Environmental Ethics
and Public Policy
Ernest Partridge, Ph.D

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Environmental Justice and "Shared Fate"

A Contractarian Defense of Fair Compensation


By Ernest Partridge
University of California, Riverside

This paper follows Prof. Stella Capek's "The Environmental Justice Frame..." in the Winter/Spring, 1996 issue of Human Ecology Review. In her paper, Prof. Capek studies "the emergence and application" of the concept of "environmental justice" in the Carver Terrace community of Texarkana, Texas -- an African-American neighborhood contaminated by toxic waste left by a creosote and lumber facility. The particulars of the Carver Terrace case, which are very similar to the Times Beach and Love Canal cases, are not essential to this paper, which stands alone independently of Capek's paper.

In my Abstract to the published paper, I note that "Prof. Capek's paper ..., is an insightful account of the emergence of a collective conception of environmental injustice in the Carver Terrace community. It further describes how this sense of injustice focused a successful effort to obtain compensation for damages. Missing from this account (and appropriately so) is the question of whether that claim for compensation was ethically justifiable. That latter question is the concern, not of sociology but of moral and political philosophy. This essay affirms that the residents' claim for compensation was in fact justifiable. In making this case, this paper critically examines the "free-market libertarian" argument against compensation -- an argument that is influential in current American political debate and policy. According to the libertarian position, the residents were victims, not of injustice, but of misfortune. To the contrary, I argue on the grounds of social contract theory that the Carver Terrace Community suffered an injustice, and was due compensation from the Federal Government."

I am grateful to the Society for Human Ecology, and to the Co-Editor of the Human Ecology Review for permission to use this essay.

Prof. Capek has given us a sociology paper that a non-sociologist (such as myself) can admire and enjoy. It is engaging, fluent, clear, and refreshingly free of the quantification and jargon that bedevils sociological discourse... [However], the work leaves unaddressed (as it should) some fundamental questions: Were the complaints of "environmental injustice" raised by the residents of Carver Terrace, morally defensible? Were the residents, in fact, treated unfairly? If so, then by whom? Did the remedies, namely suits against the successor corporation and federal government for compensation, only transfer the injustice to other unconsenting, innocent parties -- notably, current stockholders and the taxpayers? Though Prof. Capek's sympathies (and mine) are clearly with the residents, the case for compensation is neither self-evident nor without a contrary argument. The case for no compensation, far from being insignificant, utilizes ethical and political theories which have come to dominate contemporary political rhetoric and practice. Accordingly, this case must be taken very seriously.

The Libertarian Case Against Compensation.

Perhaps the most significant philosophical argument against compensation of the Carver Terrace residents may be found in the moral-political theory of libertarianism. It is significant, both for the thoroughness and clarity of its argument, and for the fact that it is widely accepted and cited by the resurgent "conservatism" that so dominates our media and politics today.

Because "libertarianism" is a school of thought, it is impossible to summarize the theory in a manner that does justice to the varieties, nuances, and qualifications of its many adherents. Moreover, there are significant differences between the scholarly "theoreticians" and the political and journalistic advocates.(1)

Mindful of these limitations, I believe that it is possible to state the fundamental tenets of the theory.

To the libertarian, the Lockean rights of the individual to life, liberty, and property are fundamental. Because these rights reside in the individual, the only legitimate function of government is to protect these rights from usurpation by other individuals or institutions -- especially the government itself which, according to John Hospers, is "the most dangerous institution known to man." (Hospers, 1974). Accordingly, the scope of government must be scrupulously confined to the protection of life, liberty and property from foreign enemies (through the military), from domestic enemies (through the police and criminal courts), and from the private activities of others (through the civil courts). This last function of government is justified by the maxim that each individual is entitled to maximum liberty consistent with "like liberty" of others -- i.e., that I am forbidden only to constrain the liberty of my fellow citizens.

Thus Libertarians stress so-called negative rights (or "liberty rights") which entail duties of forbearance on the part of others. For example, my right to free speech entails your duty not to prevent that speech. However, to the libertarian, there are no "positive" or "welfare rights" -- which entail the duty of individuals or of government to positively provide benefits or sustenance to others.

