Environmental Ethics
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Ernest Partridge, Ph.D

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Free Markets, Property Rights and the Environment

Ernest Partridge, Gadfly Enterprises

R.C. Hoiles Conference: Libertarianism and its Critics

Chapman University, November 14, 2008


Over the past decade, I have written and published numerous essays critical of Libertarianism. In fact, much of the focus of my book in progress, Conscience of a Progressive, is a critique of the libertarian doctrines of market absolutism, social atomism, and negative rights.

And yet, I would describe myself as a “semi-libertarian,” in that I endorse the libertarian positions on personal liberty – of association, of religion (or lack thereof), of sexual preference, of free expression, etc. Thus the libertarians and I agree with John Stuart Mill that “over himself, over his own mind body and mind, the individual is sovereign.”1

In this regard, the libertarians are in agreement with most liberals. So much so that many libertarians voted, albeit reluctantly, for Barack Obama in the recent election (as I discovered in this conference).

However, regarding economic justice, property rights, and the protection and preservation of the natural environment, libertarians disagree profoundly with the liberals and are more in tune with the conservative Republicans.

Thus the libertarians are in the strange position of agreeing, in some essential respects, with both the Democrats and the Republicans. But their disagreements with both are so substantial that the libertarians are estranged from both parties.

With the libertarians, I cherish and defend the fundamental rights to life, liberty and property. Also, along with the libertarians, I affirm the “like liberty principle:” that, in the words of John Rawls, “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.”2

However, with the liberals I insist that when we explore the implications of the basic triad of rights to life, liberty and property, and combine them with the like liberty principles, we find complications and conflicts which require the articulation and enforcement of rules by the only agency authorized to act disinterestedly on behalf of all citizens, namely a democratic government acting with “the consent of the governed.”

This is all very abstract, and I hope in the course of this presentation to exemplify these principles with familiar examples.

A “Society” is More Than the Sum of its Parts.

Perhaps the fundamental dispute between libertarians and liberals such as myself resides in the ontological status of “society” and “the public."

The social atomism of the libertarians was starkly expressed by Margaret Thatcher when she wrote: ““There is no such thing as society – there are individuals and there are families.” And Ayn Rand: “There is no such entity as “the public” ... the public is merely a number of individuals" Now admittedly, Baroness Thatcher is not a political philosopher, and Ayn Rand insisted that she was not a libertarian. So let’s look further.

Consider first, this passage from Frank Chodorov’s The Rise and Fall of Society:

Society is a collective concept and nothing else; it is a convenience for designating a number of people... The concept of Society as a metaphysical concept falls flat when we observe that Society disappears when the component parts disperse... When the individuals disappear so does the whole. The whole has no separate existence.3

Next, David Boaz of The Cato Institute:

For libertarians, the basic unit of social analysis is the individual.... Individuals are, in all cases, the source and foundation of creativity, activity, and society. Only individuals can think, love, pursue projects, act. Groups don’t have plans or intentions. Only individuals are capable of choice...

[At] the conceptual level, we must understand that society is composed of individuals. It has no independent existence.4

Now consider the implications of this denial of the "independent existence" of "the public" and "society." If there is no "public," then there are no "public goods" and there is no "public interest." If there is no "society," then there is no "social harm," or "social injustice" or "social (and public) responsibility." It then follows that government has no role in mitigating "social injustice" or promoting "the public interest," since these terms are fundamentally meaningless. Poverty and racial discrimination, for example, are individual problems requiring individual solutions.

In contradistinction, the liberal affirms that “society” and “the public” are “emergent entities,” like chemical compounds, languages, and living organism, with qualities distinct from those of their components. Attempts to reduce societies and publics to their component individuals is what the Brits call “nothing buttery:” for example, “a Beethoven symphony is nothing but notes,” or “Hamlet is nothing but a string of words,” or “a human mind is nothing but cells and synapses.”  In all these cases, to paraphrase Chodorov above, when the components of a play, a symphony, or a mind "disappear" "so does the whole."  But clearly, this does not mean that the whole is "nothing but" an aggregate of the parts.

Good for Each, Bad for All.

