Free Markets, Property Rights and the Environment
Ernest Partridge, Gadfly Enterprises
R.C. Hoiles Conference: Libertarianism and its Critics
Chapman University, November 14, 2008
Over the past decade, I have written and published numerous
essays critical of Libertarianism. In fact, much of the focus of my
book in progress,
of a Progressive, is a critique of the libertarian doctrines of
market absolutism, social atomism, and negative rights.
And yet, I would describe myself as a “semi-libertarian,” in that I
endorse the libertarian positions on personal liberty – of
association, of religion (or lack thereof), of sexual preference, of
free expression, etc. Thus the libertarians and I agree with John
Stuart Mill that “over himself, over his own mind body and mind, the
individual is sovereign.”1
In this regard, the libertarians are in agreement with most
liberals. So much so that many libertarians voted, albeit
reluctantly, for Barack Obama in the recent election (as I
discovered in this conference).
However, regarding economic justice, property rights, and the
protection and preservation of the natural environment, libertarians
disagree profoundly with the liberals and are more in tune with the
Thus the libertarians are in the strange position of agreeing, in
some essential respects, with both the Democrats and the
Republicans. But their disagreements with both are so substantial
that the libertarians are estranged from both parties.
With the libertarians, I cherish and defend the fundamental rights
to life, liberty and property. Also, along with the libertarians, I
affirm the “like liberty principle:” that, in the words of John
Rawls, “each person is to have an equal right to the most extensive
total system of equal basic liberties compatible with a similar
system of liberty for all.”2
However, with the liberals I insist that when we explore the
implications of the basic triad of rights to life, liberty and
property, and combine them with the like liberty principles, we find
complications and conflicts which require the articulation and
enforcement of rules by the only agency authorized to act
disinterestedly on behalf of all citizens, namely a democratic
government acting with “the consent of the governed.”
This is all very abstract, and I hope in the course of this
presentation to exemplify these principles with familiar examples.
A “Society” is More Than the Sum of its Parts.
Perhaps the fundamental dispute between libertarians and liberals
such as myself resides in the ontological status of “society” and
The social atomism of the libertarians was starkly expressed by
Margaret Thatcher when she wrote: ““There is no such thing as
society – there are individuals and there are families.” And Ayn
Rand: “There is no such entity as “the public” ... the public is
merely a number of individuals" Now admittedly, Baroness Thatcher is
not a political philosopher, and Ayn Rand insisted that she was not
a libertarian. So let’s look further.
Consider first, this passage from Frank Chodorov’s The Rise and Fall
Society is a collective concept and nothing else; it is a
convenience for designating a number of people... The concept of
Society as a metaphysical concept falls flat when we observe
that Society disappears when the component parts disperse...
When the individuals disappear so does the whole. The whole has
no separate existence.3
Next, David Boaz of The Cato Institute:
For libertarians, the basic unit of social analysis is the
individual.... Individuals are, in all cases, the source and
foundation of creativity, activity, and society. Only
individuals can think, love, pursue projects, act. Groups don’t
have plans or intentions. Only individuals are capable of
[At] the conceptual level, we must understand that society is
composed of individuals. It has no independent existence.4
Now consider the implications of this denial of the "independent
existence" of "the public" and "society." If there is no "public,"
then there are no "public goods" and there is no "public interest."
If there is no "society," then there is no "social harm," or "social
injustice" or "social (and public) responsibility." It then follows
that government has no role in mitigating "social injustice" or
promoting "the public interest," since these terms are fundamentally
meaningless. Poverty and racial discrimination, for example, are
individual problems requiring individual solutions.
In contradistinction, the liberal affirms that “society” and “the
public” are “emergent entities,” like chemical compounds, languages,
and living organism, with qualities distinct from those of their
components. Attempts to reduce societies and publics to their
component individuals is what the Brits call “nothing buttery:” for
example, “a Beethoven symphony is nothing but notes,” or “Hamlet is
nothing but a string of words,” or “a human mind is nothing but
cells and synapses.” In all these cases, to paraphrase
Chodorov above, when the components of a play, a symphony, or a mind
"disappear" "so does the whole." But clearly, this does not mean that
the whole is "nothing but" an aggregate of the parts.
