Back to the Drawing Board : Property Rights, Justice

Three Different Ways of Using Force

Donny with an A — Sat, 23 Aug 2008 18:43:00 GMT

So here's the idea: there are at least three different ways that libertarians generally think of coercive force, and I think they've been harmed by treating them as if they were essentially the same sort of thing. The first kind of coercive "force" is the use of someone else's property without their permission, or in direct defiance of their wishes. The second kind is the initiation of physical force upon a person, again without permission or in violation of their explicit desires. The third kind is the threat of physical force directed at coercing a person into doing something against their will. I don't deny that there might be more "kinds," but these three came to mind first, so they're the one's I'll address here.

It seems to me that when many libertarians decry "coercion" or "aggressive force," they do so by means of certain kinds of arguments. These arguments sometimes take the form of identifying the "true nature" of certain kinds of coercive actions, and extending that characterization to other kinds of coercive actions which may or may not fall into different categories of force as expounded above. This, I think, can lead to mistakes.

For example, "Taxation is slavery because the product of your labor doesn't belong to you." The idea here is that the government "steals" some of your income from you (which depends on the rejection of the idea that you voluntarily live on the government's land by living in a country), and this money is the product of your own labor. But you know what you call a system in which you work, but someone else gets the product of that work? Yea, slavery. Blammo, take that government! *high fives from the libertarians*

Except here's the thing. There is exactly one sense in which taxation is like slavery, and it's not the sense that these people are talking about. The way that taxation is like slavery is that the government demands that you, or your employer, or someone not actually on their own staff, actually sends them the money. That is, if you don't put the check in the envelope, stamp it, and send it, you get punished. That's the third kind of force discussed above, where the threat of violence is used to coerce a person into doing something against their will. And that's exactly like slavery.

However, the reason that taxation is like slavery has nothing to do with the fact that the government gets the product of your work. That kind of thinking is not only sloppy, but in many ways anti-libertarian and Marxist. We live in a country where we are told that we will be taxed if we decide to work. In a slave society, slaves are told that they will be taxed and they will work, whether they like it or not. The government does not use the threat of force to make us produce income. That would be like the third kind of force, which is the kind that can be associated legitimately with slavery. We choose to work, and can choose not to do so without any government-enforced consequences.

The idea that the product of our labor should belong to us, even when we are explicitly a part of an arrangement in which it will be taken from us, is an idea that can be traced back to Marx and the labor theory of value. The very same idea is used to explain why capitalists exploit their workers: the workers produce, and the corporation gets the product of that labor. It's like wage-slavery! *high fives from the socialists*

The difference between a voluntary agreement to work and government taxation is not that corporations let you keep the product of your labor and the government doesn't. Rather, the difference is that you don't agree to the arrangement the government enforces upon you (well, under certain conceptions of voluntarity), and you do agree to the arrangement the corporation enforces upon you. In a corporate agreement, you are "paying" your employers with the product of your labor in exchange for them paying you with money that you want more than the product of your labor. In a government agreement, you are paying the government with the product of your labor so that they won't use the first kind of force (the use of your property against your will) or the second kind (the use of physical force against your person).

The slavery part of that bargain is the part where they actually make you pay the tax with the threat of those other kinds of force. If they just went to your bank and took the money from you, the slavery component would be gone. But ostensibly, nobody's complaining because we have to put a check in an envelope and mail it, or fill out a form every once in a while. I mean, that's a pain in the ass, but I really don't think that's the problem. The problem is not that taxation is like slavery, but rather that taxation is like theft.

But if you accept the view that we voluntarily live on the government's land, and part of our contract is that we pay taxes to the government, then even this characterization doesn't apply. The first kind of force (using property without the owner's permission) doesn't apply to situations where the alleged "owner" is party to an agreement through which she surrendered the title to that property, just like it's not the first kind of force when my employer takes the product of my labor without my consent. And the second kind of force (physical force against someone's person) doesn't seem to apply when the person is doing something that they have a perfect right to be doing, and are resisted against forcefully. In a sense, it would almost be self-defense for the government to collect its "rent", just like my employer would have every right to use some reasonable amount of force if I suddenly refused to give up the products of my labor in the middle of the work day (well, more accurately, he would have the right to demand that I appear in court or something similar, and if I were found to be in breach of my contract, some force would be legitimate in enforcing that contract; I'm no opponent of procedural justice).

So we see that "Taxation is slavery" collapses into "Taxation is theft, and they even make me give it to them at gunpoint", which then collapses into "The government doesn't have any legitimate claim to my property." It seems to me that all that would be perfectly clear to anyone willing to think about it for a moment if they would only separate the different kinds of force and consider each in its own light.

Roderick Long on Property

Donny with an A — Thu, 31 Jul 2008 05:07:00 GMT

I was reading Roderick Long's article, "Land-Locked: A Critique of Carson on Property Rights," and came across an argument that left me somewhat skeptical. I've recently become convinced that appropriation needs to be justified on the grounds of being a desirable "game," as Schmidtz argues in his essay, "The Institution of Property." But I don't want to rule out the possibility that a Lockean approach to understanding appropriation can be defended, so I figured it might be useful to spell out my confusion with Long's argument in order to see whether I (or anyone else) can make sense of any of it.

If I understood correctly, Long claimed that property rights arise from self-ownership essentially because "By transforming external objects so as to incorporate them into my ongoing projects, I make them an extension of myself, in a manner analogous to the way that food becomes part of my body through digestion" (91). But I feel like a number of questions need to be addressed in order to make this a complete theory.

First, what does it mean to "transform" something. I can incorporate all sorts of objects into my projects without physically transforming them at all, and I think that it makes a lot of sense to think that a homesteading principle might still want to cite me as their owner. For example, I might build a fence around a plot of unowned land, and claim it for my yard. Surely someone who believes in homesteading as a source of property rights would think that I owned the fence itself, and the land on which the fence was built. But it seems like I would also have a pretty reasonable claim for thinking that the land surrounded by the fence was also mine. Does surrounding something with a fence constitute a transformation?

If so, it seems like the transformation would have to be something purely subjective. But this seems like it would open the theory up to accusations of over-breadth. For example, if I build my house in a secluded area with a view of a previously undiscovered beach, do I own the beach? If I discover a new planet, and construct a telescope that allows me to gaze at it whenever it's over my house, do I own the planet? I don't think the answers are obviously "yes."

Further, I wonder why incorporation into one's projects should have anything to do with ownership. After all, I can incorporate things into my projects without owning them at all. My neighbor's house, for example, might produce a shady patch on my yard in the afternoon, allowing me to plant certain shrubs which would not have survived if they were exposed to direct sunlight all day long. Surely I don't need to own my neighbor's house in order to do this, and while it would certainly entail a frustration of my plans if my neighbor decided to knock his house down, it doesn't seem like this involves any violation of my self-ownership.

Approaching the issue from another direction: given the subjective nature of the transformation which confers ownership, it seems like we can frustrate the projects of a property owner without ever physically transforming an object, by changing the way that the owner views the object, or how others view the object. Generally, these sorts of things are not considered violations of property rights. But if property rights can be understood in the way that Long discussed, why would this be the case?

Also, the idea that property rights can be understood in terms of the relationship between an object and a valuer's ends, it seems like we would be led to an easement-based theory of ownership. But this is not the generally accepted view of property. Does this mean that we need to abandon that view?

I'm open to answers; I don't want to be unfair to this idea, largely because I once accepted it as correct, so any input would be great.

Another Double Standard Between Governments and Individuals?

Donny with an A — Fri, 13 Jun 2008 22:07:00 GMT

[Cross-posted...a while ago...on the parent blog]

So today was my first day at the Foundation for Economic Education, where I'll be interning over the summer, and I've already had some excellent debates; this is going to be a fantastic experience. Everyone seems really passionate and interesting, and I'm sure I'm going to learn a lot from everyone. I wanted to put one of the more controversial debate topics on my blog as a record, and to get the idea out to a wider audience. I've been toying around with the idea for a few days; I'm really curious to hear what other people think.

The idea is this: If we recognize private entities' claims to property titles as legitimate, even when they have a known history of violence and illegitimacy, then it's difficult to argue that currently existing governments are illegitimate for property rights-based reasons. Governments claim that we live in their territory, and their claims have roots that go back many generations. To claim that a government is not justified in enforcing rules in its territory is, effectively, to claim that the government is not the legitimate owner of that territory. But saying that, it seems to me, makes it very difficult to consistently argue that many (most, if not all) private property titles are legitimately held.

We had a bit of fun with this one at dinner, and I'm not completely sure what I think of it. Of course, everyone else at the table was not too comfortable with the idea, and it made for some lively debate. But nevertheless, I figured I'd post it here. Feel free to leave any comments; I'll be interested to hear what people think about this.

A First Glance at What Rights Could Be Infringed by Climate Change

Donny with an A — Mon, 28 Apr 2008 20:18:00 GMT

[Cross-posted on the parent blog]

Climatic Shifts and the Right to Environmental Conditions

The most obvious kind of rights infringement which could be caused by climate change involves damage done directly to individuals and property by environmental phenomena. Easiest to think about are the shifts in “normal” environmental conditions which are projected to occur in response to human influences on the climate system. One example of such a shift is the expected rise in sea level which will occur as higher global temperatures melt a portion of the ice which naturally covers part of the Earth’s land area, and cause thermal expansion in the world’s oceans. As sea levels rise, some coastline property will become submerged or otherwise damaged by encroaching water lines, and in other places, salty ocean water will mix with the water table beneath individuals’ property, potentially killing vegetation and destroying the conditions for certain agricultural practices. So far as these sorts of impacts are the direct consequences of anthropogenic climate change, it seems that we would intuitively want to say that those who contributed to climate change will have infringed on the rights of those who are harmed.

Similarly, as regional climates shift towards new equilibrium states as the result of anthropogenic forcings, it is likely that some of the natural processes on which people depend will be interfered with. For example, most organisms can only survive within a certain range of environmental conditions. Inadequate or excessive rainfall, increased average temperature, and other climatic factors could prove detrimental to the capacity of certain organisms to flourish in areas which have historically supported them well. Many individuals, notably farmers and fishermen, may be adversely affected by the effects of shifts in their regional climates for the organisms on which they rely. So far as these individuals have a right not to be interfered with in pursuing their livelihoods and wellbeing with the aid of resources which are naturally available to them, it would seem to constitute an infringement of their rights to push their climate systems out of their previous states, bringing about environmental conditions which are injurious to their interests and livelihoods.

