The psychologist, Abraham Maslow, once remarked that "to a carpenter, all problems can be solved with a hammer." To the Libertarian, that "hammer" is "the free market" combined with inviolable "property rights." In particular, the Libertarian is convinced that this is the "hammer" best designed to solve the problems of pollution, of land degradation, and of resource allocation, both within and among generations. Market incentives combined with an uncompromising protection of personal property rights will, the libertarian believes, yield the optimum solutions to our environmental problems.
Neither theory, nor practice, nor history will support this claim. Environmental problems must be met with a "kit of tools" - a variety of rules, practices and objectives.
Thus, while the free market and property rights are appropriate
solutions to some environmental problems, they surely will not suffice
In the following, we will examine the failure of libertarian doctrine to deal appropriately with environmental problems, and as we do so we will find renewed justification for familiar principles and practices of political liberalism – most prominently, an acknowledgment of “social goods” distinct from the summation of personal gratifications, an affirmation of shared common values (in “communities”), and the desirability of an institution which functions at the sufferance of and in behalf of the community at large – an institution commonly referred to as “government.”
I -- Libertarianism – The Elements
In a single generation, "libertarianism" has moved from the fringes to the center stage of American political-economic theory and practice, an expansion of influence and application that is not confined to North America. Throughout the world,
there has been a shift to the right toward free-market economies and laissez-faire
regimes-- in Great Britain, France, Germany, and most dramatically in Eastern
Europe and the former Soviet Union. These are tendencies toward, albeit
far short of, the goals of the libertarians.
Accordingly, none of these governments are, strictly speaking, Libertarian, for no national electorate would tolerate so radical a system of political economy. (The Libertarian Party in the United States has never attracted more than one percent of the votes in a Presidential election). Nor would we deny that this world-wide movement toward privatization and open markets has been largely beneficial. Nonetheless, libertarianism deserves careful critical analysis, since
in theory, if not in practice, it is the ideological "spear-point" of "free market reform" throughout the world. Furthermore, many of its prominent exponents, such as Milton Friedman, F. A. Hayek, Ludwig von Mises and Robert Nozick, are highly esteemed by scholars throughout the world. Finally, Libertarianism bears significant implications for environmental policy; notably, the contention that the natural environment will be best preserved, now and into the remote future, not through government regulation, but through the self-interested motivations of private property-owners. Thus, while its principles may appear stark, unqualified and unyielding and its proposals over-simplistic, because of its widespread and growing influence, libertarianism must be taken very seriously.
Libertarianism defined: 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. We shall later argue that “the like liberty principle,”
embraced in the abstract by libertarians, proves in practice to be both
the undoing of libertarianism, as it serves as the foundation of liberal politics..
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. The poor have no "rights" to welfare support, and the only children that have a right to our support are our own.
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....
Individualism: Libertarianism is a radically individualistic doctrine. The optimal libertarian society (if "society" is the correct word) is an aggregate of individuals in voluntary association, secure in their "natural rights" to life, liberty and property. (Thus, as we have noted, the only legitimate function of the "minimal government" is to protect these rights). Since, in A. Myrick Freeman's words, "each individual is the best judge of how well-off he or she is in a given situation," (2) there is no agency (government or otherwise) entitled to curtail an individual's liberty to pursue his own welfare, provided that pursuit does not interfere with the equivalent liberty of others. (Once again, the "like liberty principle."
) Thus "society," ideally, is a simple summation of individuals, in voluntary association, privately optimizing their satisfactions. In fact, as the celebrated libertarian and former British Prime Minister, Margaret Thatcher, put it, strictly speaking, "there is no such thing as society, there are individual men and women, and there are families. And no government can do anything except through people, and people must look after themselves first." (Thatcher, 626).
The Commons Problem: According to the libertarians, all environmental problems derive from common ownership of such natural resources as pasturage, fisheries, and even air, water and wildlife.
The solution? Privatization of all such resources.
Does this sound extreme? Consider the following from Robert J. Smith (my emphases): “The problems of environmental degradation, pollution, overexploitation of natural resources, and depletion of wildlife
all derive from their being treated as common property resources.
