Environmental Ethics
and Public Policy
Ernest Partridge, Ph.D

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Conscience of a Progressive
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Conscience of a Progressive

Ernest Partridge

Chapter Sixteen

Am I My Brother's Keeper?
A Dialogue and Recapitulation


In this chapter, we will recapitulate and summarize some of the key progressive principles that we have developed earlier in this book.

We will do this through case studies of two devastated communities: the first is New Orleans which, as we all know, was ravaged by Hurricane Katrina in September, 2005. The second, Carver Terrace in Texarkana, Arkansas, was a community built on a toxic waste site and subsequently abandoned. Though not well-known, Carver Terrace was in all relevant respects, very similar to the more notorious sites of Love Canal in upstate New York, and Times Beech in Missouri. Both cases urgently raise the question: what practical and moral principles, if any, require that aid and assistance be given to the unfortunate victims of these disasters?

Predictably, the libertarians and the progressives have radically different answers to this question. To present and discuss these contrasting views, we introduce "Adam," a libertarian, and "Raul," a progressive and, to be sure, a surrogate for the author of this book.

The Point at Issue:

"Am I my brother’s keeper?"

Are we, as citizens, obliged to assist our compatriots who, through no fault of their own, suffer misfortune? What about those who are born into poverty? They did not, after all, choose their parents.

"Raul," a progressive, argues that since we all benefit through our mutual associations, we should conversely mutually assist the less fortunate among us. The most efficient, effective, and fair mode of assistance would be by collective action, through the agency of the institution established to act in behalf of all citizens – namely, the government. This progressive position is that of virtually all western industrialized societies. It was, until recently, the policy of the government of the United States.

"Adam," a libertarian, takes a different view. An individual’s assistance to the poor and unfortunate is virtuous. But it must not be coerced by the government through taxation. Involuntary appropriation of personal property, even for worthy and humanitarian purposes, is theft. The only legitimate claim of a government on a citizen’s property, are taxes sufficient to protect that citizen’s life, liberty and property – namely, the military, the police, and the courts. The support and safety of the individual and of that person’s family, says the libertarian, is the sole responsibility of that individual. Private insurance is available to provide for unanticipated emergencies.


Who Lost New Orleans?

Adam: Too bad about those unfortunate folks in New Orleans and the gulf coast. But they chose to live there, below sea level or in flood plains. So why should they be expecting us (via the federal government) to rescue them from the consequences of their poor judgment?1 Similarly, prudent individuals will not chose to live alongside great rivers like the Mississippi, or along active tectonic zones (i.e., the entire Pacific coast), or in eastern cities such as New York, which attract terrorists, or in the St. Louis/Memphis region, the site of the New Madrid earthquake of 1812 – the most violent US earthquake in recorded history.

Raul: Well then, I guess we should all pack up and move to Kansas instead. Oh wait! They have tornadoes, don’t they?

Adam: So if you move to Kansas you also do so at your own risk. And if are hit by a tornado, then this too is your misfortune and you must deal with it. If your neighbors volunteer their time and cash to help you recover, then you’ve picked some fine neighbors. Good for them! But no one, not even the government, has a right to take my property through taxation to help you, or any other victim of a natural disaster.

Raul: But surely it is a legitimate function of government to protect communities from natural disasters, for example by building levees to protect against floods or by devising evacuation plans. After all, you libertarians concede that at the very least, governments exist to protect your triad of basic natural rights of life, liberty and property.

Adam: Yes, I suppose that government involvement in disaster relief might arguably be justified as a protection of property. But if so, it is best that this activity be done as much as possible at the local level. Applying this to the Katrina disaster, it follows that primary responsibility for preparation and response to the hurricane fell upon Mayor Negin of New Orleans, followed by Governor Blanco.2  Because the primary responsibility was at the local level, the liberal complaint that the President and the Department of Homeland Security botched the relief effort is unwarranted. And in fact, the Mayor and the Governor screwed up horribly.