It may be objected that the preceding discussion assumes that individuals have a right to certain environmental conditions, where no such right exists. I believe, however, that such an argument would fail to take into account our earlier discussion of rights. Conceivably, an objector would point to the inherent instability and variability in the climate system, and argue that clearly we are not entitled to complain about such changes. But as we noted before, to have the right to something means only that we are entitled to certain things from other moral agents.

For example, no rights violation would occur if a naturally occurring shift in your regional climate were to produce temperatures too high for you to continue to grow wheat on your land. But if your neighbor installed an enormous heater on the edge of his property and blew warm air onto your property, killing your wheat crop, we might find good reason to object. And it seems that the reason that we would object would be that you have the right to certain environmental conditions, of which you were being deprived by your neighbor’s actions. I think that this objection does reflect something which we have an entitlement against being deprived of in the absence of morally significant reasons, and so far as climate change does inspire this objection, it constitutes an infringement of rights of this kind.

Altered Climate Systems and Diverted Damage

Not all of the effects of climate change will occur as shifts in normal conditions. For example, a world impacted by climate change will likely see an increase in the frequency, duration, and severity of extreme climate events like floods, droughts, and heat waves. It seems that just as we have the right to have our property damaged by the direct actions of others, we should have a right against damage resulting from the amplification of an existing destructive force. Accordingly, by making the climate system more dangerous, the contributors to climate change would be infringing others’ rights to the extent that more damage resulted than would have in the absence of interference.

However, this intuition is muddied by the fact that in an altered climate system, we will almost certainly see an entirely different set of climate events than would have occurred if no interference had taken place. That is, it is not the case that we will see all of the floods, droughts, and heat waves that would have occurred naturally, except that many of them will last longer, and cause more damage, and there will be some new ones. Rather, the floods, droughts, and heat waves which normally would have occurred will never eventuate, and they will be replaced with an entirely new set of floods, droughts, and heat waves.

Going even further, even those extreme phenomena which are not made more dangerous (in a statistical sense) by climate change will likely occur in different patterns in an altered climate system. For example, while some scientists believe that a warmer climate will produce a greater number of more intense hurricanes, others believe that there will be no such change. However, even if these skeptics are correct, and hurricanes do not generally become more dangerous as a result of climate change, it is almost certain that there will be different hurricanes in an altered climate system.

Because they will be different events, affecting different areas at different times, the new set of extreme climate phenomena will impact different people in different ways. This raises an important difficulty in discussing these impacts from the perspective of justice and rights. Intuitively, it seems that we should take into account the fact that the climate system is naturally destructive, and individuals should only be held responsible for the additional damage that they cause. But in an important sense, every extreme weather event, and so every instance of damage, will be the result of the interference with the climate system. We can only talk about the “additional” damage caused by interference with the climate by aggregating the total damage done in the altered climate system and comparing it to the total damage which would have been done in the absence of interference.

But given the fact that the damage in question will be distributed differently, impacting some people more than it would have and others less, it is unclear whether such an aggregation would be justified. As many have pointed out in objecting to Utilitarianism and cost-benefit analysis, benefits to some individuals do not “cancel out” costs to other individuals. After all, the parties made worse off must still bear the entire burden of their new circumstances; they do not experience any counterbalancing good from the beneficial consequences which obtain for others. And intuitively, it seems reasonable to think that we have a right not to have damage inflicted on us, regardless of whether others are made better off as a result. Accordingly, we might say that those who interfere with the climate system violate others’ rights to the extent that they bring about consequences which are more damaging to those individuals.

Rights and Risk

One might object, however, that there are many ways of interfering with the climate system which ostensibly cause some redistribution of climatic events, producing winners and losers, but which we do not generally think of as involving rights infringements. Given the chaotic nature of the climate system, one might point out, very small interferences can have important consequences elsewhere; as the saying goes, the flapping of a butterfly’s wings in Brazil might cause a tornado in Texas. But surely we do not need a morally significant reason to fly a kite, or to go base jumping, or to operate a windmill, because of the tiny disturbances which will be imposed on the climate system. And if this is so, then what should we make of the idea that we have the right not to have climatic damage diverted at us? As we have said, to have a right to something means that others may not deprive you of it in the absence of morally significant reasons. If no reasons are necessary to justify interfering with the climate system in a way which could alter the distribution of extreme climate events, then this seems to suggest that we do not have a right against climatic damage being diverted at us.

If this is true, then are no rights infringed as a result of the diversion and amplification of the destructive force of the climate system? We have good reason for thinking that the diversion of climatic damage does not infringe rights. It will be noted that we might still identify a problem with the fact that by causing climate change, we cause a greater overall amount of damage. By contrast, the eventual consequences of flying a kite on the climate system could just as easily be positive as negative; a tornado might be caused, but just as easily, a tornado might be prevented. Taken together, all of the tiny interferences on the climate system which result from our everyday activities likely do not cause a greater or lesser overall amount of damage, especially on a long time scale. But what kind of right could an individual possess which would be contingent on the overall amount of damage done by the climate?

Perhaps the answer can be found in the concept of risk. By increasing the total amount of damage which will be inflicted by the climate system, contributors to climate change increase individuals’ risk of damage due to extreme climate events. And if we add together the increase in the expected value of the climatic damage done to all individuals over a given period, we will see that the total will equal the amount by which the climate system was made “more dangerous” by the interference in question. If we recognize a right not to be put at greater risk of climatic damage by the actions of others, then we arrive at a conclusion which matches our initial intuitions perfectly: Rights are violated to the extent to which the climate system was made “more damaging” by the contributors to climate change.

The debate over whether or not we can have rights based on risk is complex, and I will avoid addressing it here. But it will be sufficient for our purposes to point out that by dealing with the problem of altered climate systems in terms of risk, we arrive at just the kind of answer that we expected to find from the beginning. Of course, intuitions are often wrong, and we certainly have not proven here that we have a right against exposure to risk. But we might say that the fact that such a right matches our intuitions counts as evidence that it is closer to being right than to being completely wrong.

Rights and Entitlements

Donny with an A — Tue, 22 Apr 2008 05:29:00 GMT

[Cross-posted on the parent blog]

Libertarian conceptions of justice are built around the idea that there are certain things which we may not do to people, because as individuals and ends in themselves, they are not to be used against their will for the benefit of others. These ideas are usually represented through the notion of “rights” that individuals have. But while the concept of a “right” may seem simple, there are some difficulties in understanding exactly how they are supposed to function. Because we will be dealing extensively with issues involving rights, it seems important to pin down precisely what it means to have a right to something.

The simplest conception of rights argues that to have the right to something is to be entitled to it, so that its absence constitutes a rights-violation. But this immediately leads to difficulties. For example, as surely as I have a right to anything, I have the right not to have my leg chopped off. But if I chopped my own leg off, it would seem odd to say that my rights had been violated.

Perhaps, then, we would amend our conception of rights to say that to have a right to something is to be entitled to not being deprived of it by forces external to the holder of the right. But this too is problematic. It seems fair to say that just as clearly as I have the right to not have my leg chopped off, I have the right not to be killed. But if I fell ill with a deadly disease, it would seem absurd to say that the pathogens violated my rights.

Accordingly, we might respond that to have a right does not protect us against all external deprivations, but rather against being deprived of the object of our right by other moral agents. But again, we are faced with problems. Returning to the right not to be killed, we find that there are times where others would not act badly if they killed us. The most obvious example is self-defense. If I attack you with a knife, and the only way to stop me would be to take my life, it would surely be permissible for you to do so.

Further sharpening our conception of rights, we might therefore say that to have a right to something means to be entitled against deprivation of it by other moral agents, except when the right-holder has somehow “aggressed” against someone else. But once again, counterexamples present themselves. Joel Feinberg writes:

Suppose that you are on a backpacking trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble upon an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing all these things, and yet you have infringed the clear rights of another person.

I think that Feinberg is obviously right to say that you would be justified in doing this, even though the victim in this case would not be in any way responsible for your situation. It might be clear by now that what we seem to be working towards is the idea that to have a right to something is closest to being entitled not to be deprived of it by others in the absence of certain kinds of morally significant reasons for doing so.

This conclusion seems fitting when we recall that rights reflect the respect due to others in light of their individuality and inherent worth. Properly respecting someone does not mean that we must avoid infringing their rights at all costs. Rather, it means that we must take their rights into consideration very seriously, and only infringe upon them when doing so is necessary, and when doing so would show due respect to the victims of our actions.

Intertemporal Pollution, Accountability, and Justice in Appropriation

Donny with an A — Wed, 09 Apr 2008 20:09:00 GMT

[Cross-posted on the parent blog]

If we are ever able to quantify the effects of pollution, we will still need to establish the degree to which particular contributors can be held accountable for those effects. It is important to recognize that in many cases, polluting acts have happened, and will continue to happen, over a long period of time. The significance of this fact can perhaps be best illustrated by an example.

Let's say that on one fall day, three factories independently decide to dump some barrels of toxic waste into Tranquility Lake. There are no regulatory agencies to take exception to this action, and the lake is no one's private property. But the following spring, Marlon, whose property lies along the lake, notices that the grass in his back yard is not growing like it usually does. He tests the soil in his yard, and finds it to have unusually high levels of a number of unusual chemicals, which he learns are toxic to plants. He takes measurements in Tranquility Lake, and discovers that the chemicals that are killing his plant are also present in high levels in the lake. After a bit of research, Marlon discovers that the chemicals are used in the processes that the factories on the lake engage in.

He confronts the owners of the factories, and being good, honest people, the owners confess to dumping the barrels of chemicals into the lake, and apologize for the harm they caused. They all agree to settle the matter in arbitration. The solution that they reach is that Marlon is entitled to full compensation for the damage to his lawn, including compensation for his inconvenience. And because the factories all contributed to the harm in basically the same way, the factories will pay the part of the compensation corresponding to the amount of toxic waste they dumped on the autumn day. Since Factory A dumped 1 barrel, Factory B dumped 2 barrels, and Factory C dumped 3 barrels, Factory A pays 1/6 of the damages, Factory B pays 1/3, and Factory B pays 1/2. Everyone goes home happy; justice has been served.