If we can cite cases in which advantages to each individual harms the interest of all individuals, and conversely that harm to each individual benefits all individuals, then, by distinguishing “each” and “all” we have demonstrated the existence of an “all-entity,” “society,” that is distinct from a summation of “each” individual. Elsewhere, I have attempted at some length to prove that society is more than the sum of its component members (“good for each, bad for all,” and “bad for each, good for all”). Because time constraints forbid a repetition of these arguments, I will let just two examples suffice here.

Antibiotics: The over-use of antibiotics "selects" resistant "super-bugs," decreasing the effectiveness of antibiotics for all. But just one more anti-biotic prescription for a trivial, "self-limiting" bronchial infection won't make a significant difference "in general," while it will clearly benefit the individual patient. But multiply that individual doctor's prescription by the millions, and we have a serious problem. "Good for each patient, bad for the general population." The solution: restrict the use of antibiotics to the seriously ill. Individuals with trivial and non-life-threatening ailments must “tough it out.” “Bad for each, good for all.”

Traffic laws: We all agree that traffic laws can be a nuisance. But if you believe that traffic lights constrain your freedom of movement, try to drive across Manhattan during a power outage! In the blackouts of 1965 and 1977 in the eastern United States and Canada, traffic began to move only after the police and a few citizen volunteers stood at the intersections and directed traffic. (I was in Manhattan during both events). The decision of each driver to accept constraints worked to the advantage of all. So too with the traffic lights and stop signs that we encounter daily. We are all freer to move about only because we have collectively agreed to restrict our individual freedom of movement. “Bad for each, good for all.”

A third example of individual self-serving behavior leading to ruin for all, “the tragedy of the commons,” follows shortly.

To sum up: “society” is not, as the libertarians would have us believe, simply a physical location where autonomous private individuals “do their own thing,” from which activity somehow, “as if by an invisible hand” (Adam Smith), benefits for all accrue without foresight or planning. On the contrary, the liberal insists, a society is more than the sum of its individual parts. A society is, as John Rawls puts it, “a cooperative venture for mutual advantage [which] makes possible a better life for all than any would have if each were to live solely by his own efforts.”5  As the antibiotics and traffic examples illustrate, common goods are achieved through individual constraint and sacrifice. “ Bad for each, good for all.” Conversely, unconstrained self-serving behavior by each individual can harm society as a whole. “Good for Each, Bad for all.”

The liberal does not deny that self-serving individual behavior, for example by scientists, entrepreneurs and artists, often or even usually results in benefits for all. (“Good for each, good for all”). Instead, the liberal insists that this is not a universal rule. In innumerable instances, such as the two presented above, it can be clearly shown that social benefit requires individual constraint and sacrifice.

Market Failure: The Back of the Invisible Hand

The libertarian insists that, apart from the protection of life, liberty and property, whatever government attempts, privatization and the free-market can do better. For example,

Jacob Halbrooks:  “Adam Smith's ‘invisible hand’ of the market guides all participants in society to promote the best wishes of everyone else by pursuing his own wants and desires.”

David Boaz: “[T]he free market allows more people to satisfy more of their desires, and ultimately to enjoy a higher standard of living than any other social system... We need simply to remember to let the market process work in its apparent magic and not let the government clumsily intervene in it so deeply that it grinds to a halt."6

And Milton and Rose Friedman: "A free market [co-ordinates] the activity of millions of people, each seeking his own interest, in such a way as to make everyone better off... Economic order can emerge as the unintended consequence of the actions of many people, each seeking his own interest."

What these "market absolutists" fail to appreciate is that not all workings of "the invisible hand" of the marketplace are beneficial. Some unintended consequences of market activity are harmful -- "the back of the invisible hand." Economists call these "market failures."

The source of market failure is hinted at in Milton Friedman’s notorious proclamation that "the social responsibility of business is to increase its profits.”8  This result is neatly accomplished by internalizing profits and externalizing costs on unconsenting third-parties, the so-called "stakeholders." If the stockholders of a corporation are dissatisfied with the profit-making of the corporation, they can fire the managers. But who, other than the government, speaks for the stakeholders: those who live downwind and downstream from a factory, or most recently the tax-paying public, present and future, that has been presented the bill for rescuing Wall Street? If not the regulatory agencies, then perhaps the courts. However, as I will explain shortly, the courts fall short as a remedy for market failures.

Limits of privatization and property rights.