William Bayes expresses the essence of libertarianism with admirable clarity:

The freedom to engage in any type of enterprise, to produce, to own and control property, to buy and sell on the free market, is derived from the rights to life, liberty, and property ... [but] when a government guarantees a "right" to an education or parity on farm products or a guaranteed annual income, it is staking a claim on the property of one group of citizens for the sake of another group. In short, it is violating one of the fundamental rights it was instituted to protect...

All that which an individual possesses by right (including his life and property) are morally his to use, dispose of and even destroy, as he sees fit....

Where do my rights end? Where yours begin. I may do anything I wish with my own life, liberty and property without your consent; but I may do nothing with your life, liberty an property without your consent.... (Bayes, 1970).

The preceding quotation indicates the libertarian's objection to compensation to the Carver Terrace residents. By petitioning the stockholders of Beazer East, Inc., and then the Federal Government for compensation, the residents were illegitimately "staking a claim on the property of one group of citizens for the sake of another group."

Yet there seems to be something intuitively wrong with "sticking" the residents of Carver Terrace with the costs brought on by the criminal neglect of the now-defunct Koppers Corporation. As clarification of the libertarian's case against compensation, imagine the following dialogue between "Adam," a free-market libertarian, and "Raul," a "welfare liberal."

Adam: Granted, it is, in a sense, "unfair" that the Carver Terrace residents should suffer from the health effects of their polluted neighborhood. But "life is unfair," and often the unfairness of life simply cannot be justly compensated. If there is an identifiable culprit responsible for another's misfortune, then legal and moral redress may be in order. But this is not so in the Carver Terrace case. And with no identifiable culprit, the so-called "injustice" of their plight can only be transferred to other unconsenting innocent victims; namely, the stockholders or the taxpayers. And this would be a genuine injustice. So, absent an identifiable culprit, rather than call the plight of the residents an "injustice," I'd prefer to call it a "misfortune."

Raul: But isn't the Koppers Corporation, or its successor, Beaser East, Inc., responsible?

Adam: Not at all. To begin with, you are casually accepting the "legal fiction" that a corporation is a "jural person." In point of fact, a "corporation" is an abstraction -- a legal entity, without flesh, blood, nerve-endings or emotions. True, managerial decisions are made in behalf of corporations (or more correctly, their stockholders, employees and customers). If an identifiable manager knowingly injures an innocent party, then that party is entitled to compensation. But what if the injury is not, and cannot be, anticipated? More to the point, what if the decision that leads to the injury is so far removed in time that the guilty executive is deceased? What if the offending corporation is defunct or, as in this case, absorbed by another? Then who is to be held responsible? The current stockholders of Beaser East, who had no part in the decision? The innocent customers of Beaser East, who will bear part of the burden of the compensation, through higher prices?

Raul: As it turned out, most of the burden of compensation was assumed, not by the corporation, but by the federal government. After all, the damages far exceeded the resources of those responsible.

Adam: What you mean, of course, is that the burden was assumed by the American taxpayers. What is the justice in this decision? Surely those taxpayers are in no way responsible for the misfortunes of the Carver Terrace residents. Why then should they be charged compensation? In fact, as you acknowledge, there are no identifiable culprits who could justly be held responsible to the victims.

Raul: But surely someone should pay!

Adam: And someone does: the unfortunate residents. With no responsible party in sight, they are stuck with their problem -- like victims of a plague, or a tornado, or an earthquake. That's just too bad, but as we said, "life is unfair."

Raul: But don't you see? The victims got into their bind because they were poor: the only property they could buy turned out to be built over a toxic waste dump. The so-called "environmental injustice" turns out to be the result of economic injustice.

Adam: Of course, the wealth is unevenly distributed. We all know that. But unjustly so? I don't think so. This so-called "maldistribution of wealth" is the result of the free market -- what Robert Nozick has cleverly characterized as "capitalistic acts between consenting adults." (Nozick, 1974) Accordingly, if no unjust action has led to the current distribution of wealth, that distribution can not itself be characterized as unjust.(2) Returning to the case in point, if no unjust transaction has led to the poverty which brought the Carver Terrace residents to their polluted neighborhood, then they have no valid claims on any person or corporation, and surely no claims on the taxpayers.