Whenever we find an approach to the extension of private property rights in these areas, we find superior results.” (R. Smith, 42-3)
The environmental devastation in the former communist countries, the libertarians argue, proves the rule: that which is the property of everyone (i.e., the state) is the responsibility of no one. In contrast, they argue, resources will be best protected when the costs of environmental degradation fall upon the property owner. Accordingly, when the environment and its resources are privately owned, there is no need to urge the owners to practice "good ecological citizenship" for abstract altruistic reasons or through the threat of government sanctions. Instead, the libertarian believes, self interest and economic incentives will suffice to motivate the property owner to maximize the long-term value of his property.
Pollution and Property Rights: But if privatization motivates the owner to protect the environmental quality of his own property, what is to keep him from polluting and degrading the property of others - especially in the absence of government regulation, which the libertarians detest? The answer, in a word, is
the courts -- one of the few acceptable institutions of government in libertarian theory.
Recall that the right to property is one of the three inviolate "natural rights" of the libertarian. It follows that pollution is an invasion of one's property and even of one's person, and thus punishable as an illegal violation of personal property rights. Accordingly, would-be polluters are restrained by the threat of suit by the injured property owner. Furthermore, as Tibor Machan concludes, "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." (Machan, 98)
II -- A General Criticism of Libertarianism
The social atomism of the Libertarian is a false description of both individual and social human nature.
If Margaret Thatcher truly believes that "there is no such thing as
society," one must wonder what this former British Prime Minister must
make of Lord Nelson's charge to his officers at the Battle of Trafalgar:
"England expects that every man will do his duty." And for
what did the magnificent aviators in the Battle of Britain sacrifice
their lives? For England? But "England" is an alleged
"society," and according to Baroness Thatcher, there is "no such thing."
Thus we encounter a curious evolution in Tory philosophy, from
Churchill's "there will always be an England," to Thatcher's "there is
no such thing as England."
In fact, as every sociologist, psychologist and anthropologist well knows, human existence, including human consciousness, thought, evaluation, history, and culture - including property and markets - is inconceivable without society. A human infant is not like a sea turtle or a mackerel, wholly independent and autonomous upon "hatching." All uniquely human life, thought and culture has its origin and sustenance in the uniquely human mode of communication: articulate language, which can only be acquired in social life. We define ourselves, and are in turn defined, first by the society and culture in which we find ourselves as we mature, and possibly later on by the societies and cultures that we seek out and adopt, or in the case of geniuses, transform. “The self,” writes the economist Herman Daly, “is in reality not
an isolated atom, but is constituted by its relations in community with others - the very identity of the self is social rather than atomistic." (Daly, 172).
(See "How is Morality
Possible?" . Conscience of a Progressive).
Furthermore, as many moral philosophers have argued (with significant
support from "game theory"), morality can only be understood, and moral
problems cogently solved, from the perspective of a hypothetical
observer of the human interaction - the so-called "moral point of view." From this perspective, the group of interacting individuals is the irreducible unit of moral deliberation. Moral problems can no more be analyzed from the point of view of the individual, than strategy and rules of a team sport such as hockey can be analyzed from the point of view of a single player, or a chess game successfully played in disregard of the opposing player. Finally, as the history of warfare repeatedly affirms, the best means of achieving the selfish end of personal survival on the battlefield is to subordinate one's concern for personal survival to a shared willingness to sacrifice one's life in behalf of others. Thus morality, at its foundations, is paradoxical: it is often in one's best interest not to seek above all one's self interest. This paradox can only be resolved from "the moral point of view" - from the perspective of the ideally informed and disinterested observer of human interaction. (See
"Good for Each, Bad for All,
and The Moral Point of View,
Conscience of a Progressive, this site).
To the libertarian, morality is founded in individual rights and “society” (a Thatcherite delusion) is a mere summation of these rights. In contradistinction the liberal, while acknowledging individual rights, goes further. The liberal, by adopting “the moral point of view,” also recognizes “social goods” such as economic justice, domestic tranquility, and communal loyalty, all of which flourish under a system of laws, regulations, and enumerated welfare rights, which are best enacted, executed and protected by the institution of popular government – “of, by, and for the people.” It is the concept and role of government, minimal vs. expansive, that most dramatically distinguishes the libertarian from the liberal.