Now let's amend the example to say that the lake had been contaminated decades ago by a number of factories that had long since shut down. The pollution was not severe enough that any damage to Marlon's property resulted (or would ever result), but the levels of the foreign chemicals were significantly higher than they would have been naturally. Now let's imagine that our three factories show up on the scene and dump their chemicals. What if, because of the previous pollution, the damage done to Marlon's lawn is more severe than it would have been if the old factories had never existed? Should the three currently operating factories be held accountable for all of the damage that they do?

One way to approach this would be to say that the three factories should "take the lake as they found it." This is the approach taken by Robert McGee and Walter Block in their essay, "Pollution Trading Permits as a Form of Market Socialism and the Search for a Real Market Solution to Environmental Pollution." McGee and Block explain, "...one can analogize the case of ordinary (human) trespass to the intrusion of pollutants onto the property of the victim. In a typical case, the thief breaks into the premises of the homeowner. Unbeknownst to the intruder, the victim has a weak heart, and is easily frightened. In this example the weak heart...amplifies the harm. As a result of the trespass, the homeowner dies from a heart attack. Can the trespasser be found liable for wrongful death? Yes, because of the doctrine of "you take your victim as you find him." Taking this approach, we would say that Marlon was particularly vulnerable because of the peculiar circumstances in which the factories found him, but this fact wouldn't absolve the factory owners of their accountability for the damage caused by the dumping of the chemicals.

However, one might object that in the weak heart example, the factor making the homeowner vulnerable was no one's fault. In Marlon's case, the only reason the damage was so severe was that other agents had committed acts in the past which put Marlon in a position of vulnerability. A case could seemingly be made that the factories should be held accountable for the damage that would have been caused in the absence of the old factories' contributions, but nothing more. However, this raises a significant problem. This approach would force us to either place the accountability for the damage to Marlon's property on the old factories' operators, or to place the burden back on Marlon.

The latter seems unacceptable. The "responsibility principle," suggested by Talbot Page in his essay, "Responsibility, Liability, and Incentive Compatibility," seem to me a reasonable starting point for arguing why. Page writes, "When A's actions impose costs on B, A should be made responsible by paying for these costs." As I interpret it, A does not need to be a single individual for this principle to make sense. As long as costs are being imposed on B, and as long as those costs are caused by A's actions, then the costs should be paid by A. This is clearest in cases like Marlon's, where B is not a member of A. The group of people including both the old factory operators and the current factory operators imposed costs on Marlon, and so they should pay those costs. To be honest, I find that so obviously true that I'm not even sure how to argue in favor of it.

Accordingly, the accountability for remaining damage would need to be allocated to the old factory operators. For the sake of discussion, we'll ignore for now all questions regarding the burden of proof, imperfect knowledge, the potential need to deal with preemptive compensation, and any difficulties arising from intertemporal compensation. These are all important issues, and I want to deal with them. But first, I think it's important to ask whether it would actually be fair to hold the old factory operators responsible for damage which resulted from the presence of their (otherwise harmless) pollution in Tranquility Lake when the three factories came along decades later to dump some chemicals there.

The first thing to notice about this example is that it seems to be the outgrowth of something like a tragedy of the commons. The damage to Marlon's lawn is caused by a situation in which a commons has been "fouled" to the extent where it is damaging property adjacent to it. So perhaps if we figured out what the right way is to think about tragedies of the commons, we could determine what to think about the Tranquility Lake situation. Basically, the problem is this: the lake had some capacity for absorbing pollution without causing any damage. Once this threshold was breached, progressively more damage would be done to Marlon with each additional amount of pollution. To steal a term from Tom Athanasiou and Paul Baer's book, Dead Heat: Global Justice and Global Warming, what the old factory operators did was "fill" some of the "environmental space" which was available due to the lake's capacity for absorbing pollution without causing damage.

As a result of the environmental space having been filled by the old factory operators, the currently operating factories' dumping did a lot more damage than it otherwise would have been. In order to hold the old factory operators responsible for part of this damage, it seems that we would need to establish that they didn't have a right to fill the environmental space in the way that they did. Otherwise, we would seem to be led to the idea that they did nothing wrong, since they acted perfectly within their rights, and (because of the responsibility principle) we should hold the currently operating factories completely responsible for the damage they caused.

So did the old factory operators have a right to do what they did? Some libertarians, like Murray Rothbard, think they did. In his essay, "Law, Property Rights, and Air Pollution," Rothbard wrote, "...if a factory owned by A polluted originally unused property up to a certain amount of pollutant X, then A can be said to have homesteaded a pollution easement of a certain degree and type." So essentially, what the old factory owners did was to enclose a part of the commons (in this case the "environmental space" that they filled) and made it their own. And it does seem to me that this is what they have done. But does that mean that their actions were acceptable?

As far as I am aware, Rothbard believed so. The polluter "improves" previously unused environmental space by directing it to the achievement of her ends, and through mixing her labor with it, she acquires just title to it. Because the polluter is using previously unowned environmental space, no one can deny her the right to do as she did. But this is a left-libertarian site, and Rothbard won't be getting away that easily. Accordingly, I'll try to figure out what to think about Rothbard's position as it applies to this situation, in order to determine whether or not it gives us adequate guidance for approaching the old factory operators' actions.

The questions about Rothbard's approach come from the heart of the left-libertarian paradigm. In Anarchy, State, and Utopia, Nozick wrote, "It will be implausible to view improving an object as giving full ownership of it, if the stock of unowned objects that might be improved is limited. For an object's coming under one person's ownership changes the situation of all others. Whereas previously they were at liberty...to use the object, they now no longer are. This change in the situation of others (by removing their liberty to act on a previously unowned object) need not worsen their situation. If I appropriate a grain of sand from Coney Island, no one else may now do as they will with that grain of sand. But there are plenty of other grains of sand left for them to do the same with. Or if not grains of sand, then other things...The crucial point is whether is whether appropriation of an unowned object worsens the situation of others." In the case of any scarce resource, it seems fair to say that any appropriating act has the potential to make others worse off. But more precisely, the crucial point is whether the appropriating act makes others worse off in a way that infringes upon their rights. Merely making someone worse off does not violate their rights; I am made worse off when a girl at a bar declines to kiss me. We must examine what people are entitled to in order to resolve the question of whether an act of appropriation is justified.

And as far as Rothbard is concerned, no one is made worse off in a morally relevant sense by the appropriation of an unowned object. The path of the reasoning arriving at this view is easy enough to spell out. In the case of an unowned object (such as the environmental space in our example) no one has yet "mixed" any labor with the object. Because Rothbard ostensibly believes that our claims to property originate in our mixing our labor with unowned objects (this is taken from Locke), it seems reasonable to say that no one has any property rights involving objects that have not had any labor mixed with them. But as Peter Vallentyne writes in his introduction to Left-Libertarianism and Its Critics: The Contemporary Debate, "Libertarianism (both left and right) construes basic individual rights as property rights." So if no one has property rights in these unowned objects, and property rights are the only kind of rights there are, then no one's rights are violated by appropriation.

In my view, something seems to be missing here. For example, let's say that in order to survive, the individuals living around the lake needed to pollute it to some degree. Let's further stipulate that if not for the old factory operators, this level of pollution would never produce any damage. According to Rothbard's approach, if Marlon's lawn ended up damaged by the pollution in the lake, the people to be held accountable for the damage are the people polluting the lake to survive. But it seems to me that the people responsible are the old factory operators, who (we might suppose) did not need to pollute the lake in order to survive.

This idea is captured by Stephen Gardiner in his essay, "A Perfect Moral Storm: Climate Change, Intergenerational Ethics and the Problem of Moral Corruption," when he wrote, "One way in which a generation may act badly is if it puts in place a set of future circumstances that make it morally required for its successors (and perhaps even itself) to make other generations suffer either unnecessary, or at least more than would otherwise be the case." I think Gardiner oversteps his intentions when he uses the term "morally required," but what he has in mind is clear. If in the pursuit of some "sufficient" standard of living, people needed to pollute the lake, then in some sense we would feel sympathy for them, and consider their actions to be morally permissible. If the old factory operators made it the case that these actions would harm others, where they would not have ordinarily, then the factory operators have done something wrong. It seems to me that because Rothbard's account cannot capture this notion, there is something wrong with it.

But what exactly is Rothbard’s principle missing? If we are to hold the old factory operators accountable, we need to know. This is because there is an important disanalogy between a case where people need to pollute the lake to survive and the case which we have been working with, where the three currently operating factories did not need to pollute in any similar way. The reasons why we disagree with Rothbard will determine what we think about the old factory operators' actions.

We have several options. The first is an extremely strict proviso: It is illegitimate to appropriate any resource without leaving as much of that resource (or a costlessly available substitute) as there was when you got there. Under this criterion, by depleting the natural store of environmental space embodied by Tranquility Lake, and not putting the lake back into its former state afterwards, the old factory operators acted wrongly. Accordingly, it might seem reasonable to put them on the hook for the damage caused by the depleted state of the lake.

The other end of the spectrum would be a very weak proviso: It is illegitimate to appropriate any resource without leaving enough of that resource to allow others to satisfy their basic needs. In this instance, the old factory operators wouldn't be in the wrong at all. The three currently-operating factories didn't need to dump in lake, and so the old factory operators did nothing wrong by using the resource. The accountability, then, would rest squarely on the three factories which acted most recently.

In the middle, there are a number of other provisos which warrant consideration. For one: It is illegitimate to appropriate any resource without leaving enough so that others had the opportunity attain the same level of wellbeing (I dispute this elsewhere). Or another: It is illegitimate to appropriate any resource without leaving behind something of equal value as what you took (I don't like this one either; I can't think of any coherent theory of value which would make it work).

Personally, I think the most plausible of these accounts is the weak proviso. If my appropriation makes it so that others can't satisfy their basic interests without harming others, then I think it's fair to say that I should be accountable for the damage (assuming that I didn't need to appropriate what I did). But if my appropriation just makes it so that others have to figure out some perfectly feasible alternative course of action in order to avoid harming others, then I don't see why I should be accountable if they choose the harmful alternative.

Accordingly, it seems we can say that in Marlon's case, the accountability rests solely on the three factories' operators, even though the damage caused by their acts was amplified by the polluting activities of the old factories. Because they didn't need to pollute in any morally relevant sense, they should bear the burden of any costs imposed on others by their actions. I think I'm happy with that, so I'll stop there.

Is There a Right to Culture?