If we can cite cases in which advantages to each individual harms
the interest of all individuals, and conversely that harm to each
individual benefits all individuals, then, by distinguishing “each”
and “all” we have demonstrated the existence of an “all-entity,”
“society,” that is distinct from a summation of “each” individual.
Elsewhere, I have attempted at some length to prove that society is
more than the sum of its component members (“good for each, bad for
all,” and “bad for each, good for all”). Because time constraints
forbid a repetition of these arguments, I will let just two examples
Antibiotics: The over-use of antibiotics "selects" resistant
"super-bugs," decreasing the effectiveness of antibiotics for all.
But just one more anti-biotic prescription for a trivial,
"self-limiting" bronchial infection won't make a significant
difference "in general," while it will clearly benefit the
individual patient. But multiply that individual doctor's
prescription by the millions, and we have a serious problem. "Good
for each patient, bad for the general population." The solution:
restrict the use of antibiotics to the seriously ill. Individuals
with trivial and non-life-threatening ailments must “tough it out.”
“Bad for each, good for all.”
Traffic laws: We all agree that traffic laws can be a
nuisance. But if you believe that traffic lights constrain your
freedom of movement, try to drive across Manhattan during a power
outage! In the blackouts of 1965 and 1977 in the eastern United
States and Canada, traffic began to move only after the police and a
few citizen volunteers stood at the intersections and directed
traffic. (I was in Manhattan during both events). The decision of
each driver to accept constraints worked to the advantage of all. So
too with the traffic lights and stop signs that we encounter daily.
We are all freer to move about only because we have collectively
agreed to restrict our individual freedom of movement. “Bad for
each, good for all.”
A third example of individual self-serving behavior leading to ruin
for all, “the tragedy of the commons,” follows shortly.
To sum up: “society” is not, as the libertarians would have us
believe, simply a physical location where autonomous private
individuals “do their own thing,” from which activity somehow, “as
if by an invisible hand” (Adam Smith), benefits for all accrue
without foresight or planning. On the contrary, the liberal insists,
a society is more than the sum of its individual parts. A society
is, as John Rawls puts it, “a cooperative venture for mutual
advantage [which] makes possible a better life for all than any
would have if each were to live solely by his own efforts.”5
As the antibiotics and traffic examples illustrate, common goods are
achieved through individual constraint and sacrifice. “ Bad for
each, good for all.” Conversely, unconstrained self-serving behavior
by each individual can harm society as a whole. “Good for Each, Bad
The liberal does not deny that self-serving individual behavior, for
example by scientists, entrepreneurs and artists, often or even
usually results in benefits for all. (“Good for each, good for
all”). Instead, the liberal insists that this is not a universal
rule. In innumerable instances, such as the two presented above, it
can be clearly shown that social benefit requires individual
constraint and sacrifice.
The libertarian insists that, apart from the protection of life,
liberty and property, whatever government attempts, privatization
and the free-market can do better. For example,
Jacob Halbrooks: “Adam Smith's ‘invisible hand’ of the market
guides all participants in society to promote the best wishes of
everyone else by pursuing his own wants and desires.”
David Boaz: “[T]he free market allows more people to satisfy
more of their desires, and ultimately to enjoy a higher standard
of living than any other social system... We need simply to
remember to let the market process work in its apparent magic
and not let the government clumsily intervene in it so deeply
that it grinds to a halt."6
And Milton and Rose Friedman: "A free market [co-ordinates] the
activity of millions of people, each seeking his own interest,
in such a way as to make everyone better off... Economic order
can emerge as the unintended consequence of the actions of many
people, each seeking his own interest."7
What these "market absolutists" fail to appreciate is that not
all workings of "the invisible hand" of the marketplace are
beneficial. Some unintended consequences of market activity are
harmful -- "the back of the invisible hand." Economists call these
The source of market failure is hinted at in Milton Friedman’s
notorious proclamation that "the social responsibility of business is to
increase its profits.”8 This result is neatly accomplished by
internalizing profits and externalizing costs on unconsenting
third-parties, the so-called "stakeholders." If the stockholders of
a corporation are dissatisfied with the profit-making of the
corporation, they can fire the managers. But who, other than the
government, speaks for the stakeholders: those who live downwind and
downstream from a factory, or most recently the tax-paying public,
present and future, that has been presented the bill for rescuing
Wall Street? If not the regulatory agencies, then perhaps the
courts. However, as I will explain shortly, the courts fall short as
a remedy for market failures.