Raul: In point of fact, when a Governor asks the President to declare a federal state of emergency (as Governor Blanco did two days before landfall) and the President agrees (as Bush did the same day), "the buck stops" at the President’s desk. The President and the Department of Homeland Security then bear primary responsibility for preparation, response and recovery operations. This procedure is explicitly stated in the "Homeland Security Presidential Directive/HSPD5" issued and signed by George Bush in February 28, 20033, Media reports and right-wing punditry to the contrary notwithstanding, the Mayor and the Governor fulfilled their responsibilities, albeit imperfectly

Adam: Well, that may be how the system is set-up, but it shouldn’t be that way. Far better that government function at the local level. Local officials understand their territory and its particular needs and circumstances far better than bureaucrats in far-off Washington. And power and responsibility that is relinquished to Washington is virtually impossible to take back.

We libertarians prefer to conceive of a "nation" as a collage of autonomous states and regions.. Accordingly, a devastated gulf region is like a diseased branch on a tree. Cut off the branch, and the tree will be no worse off, and perhaps more healthy. To be sure, it’s too bad about what happened to New Orleans, and maybe we’ll be charitable and send them some aid, so long it is given voluntarily and not coerced by the government. But, once again, it is ultimately the fault of the people in New Orleans because they willingly chose to live in a sub-sea-level bowl.

Raul: We progressives see things very differently. We regard New Orleans and the Gulf region as vital organs of the body politic and of the economy of the United States. Thus damage to this regional part is damage to the entire nation.

For the fact of the matter is that New Orleans is an "inevitable city" – a geographic/economic necessity. The Mississippi River drains two-thirds of the 48 contiguous states, and within its watershed most of the nation’s agricultural products are produced. And, now that we have "outsourced" most of our manufacturing base, agricultural products are our primary export, offsetting the United States’ huge (and unsustainable) trade deficit. Down the Mississippi and its tributaries, barges full of the bounty of American farms are towed toward the Gulf of Mexico, and to the necessary Gulf port at the Mississippi delta. At the same time, essential imports arrive at this port – by tonnage, the largest port in the US and the fifth largest in the world. In addition, from the state of Louisiana, the United states gets fifteen percent of its domestic petroleum and 27% of its natural gas. As George Friedman writes in his excellent article, "New Orleans: A Geopolitical prize" before Katrina struck, "New Orleans was, in many ways, the pivot of the American Economy," and, he adds, "there are no good shipping alternatives."4  The cargo ships can go no further upstream, and downstream are swamps and wetlands that prevent development.

In short, the port of New Orleans is an indispensable national asset. Its loss, while an inconsolable tragedy to its residents, now scattered around the nation, is also an economic hardship to all Americans, and to millions abroad – as we all were soon to discover.

And so, my response to your taunt – "it’s their fault for living in a disaster-prone region" – is simple and straightforward: someone had to live there, and because the entire nation has benefited from the city and port of New Orleans, it is appropriate that the entire nation should invest in its reconstruction and assist in the rehabilitation of its unfortunate residents.

Similar considerations apply to the Pacific coast with its seismic hazards, and the Northwest with the additional threat of volcanoes. The national economy requires Pacific seaports, along with the timber of the Northwest and the agricultural production of California’s incomparably fertile central valley. And so, if disaster strikes, compensation to the victims is appropriate.

Any politician who believes that these regions are autonomous and economically detachable and thus not the responsibility of the federal government is unqualified for national leadership. To the great misfortune of the United States, such individuals are nonetheless in political control of the federal government.


Why a Federal Emergency Management Agency?

Adam: I’m still unconvinced. Why shouldn’t the city of New Orleans and the state of Louisiana take full responsibility for "emergency management." Why should there be a Federal agency charged with such tasks?

Raul: For the same reason that cities have fire departments. Just as some fires can not be controlled by individual home owners, some disasters are of a scale that overwhelm municipal and state capacities. Often these disasters, like Katrina, affect several states, and in such cases the only political entity qualified to deal with multi-state disasters is the federal government.