Donny with an A — Thu, 03 Apr 2008 20:52:00 GMT

[Cross-posted on the parent blog]

Last week I had a conversation with my thesis advisor, Dr. Harry Brighouse, in which we discussed an interesting idea which I think might prove important in one way or another, and which I think is worthy of elaboration here. The idea was that a big part of what people are concerned about in discussing climate change is that members of certain social groups will be deprived of the opportunity to integrate themselves into the societies in which they were raised, as a result of changes in the physical context in which those societies were able to flourish.

To illustrate, we might travel to Bangladesh several decades in the future. In my imaginary scenario, sea levels are rising around the low-lying country, and the property of the locals is suffering considerable damage. However, because I am the master of this imaginary scenario, I'll stipulate that we have fully compensated all of these property owners for the damage done to them (regardless of whether or not they would actually be entitled to this compensation). So everyone whose property is damaged by climate change is fine.

But imagine that there is a child, Nadia, who has grown up in Bangladesh and is beginning to plan a life for herself. Perhaps it would be possible for Nadia to live in Bangladesh, but with the environmental damage being done to the area, perhaps it would be unfeasible for her to do so. It's not that she has such great opportunities elsewhere, but rather that the prospect of living a good life in Bangladesh looks bleak. Accordingly, the best choice for Nadia and her peers might be to assimilate into another culture which would offer a more promising future. Would Nadia have been deprived of something to which she was entitled?

We have stipulated that Nadia owned no property which was damaged, or that if she did, she was fully compensated for it. Further, we have stipulated that Nadia had not yet even chosen a profession, or settled down anywhere. She was simply deciding what she wanted for her life, and she saw that Bangladesh offered scarce opportunities for the kind of future she envisioned for herself. Given the way we normally think about rights violations, it doesn't seem like we have wronged Nadia in any real way.

But at the same time, I can see why Nadia would offer an objection. She might say that as a Bangladeshi, she would have wanted to be integrated into Bangladeshi society. Now, as a result of the effects of climate change, it will be extremely difficult for her to make that happen. Nadia's claim, then, would seem to be that she had some kind of right which is infringed by other people making it difficult or impossible for her to become a part of the culture of her upbringing. And it does seem like a good portion of the concern aimed at climate change is directed at the idea that we would be infringing this kind of right by contributing to a state of affairs in which Nadia is forced to find a way of life which does not reflect her native culture.

It's easy to sympathize with Nadia, and see how she would be frustrated by the state of affairs in which she finds herself. But does Nadia have any right like this? Do we act impermissibly when we put Nadia in this position?

In a previous post, I discussed the possibility that in cases involving inheritances, the would-be inheritors of some valuable object might claim injustice if that object were damaged or destroyed, even if the person or people who owned that object at the time of its destruction were compensated. I said that while I understood why someone might see things that way, it would seem to go very much against the way we normally think about property rights, and I wasn't sure I could defend the position. However, I didn't think that the problem could be dismissed as easily as that, because there was something intuitively reasonable about the objection. But I'm not dealing with that issue here.

In our story, Nadia isn't inheriting any property. Therefore, we avoid all of the problems associated with Akiko's case in the other post. Here, we're dealing with a particular right not to an object, but to a kind of opportunity which is being denied to Nadia. Namely, the opportunity to become a member of the culture.

But in spite of the differences between Nadia's case and Akiko's case, I want to reintroduce an example I used in the previous post:

...we might point out that the above case sounds a lot like a story where an agrarian community is "destroyed" by industrialization and mass production. Small scale family farms can't keep up with the low prices generated by the advanced practices of a local agribusiness concern, and can no longer support their old way of life. It's a sad story, but we wouldn't want to claim that any injustice has occurred. Perhaps as a society, we would want to help these farmers get back on their feet and find a new place in the market. But we wouldn't want to blame the agribusiness for doing something wrong.

It seems to me that if I were the offspring of one of the small scale farmers, I might feel frustration towards the agribusiness, but I would have no legitimate claim against them. So if we're going to attribute to Nadia the kind of right we're talking about here, we need to give some reason for thinking that Nadia's situation is fundamentally different from the industrialization case. In the earlier post, I pointed out that the small scale farmers' frustration is the result of relying on something which they never had any right to: the support of their customers. But the source of Nadia's frustration is less clear.

We might say that Nadia simply wants to be offerred an appealing job in the location in which she wants to work, and a place to live which matches what she hoped for. If we phrase Nadia's frustration this way, then it is clear that she has no right to these things, as they too require something of others. But this seems unfair to Nadia's case.

It seems to me that Nadia's objection is more holistic in nature. She sees her cultural community as a distinct entity, to which we could coherently apply the concepts of stability and integrity. When healthy and vital, that community would provide her with a range of opportunities to try to make a life for herself without any active facilitation by any members of the community. Certainly she could choose to pursue other opportunities, and this would not be a problem for anyone. But the option would be available to her if she wanted it. By causing climate change, we degrade Nadia's community, and diminish her opportunities. Nadia's objection seems to be that the degradation of her community, which is the result of the actions of those who contributed to climate change, represents a wrong done to her.

This is an interesting idea, but is not one which I know how to handle. I think it would be best to take some time to digest it. So having set up this discussion, I'll leave settling it for another time.

Climate Change, Vanishing Lifestyles, and Children

Donny with an A — Wed, 26 Mar 2008 00:56:00 GMT

[Cross-posted on the parent blog]

So in a previous post, I discussed a case in which rising sea levels, resulting from a warming of the Earth, caused the salinization of a Bangladeshi farmer's land, so that he could no longer grow rice on it in the way to which he was accustomed. I concluded that as the owner of the land, with full property rights, he should be entitled to compensation for any damage done to him by those contributing to climate change. And it seems like this could be extended to any member of the contributors' generation who were harmed by climate change.

But costs associated with climate change will not only be incurred by individuals who are alive now, they will be realized by future people as well. The nature of the cost to future people, however, is less clear than the nature of the costs to existing people. This post will explore a sort of impact which seems to be central to people's concern about climate change, but which is difficult to deal with in the framework of human rights. Namely, many communities will be impacted in a way that makes it difficult for them to continue their cultural existence, making it necessary for the children of those cultures to find fundamentally different ways of living.

For example, indigenous communities in Africa will see progressively more significant alterations to their natural setting as the climate continues to change. Plants and animals which were once prevalent in the region will no longer be fit for survival there, and new species will move in. Knowledge developed over centuries will no longer be effective. Being ill adapted for life in a fundamentally different climate, it is conceivable that these communities will be unable to survive in the manner in which they have for countless generations. They would have to find a new way to live.

What do we say about this? It is clear that a great number of people are concerned about precisely this sort of problem, and cite it as a reason to be worried about climate change. But does it tell a story of injustice? Many people's intuitions say yes.

However, we might point out that the above case sounds a lot like a story where an agrarian community is "destroyed" by industrialization and mass production. Small scale family farms can't keep up with the low prices generated by the advanced practices of a local agribusiness concern, and can no longer support their old way of life. It's a sad story, but we wouldn't want to claim that any injustice has occurred. Perhaps as a society, we would want to help these farmers get back on their feet and find a new place in the market. But we wouldn't want to blame the agribusiness for doing something wrong.

If there is no wrongdoing in the industrialization case, where communities might be unable to sustain their old lifestyles as the result of the actions of others, then can we consistently hold that there is injustice being done to indigenous people by climate change? Or are we simply setting indigenous communities on a pedestal because they're different and mysterious, and we somehow think that by being so unusual, these individuals come to have different rights than the rest of us?

It seems to me that there is a critical difference between the destruction of the indigenous community caused by climate change and the destruction of the agrarian community caused by industrialization. In the industrialization case, it's not as if the agribusiness made it impossible for the family farmers to continue farming. Rather, the problem arises because the family farmers were depending on the support of their customers in order to sustain themselves. Given that their customers had the right to remove their support at any time, it should be clear that the farmers were depending on others making choices which they could permissibly not make, or stop making at any time. The agribusiness, with its greater efficiency, could offer much lower prices than the family farmers, and their customers decided to withdraw their support, as was their right. It should be clear that in our story, the agribusiness never did anything to the family farmers. It simply revealed the fact that the family farmers could only continue to sustain themselves in their traditional manner if their customers continued to voluntarily purchase their products. The family farmers never had any right to that support, and so when it was withdrawn, no right was violated.

On the other hand, it doesn't seem like the indigenous communities in question depend on anyone for their continued survival. They require only that their environments not be modified so as to make them incompatible with their lifestyles. And as far as these indigenous communities have been making use of their environments for centuries, it seems fair to say that they have some legitimate claim to their not being negatively affected by the actions of other people.

I suspect that if we told the agrarian story in a way that matched the indigenous story, our intuitions would tell us that we were dealing with a rights violation. For example, let's say an agrarian community depended on an underground stream to bring water to the region with which to grow crops. Now imagine that someone diverted the flow of water through the area so that the community's land ran dry. Surely we would say that the diversion of the water flow represented a wrong done to the farmers, right?

In the same way, it seems that changing the climate in a way that would negatively impact indigenous peoples' ability to continue living in their traditional manner would be unjust. But this is not new ground. This conclusion is pretty much the same as the one I reached in my post about the Bangladeshi farmer and the rising sea levels. I want to go one step further here.

As I mentioned before, the intuition that people have about this sort of case is not simply that our alteration of the climate is wrong because it harms currently existing indigenous peoples' ability to live in the manner to which they are accustomed. The problem is also that their children will be unable to live in that manner. That is, the issue is not just what happens to the people whose lives are made difficult by climate change, but also what happens to the people who will be unable to live in the traditional manner dictated by their culture, and what consequently happens to the culture itself.

In order to isolate these factors from the harm done to the currently existing indigenous individuals, we might imagine that these individuals have been fully compensated for the damage done to them as individuals. This compensation not only takes into account the damage to their property, but also the damage to their character and psyche; the currently existing indigenous individuals recognize they were wronged, but acknowledge that they have been compensated adequately for all that they personally have endured.

Now we might imagine that one of these indigenous individuals has a child, Akiko. Akiko is raised in the indigenous culture, but sees that she will be unable to support herself in the traditional way. She will need to live a fundamentally different lifestyle from that of her people in order to survive. If we are to sustain that climate change will result in injustice to people like Akiko, then we must say that Akiko is wronged by having to find a way of life which differs from her culture's traditions.