Limits of privatization and property rights.
The Tragedy of the Commons.
Garrett Hardin’s landmark essay,
“The Tragedy of the Commons,” vividly displays the principle, “good for each, bad for all.”
Imagine a village of sheep herders, surrounded by an open pasture, a
“commons,” owned by none and utilized by all. The number of sheep in
the pasture is at “carrying capacity,” which means that the addition
of more sheep will degrade productivity and sustainability of the
common resource. It is to the advantage of each villager to add to
his personal wealth by putting another of his sheep in the commons.
But by so doing, he decreases the wealth and well-being of all the
others. “Good for each, bad for all.”
And now the “tragedy:” absent collective constraints on the
individual, the only rational thing for the autonomous “economic man” to do under
these circumstances is to increase his wealth by adding sheep to the
commons. Presumably, all the others will be likewise
motivated. True, it will destroy the resource and bring ruin upon
all, including himself. But he is helpless, by himself, to avoid
this result. Might as well “get what he can while he can.”
If this scenario applied only to sheep herders and pastures, it
would be of little interest. But the significance of the tragedy of
the commons resides in its scope of application: to air pollution,
to global population, to game management, to ocean fisheries, and to
much, much, more.
Hardin’s solution is both obvious and compelling: “mutual coercion,
mutually agreed upon.” But who or what is best suited to articulate
and enforce the mutually agreed upon rules of mutual coercion? What
else but a democratic government, acting in behalf of all, and
answerable to all?
The libertarian replies that the tragedy of the commons can be
addressed by privatizing the commons -- for example, by closing the
open range and dividing it into private parcels. This solution
internalizes the cost of over-exploitation, thus motivating the
owner to manage the property sustainably. Agreed. But this is only a
partial solution, for some commons, by nature, can not be
privatized. Among these are migrating wildlife, pollenizers, the
atmosphere, rivers, aquifers, the ocean, the hydrological and
nutrient cycles, the global climate. The economic value of these
so-called "natural services"
is calculated by Robert Costanza, et al at approximately double the gross national product of the United
Who or what is to protect and preserve these indispensable natural
services? We arrive at the same answer: the government, or more
correctly, a consortium of governments, for these services, like
nature itself, are totally indifferent to both national boundaries
and property lines.
Interest:” Randville, Rawlsburg, and New Orleans. Are there public goods? Ayn
Rand, let us recall, asserts that there are no public goods since “there is no such entity as 'the public' -- since the
public is merely a number of individuals -- any claimed or implied
conflict of the 'public interest' with private interests means that
the interests of some men must be sacrificed to the interests of and
wishes of others."
The liberal, of course, vehemently disagrees. As evidence of the
existence of “public goods,” consider a parable.
Two communities are situated on opposite banks of a great river: on
the right bank (appropriately) is “Randville,” and on the left bank
is “Rawlsburg.” Randville is populated entirely by libertarians –
rugged individualists all, who shun “collective” activity and who
assume full responsibility for their personal safety, welfare and
property. “Rawlsburg” is comprised of liberal individuals who are
properly covetous of their personal rights, yet fully aware of the
desirability of promoting public goods and of acting collectively in
the face of common emergencies.
News arrives at both communities from (gulp!) a government bureau,
that a great flood is approaching from upstream. The citizens of
Randville immediately get to work piling sandbags around each of
their individual dwellings. Across the river in Rawlsburg, brigades
of citizens are hard at work building a levee around the entire
Come the flood, the puny separate efforts of the rugged Randville
individualists prove to be futile, while the substantial communal
levee surrounding Rawlsburg holds firm and the community is spared.
“Now hold on!,” the libertarian retorts. “Surely, faced with this
common emergency, the folks at Randville would volunteer to build a
levee. That’s just common sense.”
Very well, but what about those Randvillians who say: “you guys go
right ahead and build that levee. I’d rather stay at home – I have
other priorities.” Surely the good libertarians wouldn’t want to
force anyone, in Ayn Rand's words, to sacrifice their interests to
those of others.
And so we have the well-known “free rider problem,” whereby an
individual gains unearned and cost-free advantage from the labor of
others. A profound injustice on the face of it. The solution? What
else than to coerce a contribution to the common effort, either by
labor or, failing that, cash assessments.