Raul: Aren't we then piling misfortune on the poor, who cannot escape from their plight?

Adam: But they can escape, as many do. So long as we have a free economy, many of these alleged "victims" have the opportunity, through their own initiative, to work and "buy" themselves out of their difficulties -- again, as many have! Now if those opportunities are not equal, then it is arguably the function of the state to secure these opportunities. But now we are talking about discrimination, not economic injustice. And that is a separate issue.

Raul: Have you no pity for these unfortunate victims?

Adam: Oh, I have pity, all right! And it would be a good thing if they received relief from their losses. Perhaps we should set up a private fund, and solicit donations. All those who contributed would deserve our admiration for their compassion and generousness. They would be so admired because they freely gave of their own property. But because it is their property, they must not be compelled to give it to the victims. In short, what's mine is mine! I earned it. I can give it away, but you can't take it from me!

Within the lifetime of most of us, "Adam's" views have migrated in the political spectrum from the "fringes" to the center of respectable debate. Claiming the justification of such arguments as these, the 104th Congress has voted to drastically cut the budget and curtail the enforcement of the Environmental Protection Agency.

A Critique of Libertarianism:

Thus presented, with stark simplicity and brevity, the libertarian view seems very attractive -- and it has proven to be so in contemporary political and economic debate. That very simplicity, I submit, is the undoing of the libertarian doctrine. For like the economic theory which supports much of it, the libertarian view is based upon an abstract model which excludes essential conditions and pre-requisites of human society. A comment of unknown origin sums it up: "the theory is beautiful -- it's reality that I can't figure out."

A refutation of free-market libertarianism requires a lengthy book of argumentation, at the very least. However, I believe that the most salient components of that argument might be identified.

1. First and foremost, the Libertarian regards a morally well-ordered society as a free gift, to which nothing is owed for its maintenance. Thus redistribution of wealth, care for the weak and unfortunate, support of education, the arts and the environment, the promotion of civic pride -- none of these are required of the citizen. True, private donations to these amenities and charities are morally praiseworthy, but they cannot legitimately be supported by required tax assessments. To do so, they argue, would constitute involuntary appropriation of private property.

Central to our criticism of libertarianism is John Rawls's concept of the "well-ordered society. A society is "well-ordered," he writes:

when it is not only designed to advance the good of its members but when it is also effectively regulated by a public conception of justice. That is, it is a society in which (1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles... Among individuals with disparate aims and purposes a shared conception of justice establishes the bonds of civic friendship..." (Rawls, 1971, 4-5. See also pp. 453-462).

In fact, every citizen of a well-ordered society, without exception and whatever his accomplishment, bears an enormous burden of moral debt to both his predecessors and his contemporaries. In a democratic society, the appropriate institution for the payment of that debt is the government. The British sociologist, L. T. Hobhouse, made the point supremely well, when he wrote:

The organizer of industry who thinks he has 'made' himself and his business has found a whole social system ready to his hand in skilled workers, machinery, a market, peace and order -- a vast apparatus and a pervasive atmosphere, the joint creation of millions of men and scores of generations. Take away the whole social factor, and we have not Robinson Crusoe with his salvage from the wreck and his acquired knowledge, but the native savage living on roots, berries and vermin. (Hobhouse, 1974)

To appreciate the scope of this "debt," imagine an entrepreneur, characteristically "fed up with big government interference," who calls his travel agent to book a flight to a business meeting on the opposite coast. That simple transaction would have been impossible without the "interference" (in part) of the National Weather Service, the Air Traffic Control system, the Federal Communications Commission, the Federal Reserve System, and countless additional "government bureaucracies." Because these agencies oversee the public "commons" and serve as referees of private commerce, they can not be privatized -- any more than courts can be privatized.