It is conceivable, of course, that each state might invest in massive, federal-scale, emergency response facilities, just as each homeowner might purchase and park a $100,000 fire truck in his driveway, "just in case." But the irrationality of both procedures is immediately obvious. Neither is cost-effective. While a fire in your home is unlikely, the probability of fires breaking out somewhere in a city is sufficiently high to justify a municipal fire department that is frequently engaged in fire-fighting and constantly prepared to respond anywhere in the city, including, of course, your home. Similarly, the minimal annual probability of a Katrina-scale disaster in any particular state is not worth the investment of fifty large-scale separate "just-in-case" response facilities. However, if we multiply the low-probability of a disaster in each state by fifty, we then have a justification for an in-place and "at the ready" federal agency such as FEMA. In short: fifty multi-billion dollar agencies for each state is folly; one multi-billion dollar agency for all states is rational.

Just as most home fires can be put out with a fire extinguisher or a garden hose, most disasters can be managed with municipal and state agencies. But for those rare and massive events, such as Katrina and the much-anticipated major California earthquake, a coordinated national response is imperative.

So Who Lost New Orleans?

None of the leading official players in this tragic drama are totally blameless – each one, "if they had it to do over again" would respond differently and more effectively. But that does not mean that each responsible official is equally culpable. Despite false media reports to the contrary (notably by The Washington Post and Newsweek), Governor Blanco declared a state of emergency on August 26, three days before the hurricane made landfall. The following morning she requested Bush to declare a federal state of emergency, which Bush granted, following which Bush, Homeland Security Secretary Chertoff and FEMA Director Michael Brown were inexcusably unresponsive for the next two days. Mayor Nagin’s mandatory evacuation order proved to be too little and too late (by a whole day). Subsequent events would show that FEMA, severely incapacitated by Bush Administration cutbacks, the loss of key professional personnel, and management by unqualified political appointees, was worse than ineffective as it refused assistance by relief agencies such as the Red Cross and numerous municipal police and fire departments, and blocked assistance to victims by volunteers.5

It is impossible to determine with certainty whether a repaired and improved levee system could have spared New Orleans from this Category Four hurricane. If it could not, then the answer to the question "who lost New Orleans" must be "Katrina." If fully-funded and fully installed levees would have held, then the answer to "who lost New Orleans is clearly the Bush Administration and the Republican Congress which refused to fund the repair and re-enforcement of the levees.

But Katrina was two disasters: one natural – the hurricane, and the other administrative – the botched relief effort that followed. And for that second disaster the fault lies squarely with the Bush Administration and its under-funded and atrociously administered Federal Emergency Management Agency. The message of the Bush spin-machine, and much of its enabling media, is that the blame lies with Governor Blanco and Mayer Negin. But the documented evidence, refutes this allegation.

At the root of the second, post-storm, disaster is the right-wing’s visceral distrust of government: the Reaganite conviction that "government is not the solution, government is the problem," and the Bushite proclamation that "you can spend your money more wisely than the federal government can."6. As Thom Hartmann has observed, "You Can't Govern if You Don't Believe in Government."7 Katrina has proved that because the regressives now in power don’t believe in government, they can’t govern. And so, faced with a regional crisis with devastating impacts upon the national economy, the Bush administration was incapable of acting effectively in the national interest. Indeed, they are scarcely capable of recognizing the very existence of a "national interest" apart from the separate interests of privileged individuals and corporations.

It is difficult to find any silver lining in Katrina’s storm clouds. But if there is any, it might be the dawning public realization that there are good reasons why no civilized society is without a government – why our founders recognized that an enlightened government, "deriving its just powers from the consent of the governed," exists, in the words of our Constitution, to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."

Those who dare to call themselves "conservatives" would have us believe otherwise.

The Case of Carver Terrace.