In other words, taxes.
So it comes to this: The only way for the Randvillians to deal with
“the free riders” is to coerce labor on the levees, or assess taxes
in lieu of labor. They must do so in behalf (are you ready for
this?) of the “common good” of the community-as-a-whole. Just as the
Rawlsburgers are doing across the river.
The Randville and Rawlsburg example is a fictitious
thought-experiment. If it seems far-fetched, then forget Randville
and think New Orleans, August, 2005.
Here's another case that is quite real, and even personal:
In April, 2003, California Governor Gray Davis requested $430
million in federal funds to reduce the fire hazard in the southern
California forests. The request was ignored until, on October 24,
George Bush formally rejected it. The very next day, “the Old Fire”
broke out in the San Bernardino mountains, followed by several more
fires, eventually consuming three quarter of a million acres and
3577 homes, and causing 22 fatalities.
This particular disaster struck close to home – precisely 150 feet
close to my home, where the fire was stopped at my property line.
“The Old Fire” almost surrounded the cluster of houses in our
neighborhood, and only the combined, coordinated and professional
effort of the US forest Service and the state and local firefighters
saved our homes. Several days earlier the county Sheriff ordered us
off the mountain while these “big government bureaucracies” did
their work – magnificently. Tibor Machan has a similar tale to tell
us about the wildfires of 2007.
Perhaps some libertarians would have preferred
to de-fund the government fire-control agencies and then to leave it
to each of us individual property owners to take a valiant stand by
our individual homes, garden hoses in hand. Who can doubt that had
we tried that, all our houses would have been reduced to ashes and
many of us would have ended up as “crispy critters.”
In his 2000 debate with Al Gore, George Bush said "I think you can
spend your money more wisely than the federal government can." In
November, 2003, all of us San Bernardino mountaineers – democrats,
republican, independents – were convinced, contrary to George Bush,
that “the government” spent our tax money better than we could.
The Courts and Torts Solution:
Martin Anderson, a former Reagan administration official writes
that "just as one does not have the right to drop a bag of garbage
on his neighbor's lawn, so does one not have the right to place any
garbage in the air or the water or the earth, if it in any way
violates the property rights of others."9 Pollution, by this account,
amounts to an assault upon a person or a person’s property. Tibor
Machan concurs:, "any pollution which would most likely lead to harm
being done to persons who have not consented to being put at risk of
such harm would have to be legally prohibited."10
Accordingly, the libertarians contend, environmental pollution and
can best be controlled, not by government regulation, but through
the injured citizens' recourse to the courts. Unfortunately, this
remedy, however appealing in theory, will not succeed in practice.
Experience has shown, time and again, that the unfortunate victims
of environmental pollution are simply unable to make their case,
however just. Here are three reasons:
As I noted above, my home and primary work place is in the San
Bernardino mountains, east of Los Angeles. While the air quality
there is much better than most other places in Southern California,
the westerly winds regularly bring Los Angeles air through my
property and into my lungs. (Until the state and federal governments
enforced regulations, the air quality in Los Angeles was the worst
in the United States). Another autobiographical fact that will soon
prove relevant to this discussion: thirty-five years ago I threw out
my pipes and tobacco and never smoked again.
Suppose, in another five years, I am diagnosed with lung cancer. The
doctors then tell me that after thirty-five years without a draw on
my pipe or a drag on a cigarette, my former smoking habit is an
unlikely cause. More likely, I have been victimized by southern
California air -- in particular, the exhaust fumes from some
According to the libertarians, my property and person have been
illegally assaulted, and I am entitled to compensation for my
injury. Moreover, they assure us, comparable rights of compensation
of all citizens, combined with a system of civil courts, will
suffice to put an end to all environmental pollution.
If the courts are to be my remedy, then which one of the twenty
million automobile owners am I to sue for the damage to my health
from air pollution? Which molecule from which car was "the last
straw" that mutated the fatal cell? Finally, how can we be sure
"beyond a reasonable doubt" that my pipe smoking was not the cause?
Because these questions are unanswerable, it appears that there is
no hope that I will be compensated.