Equally significant as these public agencies is the "moral tone" of the "well ordered society;" the sense of safety and well-being which accompanies the implicit and widespread expectation among the citizenry of fair-play, trustworthiness, and empathy -- a condition founded upon the general acknowledgment that all citizens "have a stake in" the existing politico-economic order. It is not a mere accident of good fortune that America is not Lebanon, or Northern Ireland, or Bosnia. It is not without reason that we enjoy, by contrast, the benefits of what Rawls calls "civic friendship." These benefits have been and must forever be purchased, in part, through the support of public institutions that support education, culture, popular government, and publicly owned natural areas. And as Aldo Leopold taught us, in such a society, "land" must be regarded, not as a commodity and an aggregate of private holdings, but as a "community" to which the populace "belongs." Probably no pre-supposition of libertarianism is more misguided and more dangerous than the assumption of the "free gift of the well-ordered society."

2. The "free market" of "capitalist acts by consenting adults" is not a natural and inherently stable state of affairs. On the contrary, it is an inherently unstable condition containing the seeds of its own destruction -- a "positive feedback system" wherein the race goes to the advantaged, and the predestined result of laissez faire competition is monopoly and the destruction of competition. (The history of cartels and the necessity of countervailing anti-trust legislation testify to this fact). Accordingly, "free markets" must be regulated and maintained by "referees" -- external agencies that enforce competition and frustrate tendencies toward monopolies. That external agency, necessary for the maintenance of the market is, of course, the "government" so despised by "free market libertarians."

3. "Free market theory" is based on an ideal-type theoretical "model" ("the perfect market") which has never existed, because it can never exist. The "perfect market" is comprised of transactions by "economic men" (purely egoistic "utility-maximizers" which, fortunately, also do not exist). The "perfect market" hypothesizes (a) perfect information by buyer and seller (impossible, especially in the age of advertisement), (b) no transaction costs, (c) free entry and open competition by a virtually infinite number of buyers and sellers, (d) no externalities -- i.e., no positive or negative effects upon unconsenting "third parties." (VandDeVeer and Peirce, 1986; Freeman, 1986) None of these conditions in fact obtain in "the real world" in which we all live. (Sagoff, 1988)

4. Nozick and other libertarians are what philosophers call "radical reductionists," as they proclaim that the sum of isolated, morally permissible private acts necessarily results in a condition (e.g., income distribution) which is likewise morally innocent. Thus, by this account, an economic distribution resulting from uncoerced private acts cannot, in principle, be unjust. Only a few uncompromising free-market libertarian ideologues, and apparently more than a few conservative congressmen, can seriously believe this doctrine.(3)

In point of fact, social and economic reality, not to mention practical life, totally refutes this strange notion of "radical reductionism." Free-market libertarians are themselves fundamentally inconsistent about this dogma, as they proclaim, with Adam Smith, that "economic man" who "intends only his own gain [is] led by an invisible hand to promote the public interest." (Smith. 1937). Of course, Adam Smith's "invisible hand," contrary to libertarian reductionism, gives rise to "positive externalities" -- "public goods" additional to and emergent from the sum of private economic acts. However, the libertarians routinely fail to acknowledge that there is a "back of the invisible hand," namely "negative externalities" currently known as "tragedies of the commons," whereby, in Garrett Hardin's memorable words, "ruin is the destination toward which all men rush, each pursuing his own best interest..." (Hardin, 1968) "Negative externalities" such as pollution and urban decay are compellingly obvious in practical experience and environmental policy-making. Indeed, political philosophers from Aristotle on have cited the necessity to manage and mitigate "negative externalities" as the essential justification of the state.