At first glance, this might seem absurd. I grew up in Westport, CT; do I have the right to a house there? I have a friend who comes from a family of doctors; does he have the right to be one too? Surely we don't want to say that people have a right to live like the people who brought them up lived. We must find some other way to explain what is wrong with Akiko's situation if we are to be taken seriously.

A clue can be found in the fact that just like in the example with the agribusiness and the family farmers, my demands about a house in Westport and my friend's demands for a doctor job require things of others. Given that I have no right to anything from these people, it seems ridiculous to suggest that I am wronged if they do not provide me with something. I do have the right to try to buy a house in Westport, and my friend has the right to try to be a doctor. But given that having a house or being a doctor require the voluntary consent of others (in my case, the consent of the house's previous owner; in my friends case, the consent of the hiring institution and of the customers who choose to purchase his services), we cannot have the right to these things.

Akiko's demands would also be rooted in her getting others' consent. That is, she does not own her people's land; the older members of her culture do. But the kind of consent Akiko requires is very different from the kind of consent I would need in order to get a house, in that Akiko has that consent. Akiko's people, we presume, would gladly allow Akiko to use, and even to own, the group's land. In the absence of climate change, Akiko would be able to support herself in the traditional way using nothing but this land. But because of the effects of climate change, the land will not be able to support her in the traditional way. The substance of Akiko's complaint, then, might seem to be that she should have inherited enough resources to sustain herself, but that climate change diminished those resources to make it impossible for her to use them in the way her culture would have suggested.

This leads us to an interesting idea. Remember, we have said that the current owners of the land were fully compensated for all of the damage done to them by the effects of climate change on their land. Akiko's complaint is that there is a gap between what she should have inherited and what she actually did inherit. In order to satisfy Akiko (if we have interpreted her complaint correctly), we would need to take the view that by damaging the indigenous people's land, we not only wronged those people, but also the people who stood to inherit the land later. The "damage done" would be the damage done to the current owners, as well as the "damage" done to the future owners who "should have" inherited the land in its original condition, but instead inherited it in a damaged and less useful state. Accordingly, Akiko too would be entitled to compensation.

Of course, from Akiko's standpoint, this seems like it would be a fair solution. Because climate change destroyed her people's ability to live off the land, every generation of people in her community would be compensated for the damage done to the land. I'm not sure if this would actually be right, though. It seems to go completely against the way we normally think about damage and liability. I'd like to think about this some more, but I think this was a good place to start.

Climate Change and Market Definition of Property Rights

Donny with an A — Tue, 25 Mar 2008 06:35:00 GMT

[Cross-posted on the parent blog]

A fellow named Gregory responded to my post, "Can the Free Market Solve the Problems Posed by Climate Change?" with an argument which I think deserves to be discussed in some depth. Gregory wrote:

If the market has not arrived at an efficient means regulating itself (compensating those damaged) then a government certainly will not be able to affect such a regulation efficiently. The cost of the regulation must be weighed against the benefit it provides. If economic growth is retarded by inefficient regulations, do we not harm future generations more than by waiting for the market to develop a mechanism to efficiently distribute justice?

Gregory highlights the fact that the market has not yet developed an efficient way to enforce the property rights involved in discussions of climate change. I agree that on some level, to indict the free market for this fact would be problematic. In his essay, "Market-Based Environmentalism and the Free Market: They're Not the Same," Roy Cordato wrote

...environmental problems are not an unavoidable side effect of a free-market economy. Instead, they occur because the institution setting--the property rights structure--required for the operation of a free market is not fully in place. Because, in all modern societies, government has taken nearly complete responsibility for the establishment and maintenance of this institutional setting, environmental problems are more appropriately viewed as manifestations of government failure, not market failure.

Mark Pennington bolsters this view in his essay, "Liberty, Markets, and Environmental Values: A Hayekian Defense of Free-Market Environmentalism," when he writes, "Transaction costs are not the sole preserve of the market system...and we commit the "nirvana fallacy" if we suggest the alternative to an imperfect market is a government immune from the same sort of problems."

I completely agree with these two authors, and Gregory, in saying that ill-defined and unenforced property rights are at the root of most (if not all, depending on your definition of "property rights") of the problems associated with climate change.

Further, I agree that the free market can solve some of the inadequacies in the process of enforcing justice, but often only if allowed to work without interference. Pennington writes:

Although proponents of free-market environmentalism recognize that environmental markets have limits owing to the prevalence of transaction costs, they contend that these problems are more like to be overcome within an institutional framework supportive of private contractual arrangements. In this perspective, all environmental externalities represent potential profit opportunities for entrepreneurs who can devise ways of defining private-property rights and arranging contracts (via technological innovations, for example) so that those currently free riding on collective goods or imposing negative external effects (for example, water pollution) on their neighbors are required to bear the full costs of their actions.

That being said, I do think that we oversimplify if we simply suppose that the market will find a way to handle the problem in an acceptable manner, and leave it at that. In issues of justice, the "There are many ways to skin a cat" approach taken by the free market might not be acceptable. Improper conceptions of property rights are not simply inefficient, they are unjust. In his speech, "Another Take on Free Market Environmentalism: A Friendly Critique," David Roodman highlighted this idea when he said:

Fine, I own my car. And you own your lungs. Property rights are allocated, seemingly. So now can we reach happy agreement about how to resolve the conflict? Fat chance. More likely, thousands of drivers and breathers will end up suing each other and then the problem will end up in the lap of the court, which would have to decide precisely where the right to free enjoyment of one's car stops and the right to free enjoyment of one's lungs starts.

Later, he quipped, "Judges did not free the slaves; in fact, they tightened the bondage."

I don't mean to imply that libertarian judges would be unable to come up with a decent solution. I'm only suggesting that the answer might not be as simple as Rothbard made it sound when he wrote, in chapter 13 of his Egalitarianism as a Revolt Against Human Nature:

...it would not be a very difficult task for Libertarian lawyers and jurists to arrive at a rational and objective code of libertarian legal principles and procedures based on the axiom of defense of person and property, and consequently of no coercion to be used against anyone who is not a proven and convicted invader of such person and property. This code would then be followed and applied to specific cases by privately-competitive and free-market courts, all of whom would be pledged to abide by the code, and who would be employed on the market proportionately as the quality of their service satisfies the consumers of their product.

The problem, in addition to the simple fact that this could be difficult to do, is that this group of Libertarian lawyers and jurists would need to arrive at decisions somehow. Either they could do so in accordance with majority opinion or some other procedural way, or (as I suspect Rothbard is aiming at) they could do so in accordance with the true principles of justice. If the former were the case, then I see no reason why we would call the result "rational and objective." And if the latter, then we should be able to replicate the activities of these lawyers and jurists on our own. But as those who have been keeping up with my work have undoubtedly seen, the task is not quite as simple as Rothbard makes it sound.

One approach would be to take a somewhat left-libertarian angle and say that climate change represents injustice due to an over-enclosure of the atmospheric commons. Edwin Dolan took this approach in his essay, "Science, Public Policy, and Global Warming: Rethinking the Market Liberal Perspective." Dolan wrote:

Liberalism in America, in particular, grew up in a Lockean state of nature where it was really true, or at least seemed true, that homesteaders, loggers, grazers, and industrialists could take what they needed while leaving "enough and as good for others." What the environmentalist side of the global warming debate is telling us is that we no longer live in such a world.

Because those responsible for climate change have, according to Dolan, taken more than their fair share, they must be subject to the demands of justice. He insists, "Defending the rights of property that has been unjustly acquired is a conservative position, not a liberal one."

But this approach has its difficulties. One problem is the fact that the atmospheric CO2 sink is not really a limited resource. The problem is not that "...the atmospheric commons - namely, the Earth's carbon absorbing capacity - are finite and depletable," as Tariq Banuri and Erika Spanger-Siegfried characterized it in their essay "Equity and the Clean Development Mechanism: Equity, Additionality, Supplementarity." As far as we're concerned (though technically this isn't true), we can dump as much CO2 into the atmosphere as we want. It's not like one day we'll light a fire and the CO2 won't go into the atmosphere. The thing that's available in limited quantities is the atmosphere's capacity to absorb CO2 without causing any harm.

In light of this fact, the right way to allocate the resource in question is somewhat unclear. In a world in which we do exceed the total CO2 emissions we could release without causing objectionable climate change, what is the real significance of the amount of CO2 which we could have emitted without causing harm? This, I think, is a problem which reflects the fact that climate change is an emergent problem, and is therefore sort of different from other problems we normally face.

Of course, even if we figure out the significance of this "harmless sink capacity," there still remains a boatload of work to do in order to determine exactly who is responsible for what emissions, what rights are violated by climate change, whether non-rights-violating actions can be justly interfered with, what exactly we should hold people accountable for, who should bear what burdens, what accountability entails, what our accountabilities to future people are and how they should be enforced, and how we should administer all of this (I'm sure I'm leaving stuff out). Never mind the scientific uncertainty plaguing every step of the process.

At the end of the day, we can talk all we want about the market figuring out the answers to climate change through incentives for the enforcement of justice, but someone's going to have to figure this stuff out. If it can be done, hopefully I'll be able to figure out how, or at least set the process in motion for other people. I really hope that answers your question somehow!

Climate Change and Getting Out of the Way

Donny with an A — Sat, 22 Mar 2008 00:06:00 GMT

[Cross-posted on the parent blog]

Imagine for a moment that you are Abdul, a Bangladeshi rice farmer. You have farmed rice your entire adult life, and you plan to continue into the foreseeable future. Unfortunately, Bangladesh is an extremely low-lying nation; almost all of the country's land lies below 10m above sea level, and your farm is no exception. As global temperatures rise and progressively less ice covers the Earth's surface, the sea level will predictably rise slowly over the next century.

Fortunately, Bangladesh already has a system of dykes, originally built to withstand storm surges in harsh weather, which can be bolstered to hold back the rising ocean. Your land will likely avoid becoming permanently submerged. But as sea water mixes with the water table, your rice crops could end up unable to survive the increase in salinity.

Now let's say that we were able to satisfactorily trace the rising sea levels to global climate change, and were able to trace the changes in salinity directly to the rise in sea level, so that we knew that the impacts on your land were the result of climate change. Would there be any injustice here, and if so, what kind of injustice would it be?

