A common law solution to Sobel’s paradox

Alternative Title #1: Against Self-Ownership? Lit Review, Part 4b

Alternative Title #2: Live and Let Live, Mother-Bleepers!

I presented Sobel’s self-ownership paradox–the problem of minor intrusions–in my previous post. In summary, ordinary activities like smoking (blowing smoke in someone’s face), listening to music (noise), driving cars and flying aircraft (accidents), etc., often generate minor risks of injury to third parties. Don’t these risks or minor intrusions somehow violate the deontological rights that self-owners are supposed to have, such as the right to one’s body and health? That is precisely the type of slam-dunk argument that scholars like David Sobel and others have made.

Before proceeding any further, it’s funny–or should I say ironic–how so many high-level scholars and brilliant minds can get all tied up in knots over such a simple problem, i.e. the problem of minor intrusions. In truth, this wouldn’t be the first time–or the last–that moral philosophers “overthink” a particular problem or make such a simple, everyday dilemma unnecessarily complex. For it turns out that the problem of minor intrusions has a prosaic and common-sense solution: the live and let live rule.

The live and let live rule originated the in the law of nuisance, an area of common law involving the intersection of property law and the law of torts or wrongs (injury law). Legally speaking, a “nuisance” occurs when someone uses his property in such a way as to produce a significant and unreasonable annoyance, inconvenience, discomfort, or injury to another person or to the public at large. These harms might consist of foul odors, loud noises, pollution, etc., but in order to prove a wrongful or unlawful nuisance, the plaintiff must show that the harm resulting from the defendant’s activities is a substantial and unreasonable one. In other words, minor or reasonable harms are not wrongful or unlawful from a common law perspective. Boom: problem solved!

This famous rule was explained by Baron Bramwell in the 1862(!) case of Bamford v. Turnley: “It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience, and interference and must take a certain amount of risk in order that all may get on together. The very existence of organised society depends on the principle of ‘give and take, live and let live’.” (For a modern-day nuisance case, see here, for example.) Of course, the mental act of deciding what types of annoyances or harms are sufficiently “substantial” or “unreasonable” so as to constitute a nuisance is not always easy. When in doubt, contemporary common law courts will weigh the following four factors in order to make these types of close calls:

  1. the severity of the harm;
  2. the geography of the alleged nuisance, e.g. is the nuisance occurring in a residential area or in an industrial district?;
  3. the utility of the defendant’s conduct, e.g. the benefits generated by the harm; and last but not least,
  4. the sensitivity of the plaintiff, e.g. is the person complaining about the alleged nuisance overly or unreasonably sensitive?

One more clarification is in order before we move on. I will be the first first to concede that any set of balancing factors will either be incomplete or will leave a lot of latitude and room for maneuvering, but my larger and more important point is this: we can easily rescue self-ownership from the problem of minor intrusions by adding on or incorporating some version of the live-and-let-live rule. The alternative is to abandon the concept of self-ownership altogether, and yet, as I explained in my response to Barbara Fried’s indeterminacy objection, the critics of self-ownership have yet to offer a viable or less indeterminate alternative.

Okay, fine, but what about special cases like children and non-human animals? Are all sentient beings self-owners? If not, where should we draw the self-ownership line? Rest assured, I will further explore the problem of special cases in my next blog post and then wrap up this series on self-ownership soon thereafter …

Roger L'Estrange quote: Live and let live is the rule of common justice.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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1 Response to A common law solution to Sobel’s paradox

  1. Pingback: The Law of Self-Ownership | prior probability

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