Perhaps I should sue all the drivers – after all, my compensation
award divided by twenty million will not amount to a hardship to any
of these drivers. But I am not the only victim, so that assessment
will have to be multiplied by the number of authenticated
So here's a suggestion: require each driver to pay an "insurance
premium" with his driver's license, the proceeds of which will be
used to treat and compensate victims of air pollution, just as
mandatory auto insurance is used to compensate vehicle accident
victims. Unfortunately, unlike accident victims, those who are
injured by air pollution can not assign cause to any particular
defendants. Accordingly, the "premiums" will have to be collected
and the payments disbursed by an independent and impartial agency -
the government, of course. Finally, a small semantic correction:
call those "premiums" by their right name - "taxes." Voila! The
liberal solution, disparaged by libertarians and “conservatives” as
The Statistical Casualty
In the 1950s and early 1960s, the US Atomic Energy Commission
conducted atmospheric atomic tests in the western state of Nevada,
resulting in significant radioactive fallout in the southern part of
the adjacent state of Utah. Two decades later, there was an alarming
increase in lung and thyroid cancers among the residents of southern
Utah - primarily ranchers and farmers, whose Mormon religion forbids
the use of tobacco.11
Repeated suits against the United States government failed, due to
the following problem of "the statistical casualty." While
epidemiological studies determined beyond reasonable doubt that
there was a known percentage rise in the incidence of cancer, and
thus a known number of excess cases, no particular cancer patient
could be known to be a victim of the fallout. Even non-smokers
contract lung cancer, albeit rarely, from natural background
radiation and other sources. Thus, while it was virtually certain
that there were hundreds of victims of the fallout, no particular
individual victim could be identified. And that degree of doubt
sufficed to free the government of liability. As we shall see, the
same legal strategy has prevented all citizen-plaintiffs from
winning a single compensation suit against the tobacco industry,
though the US government has estimated that up to a half million
individuals die each year from smoking related diseases.
The Burden of Proof
Because of these considerations and others (e.g., synergisms,
threshold effects, time-lag effects, etc.), painfully real injuries,
diseases, and premature deaths to particular individuals are
routinely generated by causes, the evidence for which falls far
short of the legal burden of proof. Nor can this problem be remedied
simply by lowering the threshold of the burden of proof, for this
would open the floodgates of frivolous and meritless suits,
undermining, among other rights, the libertarians' cherished right
The history of the tobacco industry in the United States offers an
instructive lesson as to the efficacy of libertarians' private
lawsuit ("torts") response to a public health menace.
In 1962, the US Surgeon General, Dr. Luther Terry, released the
first report from his office on smoking and health. In the
intervening decades, as an enormous body of evidence has
accumulated, there has been little doubt among the scientific
community about the validity of the warnings of Dr. Terry and of all
his successors. Millions of American citizens have had their lives
cut short by tobacco-induced diseases, while the industry,
exercising its free market privileges, has invested millions more in
advertising and promotion to successfully lure still more victims.
During these decades, hundreds of victims of the tobacco industry
have sued for compensation. However, not a single individual
plaintiff has won a case against the industry. Finally, after more
than three decades of complete failure, the libertarian individual
tort remedy was discarded and the problem of the statistical
casualty sidestepped, as a consortium of state Attorneys General,
led by Mississippi’s Michael Moore, achieved a multi-billion dollar
settlement from the tobacco companies. The plaintiffs in these cases
were not individual smokers, but rather the states which had to pay
increased medical costs to the “class” of smokers. “The public
interest” succeeded where “invasion of individual rights” had
Similarly, the air that I breathe at my southern California mountain
home is significantly cleaner now than it was a generation ago, and
not because of successful law suits by citizens and property owners
against the polluters. Instead, the liberal’s remedy has been
applied as air quality has been improved through the laws and
regulations issuing from the state of California's Air Quality
Management District, and the federal Environmental Protection
Agency: in short, through Garrett Hardin's "mutual coercion,
mutually agreed upon." Aside from a few uncompromising libertarians
of my acquaintance, I know of no fellow Californians who would have
it any other way.
And finally, government regulation is prospective while law suits
are retrospective. And as we all know, an ounce of prevention is
worth a pound of cure.