We will now consider the case of Carver Terrace, a community that suffered a collective misfortune through no fault of that community. It was discovered that the community was built in an area contaminated with toxic industrial chemicals. (Thus this case study might apply as well to the well-publicized contaminated communities of Love Canal, New York, and Times Beach, Missouri).

The residents of Carver Terrace suffered grievous personal and financial losses. So the question arises, from whom or what are they to receive compensation – if any? Charitable private contributions? The corporation that contaminated the area (and which, inconveniently, no longer exists)? The government – local, state, or federal?

Predictably, the regressives and the progressives have contradictory answers to these questions.

Carver Terrace: The Case History.

Texarkana, as the name implies, straddles the Texas and Arkansas border. The Environmental Protection Agency identified three Superfund toxic sites in Texarkana. Carver Terrace, an Afro-American community comprising 33 acres and 78 homes, was built in the late sixties over one of these sites.

The problem of toxic contamination, of which the early residents were unaware, arose only gradually but grew into an issue of great urgency to the residents, and eventually to supporters of their cause throughout the nation. The final resolution was a buyout of the houses and relocation of the residents. The structures were all demolished in 1993 and today the site is empty and restricted.

Here is a chronology of the essential events in the case:

1910 The National Lumber and Creosote Company begins operations on the site.

1940 The site is acquired by the Koppers Company of Pittsburgh, Pennsylvania.

1961 Koppers Co. ceases production, and sells the site for residential and industrial development.

1967 The City of Texarkana issues a permit to a Shreveport developer to build residential houses on part of the site.

1979 The Environmental Protection Agency is made aware of the toxicity of the site. Koppers reports that pentachlorophenol (PCP), arsenic and creosote are on the site.

1984 The EPA declares Carver Terrace a superfund site.

1987 Some Carver Terrace residents with chronic health problems join to sue Koppers. The suits fail, but Koppers agrees to out of court settlements to some individuals.

1988 Koppers Company is acquired by Beazer East, a multinational corporation with headquarters in New York City.

Stella apek describes the plight of the Carver Terrace residents:

Many residents were unaware of the seriousness of the contamination until they read about it in the newspaper or were informed by a local environmental organization, Friends United for a Safe Environment. Residents soon encountered conflicting interpretations from various agencies. While the EPA insisted that the contamination posed no serious danger to residents, a 1988 Texas Fish and Wildlife Service survey report noted that Carver Terrace also faced the problem of toxins migrating from contaminated gravel pits adjacent to their neighborhood. In that same year, portions of Carver Terrace began to flood badly, carrying chemically contaminated water into some residences... [A] health assessment carried out by the federal Agency for Toxic Substances and Disease Registry (ATSDR) and published in 1989 underlined the site’s dangers. A 1991 study funded by the ATSDR but carried out by the Texas Department of Health found that Carver Terrace residents reported skin rashes, chronic bronchitis, liver disease, premature births, and low birth weights more often than residents in a nearby comparison group.9

Attempts to procure compensation through law suits and appeals to government agencies failed, as the local government and the EPA resisted or proposed inadequate remedies. So the residents turned to "direct action" – protests, demonstrations, publicity, and alliances with national environmental and minority rights organizations.

Eventually, the Texarkana City Council yielded, endorsing a resolution that urged a federal buyout of the Carver Terrace neighborhood. In 1990, President George H. W. Bush signed an appropriations bill containing $5 million for the buyout. In 1993 the last resident was bought out and left, and the area was bulldozed and enclosed with a chain-link fence.

In the end, the residents of Carver Terrace were compensated by the Federal Government. But was it a just resolution?

The Libertarian Case Against Compensation.

Adam: No it was not. By petitioning the stockholders of Beazer East, Inc., and then the Federal Government for compensation, the residents were, illegitimately claiming for themselves the property of others – first the stockholders, and then all those who paid their taxes to the Federal Government."

Raul: Yet there seems to be something intuitively wrong with "sticking" the residents of Carver Terrace with the costs brought on by the criminal negligence of the now-defunct Koppers Corporation. It just does not seem to be fair.