On one hand, it does seem like you could reasonably object to any damage directly caused by the increase in sality. Clearly we would have a problem with a group of people directly dumping a bunch of salt on your land and killing your rice crop. It seems that the problem would persist if, using underground piping, they pumped salty water into the water table under your land, even if they never left their own property. I don't see why the injustice would disappear if, using a giant oceanic turbine, the individuals propelled ocean water towards the Bangladeshi dike system, resulting in the salinization of your land. If this would be a problem, then it seems odd to say that there would be no wrong done if, using a giant furnace, the individuals melted away Arctic ice until the sea level rose, sending ocean water into your water table. Finally, then, it seems odd to think that it would be acceptable if the group of individuals released a gas into the atmosphere which would predictably result in ice melting and sea level rise, which would in turn result in ocean water entering your water table. Accordingly, it seems that if we could establish a causal link between the emitters' actions and the salinization of your land, then you would be entitled to compensation.

An important question, though, is what exactly you should be compensated for. For example, what if there were a salt-resistant variety of rice that you could use instead of the kind you had been using? Or what if you could sell your land to prawn farmers, for whom the saltier conditions were ideal? Would these alternatives lessen the injustice done to you? As Nozick writes in Anarchy, State, and Utopia, "Does the compensation to X for Y's actions take into account X's best response to these actions, or not? If X responded by rearranging his other activities and assets to limit his losses (or if he made prior provision to limit them), should this benefit Y by lessening the compensation he must pay? Alternatively, if X makes no attempt to rearrange his activities to cope with what Y has done, must Y compensate X for the full damage X suffers?" Nozick doesn't provide an answer, but it's clear that this is a question that will need to be dealt with in any conversation like this one.

Do we have an obligation to "get out of the way" of damage? Do boundary crossers have an obligation to compensate us for the inconvenience of getting out of the way, and any residual damage? Or do boundary crossers have an obligation to compensate us for the damage that would have occurred if we didn't get out of the way, regardless of what we do? This is no trivial matter. Let's say that you anticipated the sea level rise, and purchased salt-resistant rice in order to be ready. If the salt-resistant rice worked as advertised, and you could continue to farm your rice, would that be the end of the discussion? Could the emitters simply say that you adapted, and therefore they were freed from responsibility? It seems clear to me that you could still reasonably demand compensation for the inconvenience of having to switch crop varieties. And if the genetically modified rice were more expensive, or more difficult to farm, I think you could fairly demand compensation for those things as well.

But would that be the end of it? I think that on some level, this is reasonable. I could see how someone might take the alternative view, and say that you were entitled to compensation for the damage that would have occurred in the absence of adaptive behavior, and that your adaptation should benefit you, and not the boundary crosser. However, I think that perhaps we might placate the holder of this view by conceding that perhaps you are not obligated to adapt, and if you don't, you might be entitled to compensation for the damage that is done, even if you could have prevented it. This too will be objectionable, but it at least offers a starting point for debate.

There is another reason we might want to say that you should only be entitled to compensation for the inconvenience of adapting and for any residual damage: such a policy would be more efficient. Efficiency is certainly not an overriding concern in matters of justice, but that doesn't mean it is unimportant. By compensating for the inconvenience of adaptation and any residual damage, the boundary crosser would be paying for all of the actual external costs produced by her actions. Making her pay for damages which never actualize would seem to mean that we would be, in a sense, "overcharging." For boundary crossings that we don't think are worthy of prohibition, we would effectively rule out an entire class of actually net beneficial actions which, if adaptive measures were not taken, would not be net beneficial.

In the preceding discussion, however, we have implied that by switching to salt-resistant rice, you avoided more costs than you incurred during the switch. In other words, we have assumed that in the absence of compensation, it was profitable for you to switch. Given the fact that in our story you switched, it seems pretty clear that you believed it would be profitable to do so. But what if you were wrong? What if the salt-resistant rice was not a worthwhile investment? Could you reasonably demand compensation for the additional costs produced by your bad decision? On one hand, it seems like you should be held responsible, since it was your choice to try the salt-resistant rice. But on the other hand, it seems like the only reason you bought the salt-resistant rice in the first place was because you knew your land was going to be, essentially, "invaded" by salt "sent" by the emitters. I'm not completely sure what to say about this.

So where do we stand? It seems like we can legitimately say that you have reason to object to the salinization of your land, and that if you could demonstrate a causal link, you could reasonably demand compensation from those responsible. But from there, things get a little less clear. I think I'm comfortable with the idea that you are entitled to compensation for the costs of adaptation, and for any residual damage. I'm less comfortable with the idea that someone should be responsible for "adaptation" costs that actually increased the total costs of the incident (we might make the case that such behavior isn't even properly considered "adaptive"). So I guess I've arrived somewhat short of a firm conclusion. But I hope this will be a good starting point for future discussion.

Can the Free Market Solve the Problems Posed by Climate Change?

Donny with an A — Thu, 20 Mar 2008 22:22:00 GMT

[Cross-posted on the parent blog]

When confronted by the possibility of climate change, many libertarians default to the position that the free market, with its ability to mobilize the ingenuity of the economy for the satisfaction of the desires of the people, will provide the solutions we desire. I want to discuss this view, because I think it is the result of a mistaken understanding of the nature of the free market. For an example of this view, consider George Reisman's comments in his essay, "Environmentalism in the Light of Menger and Mises":

The appropriate answer to the environmentalists is that we will not sacrifice a hair of industrial civilization, and that if global warming and ozone depletion really are among its consequences, we will accept them and deal with them--by such reasonable means as employing more and better air conditioners and sun block, not by giving up our air conditioners, refrigerators, and automobiles.

In his essay, "Global Warming Is Not a Threat But the Environmentalist Response to It Is," Reisman elaborates:

...if global warming is a fact, the free citizens of an industrial civilization will have no great difficulty in coping with - that is, of course, if their ability to use energy and to produce is not crippled by the environmental movement and by government controls otherwise inspired.

He goes on to say that global warming

...would certainly not be too great a problem for tens and hundreds of millions of free, thinking individuals living under capitalism to solve. It would be solved by means of each individual being free to decide how best to cope with the particular aspects of global warming that affected him.

Reisman makes an important point. When it comes to allocating resources efficiently, the free market is unparalleled in its effectiveness. In his essay, "The Use of Knowledge in Society," Hayek explained:

...knowledge of the circumstances...never exists in concentrated or integrated form, but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all...separate individuals possess. The economic problem of society is thus not merely a problem of how to allocate "given" resources--if "given" is taken to mean given to a single mind which deliberately solves the problem set by these "data." It is rather a problem of how to secure the best use of resources known to any of the members of society, for ends whose relative importance only these individuals know. Or, to put it briefly, it is a problem of the utilization of knowledge not given to anyone in its totality.

Hayek points out that

...there is...a body of very important but unorganized knowledge which cannot possibly be called scientific in the sense of knowledge of general rules: the knowledge of the particular circumstances of time and place. It is with respect to this that practically every individual has some advantage over all others in that he possesses unique information of which beneficial use might be made, but of which use can be made only if the decisions depending on it are left to him or are made with his active cooperation.

He concludes:

If we can agree that the economic problem of society is mainly one of rapid adaptation to changes in the particular circumstances of time and place, it would seem to follow that the ultimate decisions must be left to the people who are familiar with these circumstances, who know directly of the relevant changes and of the resources immediately available to meet them. We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders. We must solve it by some form of decentralization.

This decentralization is the free market. Hayek explains that

...in a system where the knowledge of the relevant facts is dispersed among many people, prices can act to coordinate the separate actions of different people in the same way as subjective values help the individual to coordinate the parts of his plan.

And indeed, it's been demonstrated in practically every instance that the free market has the capacity to satisfy the wants of the population better than centrally organized alternatives. So I think Reisman is largely right in saying that when it comes to adapting to new problems, the market does do great work.

But when we talk about the free market, we generally have two things in mind. The first, which Reisman focuses on, is a system in which property titles are traded voluntarily in a mutually beneficial way, resulting in a continuous progression towards a more efficient allocation of resources. But the second, which underpins the first, is a system in which rights are enforced, so that individuals who infringe on the rights of others are punished, and those whose rights are infringed are compensated for the harm they suffer. It is my contention the Reisman's argument breaks down by completely brushing off this second feature of the market.

Imagine if we were trying to discuss the proper social response to a particular theft. It might be true that of all social systems, a victim of theft would be best equipped for dealing with her loss in a capitalistic free market. She would not need to consult a central planning board in order to replace the things that were taken, and her higher purchasing power, enabled by her participation in a thriving market economy, would enable her to afford the replacement with comparative ease.

And yet we would obviously not be satisfied with this "solution." The reason is simple. The thief did something wrong, and therefore, the thief ought to be held responsible for fixing it, never mind that we should perhaps have tried to stop the theft from happening in the first place. Accordingly, by suggesting that we simply allow the free market to operate so that adaptation will be easier, Reisman is smuggling in the claim that we do nothing wrong to the victims of climate change.

This seems obviously contentious. The question should not be, as Reisman seems to want to make it, whether or not the free market is the best system for facilitating adaptation to changing conditions. The question is whether we do something unjust by contributing to climate change. To be fair, Reisman briefly addresses this issue, as I discussed here. But my point is that by glossing quickly over the issue of justice, many libertarians have completely missed the point. If the free market is to be relied on to provide a "solution" to climate change, it must be through a strict adherence to the principles of justice. If we simply ignore injustice, and define fairness in terms of mere participation in the market, then we cannot claim to be advocating libertarianism.

Asymmetry Between Positive and Negative Externalities

Donny with an A — Tue, 11 Mar 2008 21:27:00 GMT

[Cross-posted on the parent blog]

I want to discuss an asymmetry between positive and negative externalities which I think might be important when thinking about how to use the enforcement of justice to determine which actions should be permitted. Sometimes, we let individuals impose costs on others, provided compensation is payed, because their actions produce net social benefits. As Nozick writes in Anarchy, State, and Utopia, "The reason one sometimes would wish to allow boundary crossings with compensation...is presumably the great benefits of the act; it is worthwhile, ought to be done, and can pay its way." In its Climate Change 1995: Economic and Social Dimensions of Climate Change, the IPCC elaborates on this idea, explaining that if an action "...yields positive net benefits, then those made better off could compensate those made worse off with something extra left over. As long as the compensation is paid, the result is an unambiguous gain in welfare, without the necessity of weighing effects on different individuals."