5. To the Libertarians, the only legitimate function of government is to protect life, liberty and property -- which is to say, the only legitimate public institutions are the military, the police, and the courts. But the boundaries of even these functions are not clearly defined, nor do the full implications of these "rights" end where the libertarians might expect. Arguably, the maintenance of "civic friendship" and the "well ordered society," promoted by such contractarian theorists as Rawls, falls under the libertarian criteria. For it may be the case that "life, liberty and property," can only be secured only if society is "well-ordered," and "civic friendship" obtains -- that is, when the critical mass of citizens recognize their common stake in a "shared fate," when, in a word, they have a well-founded loyalty to their contract-state. But such a society must be a community, and not the aggregate of "utility maximizing egoists," envisioned by the free-market libertarians. Again, we ask, how secure are "life, liberty and property" in the failed communities of Bosnia and Ulster? Wealth can be acquired and maintained only in a system wherein the most and the least advantaged share a communal loyalty to the system under which that wealth was acquired. But once the least advantaged no longer feel that they have a stake in the system, then the wealth of the advantaged becomes vulnerable to revolution. In short, it is not at all clear that the "minimal state" required to secure the libertarian rights to life, liberty and property is all that "minimal."

The thoughtful libertarian scholar will object, with some justification, that I have simplified and distorted his theory in order to concoct an outrageous "target of critical convenience." Apart from the expected excuse of space constraints, I would reply that the "caricature" that I have attacked, while arguably unfair to thoughtful libertarians, is not far removed from the ideal "minimalist state" that we hear of in congressional debate, political campaign rhetoric, and the popular media. If so, then it is an idea of enormous practical significance and thus deserving of our critical attention.

A Contractarian Alternative

There is a radically different view which rejects the fundamental assumptions of the libertarian free-market position. This view, "contract theory," also seems implicit in the demands of the Carver Terrace community for "environmental justice." When closely examined, I submit that "contract theory" provides valid moral justification for the claims of that community for just compensation.

"Contract theory" regards society as a "plus sum game" -- a "cooperative venture for mutual advantage" (Rawls, 1971) -- whereby each individual gains far more in community than he would in isolation.(4)

By this account, governmental activity is justified when it facilitates and enhances this "mutual advantage." When government fails to thus serve its citizens, its has, in effect, "voided its contract" and the citizens are entitled to revision or replacement of that government. Modern contract theory goes beyond this Lockean-Jeffersonian justification of government, to validate the principles of justice that underlie popular government.

This "contract" is "hypothetical" since we can not opt out of the contract. Once we as individuals have achieved self-consciousness and have acquired the necessary advantages of social life and culture (which are absolute pre-requisites to becoming, for example, libertarian entrepreneurs), we are already beneficiaries with a debt owed to that society and our fellow citizens -- i.e., we are contractors. Though "hypothetical," the contract is not irrevocable or pre-rational. For while we inevitably find ourselves in some society, we can nonetheless identify and articulate the principles of justice that a government should exhibit and sustain -- which is exactly what Hobbes, Locke, Rousseau, Kant, Jefferson, and most recently, John Rawls have done.

In the words of its foremost contemporary exponent, John Rawls, this "hypothetical contractarian" theory asserts, that . . . "[A] society is a more or less self-sufficient association of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them. . . . [T]hese rules specify a system of cooperation designed to advance the good of those taking part in it." (Rawls, 1971) Furthermore, Rawls argues, these are principles of justice that a hypothetical rational individual would choose, if he were apprized of the fundamental requirements of human satisfaction and the general facts about possible and actual social arrangements, while ignorant of the peculiar conditions of his personal life. Thus, in choosing rules of justice for himself, he would be choosing for all members of society. Accordingly, this theory of "Justice as Fairness," as Rawls calls it, accords equal weight to the demands for justice of each citizen, and holds that no one deserves the advantages or disadvantages into which he is born. Unequal distributions of income are justifiable only if this inequality benefits both the most and the least advantaged members of society. In a Rawlsian society, justice requires that to some degree, each member of society "shares the fate" of the others, while, at the same time, the freedom, dignity and autonomy of each individual is scrupulously respected.(5)

It follows that the residents of Carver Terrace are due compensation according to basic principles of justice which, Rawls argues, the bold Libertarian would himself adopt, if he no longer knew of his privileged station in society, and were he to realize that he might well find himself, not a beneficiary, but a victim of the sort of radically individualistic order that he defends. He would himself demand compensation, that is, were he to find that his humble residence (his primary personal investment), was situated upon an industrial toxic dump site, and that he was thus obliged without warning or consent to pay the "externalized" cost of distant private corporate transactions by individuals too anonymous to be held to account. And if the libertarian believes otherwise (as he manifestly does), then this is only because he draws his theories from his perspective of personal advantage, and with the false belief that these advantages are completely of his own making, with nothing whatever owed to the individuals and institutions that in fact made these advantages possible.