Libertarians regard the morally well-ordered society as a
free gift, to which nothing is owed for its maintenance.
Thus libertarians argue against the liberals that 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 charities and private organizations that aid these unfortunates and support these amenities are morally praiseworthy, but they cannot legitimately be supported by required tax assessments. To do so, the libertarians argue, would constitute involuntary appropriation of private property – in a word,
In reply, the liberal cites an additional concept in John Locke's political writings, conveniently overlooked by libertarian theorists: this is the concept of the social contract. Contract theorists such as Locke, and the contemporary liberal moral philosopher, John Rawls, would point out that secure possession of the rights of life, liberty and property, and the orderly functioning of the free market, are only possible in what Rawls calls a "well ordered society." Such a society exists 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).
Such a society is not the libertarian’s mere aggregate of "social atoms" -- of private individuals, seeking merely to maximize their own self-interest. Rather, the liberal contends, it is a well-knit community of citizens, with loyalties to the community, and with an active understanding that rights must correlate with duties. (For example, no citizen can consistently claim his right to a jury trial and deny his duty to serve on a jury). In a well ordered society, every citizen, without exception and whatever his accomplishment, bears an enormous burden of moral debt to both predecessors and contemporaries. The liberal insists that in a democratic society, the appropriate institution for the management and 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
American libertarian entrepreneur, characteristically "fed up with
big government interference," who calls his travel agent to book a
flight to a business meeting in Europe. 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. (See my
"Mr. DeLay Goes to
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 the United States and other stable nation-states are not Northern Ireland, or Bosnia. It is not without reason that the citizens of these peaceful countries enjoy, by contrast
with those failed states, the benefits of what Rawls calls "civic
friendship." These benefits have been and must forever be purchased, in part, through the citizens' support of public institutions that maintain education, culture, popular government, and publicly owned natural areas – all familiar items in the liberal agenda..
Probably no pre-supposition of libertarianism, concludes the liberal, is
more misguided and more dangerous than the assumption of the "free gift
of the well-ordered society."
The Libertarian "minimalist state," designed to protect fundamental rights of "life, liberty and property," may not be all that 'minimalist.'
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 liberal contractarian theorists as
John Rawls, falls under the libertarian criteria. For it may be the case that "life, liberty and property," can 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 as described by liberal theory, 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 in the social system under which that wealth was acquired. Such a system would presumably contain "social safety nets" to ensure a minimal amount of support and care for the least fortunate. In addition, the system might be expected to support education, art and culture, so that all citizens might acquire a shared loyalty to community values. Otherwise, the least advantaged may no longer feel that they have a stake in the system, whereupon the wealth of the advantaged may become vulnerable to revolution. Thus, "through the back door" of enlightened self interest, returns the "welfare state" that the libertarians believed they had evicted through the front door.
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." In fact, the liberal would insist, his activist government agenda must be adopted if these libertarian rights are to be secure.
Libertarianism is a Nietzschean "Master
One of the books of the libertarian economist and Nobel Prize winner, Milton Friedman, is titled
"Free to Choose." (M. Friedman) That title reflects the
libertarian conviction that the ideal state is one that enshrines the
conviction that the individual is the best judge of his own welfare, and
that the welfare of all will be best realize through an exchange of
personal and private "preferences" in the free market and through the
assured security of one's life, liberty and property.
The system sounds just fine for those with a super-abundance of wealth and power. But what of all the others in society? Not to worry, say the libertarians. Citing Adam Smith, the libertarian assures us that the enterprising entrepreneur who "intends only his own gain" will, in the course of maximizing his satisfactions, be "led by an invisible hand to promote... the public interest." (A. Smith, 423). "The invisible hand" metaphor has familiar variants, such as "the rising tide that lifts all boats" and "the trickle down effect". (As noted above, those who celebrate the "trickling down" of wealth from the most to the least advantaged, seem disinclined to notice that wealth also "percolates up" from the labor of the less advantaged, and from public adherence to a "well ordered" system of justice). By invoking, through "the invisible hand" and "the rising tide," the advantage to all which accrues from the self-motivated search for private wealth by each, the libertarian conveniently (if temporarily and inconsistently) puts aside his "social atomism" in favor of an
ad hoc theory of an integrated system of society.
