is, rights violations — may be condemned leads too easily to the corollary error that if some conduct is deserving of condemnation, it must somehow be a rights violation. The initiation of force is not the only bad thing in the world.

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    Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.