The claims of the Carver Terrace residents exhibit a particular interpretation of the "social contract" -- what we might call "the insurance policy model." By this account, government compensation might be regarded as a kind of insurance payment, the "premiums" of which are paid in taxes by all, including those fortunate individuals who have benefited from an economy which has "externalized" the costs of growth and prosperity upon the weak and the poor, who are most likely to be victims of environmental injustice.(6)

This "insurance policy" further stipulates that "insurance claims" may be made by, and compensatory payments disbursed to, those "policy holders" who have fallen victim to unforeseen misfortune.

The "public premiums" (i.e., taxes) support much more, of course; in particular, they support and assure the benefits of political union enumerated in the Preamble of our Constitution, and the rights secured by the first Ten Amendments to that Constitution. The public "insurance policy" is explicated by our founding documents. The "by laws" of the contract are enacted by our state legislatures and the Congress.

As we are daily reminded, much of our government's tax revenues is lost to "waste, fraud and abuse," against which we must be constantly vigilant. But no human institution is perfect, thus some losses must be expected. Despite these manifest imperfections, the advantages of this contract, and the economic prosperity made possible by the sustenance of the "well-ordered society" which it secures, far outweigh the personal costs in tax payments to the state. We gain far more than we give.

If this account correctly describes and validates our social contract, it follows that the residents of Carver Terrace are entitled to federal compensation, as "policy-holders" in the insurance contract that is our body-politic.

But if this is no longer the case -- if we are now to replace these established political beliefs with a radical, "look out for Number One," individualism -- then such victims of injustice as the residents of Carver Terrace must conclude, at long last, that their contract has been voided and that they may thus no longer expect protection and compensation from injustice. It follows that they can no longer regard this new political order as "their government," and that the common communal bond which has sustained communal peace in our society has been forfeited. Ahead lies our own Bosnia, Lebanon and Ulster.(7)

Toward an Accommodation Between Environmentalism and Racial Justice:

The civil rights activists have not been enthusiastic and early supporters of broader environmental concerns. This is understandable, as we recall the histories of both the civil rights and the environmental movements. The sixties were the defining decade of the civil rights movement. And yet, as the sixties closed with urgent matters of racial and economic justice unresolved, and just two years after the murder of Martin Luther King, the first "Earth Day" was celebrated in April, 1970, and public attention was drawn to a new issue: the environment.

The consternation that this caused in the civil rights community was typified in Robert Chrisman's 1970 essay, "Ecology is a Racist Shuck:"

The ecology movement has provided Americans a diversion from ... the black liberation struggle ... [T]he establishment has skillfully manipulated the movement....

... The national liberation struggles of black and Third World peoples throughout the United States and the world have exerted tremendous pressure upon the economic, political and cultural conditions of white America, and the ecology movement has emerged as a conservative reaction to those struggles.... (Chrisman, 1970)

The primary complaints of the civil rights activists are, first, that the preservationist concerns of the Sierra Club and the Wilderness Society are derived from interest of elites to protect their playgrounds. Second, ecologists' concerns about population growth are focused on the third world -- the world of color. Thus, it is argued, "Zero Population Growth" is an ill-disguised manifestation of racism. Moreover, the critics point out, environmentalists seem much more concerned about the increase in Third-World population than they do about the exponential rise in "First-World" resource consumption and pollution. The counter-complaints against the resource-appetite of the "North" and the population growth of the "South" have been voiced in numerous international environmental conferences -- recently and significantly at the Rio de Janeiro "Earth Summit" in 1972.

