Libertarians want to say that my right to my body entails that you may not shoot me. Presumably they also want to say that you may not shoot a gun with only one bullet at me even if the gun has many, many empty chambers (even millions). I have a right, I imagine they must want to say, that you not put me at such risk even when the risk is very small. But then I was wondering how I get to fly my plane in areas where there is some, admittedly very small, chance that it will lose control and fly into your house or person, and thereby violate your rights. I am assuming for present purposes that it would count as a reductio to prohibit even well made planes from flying in populated areas without getting unanimous consent from the relevant population.
It seems not available to the Libertarian to say that the benefits of flight to society are sufficient to justify such a small involuntary imposition of a risk to my rights (whereas the benefit to society of permitting someone to aim a weird gun at me and pull the trigger do not). That sounds like the serpent winding of consequentialism that they want to avoid. I was wondering if they could say that there is a difference between my rights being put at some small risk being part of your aim vs. being merely foreseen. I am guessing such a view would be non-standard and might perhaps allow me to establish an involuntary survival lottery for organs where your organs are put at very small risk but my aim is to save as many people as possible.
I think most broadly the worry boils down to how Libertarians can make room for the permissibility of some small involuntary risks to that which we have a right without some consequentialist-style reasoning.
In the context of thinking about such issues, Steve Wall yesterday brought to my attention Railton’s “Locke, Stock, and Peril” which, despite its silly name, strikes me as presenting the above vague misgivings with great power and clarity. It is included in his collected papers. I recommend it. Railton wisely puts the case primarily in terms of the permissibility of polluting. He argues that the basic commitments of the view have the result that the government should be much more rather than less active and prohibit all (unconsented to) pollution, which in the actual world would surely be most of it. That would be a very active and restrictive government. Some of the ideas below are swiped from his paper.
The most obvious immediate replies strike me as unworkable. One might try saying that the relevant kind of consent is hypothetical. If one would have consented, had one been informed and rational (and presumably self-interested), then no rights violation. But this would license rather than be fundamentally hostile to some paternalism, esp. state paternalism. This would allow people to take one’s property without one’s consent so long as it is actually good for you that this be done. That does not sound like Libertarianism to me. Could the state also involuntarily sign me up for a survival lottery which improves my life expectancy but risks my losing my organs against my will? If so, then Libertarianism has changed beyond recognition.
Tacit consent seems even less promising than usual here as pollution and the effects of global warming are, well, global. One can hardly say that one has consented to such stuff because one has not left the planet.
One might try saying that the basic natural rights permit people to impose a very small risk on one without violating one’s rights. But this would allow the person to pull the trigger of the odd gun mentioned above. It would also have the result that lots of people could together do stuff that poisons my air and water such that I am very likely to die from this, yet no one will have violated my rights since no one person added a risk greater than the permissible amount. Again, each person could put a needed organ of mine at a small risk with the collective result that I am likely involuntarily to lose my organ again without a rights violation. Alledged advantages over consequentialism here seem to have vanished.
One might try saying that we are better off because people polluted, or flew, or whatever. If previous generations had been forbidden from doing this, we would have much less material wealth. But again, I might be better off if someone straps me down and involuntarily gives me a root canal, but still, I would have thought, that does not show that doing so does not violate my Libertarian rights. The polluter seems to not leave as much and as good air, water, whatever, for the rest of us, thus seemingly violating the Lockian Proviso. One might try to compensate for the loss but I don’t see how to put a price on the loss. One might give the loss a market price but I might truthfully not have been willing to make the trade at that price. One could try asking me what price I want, but that will result in strategic issues and some rabid anti-pollution folks who will not sell at any price. Further, although I may have been willing to sell something at a certain price, I may be unwilling to have someone take it without my consent and give me the price that I would have accepted had it been done the right way. Thus none of these maneuvers seems to me to earn the right to say that I have been treated in ways that I consent to.
Thus, I do not yet see how the Libertarian can successfully handle cases of pollution or global warming. It may really be that despite appearances, a proper Libertarian government would not be laissez faire at all but would instead find much of what we think of as private activity, such as driving our cars, as violating people’s rights.
I should say that I am not up on the Libertarian literature so perhaps there is a lot of work I am not aware of that addresses such concerns. If so, I hope people will tell me what progress has been made since Railton’s paper.
(I should add a hat tip to Justin Moss, a UNL grad student, whose ideas started me off in this direction.)