The Tragedy of the Commons.  Garrett Hardin’s landmark essay, “The Tragedy of the Commons,” vividly displays the principle, “good for each, bad for all.”

Imagine a village of sheep herders, surrounded by an open pasture, a “commons,” owned by none and utilized by all. The number of sheep in the pasture is at “carrying capacity,” which means that the addition of more sheep will degrade productivity and sustainability of the common resource. It is to the advantage of each villager to add to his personal wealth by putting another of his sheep in the commons. But by so doing, he decreases the wealth and well-being of all the others. “Good for each, bad for all.”

And now the “tragedy:” absent collective constraints on the individual, the only rational thing for the autonomous “economic man” to do under these circumstances is to increase his wealth by adding sheep to the commons. Presumably, all the others will be likewise motivated. True, it will destroy the resource and bring ruin upon all, including himself. But he is helpless, by himself, to avoid this result. Might as well “get what he can while he can.”

If this scenario applied only to sheep herders and pastures, it would be of little interest. But the significance of the tragedy of the commons resides in its scope of application: to air pollution, to global population, to game management, to ocean fisheries, and to much, much, more.

Hardin’s solution is both obvious and compelling: “mutual coercion, mutually agreed upon.” But who or what is best suited to articulate and enforce the mutually agreed upon rules of mutual coercion? What else but a democratic government, acting in behalf of all, and answerable to all?

The libertarian replies that the tragedy of the commons can be addressed by privatizing the commons -- for example, by closing the open range and dividing it into private parcels. This solution internalizes the cost of over-exploitation, thus motivating the owner to manage the property sustainably. Agreed. But this is only a partial solution, for some commons, by nature, can not be privatized. Among these are migrating wildlife, pollenizers, the atmosphere, rivers, aquifers, the ocean, the hydrological and nutrient cycles, the global climate. The economic value of these so-called "natural services" is calculated by Robert Costanza, et al at approximately double the gross national product of the United States.

Who or what is to protect and preserve these indispensable natural services? We arrive at the same answer: the government, or more correctly, a consortium of governments, for these services, like nature itself, are totally indifferent to both national boundaries and property lines.

“The Public Interest:” Randville, Rawlsburg, and New Orleans.  Are there public goods? Ayn Rand, let us recall, asserts that there are no public goods since “there is no such entity as 'the public' -- since the public is merely a number of individuals -- any claimed or implied conflict of the 'public interest' with private interests means that the interests of some men must be sacrificed to the interests of and wishes of others."

The liberal, of course, vehemently disagrees. As evidence of the existence of “public goods,” consider a parable.

Two communities are situated on opposite banks of a great river: on the right bank (appropriately) is “Randville,” and on the left bank is “Rawlsburg.” Randville is populated entirely by libertarians – rugged individualists all, who shun “collective” activity and who assume full responsibility for their personal safety, welfare and property. “Rawlsburg” is comprised of liberal individuals who are properly covetous of their personal rights, yet fully aware of the desirability of promoting public goods and of acting collectively in the face of common emergencies.

News arrives at both communities from (gulp!) a government bureau, that a great flood is approaching from upstream. The citizens of Randville immediately get to work piling sandbags around each of their individual dwellings. Across the river in Rawlsburg, brigades of citizens are hard at work building a levee around the entire town.

Come the flood, the puny separate efforts of the rugged Randville individualists prove to be futile, while the substantial communal levee surrounding Rawlsburg holds firm and the community is spared.

“Now hold on!,” the libertarian retorts. “Surely, faced with this common emergency, the folks at Randville would volunteer to build a levee. That’s just common sense.”

Very well, but what about those Randvillians who say: “you guys go right ahead and build that levee. I’d rather stay at home – I have other priorities.” Surely the good libertarians wouldn’t want to force anyone, in Ayn Rand's words, to sacrifice their interests to those of others.

And so we have the well-known “free rider problem,” whereby an individual gains unearned and cost-free advantage from the labor of others. A profound injustice on the face of it. The solution? What else than to coerce a contribution to the common effort, either by labor or, failing that, cash assessments.

In other words, taxes.

So it comes to this: The only way for the Randvillians to deal with “the free riders” is to coerce labor on the levees, or assess taxes in lieu of labor. They must do so in behalf (are you ready for this?) of the “common good” of the community-as-a-whole. Just as the Rawlsburgers are doing across the river.