While the hypothetical contract theory justifies the claim of the Carver Terrace residents against the corporate polluters and the government agencies, it does not justify the belated and partial attention of the disadvantaged minorities to the larger environmental issues, though it does justify their complaint that the affluent societies give inadequate attention to their profligate waste of global resources, and that in that wasteful "First World," it is more often the poor that are most seriously affected by environmental pollution. The same principles of environmental justice which require that the victims of Carver Terrace be compensated, require that the affluent nations curb their appetite for non-renewable resources and that they invest in ecologically benign technologies, and furthermore that the poor nations control their fertility with the objective of bringing their populations to stable and sustainable levels. All the various nations of this single planet must protect this planet's biodiversity and life-support systems.

Accordingly, a continuation of the rivalry between the civil rights and environmental movements can only harm both and work to the advantage of their common adversaries. The fact is that both rivals are correct: both resource greed and population growth threaten the planetary life-support system, upon which all people and nations, rich and poor, depend. That is reason enough for accommodation. For we all "share our fate," not only as members of separate societies, but also as members of a single species occupying a single planet with a common atmosphere, ocean, and biotic inheritance. Furthermore, we are a species united in time in what Edmund Burke called "a partnership not only between those who are living, but between those who are living, those who are dead and those who are to be born." Or, to quote a proverb popular among environmentalists: "we have not inherited the world from our parents, we are borrowing it from our children."

In Summary:

Why, in this time of common global threat and "shared fate," has politico-economic individualism and privatism become the prominent public ideology? That is a serious question for the historian and the sociologist. If we find a plausible answer, we will be better equipped to deal with this dogma. It has been this moral philosopher's task to demonstrate that free-market libertarianism is both morally indefensible and practically inappropriate for the conditions of contemporary life -- if not, indeed, for all modes of social life.

To Sum Up: The fundamental weakness of libertarianism lies, not in its precepts, but in its simplicity. The libertarian's celebration of the rights of life, liberty and property, is both attractive and, on its face, admirable. But it is fatally superficial, for missing from this moral platform is the sense of balance and of paradox, and an acknowledgment of prerequisites, that characterizes a well-considered moral theory. As Spinoza observed, "freedom is the recognition of necessity." Moreover, personal liberty and privacy are most secure in a community of shared ideals and shared fate. And finally, personal rights logically entail duties and responsibilities. As the "communitarian" Amatai Etzioni observes, those who demand their "right" to a jury trial, are in no position to refuse jury duty.

Free trade and open markets have unquestionably produced untold benefits to modern society. But a well-ordered community, necessary for the sustenance of flourishing free-markets, is not achieved and sustained without persistent care -- it is not a free gift. We have learned through practical experience that the complexities of modern industrial society can not be maintained without regulation, and that "market failures" (i.e., "negative externalities") must be corrected by non-market agencies, through compensations and redistributions that are just and fair. We have also learned that simple formulas at the extremes are unworkable: The attempt to operate a modern economy by "command" and without markets ended in spectacular failure with the collapse of Communism. An attempt to accomplish the opposite extreme: a modern economy without plan or regulation -- as the simple summation of all private free market transactions -- has never succeeded, and not without reason. We may be facing anew a costly demonstration of the inadequacies of unconstrained free-markets, having failed to learn from the previous experiment in the 1920s.

The residents of Carver Terrace acquired their property according to the laws of their state and country -- the "clauses" of their "contract." Presumably, they paid their taxes, voted in their elections, and, when called upon, their sons went to war to defend their country. They were thus bonafide "policy-holders" in the "insurance policy" of federal protection. When disaster relief went to victims of Florida hurricanes and California earthquakes, the Carver Terrace residents did not complain that their fellow citizens were illegitimately "staking a claim on [their] property." (Cf. Bayles, above) And when it came their turn to seek relief, they were entitled to claim payment from their "policy" with full justification and without embarrassment.

How strange it is, that some prominent political voices seem to be telling us otherwise!