It's worth pointing out that this is not entirely uncontroversial. Nozick writes, "...a system permitting boundary crossing, provided compensation is paid, embodies the use of persons as means; knowing they are being so used, and that their plans and expectations are liable to being thwarted arbitrarily, is a cost to people..." For this reason, Nozick suggests that "Any border-crossing act which permissibly may be done provided compensation is paid afterwards will be one to which prior consent is impossible or very costly to negotiate...But not vice versa." For our purposes, however, we will ignore this problem, and limit our discussion to only those compensated boundary crossings which are not problematic in this way.

So what's the asymmetry? It should be clear that the preceding discussion was directed only at negative externalities. That is, cases where I do something that results in costs being imposed on other people, where I haven't obtained their consent in advance. An entirely different framework applies to positive externalities: cases where, without being asked or promised anything, I do something which results in positive outcomes for other people.

Where we think of negative externalities as demanding of compensation, we generally don't think that we are entitled to payment for the positive outcomes we have generated for others as a result of positive externalities. So when we impose costs without consent, we owe compensation, but when we "impose" benefits without "consent," we are not entitled to payment. This is the asymmetry.

But on the surface, this doesn't seem to be problematic. If I unilaterally decided to do something which had positive consequences for you, then it doesn't seem like you suddenly take an obligation to compensate me for my trouble; I'm the one who decided to do the thing that I did, and presumably I would have decided to do it, even if you weren't around. On the other hand, if I unilaterally do something that has negative consequences for you, then I do take on an obligation to compensate you; you didn't decide for me to do what I did, and presumably you wouldn't have in the absence of compensation. The asymmetry seems simply to reflect the idea that we are not entitled to make people worse off without their consent in the execution of our plans.

However, there are two implications of this asymmetry which might be worth noting. The first can be shown by the following illustration. Imagine that on Bill's roof, there is a machine which produces laser light shows on the bottoms of clouds at night. Bill lives in a large town, but most of the people don't really care one way or the other about the laser light shows; they're typically asleep when they're going on. A few people do enjoy the shows, but not to a huge degree. If put on the spot, they would probably pay a small sum to allow them to continue, but tracking these people down and collecting money from them would be relatively difficult, and they probably wouldn't respond to mass mailers, newspaper ads, or other public fund raising efforts.

On the other hand, Bill's laser machine generates a certain kind of green smoke which is not a health hazard in any way, but which tends to drift into Terry's yard and stain his house a particularly ugly color. The stain can be cleaned, but doing so is somewhat costly, and as Terry does not typically watch the laser light show, he is rightly irritated by Bill's behavior. Being a reasonable person, Terry takes Bill to court to demand that he either pay for his house to be cleaned periodically, or else stop putting on the show.

Now, perhaps the people who enjoy the show would be collectively willing to pay enough to completely cover the costs of cleaning Terry's house. But without their contributions, Bill would not be willing to pay this amount. What would end up happening is that Bill would put a stop to the show, and though they'd be disappointed, the people who enjoyed the show would likely not be motivated enough to get together and pay the amount necessary to get it going again.

Let's imagine that Bill knew who these people were. Even though he knows that they were benefiting from his show, the burden is on him to convince them to voluntarily contribute to getting the show going again. The effort necessary might be prohibitive. On the other hand, this burden does not seem to be on Terry; Bill has the obligation to compensate Terry for whatever costs are done to him. This illustration shows that if we say that one is obliged to compensate for negative external effects, but one is not entitled to payment for positive external effects, then the costs of organizing people would result in the cessation of an entire class of net beneficial effects.

Confronted with this possibility, we might shrug our shoulders and say, "That's a shame, but we're not particularly concerned." We might point to the fact that our alternatives are somewhat limited. We can try to calculate net benefits and then either fine or tax alleged beneficiaries in order to pay compensation to harmed parties, or else we can simply allow allegedly "net beneficial" acts to be undertaken without any compensation for the victims.

Both of these alternatives seem objectionable. As we said before, my decision to do something which benefits you doesn't seem to generate an obligation in you to pay me. And as Nozick writes, "Using...[someone] for the benefit of others, uses him and benefits the others. Nothing more. What happens is something is done to him for the sake of others. Talk of an overall social good covers this up...To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good for his sacrifice, and no one is entitled to force this upon him..."

We find ourselves in a situation where we are forced to choose the best of a set of evils. Nozick writes, "Because great transaction costs may make the fairest alternative impracticable, one may search for other alternatives...These alternatives will involve constant minor unfairness and classes of major ones." As far as "unfairnesses" go, the ones we face here seem rather minor.

[It has come to my attention that I'm an idiot and apparently can't tell the difference between the word "defendant" and "plaintiff." I apologize to anyone who may have been confused by the rest of this post.]

But this leads to the second implication of the asymmetry between positive and negative externalities, which I find significantly more troubling. This problem arises from an interesting fact about the way that rights are enforced. In his essay, "Science, Public Policy, and Global Warming: Rethinking the Market Liberal Position," Edwin Dolan writes, "Certain defenses are allowed against a charge of assault or trespass. Consent of the victim is one. Also, if no causal relationship can be shown between the action of the defendant and the offense to the victim, the tort is not proved. However, certain attempted defenses are not recognized as legally valid..." Of these, one is "A showing that the defendant gained benefits from the tort, the value of which exceeds the costs to the victim."

This means that an individual can perform an action which is beneficial to everyone, and still be required to compensate people for any individual negative effects resulting from the action. It is important to note that the issue is not whether it could be proven that the action produced beneficial consequences for the victim that were more significant than the costs imposed. Rather, even if this were proven, the boundary-crosser would still be required to pay the victim.

I'm struggling to figure out what I think about this. I need some time to think; any thoughts or opinions would be very welcome.

Does Intrinsic Value in Nonconscious Objects Create Problems for Property Rights?

Donny with an A — Sun, 02 Mar 2008 20:51:00 GMT

[Cross-posted on the parent blog]

So I wrote earlier about the idea of nonconscious objects having intrinsic value, and I was wondering about the implications of what I said for our normal conceptions regarding property rights. Basically, I argued that some objects, like the Grand Canyon or Niagara Falls, have the inherent capacity to inspire significant reactions in people. Accordingly, it seems fair to say that they have some kind of intrinsic value, and that therefore it is somehow wrong to destroy them wastefully; that is, it doesn't take proper account of this value to "destroy" them without good reason for doing so.

It occurred to me, though, that this account might seem to be at odds with our normal ideas about property rights. I figured it might be worth writing briefly about whether this is the case. I'll bring up two issues here, discussing neither in much depth (it's Friday, dammit). The first is whether the existence of intrinsic value in nonconscious entities could imply that we don't fully own our property. The second is whether intrinsic value creates problems for our ideas about just appropriation.

So why would intrinsic value have any bearing on whether or not we fully own our property? Well, the issue arises from the claim that it's wrong to destroy something with intrinsic value in the absence of a good reason for doing so. Does this mean that we could be entitled to stop someone from destroying something on her own property if she owned it? If so, this would clearly have significant implications for the way we think about our relationship with our property.

I think that we would have to start by pointing out that if someone were going to wastefully destroy an object with significant intrinsic value, she could probably sell it to someone else, or a group of people, who would clearly value it more than her. In his essay, "Liberty, Markets, and Environmental Values: A Hayekian Defense of Free-Market Environmentalism," Mark Pennington wrote, "...a case surely can be made that it is precisely for the ends that people value most highly that they should be required to make a personal sacrifice, including perhaps a material sacrifice." I think this makes some sense.

And if the object's owners were prepared to forgo such payment in order to see the object destroyed, then it seems clear that we would want to say that she had a reasonably strong interest in destroying the object, and that this could very well constitute the kind of "good reason" which would make legitimate the destruction of an intrinsically valuable object.

But what if transactions costs prevented the person from selling the object? Perhaps the object was extremely valuable, but it would simply be unfeasible to coordinate a trade? Would the owner be doing something wrong to destroy it? It seems that in this case, we would need to come up with a relatively good reason for overriding the property rights of the owner; if she rightfully owned the object, then we would generally want to say that the ownership rights included the right to destroy the object. This seems most obvious if we say that the owner created the intrinsic value in an object. Given that the value was "put into" the object by the owner, it seems that she would have every right to destroy that value.

However, I think that this intuition becomes slightly less clear if we suppose that the intrinsic value was a natural feature of the object. I don't think that this unclarity reflects that we don't believe that property rights should be respected. Rather, I think it is a consequence of an inadequate understanding the second issue that I wanted to touch on, which asks what kinds of things we can justly appropriate, and what that appropriation entails.

If you somehow come to own the Grand Canyon, and then you decide that you want to destroy it (for no good reason), I think that other people would be right to object. But this is not because you shouldn't have a right to do what you want with your property. I think it's more because people would object to the idea of you could justly be said to own something like the Grand Canyon. It just seems like something that a person couldn't fairly appropriate for themselves.

And I think that on some level, that sounds right. Objects with significant natural intrinsic value do seem to belong to all of us; it simply wouldn't be right for someone to declare himself the exclusive owner, with the right to destroy the object if he chose. But if we take to its logical end, then we not only restrict the appropriation of the Grand Canyon and Niagara Falls, but also the appropriation of a beautiful forest or scenic beach front.

I think that there is some intuitive strength to the idea that individuals should not be able to simply take such natural wonders for themselves, excluding others from accessing them. This idea seems grounded in the notion of Pareto improvement. In Anarchy, State, and Utopia, Nozick writes, "It will be implausible to view improving an object as giving full ownership to it, oif the stock of unowned objects that might be improved is limited. For an object's coming under one person's ownership changes the situation of all others. Whereas previously they were at liberty...to use the object, they now no longer are." While this is a problem for all acts of appropriation, it seems especially significant when we are able to say that without any human improvement, an object naturally has the capacity to inspire strong positive reactions in people. Why should one person be allowed to appropriate all the benefits from these natural objects for themselves?

But it's not as if privatization can't be Pareto improving. I don't want to say more about this just now, because I haven't thought it out enough. But I want to appeal to the idea that human stewardship can augment the intrinsic value in natural objects, and make them more accessible and beneficial to the people who would have enjoyed them in their natural state. For example, creating hiking trails and camping areas on a beautiful mountain can enable more people to enjoy their beauty. However, I want to take into account some important objections raised by G. A. Cohen which I'll get into some other time. For now, I'm just going to leave this as an unfinished project.