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 resulting from the company’s required payment to the victims?

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."10 Accordingly, if no unjust action has led to the current distribution of wealth, that distribution can not itself be characterized as unjust.11 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 generosity. 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 legitimately take it from me!

The Progressivists’ Critique of Libertarianism

Raul: Well, your position is clear and simple, I’ll give you that. And also, I am sad to say, it seems to have become the dominant ideology of the party now in control of our government.

Adam: I’m not interested in your regrets, give me an argument. What, exactly, are your objections?

Raul: To begin, while the theory is elegant and simple, it does not describe social and economic reality. Human society is much more complicated than you apparently assume, and those complications, once we examine them, are found to entail interconnections – moral responsibilities, if you will – including the responsibility to come to the aid of the unfortunate. To "share the fate" of our neighbors, as John Rawls puts it.

Adam: That’s a rather oracular and abstract generalization. Why should I believe it?

Raul: Be patient, I’m just getting started. My foremost objection is that you libertarians seem to regard a morally well-ordered society as a free gift, to which you owe nothing for its maintenance. As John Stuart Mill, whom we both admire, put it: ""Everyone who receives the protection of society owes a return for the benefit."12  Do you really believe that it is merely good fortune that American society enjoys civic peace and economic prosperity, rather than the turmoil of Ulster, or Bosnia, or Darfor, or the poverty of Bangladesh and Afghanistan?

Adam: No, it is not the result of "good fortune," as you put it. Our domestic peace and prosperity are the result of each of us going about our respective businesses, secure in the knowledge that we will not suffer interference from "nanny government." If we are simply left alone with our personal lives and careers, we will all prosper – doing good (for society) by doing well (for ourselves). This worked well for most of American history, until FDR and his socialistic New-Deal mucked things up. Now, at least, we are once again getting government off our backs.

Raul: Do you want freedom from government control? Try driving across Manhattan during a power outage. Suppose instead that you want to fly from coast to coast. You will call your travel agent and book a flight, and you will likely land safely a day later in San Francisco. That simple transaction and that flight 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 legitimately be privatized -- any more than courts can be privatized. Abolish the Food and Drug Administration? Good luck when you sit down to a meal, or find that once again your cough medicine is laced with opium. Alarmist? Just read your history, and look up and compare the actuarial tables – now, and a hundred years ago before the food and drug laws.

Adam: Now look, if some company injures you, then sue the bastards! The threat of lawsuits is deterrence enough. No need to get government involved.

Raul: A lot of good that will do me, or my survivors, it the tainted food or untested drugs kill me. Far better to anticipate and forestall catastrophes than to deal with them – "an ounce of prevention," and all that. Besides, experience shows that the torts remedy simply doesn’t work – (as argued at length in Chapter Eight). Worst of all, when regressives take power, they are quick to deprive the public of recourse to lawsuits. And they perversely call this "tort reform." But I digress.

You want to make a killing in the free market with some innovative item or service? I guarantee that you won’t succeed without an educated work force available for hire, the fund of information gained from research in public agencies and universities, an expectation of security that comes from functioning public services such as police and fire departments, and finally, a stable, dependable, and fairly run system of markets.

Adam: With that last, "markets," you give yourself away. Just give me a free market, and the rest will fall into line. Public demand and individual incentives will suffice to create private agencies to assure public safety and "domestic tranquility."

Raul: Your faith in unconstrained and unregulated "free markets" is touching, but I’m afraid utterly unrealistic. Once again: beautiful theory is dashed by brutal reality. To begin, your "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 another ideal abstraction: "economic men" (purely egoistic "utility-maximizers" which, fortunately, also do not exist). The "perfect market" assumes (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." None of these conditions in fact obtain in "the real world" in which we all live.