In response to Milton Friedman's celebration of the "freedom to choose," one is immediately led to ask: "freedom of
whom to 'choose' -- and at whose expense?" Given the libertarian's uncompromising fidelity to property rights and his faith in the free market, those with property and with the wealth to enter the market have the "freedom to choose," in direct proportion to their wealth. And at whose expense? Presumably, those without the tickets (i.e., cash) to enter the marketplace or to own property. This would include the very young, the very poor, other species, ecosystems, and future generations..
Thus it would appear that the libertarian morality embraces the cynic's
version of "the golden rule:" "Those with the gold, get to rule."
To the philosophically educated, libertarianism is reminiscent of Friedrich Nietzsche's "master morality," which he thus characterizes in
Beyond Good and Evil: “the noble type of man regards himself as a determiner of values; he does not require to be approved of; he passes the judgment: ‘What is injurious to me is injurious in itself;’ he knows that it is he himself only who confers honor on things; he is a creator of values. He honors whatever he recognizes in himself: such morality is self-glorification.
“ Clearly, according to this formulation libertarianism is a "master
III – The Problem of the Irreducible Commons.
In his classical 1968 essay, "The Tragedy of the Commons," Garrett Hardin describes an overstocked pasture used by several herdsmen, but owned by no one in particular (i.e., "in common"). The addition of one sheep to the commons enriches its owner at the expense of all the other herdsmen. So long as there is no collective regulation on the use of the commons, no initiative by an individual will save the commons as each herdsman "rationally" chooses to "get what he can, while he can." The result is inexorable: "ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons." (Hardin, 1244)
The strength of Hardin’s essay resides in its enormous scope of application. "The tragedy of the commons" explains the depletion of the Atlantic Grand Banks fisheries east of Canada and the United States. It also explains the pollution of common waterways and airsheds, the loss of biodiversity, and uncontrolled population growth. In all these cases and many more, a common resource is exploited and diminished as benefit to each individual exacts costs on unconsenting others.
The tragedy of the commons extends to cases far removed from resource use and ecology. Two timely examples come to mind: in China and India a rise in female feticide and infanticide has been reported as each family is eager to produce a male heir to carry on the family name. Because of the resulting reduction in female cohorts, all families have a reduced opportunity to carry on the family name. In the second case, the widespread use of antibiotics has caused a medical crisis, due to the consequent survival by “selection” of resistant strains. Accordingly, advantages to
each patient are gained at the cost of disadvantages to all patients.
The converse rule, “good for all and bad for each,” is exemplified by the payment of taxes for the support of social and governmental services. The libertarian, in disregard of this rule, regards taxation as “theft.” The liberal, on the other hand, agrees with Justice Holmes: “taxation is the price we pay for civilization.”
(See my "Good
for Each, Bad for All" ).
The tragedy of the commons strikes at the very heart of libertarianism. It is the polar opposite of the cheerful optimism of "the invisible hand," whereby the self-serving "utility maximization" of each leads to advantages to all. In contrast, the tragedy of the commons is "the back of the invisible hand" -- the falling tide that grounds all boats -- whereby advantages sought by
each systematically and inexorably work to the disadvantage of
all. And as the above cases clearly indicate, the tragedy is unquestionably widespread and endemic to modern society. Gone is the Thatcherite social atomism.
And gone with it is the impermeable boundary, essential to libertarian
theory, between "my business" and "your business."
The Privatization Ploy. Hardin endorses the Liberal’s remedy: "mutual coercion, mutually agreed upon" - which means, primarily, regulation and control by a legitimate democratic government. However, as we have seen, government interference is anathema to the libertarians. Instead, they propose
privatization and legal compensation for damages. We will consider the latter remedy, "courts and torts," shortly. How plausible, then, is the privatization remedy?