Copyright, 1996, by Ernest Partridge



1. Perhaps the most conspicuous difference between the scholars and the politicians concerns matters of private conduct. While libertarian economic doctrine is enthusiastically embraced by the platforms of the Republican Party, those same platforms are in fundamental disagreement with libertarian views regarding censorship, abortion, sexual preference, free expression (e.g., flag burning), and religious practice (e.g., school prayer). The libertarian position regarding these latter issues is much more in harmony with the "ultra-liberal" Civil Liberties Union than the "conservative" Republican Party. For this reason (and others), I am very suspicious of the word "conservative" as it is used in contemporary political rhetoric. That suspicion will be manifest in this paper by the use of quotation marks and such qualifications as "so-called ..." etc.

2. Nozick's argument for this conclusion is justly celebrated: Suppose Wilt Chamberlain (more currently, Michael Jordan) signed a contract whereby each purchaser of a ticket to his games paid a quarter directly to Chamberlain. If, at the end of the season, a million patrons did so, Chamberlain would receive $250,000. This is, Nozick points out, "a much larger sum than the average income and larger even than anyone else has. Is he entitled to this income? Is this new distribution ... unjust? If so, why?" To Nozick, the questions are rhetorical. He concludes that there is no injustice in the redistribution. (Nozick, 1974. 161).

3. Strictly speaking, Nozick does not endorse the extreme and simplified position presented here. The "end result distribution" of private transaction can only be just if certain "side constraints" and "rules of rectification" are inviolate in these transactions. However, Nozick believes that in the "real world," these qualifications make little practical difference, and thus that his libertarian conclusion remains essentially intact. (Nozick, 179, 182) My own view is that, far from being practically insignificant, these constraints and provisos effective undermine and refute his justification for the libertarian state. Unfortunately, I haven't the space here either to give a fair representation of Nozick's views, or my critique thereof.

4. Unlike the radically atomistic libertarian approach, contractarian theory regards society as an "emergent" system, and thus with properties of the whole that are qualitatively different than the mere summation of its parts. By this account, it is not only possible, it is actually the case, that (contrary to Nozick) the summation of individually permissible "capitalistic acts" can add up to unjust distributions of both income and opportunity.

5. The presumption of this brief paragraph is audacious: it is nothing less than a summary of the essential tenets of an ethical theory that is extensively, elegantly and scrupulously argued and expounded, in an acknowledged philosophical masterpiece comprising almost six-hundred pages. Yet my task in this essay requires that I make this attempt, and that I do so briefly.

6. True, the tax benefits are not apportioned fairly between the poor and the rich. But this is a separable issue from that of compensation, in that the unfairness of the tax system is not argument for its abolition, but rather for its correction.



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Chrisman, R. (1970). "Ecology is a Racist Shuck." Scanlon's Monthly, I (August), 46.

Freeman, A. M. (1986). The Ethical Basis of the Economic View of the Environment. (eds) VanDeVeer and Peirce, People, Penguins and Plastic Trees (1st ed). Belmont, CA: Wasdworth. 220.

Hardin, G. (1968). The Tragedy of the Commons, Science, 162: 1243 (13 De. 1968).

Hobhouse, L. T. (1974). Quoted by Paul Samuelson, Newseeek. Dec. 30, 1974, p. 54.

Hospers, John. (1974). What Libertarianism Is, The Libertarian Alternative, (ed.) Tibor R. Machan, New York: Nelson Hall.

Nozick, Robert. (1974). Anarchy, State and Utopia. New York: Basic Books.

Rawls, John. (1971). A Theory of Justice. Cambridge, MA: Harvard. 1-5, 453-62.

Sagoff, M. (1988). The Economy of the Earth, New York: Cambridge, 1-74.

Smith, Adam (1776). The Wealth of Nations, New York: Modern Library, 1937. 423.

VanDeVeer D. and Peirce, C. (1986). Letting the Market Decide: Is Efficiency Overrated? (eds)

VanDeVeer / Peirce, People, Penguins, Plastic Trees (1st ed). Belmont, CA: Wadsworth. 209.


Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He has taught Philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The Online Gadfly" (www.igc.org/gadfly) and co-edits the progressive website, "The Crisis Papers" (www.crisispapers.org).  Dr. Partridge can be contacted at: gadfly@igc.org .