Libertarianism and Pollution

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.)

Comments

[Victor Tadros]

Thanks David, that's helpful. I think I see this more clearly now.

Ok, so it might have been wrong to say that seeking a benefit imposing a threat is the same as diverting a threat to impose a threat.

I agree that whether either thing is permissible might depend on the value of one's goals (the significance of the extant threat or the importance of the goal that one will achieve).

There are two potential differences here to focus on. One is the instigating/ diverting distinction. There might be an important moral difference between diverting an extant threat and initiating a threat to avert another threat that one faces.

In familiar strategic bomber cases, though, we are not diverting a threat, but instigating in the course of averting a distinct threat. And yet most people believe that it is sometimes permissible to harm civilians as a side-effect in war. So the instigating/diverting distinction, even if it is significant, can't be determinative.

The other distinction is between averting a threat and pursuing a benefit. In strategic bomber we are averting a threat, but in the pollution case we are securing a benefit, we might think, and perhaps this is significant. I'm not sure how easy it is to make this distinction secure (what is the baseline used to distinguish threats from benefits?).

Suppose that there is some way to make this distinction secure. Your attack on libertarianism would be justified if libertarians endorse the view that it is always wrong to risk infringing rights to secure a benefit. But I still don't see why they need to be committed to that. As your post implies, it is not a plausible view. But why can't libertarians simply resist it whilst continuing to endorse their basic commitments?

Perhaps we need to know more about what libertarians are committed to.

Some might be committed only to the idea that there are no enforceable duties to rescue. So it is always wrong to use my body, talents or property for the sake of others.

Others might take the more extreme view that it is never permissible to infringe my rights to pursue good consequences. The more extreme view is clearly implausible as your example shows. But a libertarian might endorse the weaker first view (still not an attractive view, but more plausible than the extreme view).

Victor

[David Sobel]

I like the suggestion that there might be a normative difference between creating a threat to counter a threat and creating a threat to secure a gain. This will put more philosophical pressure on the difference between gains and losses, I suppose, and I am not confident that distinction will hold up well, but still I think it an interesting direction to try. I think I find everything you said above plausible.

[Victor Tadros]

Thanks David. That's clarified things to me.

I think that there are three potential differences between the standard trolley case and your Pollution case.

1) ST involves harm as a side-effect. Pollution involves risk of harm as a side-effect.
2) ST involves diverting a threat. Pollution involves instigating a threat.
3) The aim in ST is to avert a threat. The aim in Pollution is to secure a benefit.

In an earlier post I tried to show that 1) makes Pollution easier to justify than ST
2) may be morally salient, but few people will see it as decisive. For example, in standard Strategic Bomber cases the bomber instigates rather than diverts a threat. Most people think it permissible to harm civilians proportionally in those cases.
3) is trickier. The difference between securing a benefit and averting a threat requires us to set a baseline, and it is not obvious how to do this in a non-arbitrary way. Suppose that it can. Pollution nevertheless shows that the distinction is not decisive either.
The question is whether libertarians need reject these judgements. An extreme form of libertarianism might claim that it is never permissible to infringe rights either to avert a threat or to secure a benefit. Pollution shows that that is not a plausible view. A less extreme form of libertarianism (which I also reject) claims only that there is no enforceable duty to help others, but permits side-effect harms to avert threats or to secure benefits. I take the central fundamental claim of libertarians to be the lack of an enforceable duty to rescue. The best challenge to their view shows that there is such an enforceable duty.

Victor

[David Sobel]

I have been stunned to see how exactly Nozick anticipated the sorts of concerns I initially expressed, down to the gun with many, many chambers, etc. I am also surprised at how happily Nozick allows that things like pollution do violate rights and yet that the cases where we should permit such violations are those in which the social benefits of allowing such pollution outweigh the costs. (p. 79-80) He also happily allows that “it might be decided that mining or running trains is sufficiently valuable to be allowed, even though each presents risks to the passerby no less than compulsory Russian roulette with one bullet and n chambers (with n set appropriately), which is prohibited because it is insufficiently valuable.” (p. 74) This is exactly the sort of thing I assumed no proper libertarian would tolerate.

He also seems to assume nearly without comment that my property rights to x do not make it wrong for you to mess with x against my will so long as you compensate me so that I am not worse off. The only cases where he tolerates making something impermissible (that is, for him, punishing it beyond what is needed to compensate) are cases where compensation is unfeasible.

In essence, he seems to think that the only thing that property rights give me a right to is that others not diminish my well-being (or my own perceived level of well-being) in the way they use my property without my consent. So we would obviously need to start with a notion of what counts as a boundary crossing of my property rights. You clearly can think about my property in ways that diminish my well-being without a boundary crossing having occurred and I surely have no right that you not do so. So let’s say that my property right to my body means, among other things, that you cannot touch it without my consent. But the relevance for Nozick of what is and is not a boundary crossing is not that unconsented to boundary crossings are impermissible or impermissible unless the sky will fall. Rather the relevance of such a boundary crossing is merely that in those cases where you cross a boundary of mine without my consent (or presumably even against my will) you are obligated to compensate me so that I am not worse off for your having done so.

Or, one might even say that the central ethical question of whether it would be wrong prospectively to plan to violate my rights and compensate me is hardly on his radar. He wonders mainly about where it would be wise for society to attach extra penalties to certain actions beyond what is needed to compensate. But the rationale for attaching such penalties is never simply that the action impermissibly violated a person’s rights but rather always difficulties in compensating.

[David Sobel]

One very surprising aspect of Nozick that I also should have mentioned is that he rather explicitly allows that the key reason we should generally construe property rights such that we may permissibly plan to violate a right and then compensate the owner of the right rather than thinking people's rights forbids this and requires instead that we not mess with other people's property without their consent (unless the sky will fall) is that there will be more value created in a system with the former rights rather than the latter. That is, the overall value (and Nozick seems to care mainly about collective well-being) will be higher with rights of the former kind rather than of the latter. And for that reason, Nozick claims, those are the kind of rights we have.