In many cases, privatization is clearly the ideal remedy for the commons problem. When, in the American West, the common "open range" was fenced and privatized, the costs of over-exploitation fell upon the owners. (In the technical language of economics, the previous "externalities" were "internalized"). Clearly it then became economically prudent for the owners to protect their "land capital" to assure sustainable income. Recent Russian history confirms this conclusion: as the Soviet era came to a close, the peasants' private lots were consistently far more productive than were the collective farms.
The libertarian's error resides in their proposal that privatization, which is clearly the correct solution for some commons problems, is to be prescribed for all commons problems. Like Maslow's carpenter, libertarians believe that all commons problems can be fixed with the "hammer" of privatization. Accordingly, they propose the abolition of all national parks, and the privatization of all public lands and utilities, including roads and airports -- everything, that is, except the military, the police and the courts. Presumably, this means that such universal "commonses" as the atmosphere and the oceans are to be carved up and sold to the highest bidder. Not even wildlife is to be allowed to remain free and unowned.
Is this an unfair caricature of the libertarian position? Consider
the argument of Robert J. Smith who suggests that the absence of privatization explains "why the buffalo nearly vanished, but not the Hereford; ... why the common salmon fisheries of the United States are overfished, but not the private salmon streams of Europe." (32) His solution? "We should explore the possibilities of extending ownership of native game animals and wildlife to property owners." (47).
Critics of libertarianism find no end of amusement pointing out the
inadequacies of the libertarians' "hammer." How, for example, are we to "privatize" the whaling industry? Are we to "brand" the whales, to validate the ownership of each? And what if "my whale" feeds on "your krill,” which you purchased (from whom?) to feed "your whales”? What courts must we set up to assess damages? What agency will be set up to collect the facts germane to the case, and how is it to be financed? Furthermore, the privatization of oceanic resources suggests that "territories" of ocean will have to be established, which means the end of the centuries-old convention of non-sovereignty of the seas. What country will be the first to claim the North Atlantic, along with the Gulf Stream? If the United States, will Great Britain and Scandinavia then have to pay the US for the use of the Gulf Stream's climatic services? Will the nations of the world accede to this "sea grab" without protest? The military implications are awesome.
If we privatize wildlife, then will the owner of the wild insects
that pollinate my orchard be entitled to charge me for this service? If someone's flock of migrating birds soils my clothing or pollutes my swimming pool, how am I to locate the responsible owner? The mind boggles.
There is worse to come: can we conceivably "privatize" the atmosphere, and with it the hydrological cycle? If so, then who is liable for El Nino or Hurricane
Katrina? If I own a "piece" of the atmosphere, is this a defined space, or is it the migrating clouds and molecules within. How is the "owner" to make his claim?
Total privatization of the earth is a fantasy -- a reductio ad absurdum, charitably supplied to the critics by the libertarians themselves. The atmosphere, the seas, wildlife, and innumerable ecological services both known and undiscovered, are now and will forever be the "common property" of mankind, not to mention the other species of the earth. And since "privatization" of land and resources can never be the total and final solution to the commons problem, there remains the libertarians' alternative proposal: legal compensation for invasion of property.
If that is found to fail, then governmental regulation, endorsed by the
liberals and detested by the libertarians, may be the only remaining
solution to "the tragedy of the commons."
IV -- The Torts and Courts 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." (Anderson) Accordingly, the libertarians contend, "all" problems of environmental pollution can be controlled through the injured citizens' recourse to the courts. Unfortunately, there is overwhelming evidence that 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.
My home and primary work place is in the San Bernardino mountains, east of Los Angeles. While the air quality here 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 twenty-million automobiles.
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 "plaintiffs."
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 "socialized medicine!"
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. (Udall, Chapter 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 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 of property.
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. And as we have noted, 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.
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.
An unequal and hence unfair apportionment of risks.
A risk that might be acceptable to an entrepreneur can put an innocent and unconsenting public at unacceptable and unjust risk.