The Randville and Rawlsburg example is a fictitious thought-experiment. If it seems far-fetched, then forget Randville and think New Orleans, August, 2005.

Here's another case that is quite real, and even personal:

In April, 2003, California Governor Gray Davis requested $430 million in federal funds to reduce the fire hazard in the southern California forests. The request was ignored until, on October 24, George Bush formally rejected it. The very next day, “the Old Fire” broke out in the San Bernardino mountains, followed by several more fires, eventually consuming three quarter of a million acres and 3577 homes, and causing 22 fatalities.

This particular disaster struck close to home – precisely 150 feet close to my home, where the fire was stopped at my property line. “The Old Fire” almost surrounded the cluster of houses in our neighborhood, and only the combined, coordinated and professional effort of the US forest Service and the state and local firefighters saved our homes. Several days earlier the county Sheriff ordered us off the mountain while these “big government bureaucracies” did their work – magnificently. Tibor Machan has a similar tale to tell us about the wildfires of 2007.

Perhaps some libertarians would have preferred to de-fund the government fire-control agencies and then to leave it to each of us individual property owners to take a valiant stand by our individual homes, garden hoses in hand. Who can doubt that had we tried that, all our houses would have been reduced to ashes and many of us would have ended up as “crispy critters.”

In his 2000 debate with Al Gore, George Bush said "I think you can spend your money more wisely than the federal government can." In November, 2003, all of us San Bernardino mountaineers – democrats, republican, independents – were convinced, contrary to George Bush, that “the government” spent our tax money better than we could.

The Courts and Torts Solution:

Martin Anderson, a former Reagan administration official writes that "just as one does not have the right to drop a bag of garbage on his neighbor's lawn, so does one not have the right to place any garbage in the air or the water or the earth, if it in any way violates the property rights of others."9  Pollution, by this account, amounts to an assault upon a person or a person’s property. Tibor Machan concurs:, "any pollution which would most likely lead to harm being done to persons who have not consented to being put at risk of such harm would have to be legally prohibited."10

Accordingly, the libertarians contend, environmental pollution and can best be controlled, not by government regulation, but through the injured citizens' recourse to the courts. Unfortunately, this remedy, however appealing in theory, will not succeed in practice. Experience has shown, time and again, that the unfortunate victims of environmental pollution are simply unable to make their case, however just. Here are three reasons:

Contributory Assault

As I noted above, my home and primary work place is in the San Bernardino mountains, east of Los Angeles. While the air quality there is much better than most other places in Southern California, the westerly winds regularly bring Los Angeles air through my property and into my lungs. (Until the state and federal governments enforced regulations, the air quality in Los Angeles was the worst in the United States). Another autobiographical fact that will soon prove relevant to this discussion: thirty-five years ago I threw out my pipes and tobacco and never smoked again.

Suppose, in another five years, I am diagnosed with lung cancer. The doctors then tell me that after thirty-five years without a draw on my pipe or a drag on a cigarette, my former smoking habit is an unlikely cause. More likely, I have been victimized by southern California air -- in particular, the exhaust fumes from some 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.11

Repeated suits against the United States government failed, due to the following problem of "the statistical casualty." While epidemiological studies determined beyond reasonable doubt that there was a known percentage rise in the incidence of cancer, and thus a known number of excess cases, no particular cancer patient could be known to be a victim of the fallout. Even non-smokers contract lung cancer, albeit rarely, from natural background radiation and other sources. Thus, while it was virtually certain that there were hundreds of victims of the fallout, no particular individual victim could be identified. And that degree of doubt sufficed to free the government of liability. As we shall see, the same legal strategy has prevented all citizen-plaintiffs from winning a single compensation suit against the tobacco industry, though the US government has estimated that up to a half million individuals die each year from smoking related diseases.

The Burden of Proof

Because of these considerations and others (e.g., synergisms, threshold effects, time-lag effects, etc.), painfully real injuries, diseases, and premature deaths to particular individuals are routinely generated by causes, the evidence for which falls far short of the legal burden of proof. Nor can this problem be remedied simply by lowering the threshold of the burden of proof, for this would open the floodgates of frivolous and meritless suits, undermining, among other rights, the libertarians' cherished right 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. However, not a single individual plaintiff has won a case against the industry. Finally, after more than three decades of complete failure, the libertarian individual tort remedy was discarded and the problem of the statistical casualty sidestepped, as a consortium of state Attorneys General, led by Mississippi’s Michael Moore, achieved a multi-billion dollar settlement from the tobacco companies. The plaintiffs in these cases were not individual smokers, but rather the states which had to pay increased medical costs to the “class” of smokers. “The public interest” succeeded where “invasion of individual rights” had failed.

