Tuesday, January 13, 2015

Should Being a Jerk Be Illegal?

I was once asked a question that was obviously designed to test my "libertarian purity": What is the difference between me shining a light onto my neighbor's property and painting pictures of naked people on my fence so the neighbor can see it? (This assumes, of course, the neighbor would find the painting offensive.) He proposed there was no difference, as light must cross property, regardless. However, I propose that there is a marked difference.

If we take the issue of the light itself, there is a difference between the purposeful directing of the light toward the neighbors and the incidental reflection of the light from off of the painting. This parallels the distinction made in the famous "Trolley Problem." In the Trolley problem, people will switch the tracks to redirect a trolley to kill one person to save three, but they will not push one person onto the tracks to stop the trolley to save three. It turns out that people find bad outcomes that are incidental to a decision to not be unethical, but do find bad outcomes built into the decision to be unethical. It seems to me that a light I direct into the neighbor's yard so that the neighbor is aggravated by the light and cannot sleep to be of the latter kind, while a painting whose reflected light enters a property to be of the former kind.

But the issue with the painting is itself incidental to the light involved. True, we need light to see it at all, but the point is the images. The issue with the images involves the neighbors taking offense. But here we see that the person who painted the images is not responsible for the reaction of the neighbor. It is the neighbor who takes offense, so they are the ones responsible for their own reaction. There is nothing inherently, objectively offensive about an image -- offense is always subjective. The directed light, however, can have an objective consequence in its disruption of circadian rhythms. The neighbor's plants can be negatively affected, let alone the neighbors themselves, whose sleep could be disrupted, whose eyes could be damaged by the intensity of the light, etc. The neighbor could, of course, take measures against the light, but such measures cost the neighbor. If I run into another car, I have to pay for repairs because the person now has to buy things they did not have to buy absent my actions. Again, the painting costs the neighbor nothing, as they can avoid looking at it by simply averting their eyes.

Both behaviors may make me a jerk -- meaning I am acting in an antisocial manner -- but the real issue here is which of these should require an act of legislation. For my money, legislation should only exist to counter some kind of objective harm to the secondary party. Disrupting one's circadian rhythm certainly qualifies. Doing something at which someone may or may not take offense does not. The latter is purely subjective -- it is "harmful" because the secondary party chooses for it to be harmful to them. That is certainly not the fault of the primary party. However, if I want to be a member of a certain society, then I should try to abide by that society's rules -- or go join another one with whom I can better get along. But legislation is one thing; rules are another -- and being a jerk shouldn't necessarily be illegal.
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