In place of "government" (which John Hospers describes as "the most
dangerous institution known to man"12), the libertarians would
delegate the task of protecting property rights to the courts. But
is this a distinction with a difference? Aren't "the courts" an arm
of the government? And what assurance do we have that courts of law
won't be as tyrannical as "the government" that is so distrusted by
Whether more or less tyrannical, these courts are not likely to be
significantly less extensive, intrusive and bureaucratic than the
government agencies that they will presumably replace. To illustrate
this point, consider again my home in the San Bernardino mountains.
Suppose that I have decided to heat my house with a wood stove. How
am I to know beforehand that I will be safe from a pollution suit by
my neighbors -- since, by hypothesis, our libertarian government has
abolished all those "dictatorial" clean air standards? Clearly "the
courts" will have to define, in detail, acceptable and
non-acceptable effluent standards based on extensive scientific
research. And all this will all have to be done in advance of any
suit against me. Otherwise, the suit would be ex post facto, and
thus legally invalid. Similar questions arise with claims of damages
due to food poisoning, unsafe drugs, vehicle malfunction, etc.
The implication is clear: the libertarian reformers, having
disbanded the Environmental Protection Agency, the National
Institutes of Health, and other "big government" regulatory and
research agencies, will have to re-establish them if the courts are
to function under the enormously expanded burden of responsibility
handed to them by the libertarians. In short, the libertarian scheme
of "pollution control through the tort laws" does not eliminate
government, since it requires a reliable government to codify and
defend personal and property rights.
No one can doubt that many governments have proven to be "dangerous"
and tyrannical. But libertarians would have us believe that all
governments, per se, are not to be trusted - that "the best
government is no government." That claim requires an argument.
American history teaches us that because the founders of our
government were very suspicious of the powers and abuses of the
state, they first attempted, under the Articles of Confederation,
the sort of minimalist government that the libertarians might
endorse – a government that failed. Following that they tried again,
this time with a system of "checks and balances" that separated the
powers of government, and then they completed their task with a
"Bill of Rights" that explicitly stated limits on the powers of the
government over its citizens. Ultimately, the sovereignty over that
government resides in the voting public (or at least did so until
Bush v. Gore on December 12, 2000).. If we don't like the way we are
being governed, we can replace our leaders at the ballot box.
Unfortunately, if we don't like the way the telephone company or the
public utilities treat us, we can not vote their management out of
office - unless, of course, we are wealthy enough to own significant
amounts of stock in these companies. Yet these private interests
control our lives, without restraint - unless, of course, in accord
with liberal policy and contrary to the advice of the libertarians,
we have been wise and fortunate enough to enable our collective
surrogate, the government, to regulate these private interests in
Clearly, all governments, being institutions designed by imperfect
human beings, are imperfect to some degree. But no one has
effectively demonstrated that anarchy is to be preferred. Every
civilized human being lives under some system of government, for
better or worse. Perhaps there is some compelling reason for this.
Libertarians routinely trot out horror stories about government
waste, fraud, and abuse, and measure these troublesome anecdotes
alongside an unrealizable ideal of a "perfectly functioning market."
However, this argument commits the fallacy of disparate comparison
by comparing what the perfect market would do in theory with what
imperfect governmental agencies, at their worst, have done in fact.
No thoughtful liberal defender of public regulation of the environment in
liberal democracies will pretend that this approach is perfect. In
fact, as everyone knows, regulatory agencies are under constant
assault and their public service is constantly compromised, usually
by the very free market forces and private interests that are
celebrated by the libertarians. But if the libertarians have a
better alternative, then it must be shown to be preferable in
practice, rather than in ideal theory. However, history shows that
the unconstrained free market, privatization and the absence of
"government interference" has given us opium in cough medicine,
spoiled meat, child labor, mine disasters, black lung disease, air
and water pollution, depletion of natural resources, and now the
collapse of the financial markets.
The rise and persistence of government regulation of the environment
is no accident; it is an invention born of necessity. No industrial
society is without government, and constraints upon legitimate
governmental oversight of private enterprise can open opportunities
for private exploitation. The threat of suits after the fact did not
prevent the contamination of food or the abundance of unsafe and
ineffective drugs prior to the establishment of the Food and Drug
Administration. Moreover, even private interests recognize the
necessity of impartial "referees." Thus, for example, United States
history discloses that many of the regulatory agencies of the
Federal Government were established by petition from private
industry; notably, the Federal Communications Commission, which was
created in 1934 to oversee "traffic control" of the electro-magnetic
spectrum, without which the industry could not function. And no one
who has attempted to drive across Manhattan during a power outage is
inclined to believe that traffic signals are an unwarranted
governmental intrusion upon their personal freedom.