Similarly, the air that I breathe at my southern California mountain home is significantly cleaner now than it was a generation ago, and not because of successful law suits by citizens and property owners against the polluters. Instead, the liberal’s remedy has been applied as air quality has been improved through the laws and regulations issuing from the state of California's Air Quality Management District, and the federal Environmental Protection Agency: in short, through Garrett Hardin's "mutual coercion, mutually agreed upon." Aside from a few uncompromising libertarians of my acquaintance, I know of no fellow Californians who would have it any other way.

And finally, government regulation is prospective while law suits are retrospective. And as we all know, an ounce of prevention is worth a pound of cure.

Indispensable Governance

In place of "government" (which John Hospers describes as "the most dangerous institution known to man"12), the libertarians would delegate the task of protecting property rights to the courts. But is this a distinction with a difference? Aren't "the courts" an arm of the government? And what assurance do we have that courts of law won't be as tyrannical as "the government" that is so distrusted by 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 San Bernardino mountains.

Suppose that I have decided to heat my house with a wood stove. How am I to know beforehand that I will be safe from a pollution suit by my neighbors -- since, by hypothesis, our libertarian government has abolished all those "dictatorial" clean air standards? Clearly "the courts" will have to define, in detail, acceptable and non-acceptable effluent standards based on extensive scientific research. And all this will all have to be done in advance of any suit against me. Otherwise, the suit would be ex post facto, and thus legally invalid. Similar questions arise with claims of damages due to food poisoning, unsafe drugs, vehicle malfunction, etc.

The implication is clear: the libertarian reformers, having disbanded the Environmental Protection Agency, the National Institutes of Health, and other "big government" regulatory and research agencies, will have to re-establish them if the courts are to function under the enormously expanded burden of responsibility handed to them by the libertarians. In short, the libertarian scheme of "pollution control through the tort laws" does not eliminate government, since it requires a reliable government to codify and defend personal and property rights.

No one can doubt that many governments have proven to be "dangerous" and tyrannical. But libertarians would have us believe that all governments, per se, are not to be trusted - that "the best government is no government." That claim requires an argument. American history teaches us that because the founders of our government were very suspicious of the powers and abuses of the state, they first attempted, under the Articles of Confederation, the sort of minimalist government that the libertarians might endorse – a government that failed. Following that they tried again, this time with a system of "checks and balances" that separated the powers of government, and then they completed their task with a "Bill of Rights" that explicitly stated limits on the powers of the government over its citizens. Ultimately, the sovereignty over that government resides in the voting public (or at least did so until Bush v. Gore on December 12, 2000).. If we don't like the way we are being governed, we can replace our leaders at the ballot box. Unfortunately, if we don't like the way the telephone company or the public utilities treat us, we can not vote their management out of office - unless, of course, we are wealthy enough to own significant amounts of stock in these companies. Yet these private interests control our lives, without restraint - unless, of course, in accord with liberal policy and contrary to the advice of the libertarians, we have been wise and fortunate enough to enable our collective surrogate, the government, to regulate these private interests in 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.

Conclusion: Libertarianism in Theory and Practice.

Libertarians routinely trot out horror stories about government waste, fraud, and abuse, and measure these troublesome anecdotes alongside an unrealizable ideal of a "perfectly functioning market." However, this argument commits the fallacy of disparate comparison by comparing what the perfect market would do in theory with what imperfect governmental agencies, at their worst, have done in fact. No thoughtful liberal defender of public regulation of the environment in liberal democracies will pretend that this approach is perfect. In fact, as everyone knows, regulatory agencies are under constant assault and their public service is constantly compromised, usually by the very free market forces and private interests that are celebrated by the libertarians. But if the libertarians have a better alternative, then it must be shown to be preferable in practice, rather than in ideal theory. However, history shows that the unconstrained free market, privatization and the absence of "government interference" has given us opium in cough medicine, spoiled meat, child labor, mine disasters, black lung disease, air and water pollution, depletion of natural resources, and now the collapse of the financial markets.