["Raul" is going on too long. Interpolate some remarks by "Adam"]

And there is worse to follow: Robert Nozick’s 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 whereby the predestined result of laissez faire competition is monopoly and the destruction of competition. Again, put aside your ideal theory for the moment and look to history where you will find cartels and monopolies, entailing the necessity of countervailing anti-trust legislation. It turns out that "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 you libertarians.

To be sure, free markets (but markets regulated in the public interest, I must insist) have yielded enormous benefits to western civilization. The "invisible hand" of the free market surely gives rise to "positive externalities" -- "public goods" additional to and emergent from the sum of private economic acts. However, you libertarians routinely fail to acknowledge that there is a "back of the invisible hand," namely "negative externalities" – "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..."13  Economists call these "market failures." "Negative externalities" are harms visited upon unconsenting third parties as a result of those "capitalist acts by consenting adults. They include pollution and urban decay which 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.

You libertarians insist that the only legitimate functions of government are the protection of the rights of life, liberty and property. Yet you carry on as if these rights are clearly defined and encapsulated – like family jewels in a safe deposit box. That these rights are isolated autonomous entities, like the citizens of your idealized libertarian state. But really, have you seriously considered what kind of society is best designed to secure these individual rights to life, liberty and property? I submit that it is not the society that you libertarians envision and propose. Life, liberty and property are most secure in a just community, wherein there is a 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, nor a result of the mysterious workings of the free market, that America is not Northern Ireland, or Bosnia, or downtown Baghdad. Our republic has prospered because most of us Americans have implicitly believed that it is, well, "our" republic – not the property of a privileged wealthy few with "special access" to the levers of government. Now that is beginning to change, and when the public finally comes to appreciate that the government is no longer "their" government, and that they are no longer able to peacefully replace it, then "cry havoc, and let slip the dogs of rebellion."

It is not without reason that we have until recently enjoyed in the United States the benefits of what John 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. Probably no pre-supposition of libertarianism is more misguided and more dangerous than the assumption of the "free gift of the well-ordered society." I fear that we are beginning to reap the bitter harvest of the widespread belief that a just and well-ordered society is a free gift, for which no payment in sacrifice, service, and let’s face it, taxes, is required

The Progressive Proposal: Contract Theory:

Adam: Well, I’ve had enough of your criticisms of my libertarian ideas. What better scheme do you have to offer?

Raul: Its an old and familiar idea, an idea enshrined in our founding documents – specifically in the second paragraph of the Declaration of Independence:

We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness. That, to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That, whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such Principles, and organizing its Powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

My position, then, is "contract theory." This view, "contract theory," seems to me to justify the demands of the Carver Terrace community for "environmental justice." (Remember Carver Terrace?)

"Contract theory" regards society as a "plus sum game" -- a "cooperative venture for mutual advantage"14 -- whereby each individual gains far more in community than he would in isolation.15

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 grown into 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 Locke, Rousseau, Kant, Jefferson, and most recently, John Rawls have done.

Adam: How can a binding contract be "hypothetical," as you call it? It must either be openly and voluntarily entered into, or else null and void.

Raul: It is "hypothetical" in the sense that these principles of justice that a 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. Since that last condition describes no actual individual (save someone suffering from acute but selective amnesia), it must be a hypothetical individual. However, that condition of personal ignorance entails that in choosing rules of justice for himself, he would be choosing for all members of society. Accordingly, this theory 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 such a 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.16

From the perspective of the "hypothetical contract," the residents of Carver Terrace are entitled to compensation – entitled in accordance with basic principles of justice and fair-play that you yourself, despite your libertarianism, would adopt, if you no longer knew of you privileged station in society, and were to realize that you might well find yourself, not a beneficiary, but a victim of the sort of radically individualistic order that you now defend. You would, I daresay, demand compensation if you were to find that your humble residence and primary personal investment were situated upon an industrial toxic dump site, and that you were 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 you believe otherwise (as I confidently assume you do), then this is only because you, as a libertarian, draw your theories from the perspective of personal advantage, and with the false belief that these advantages are completely of your own making, with nothing whatever owed to the individuals and institutions that in fact made these advantages possible.