Suppose, for example, that a developer correctly calculated that by building a dam, he had a 95% chance of becoming enormously wealthy - so long as the dam did not fail. However, there was a 5% chance that the dam would fail, which would provoke law suits that would surely bankrupt him, and possibly earn him a prison sentence. Many venturesome capitalists would find this to be a quite acceptable risk. However, that same venture would put the lives and property of thousands of downstream citizens in peril, with no appreciable advantage accruing to them if the dam were built. Clearly, it would be unjust for the developer to proceed with his project. But what is to prevent him from doing so? The threat of suit? As we have seen, he has already considered this and found it to be an insufficient deterrent. In the libertarian state, with government regulation abolished, there remains no further deterrent to this threat against the innocent and unconsenting citizens.
The case is more than hypothetical, for it precisely describes innumerable historic cases. Lifeboats for the full ship's complement of the Titanic were regarded by the White Star line as an unwarranted expense, given the unlikelihood that ship would sink. The result of this disproportion of risk to investors and to passengers is known to all. Prior to the crash of 1929, the risk of bank failure to the stockholders was not proportional to the risk of the depositors. So too the risks to sellers and to buyers, of selling tainted food and untested drugs. Once again, the liberal brings forth a proven remedy for these disproportionate risks: inspection and regulation by a disinterested third party, namely the government, backed up by the force of law and the prospect of fine and imprisonment.
A Reactive rather than a Proactive strategy.
The disproportionate burdens of risk, just discussed, have led to the establishment of pure food and drug laws, of traffic safety regulations, of inspection and regulation by bank and insurance commissions, of building and constructions codes. All these and innumerable additional examples of "big government interference" exemplify yet another essential advantage of the liberal program of government regulation over the libertarian alternative of private suits for damages: the private libertarian solution is reactive, while the liberal public approach is proactive. Private interests lack both the resources and the inclination to anticipate disasters and hazards before they occur. Again, the case of the tobacco industry is instructive. Federal investigations of company documents leaked by “whistleblowers” have confirmed what critics have long suspected: tobacco industry "research" has acted more to hide and obscure than to reveal the health consequences of smoking.
As children, we have all been taught that "an ounce of prevention is worth a pound of cure." Even so, it is difficult to assess the value of proactive policies, since it is difficult to acquire statistics on accidents that do not happen, and persons not killed or injured, due to effective preventive policies. Difficult, but not impossible. The contrast in public health and safety, and in environmental quality, before and after the introduction of government regulation further validates the liberal agenda, while it offers strong refutation to the libertarian's assurance that "the free market,"
the enforcement of property rights and the threat of civil law suits are the best means of protecting the public and the natural environment.
The enforcement of the "torts approach" to pollution control would require the "big government" endorsed by the liberals and detested by the Libertarians.
In place of "government" (which John Hospers describes as "the most dangerous institution known to man"), 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 libertarians?
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
southern California mountains.
Suppose a noxious cloud passes through my property, killing the ponderosa pines in my back yard. How am I to find the culprit responsible, so that I may be compensated for these damages? Presumably, I must hire a forest botanist and a chemist and numerous additional experts to validate my claim.
And if some upwind industry becomes the prime suspect, it will, no
doubt, collect a committee of its own "experts." (My financial resources and those of the firm will be hopelessly mismatched - but let that pass). How is this clash of experts to be adjudicated, unless some agency has previously set up independent standards that can be applied to this court case, and others like it?
Similarly, 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 Food and Drug Administration, the Securities and Exchange Commission, 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 point of fact, 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 our behalf.
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.
Absolute rights against property invasion would shut down industrial civilization.