Even "the free market," that cornerstone of libertarian theory,
cannot survive without a governmental referee, for the unconstrained
and unregulated "free market" contains the seeds of its own
destruction. Though free market theorists are reluctant to admit it,
capitalists are not fond of free markets, since open and fair
competition forces them to invest in product development while they
cut their prices. Monopoly and the elimination of competition is the
ideal condition for the entrepreneur, and he will strive to achieve
it unless restrained not by conscience but by an outside agency
enforcing "anti-trust" laws. That agency, necessary for the
maintenance of the free market is, of course, the "government," so
despised by the libertarians. Evidence? Look to history. Then it was
John D. Rockefeller, now it is Bill Gates
Of course there is a sad history of governmental exploitation
(usually on behalf of the wealthy and powerful); but the remedy is
better government, not no government. When police and fire
departments are found to be imperfect, wise municipalities do not
abolish these services, they strive to improve them. Sadly, that is
not the response of many politicians to failing public schools.
When, during a football game, a referee makes a call against the
home team, the fans are often heard to shout: "Kill the Ref!" --
forgetting, for that moment, that without referees, the game could
Similarly, "abolish government" is another cry that issues from
frustration. Without a doubt, governments can be damned nuisances.
They require us to pay taxes, often for services that do not benefit
us or for benefits which we take for granted. Governments tell us
that we can't build homes and factories on public lands, that we
can't throw junk into the air and rivers, that we can't drive at any
speed we wish, and that we can't sell medicines without first
testing their safety and efficacy. All this curtails the freedom and
the wealth of some. But at the same time, such "government
interference" promotes the welfare of the others: of consumers,
travelers, ordinary citizens and, yes, property owners. Among the
liberal democracies, the constraints of "big government" tend to
burden the wealthy and powerful, while those same constraints
protect the poor and the weak, all of whom, in a just polity, are
equal citizens before the law.
If libertarian doctrine reflects and serves the interests of the
wealthy and powerful elites, how does one explain its attractiveness
to those less well served by this ideology? In the first place, the
foundational principles of libertarianism - the rights to life,
liberty, and property - are, in the abstract, compellingly
attractive. So much so that the liberal critics of libertarianism
rarely dispute this triad of principles - in the abstract. But the
libertarians embrace another principle, "the like liberty
principle," that proves to be the undoing of their ideology. For the
exercise of the "right to property" can threaten the life and
liberty of others, as in the case of the segregation laws in the
American south, prior to the enactment of the “liberal” public
accommodation laws. In general, the powerful and wealthy
individual's "freedom to choose" is routinely found to constrain the
same freedom in others. Then, as one attempts to comprehend this
tangle of inconsistent and competing rights and claims, one
discovers what most students of human society, psychology and
history already know and that defenders of political liberalism
affirm: that human beings are not merely isolated bundles of
“consumer preferences," but rather are fundamentally social
creatures. Accordingly, one also discovers that successful human
communities are characterized, not simply by competition and market
exchanges, but also by shared ideals and the paradoxical achievement
of individual self-fulfillment through self-sacrifice and
In short, libertarianism fails, not because it is wrong, but because
it is insufficiently and over-simplistically right. It correctly
celebrates the rights of life, liberty and property, and then fails
to deal with the conflicts and paradoxes that issue from the
exercise of these
rights. Moreover, the libertarian fails to appreciate that a just
system of adjudication of these rights and claims of presumably
equal citizens would necessarily restore much of the very
governmental structure that the libertarians would abolish and that
the liberals defend.
If the libertarian scheme of free markets, absolute property rights
and torts will not suffice to protect the rights of all citizens and
the integrity of the natural environment, then what will?
Here's a modest, if familiar, proposal. Let the public in general
establish an agent to act in its behalf, and as the guarantor of the
commonly held values and aspirations of the polity. And then let
that agent first determine and then enforce rules for the optimum
sustainable use of the necessarily "common resources" (e.g. the
atmosphere, the hydrological cycle, migrating wildlife, etc.). And
if the public is not satisfied with how that agent is acting in its
behalf, it then has the right to replace that agent with another.