Application to Carver Terrace.

Adam: You are correct only to assume that I "believe otherwise." Your "hypothetical contract is a moral atrocity, that justifies unwarranted invasions of my privacy and seizure of my property. I still fail to see why I should be coerced by the state to give so much as an involuntary dime to help those poor wretches, however "nice" it might be of me to donate to their relief fund.

Raul: Then let me have a final go at it. Think of the Carver Terrace residents as claimants to a kind of insurance policy. By this account, government compensation might be regarded as 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.

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,17 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.

Adam: Balderdash! As everyone knows, government tax revenues are squandered to waste, fraud and abuse.

Raul: You’ll get no argument from me. But no human institution is perfect, thus some losses to waste, fraud and abuse 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 insurance policy analogy 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 (George Bush’s "ownership society") -- 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, Ulster and Baghdad.

In Summary:

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. 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.

[More about Markets in Chapter 12]

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 federal 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." 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 the dominant political voices of our time seem to be telling us otherwise!


1.     This is precisely the view of Fox News’ Fred Barnes. “My problem... is that, in some of these areas, like a below-sea-level city like New Orleans, ... they want the rest of us to insure their risk. As people who live on the San Andreas Fault in California, where they know there are going to be earthquakes, people who live along the Mississippi River in these low farmland areas... near the river, the flood plains. They know they’re going to flood. And when these things happen, the want the taxpayers all over the country to pay, and they do.”  "Fred Barnes to Katrina Victims: Drop Dead,"  News Hounds, August 30, 2005.

2.     In an e-mail of uncertain origin which I received soon after the Katrina disaster, I was advised:

“In case you aren’t familiar with how our government is supposed to work: the chain of responsibility for the protection of the citizens of New Orleans is:

“1. The Mayor of New Orleans
“2. The New Orleans director of Homeland Security.
“3. The Governor of Louisiana
“4. The [Secretary] of Homeland Security.
“5. The President of the United States.”

The e-mail message then proceeded to argue that due to the alleged blunders of the Mayor and the Governor, the Secretary and the President were absolved of responsibility for the horror that followed the hurricane. This, I was told, was a city problem and a state problem, not a national problem.  This excuse (along with “this not the time to play the blame game”) became the standard talking point of the Bush apologists.

3.     Which you can read here  (see paragraph 4). See also, "Right Wing Myths about Katrina, Debunked,"  ThinkProgress.org,

4.     George Friedman: "New Orleans, A Geopolitical Prize,"   Stratfor, September 1, 2005.

5.     For a detailed timeline with links to validating documents, see Salon.com’s "Timeline to Disaster,"  September 15, 2005.

6.     George Bush in the second Presidential debate with Al Gore, 2000.

7.     Thom Hartmann, "You Can’t Govern if you Don’t Believe in Government," Common Dreams, September 6, 2005.

8.     The particulars of this case history are drawn from Prof. Stella Capek's "The Environmental Justice Frame: A Conceptual Discussion and an Application," in the Winter/Spring, 1996 issue of Human Ecology Review, Pp 114-131. The two following sections of this chapter are adapted from my Commentary on Prof. Capek's paper, “Environmental Justice and Shared Fate...” which appeared in the same issue of Human Ecology Review.

9.     Ibid., 118-19.

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

11.     Robert Nozick's argument for this conclusion is justly celebrated: Suppose Wilt Chamberlain (more currently, Michael Jordan or Kobe Bryant) 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).  In Chapter 11 [in preparation] I dissent.

12.     Mill, On Liberty, loc. cit, p. 451.

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

14.     Rawls, A Theory of Justice, Harvard, 1971, 4.

15.     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.

16.      The reader familiar with John Rawls’s book, A Theory of Justice, will recognize this paragraph as a “bare bones” paraphrase of the essence of Rawls’s “justice as fairness.”

17.     Here it is again. Note the specification of the functions of government recognized by The Founders: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


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 .