The libertarian remedy for environmental pollution, however attractive in the abstract, would accomplish too much if put into practice. Consider, for example, Tibor Machan's statement of this remedy: "if operations of [private] firms would be impossible without pollution [beyond their boundaries] - that is, without causing emissions that are harmful to others who have not consented to suffer such harm - the operations would have to be shut down." (Machan, 100) Can anyone doubt that the clear implication of this rule must be the abolition of the internal combustion engine? Thus these champions of individual liberty, in order to spare our property and our selves from the assault of pollution, would deprive us all of the freedom of movement afforded by our automobiles. And there is worse ahead: "non-point" water pollution comes from agricultural run-off. Must we abolish the use of chemical fertilizers and fossil fuels in agriculture? Radical environmentalists have urged as much. But now that horse pastures have long-since been converted into shopping malls and subdivisions, the clear consequence of the de-mechanization of agriculture must be mass starvation. (See
"The Oil Trap,"
this site.) And finally, air pollution also comes from electric power plants. Do we shut off the electricity? What then of the loss of freedom to communicate? In fact, the air that I exhale contains carbon dioxide, an air pollutant. And try as I might, I can't seem to keep it all contained on my property. The implication, as Jeffrey Friedman spells it out, is as clear as it is absurd:
Libertarianism seeks to make every human being the ruler of his or her own domain, as delimited by his or her property rights... Since the atmosphere cannot be divided into parcels of private property as land can, strict libertarianism would require that each person possess his or her own atmosphere, unpolluted by the activities of anyone else. The libertarian ideal is in short, so sensitive to environmental externalities that it is incompatible with human coexistence. Short of the ultimate in atomistic individualism - a planet for every person - any pollution, and hence any human activity, is, in the libertarian view, a crime. (J. Friedman, 431-2).
V --"Disparate Comparison" and the Lessons of History
Admitted failings of government regulation or of environmental management by public agencies does not necessarily entail that the free marked and torts approach is
Libertarians routinely trot out horror stories about government waste, fraud, and abuse, and compare these sorry anecdotes with an unrealizable ideal of a "perfectly functioning market." However, as Mark Sagoff correctly points out, this argument "commits the fallacy of disparate comparison. It compares what the perfect market would do in theory with what imperfect governmental agencies, at their worst, have done in fact." (Sagoff, 1993, p 224) No thoughtful 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, as we have suggested above, the unconstrained free market, privatization and the absence of "government interference" gave us opium in cough medicine, spoiled meat, child labor, mine disasters and black lung, and no lifeboat seats for 1,500 passengers on the Titanic. More recently, the Enron Corporation, having successfully lobbied the government to ease the company’s regulatory burden, then proceeded to direct funds to a few fortunate executives, at the cost of destroying the retirement savings of thousands of its employees and stockholders.
History is not reassuring.
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 powers 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. (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 destruction 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. (See
my "The New
Alchemy", this site).
Of course there is a sad history of governmental exploitation (usually on behalf of the powerful); but the remedy is better government, not no government. How many of us who travel abroad would prefer that international air traffic be operated by private for-profit firms, rather than national and international government agencies? Who would we rather have safeguarding our environmental health; state agencies such as the US Environmental Protection Agency, or private industry? Once again, look to history for the answer.
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 not continue.
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. Interestingly, 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.
Thus libertarianism does not qualify as a just system for all members of society. On the contrary, as we noted above, it is a Nietzschean "master morality," reflecting the preferences and protecting the interests of the wealthy and powerful. Complaints against "big government" and "over-regulation," though often justified, also issue from the privileged who are frustrated at finding that their quest for still greater privileges at the expense of their community are curtailed by a government which, ideally, represents that community. Pure food and drug laws curtail profits and mandate tests as they protect the general public.
And environmental protection regulations "internalize" the costs of
pollution, thus properly burdening the corporations and their investors
as a direct result of these regulations relieving the unconsenting
public of the previously externalized costs.
The libertarian trust in "the wisdom of the free market" is likewise attractive to the wealthy and powerful, since one's involvement with markets -- the libertarians' preferred instrument of social adaptation and change -- is proportional to one's access to cash. The Golden Rule - "those with the gold get to rule" - is one of the first principles of both "the master morality" and of libertarianism.
If libertarian doctrine is a "master morality," reflecting and serving 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 "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 other-directed concern.
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 examine the conflicts and paradoxes that issue from 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 US 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." But these assurances by the government will not suffice for the libertarians. They assume
a priori that "government," even popularly elected and under the rule of law, simply must behave as if it were an occupying foreign power. This, they tell us, is the source of all our problems.
In conclusion, we have found that in numerous cases the libertarian doctrines of social atomism, unfettered free markets, and unconfined personal liberty, bear morally atrocious 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 exact 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 does not, by itself, constitute a repudiation of the existing system.. What is required is a clear and persuasive presentation of a better alternative. This the libertarians have not offered us. Nor can they, so long as anyone pays more than casual attention to human psychology, ecological necessities, and the lessons of history.
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