Such a system is in fact in place: the "agent" is called
"government," the rules are called "environmental law and
regulation," and the system of checks against the abuse of power is
called "democracy." In the United States Constitution, as well as the supreme
law of numerous other liberal democracies, the freedom and integrity
of the individual (i.e., one's rights to life, liberty and property)
are protected, even from "the tyranny of the majority."
In conclusion, I have argued today, and elsewhere more extensively,
that in numerous cases the libertarian doctrines of social atomism,
unfettered free markets, inviolable property rights, and unconfined personal liberty, bear
morally indefensible and practically unmanageable implications. In
contrast, these implications are avoided by the liberal assumptions:
(a) that human beings are essentially social creatures,
(b) that morality and justice are independent of, and indeed the
foundations of, ideal market mechanisms,
(c) that in readily identifiable instances, advantages to each
result in ruin for all,
(d) that, conversely, advantages to all require sacrifices (e.g.
taxes) upon each, and finally
(e) that, accordingly, optimal social policies are assessed from
“the moral point of view” – from the perspective of the “ideal
disinterested spectator.” (John Rawls’s “Original Position”).
Accordingly, the liberal concludes, human excellence, social harmony
and, yes, personal liberty for all, can best be accomplished through
the agency of a government answerable to the people, and through the
rule of law, applied impartially and equally to all.
Admittedly, the liberal democracy and regulated capitalism that I
would recommend is not perfect -- nor is any human institution under
the sun. But an anecdotal inventory of the shortcomings of public
regulation of the environment does not, by itself, constitute a
repudiation of the existing system.. What is required is a clear and
persuasive presentation of a better, workable, alternative. This the
libertarians have not offered us. Nor can they, as long as anyone
pays more than casual attention to human psychology, ecological
necessities, and the lessons of history.
Note: This essay includes portions of a published article,
“With Liberty for
Some” (Environmental Philosophy, Fourth Edition, Zimmerman et al,
Prentice Hall, 2005), and several essays previously published in
The Crisis Papers and
The Online Gadfly as indicated by
the links in the essay.
Supporting Essays by Ernest
(Annotations to be
A comprehensive critique of the libertarian
approach to environmental policy. (The second half of this
presentation is drawn from this essay).
Chapters in Conscience of a Progressive.
(Unpublished work in progress).
A critical examination of neo-classical economic
Refereed Journal Publications.
With Liberty for Some. (Noted above)
In Search of
Why economics fails as a sole foundation of
public policy. (Briefer
A critique of Julian Simon’s “The Ultimate
Privatized Hell Revisited.
Why the privatizing of public services fails.
Case in point: the California wildfires. See also:
“The California Wildfires and Right-Wing Smoke”
Road to Catastrophe.
Three libertarian doctrines, embraced by recent
Republican administrations, have led to the current economic
crisis. They are: social atomism, market absolutism, and
Failure: The Back of The Invisible Hand.
Scorpion, The Frog, and the Corporation.
Two out of three cheers for capitalism: an
invaluable servant, but a ruthless master. To prevent which,
"Governments are instituted among men [and women], deriving
their just powers from the consent of the governed.”
Evil as the Absence of Empathy
1. John Stuart
Mill, On Liberty, Chapter I.
A Theory of
Justice, Harvard, 1971, p. 250.
3. Quoted by David Boaz,
Libertarianism: A Primer, p. 96
Ibid, p. 95.
5. John Rawls,
A Theory of Justice, Harvard, 1971, p. 4.
6. Ibid, pp. 40, 185.
7. Milton and Rose Friedman:
Free to Choose, pp 13-14).
8. The Title of an article by
Milton Friedman in the New York Times Magazine, September 13,
9. From an untitled
Christian Science Monitor article, January 4, 1989. Quoted by
Walter E. Block, ed., Economics and the Environment: A
Reconciliation. (Vancouver, Fraser Institute, 1990).
10. "Pollution and
Political Theory," Regan (ed.), Earthbound: New Introductory
Essays in Environmental Ethics, (New York: Random House), p. 97.
11. Stewart L. Udall, The
Myths of August, New York: Pantheon, 1994, Chapter 11.
Hospers, "What Libertarian Is," The Libertarian
Alternative, (ed.), Tibor R. Machan, New York: Nelson Hall.