The rise and persistence of government regulation of the environment is no accident; it is an invention born of necessity. No industrial society is without government, and constraints upon legitimate governmental oversight of private enterprise can open opportunities for private exploitation. The threat of suits after the fact did not prevent the contamination of food or the abundance of unsafe and ineffective drugs prior to the establishment of the Food and Drug Administration. Moreover, even private interests recognize the necessity of impartial "referees." Thus, for example, United States history discloses that many of the regulatory agencies of the Federal Government were established by petition from private industry; notably, the Federal Communications Commission, which was created in 1934 to oversee "traffic control" of the electro-magnetic spectrum, without which the industry could not function. And no one who has attempted to drive across Manhattan during a power outage is inclined to believe that traffic signals are an unwarranted governmental intrusion upon their personal freedom.

Even "the free market," that cornerstone of libertarian theory, cannot survive without a governmental referee, for the unconstrained and unregulated "free market" contains the seeds of its own destruction. Though free market theorists are reluctant to admit it, capitalists are not fond of free markets, since open and fair competition forces them to invest in product development while they cut their prices. Monopoly and the elimination of competition is the ideal condition for the entrepreneur, and he will strive to achieve it unless restrained not by conscience but by an outside agency enforcing "anti-trust" laws. That agency, necessary for the maintenance of the free market is, of course, the "government," so despised by the libertarians. Evidence? Look to history. Then it was John D. Rockefeller, now it is Bill Gates

Of course there is a sad history of governmental exploitation (usually on behalf of the wealthy and powerful); but the remedy is better government, not no government. When police and fire departments are found to be imperfect, wise municipalities do not abolish these services, they strive to improve them. Sadly, that is not the response of many politicians to failing public schools.

When, during a football game, a referee makes a call against the home team, the fans are often heard to shout: "Kill the Ref!" -- forgetting, for that moment, that without referees, the game could 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. Among the liberal democracies, the constraints of "big government" tend to burden the wealthy and powerful, while those same constraints protect the poor and the weak, all of whom, in a just polity, are equal citizens before the law.

If libertarian doctrine reflects and serves the interests of the wealthy and powerful elites, how does one explain its attractiveness to those less well served by this ideology? In the first place, the foundational principles of libertarianism - the rights to life, liberty, and property - are, in the abstract, compellingly attractive. So much so that the liberal critics of libertarianism rarely dispute this triad of principles - in the abstract. But the libertarians embrace another principle, "the like liberty principle," that proves to be the undoing of their ideology. For the exercise of the "right to property" can threaten the life and liberty of others, as in the case of the segregation laws in the American south, prior to the enactment of the “liberal” public accommodation laws. In general, the powerful and wealthy individual's "freedom to choose" is routinely found to constrain the same freedom in others. Then, as one attempts to comprehend this tangle of inconsistent and competing rights and claims, one discovers what most students of human society, psychology and history already know and that defenders of political liberalism affirm: that human beings are not merely isolated bundles of “consumer preferences," but rather are fundamentally social creatures. Accordingly, one also discovers that successful human communities are characterized, not simply by competition and market exchanges, but also by shared ideals and the paradoxical achievement of individual self-fulfillment through self-sacrifice and 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 deal with the conflicts and paradoxes that issue from the exercise of these rights. Moreover, the libertarian fails to appreciate that a just system of adjudication of these rights and claims of presumably equal citizens would necessarily restore much of the very governmental structure that the libertarians would abolish and that the liberals defend.

If the libertarian scheme of free markets, absolute property rights and torts will not suffice to protect the rights of all citizens and the integrity of the natural environment, then what will?

Here's a modest, if familiar, proposal. Let the public in general establish an agent to act in its behalf, and as the guarantor of the commonly held values and aspirations of the polity. And then let that agent first determine and then enforce rules for the optimum sustainable use of the necessarily "common resources" (e.g. the atmosphere, the hydrological cycle, migrating wildlife, etc.). And if the public is not satisfied with how that agent is acting in its behalf, it then has the right to replace that agent with another.

Such a system is in fact in place: the "agent" is called "government," the rules are called "environmental law and regulation," and the system of checks against the abuse of power is called "democracy." In the United States Constitution, as well as the supreme law of numerous other liberal democracies, the freedom and integrity of the individual (i.e., one's rights to life, liberty and property) are protected, even from "the tyranny of the majority."

In conclusion, I have argued today, and elsewhere more extensively, that in numerous cases the libertarian doctrines of social atomism, unfettered free markets, inviolable property rights, and unconfined personal liberty, bear morally indefensible and practically unmanageable implications. In contrast, these implications are avoided by the liberal assumptions:

(a) that human beings are essentially social creatures,

(b) that morality and justice are independent of, and indeed the foundations of, ideal market mechanisms,

(c) that in readily identifiable instances, advantages to each result in ruin for all,

(d) that, conversely, advantages to all require sacrifices (e.g. taxes) upon each, and finally

(e) that, accordingly, optimal social policies are assessed from “the moral point of view” – from the perspective of the “ideal disinterested spectator.” (John Rawls’s “Original Position”).

Accordingly, the liberal concludes, human excellence, social harmony and, yes, personal liberty for all, can best be accomplished through the agency of a government answerable to the people, and through the rule of law, applied impartially and equally to all.

Admittedly, the liberal democracy and regulated capitalism that I would recommend is not perfect -- nor is any human institution under the sun. But an anecdotal inventory of the shortcomings of public regulation of the environment does not, by itself, constitute a repudiation of the existing system.. What is required is a clear and persuasive presentation of a better, workable, alternative. This the libertarians have not offered us. Nor can they, as long as anyone pays more than casual attention to human psychology, ecological necessities, and the lessons of history.

Note: This essay includes portions of a published article, “With Liberty for Some” (Environmental Philosophy, Fourth Edition, Zimmerman et al, Prentice Hall, 2005), and several essays previously published in The Crisis Papers and The Online Gadfly as indicated by the links in the essay.


Supporting Essays by Ernest Partridge

(Annotations to be added shortly)

With Liberty for Some.

A comprehensive critique of the libertarian approach to environmental policy. (The second half of this presentation is drawn from this essay).

Chapters in Conscience of a Progressive.  (Unpublished work in progress).

Good for Each, Bad for All.

The Moral Point of View.

Kill the Umpire!

Privatism and Public Goods.

Remedial Economics for Regressives.

A critical examination of neo-classical economic theory.

Refereed Journal Publications.

With Liberty for Some. (Noted above)

In Search of Sustainable Values.

Why economics fails as a sole foundation of public policy.

Perilous Optimism.

A critique of Julian Simon’s “The Ultimate Resource.”


Internet Publications.

Privatized Hell Revisited.

Why the privatizing of public services fails. Case in point: the California wildfires. See also: “The California Wildfires and Right-Wing Smoke”


The Road to Catastrophe.

Three libertarian doctrines, embraced by recent Republican administrations, have led to the current economic crisis. They are: social atomism, market absolutism, and spontaneous order.

Market Failure: The Back of The Invisible Hand.

The Scorpion, The Frog, and the Corporation.

Two out of three cheers for capitalism: an invaluable servant, but a ruthless master. To prevent which, "Governments are instituted among men [and women], deriving their just powers from the consent of the governed.”

Evil as the Absence of Empathy


1.    John Stuart Mill, On Liberty, Chapter I.

2.    A Theory of Justice, Harvard, 1971, p. 250.

3.     Quoted by David Boaz, Libertarianism: A Primer, p. 96

4.     Ibid, p. 95.

5.    John Rawls, A Theory of Justice, Harvard, 1971, p. 4.

6.     Ibid, pp. 40, 185.

7.    Milton and Rose Friedman: Free to Choose, pp 13-14).

8.    The Title of an article by Milton Friedman in the New York Times Magazine, September 13, 1970.

9.     From an untitled Christian Science Monitor article, January 4, 1989. Quoted by Walter E. Block, ed., Economics and the Environment: A Reconciliation. (Vancouver, Fraser Institute, 1990).

10.     "Pollution and Political Theory," Regan (ed.), Earthbound: New Introductory Essays in Environmental Ethics, (New York: Random House), p. 97.

11.    Stewart L. Udall, The Myths of August, New York: Pantheon, 1994, Chapter 11.

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


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 .