Respecting the Rich Victim: Boundary Crossings and Critical Opportunities

Donny with an A — Sat, 01 Mar 2008 00:49:00 GMT

[Cross-posted on the parent blog]

I wrote this paper last semester for my Political Philosophy class, and I figured I should probably post it here, since it's relevant to the kinds of things I talk about on this site. Without further ado:

----------------------------

Introduction

In Anarchy, State, and Utopia, Robert Nozick sets out to build a framework for an ideal social order. His approach is somewhat unusual for Utopian literature. As Ludwig von Mises famously pointed out, Utopians typically explain how “…in the cloud-cuckoo lands of their fancy, roast pigeons will in some way fly into the mouths of the comrades, but they omit to show how this miracle is to take place.”[1] So rather than dwelling on prophecies of a specific Utopian paradise, Nozick avoids Mises’ criticism by setting his sights lower, focusing on how people could live together harmoniously, striving for personal goals while respecting each other as dignified individuals.[2] Such a world, Nozick believed, would be a Utopia. And for what it’s worth, I think so to.

As a libertarian myself, I agree with the basic thrust behind his argument. Nozick’s framework is built upon the notion of respect for others. He wholeheartedly accepts the Kantian characterization of people as ends-in-themselves, and bases his entire argument on the inherent correctness of treating people the way that they ought to be treated. To Nozick, this means that people are not to be used or sacrificed in order to achieve other ends, and that limits must be honored on the range of acceptable interactions that one can have with other individuals without their consent.[3] At first glance, these principles seem obviously right.

However, in this paper, I will probe Nozick’s conception of appropriate respect, in order to better understand its application to a particular sort of situation, which I will call the “Rich Victim Problem.” It is my contention that the Rich Victim Problem creates real problems for Nozick’s conception of appropriate respect. But before tackling the problem, I want to outline Nozick’s views concerning compensation and boundary crossing in ordinary circumstances.

Compensation in the Absence of Consent

In many situations, individuals want to perform actions that they know will infringe upon the rights of others. Nozick allows that in some situations, going forward with the action might be justifiable, provided that compensation is paid later. He explains, “The reason one sometimes would wish to allow boundary crossings with compensation…is presumably the great benefits of the act; it is worthwhile, ought to be done, and can pay its way.”[4] In other words, if in full knowledge of the fact that she would have to compensate her victim for the damage she caused to him, an individual still wanted to proceed with her course of action, then it would mean that causing the damage was more valuable to her than the compensating value which she would lose. And because her victim would be compensated for his losses, no one would end up being made worse off by the action.

But Nozick is quick to acknowledge that this idea applies only when it is consistent with having full respect for others. He writes, “…a system permitting boundary crossing, provided compensation is paid, embodies the use of persons as means…”[5] The reasoning behind this is somewhat difficult to understand. The most intuitive argument is illustrated in a claim by Gerald Sauer that “We all choose goals and purse them. And in pursuing our ends, we want our persons and our activities to be physically respected by others. We do not want others to injure us or to disrupt our activities without a compelling justification.” But if people were truly being compensated completely for all of the damage they undergo, then it is puzzling why they should object; they would be made no worse off than they would have been had their boundaries remained uncross.

Nozick’s own explanation is subject to the same objection. He claims that “…knowing they are being so used, and that their plans and expectations are liable to being thwarted arbitrarily, is a cost to people…”[7] But if people knew that they would be completely compensated for any damage caused to them, it might seem irrational for them to fear. Nozick seems to think that whether or not this is the case, people do nevertheless fear harms for which they will be compensated, and it would be disrespectful to create conditions in which such fear would be prevalent. For the sake of discussion, I will grant Nozick this point.

Getting prior consent before crossing any boundaries would seem to be in order, then. But Nozick recognizes that sometimes obtaining this permission is very difficult, or even impossible. Further, the actor might have very good reason to believe that she would be able to come to a prior agreement the victim if only she could properly negotiate with him. In these sorts of situations, Nozick points out that prohibition would be inefficient, as it would prevent the implementation of an entire group of actions which would produce a net benefit. Accordingly, he acknowledges that boundary crossings might be justifiable in some instances where it is difficult or impossible to obtain prior consent, provided that victims are completely compensated.

The Story of the Rich Victim

Having outlined Nozick’s views concerning boundary crossing and compensation, we can move onto the Rich Victim Problem. I will illustrate the Problem through the story of a fellow named Jerry who has just applied for a new job working at an architecture firm. Jerry is extremely poor, though he is not starving, and does not technically need the job to survive. But the job would be intellectually stimulating, and would completely change Jerry’s life, giving him a sense of purpose and value.

Jerry’s friend Sally works at the architecture firm, and has informed Jerry that the head architect wants to hire him over all of the other candidates. But the architect values enthusiasm very highly, and expects Jerry to follow up on his interview by noon. After noon, the architect will give the job to another applicant. So all Jerry needs to do is call by noon, and he will get the job.

But when he picks up the phone at 11:00 to call the head architect, Jerry discovers that the line is dead. He looks out his window, and sees that a branch has fallen from a tree, snapping the telephone wire running to his home. Jerry bolts out the door and across the street to his neighbor Lucy’s house. Lucy is a very wealthy woman who, for some reason, lives in an extravagant home in the middle of nowhere; Lucy’s and Jerry’s are the only houses for miles. Unfortunately, when Jerry arrives at Lucy’s door, he discovers that she is not home. He remembers suddenly that she has gone on a vacation, and will certainly not be returning within the hour.

As Jerry contemplates his horrible fate, he considers whether or not it would be justifiable for him to break into Lucy’s house to use her phone. He knows that the only way to get in would be to smash in one of her ostentatious windows, and even with his new job, he would never be able to come close to completely compensating her for the damage. At best, he could afford to pay a negligibly small fraction of the total.

But Jerry knows that Lucy’s wealth is so vast that she could easily replace whatever he broke; she would barely even notice the small decrease in her net worth. Jerry acknowledges that Lucy has a right to not have her window smashed in, but wonders if the importance of his phone call would justify him in smashing it anyway.

To Smash or Not to Smash?

To help us make sense of Jerry’s situation, it will help to introduce a bit of terminology. In her essay, “Self-Defense and Rights,” Judith Thomson writes:

“Suppose a man has a right that something or other shall be the case; let us say he has a right that p, where p is some statement or other, and now suppose that we make p false. So, for example, if his right is the right that he is not punched in the nose, we make that false, that is, we bring it about that he is punched in the nose. Then, as I shall say, we infringe his right. But I shall say that we violate his right if and only if we do not merely infringe his right, but more, are acting wrongly, unjustly in doing so.”[9]

Accordingly, we will seek to answer the following question: If Jerry smashed Lucy’s window despite being unable to compensate her for the damage, would he be infringing upon her rights, or would he be violating them?

Thomson notes that an individual must be compensated for infringements upon her rights,[10] and Nozick seems to agree. Further, it appears that if compensation were not paid, then both would say that the victim’s rights would have been violated. To this end, Nozick writes, “…some injuries may not be compensable; and for those that are compensable, how can the agent know that the actual compensation won’t be beyond his means?”[11] In the Rich Victim Problem, we have supposed that the agent knows for a fact that the actual compensation will be beyond his means. So on the face of it, it would seem like Nozick would clearly insist that Jerry not smash Lucy’s window.

But this seems curious in light of the reasons that Nozick wants to allow boundary crossings in the first place. He seems to justify them on the basis of net benefits; in fact, he specifically asserts that “The most efficient policy forgoes the fewest net beneficial acts…”[12] And in our story, it is clear that Jerry’s smashing Lucy’s window would produce a net benefit. Recall that Jerry’s life would be changed as a result of being hired, while the damage to Lucy’s window would barely produce a scratch in her enormous wealth. It may be true that there is no good way to compare utility between individuals, but it seems clear that in the Rich Victim Problem, we can fairly say that the magnitude of Jerry’s utility gain would far exceed that of Lucy’s loss.

The difficulty in Nozick’s thinking seems to be the result of treating compensation as being capable of accomplishing two different tasks at the same time. Nozick is clearly thinking that compensation makes up for the damage experienced by the victim, ensuring that her interests have not been harmed as a result of the invasion. In this regard his foundation is sturdy. But Nozick is also talking as if the act of compensation represented a direct transfer of gain from the boundary crosser to the victim. Otherwise, it would be unclear how he would expect a system of compensation to forego the fewest net beneficial acts. This is where he runs into trouble.

Suppose for a moment that we could somehow measure utility objectively, and compare it between Jerry and Lucy. If Jerry smashed Lucy’s window, he would gain a tremendous amount of utility, and Lucy would lose some utility. We might imagine that by smashing Lucy’s window, Jerry made Lucy worse off by some quantity of utility, X. We might also imagine that taking some quantity of money from Jerry, say $100, would cause a loss of the same amount of utility, X, for Jerry. But if we were to give the $100 to Lucy, the amount of utility she would gain would be far smaller than X. Perhaps the amount of money necessary to bring Lucy back to her original level of utility would be $50,000 (it was a really expensive window). In light of the disparity between the $100 and the $50,000, it becomes clear that when a victim and boundary crosser value the medium of compensation differently, the act of compensating the victim can not simultaneously accomplish both of the roles that Nozick implies that it can.

As a result, when Nozick characterizes boundary crossing without compensation as a violation of a victim’s rights, and thereby deems it worthy of prohibition, he creates the potential for an entire class of net beneficial actions to be foregone. And by Nozick’s own admission, this could mean that his would fail to be the most efficient policy. So when push comes to shove, what is most important? Should we prohibit the net beneficial actions in order to avoid sacrificing the interests of the victims for the sake of the boundary crossers?

We need a way to decide. In his essay, “Does Reason Tell Us What Moral Code to Follow and, Indeed, to Follow Any Moral Code at All?,” John Harsanyi poses a question that could help us with our choice: “Taking an impartial point of view, that is, disregarding what your own social position would be in either society, would you prefer to live in a society governed by the first moral code or in a society governed by the second?”[13]

It seems as though in answering this question, Nozick would want to err on the side of respect for individuals, and therefore take the side of the victims. And Nozick’s position appears defensible. Harsanyi points out that “No doubt, most of us would very much prefer to live in a society whose moral code requires people to respect individual rights and personal obligations, except in some very special situations…”[14] And so even if people in Jerry’s position were forced to forego net beneficial actions, we might still prefer to live in a society based on respect for victims’ rights.

This conclusion is strengthened by one of Nozick’s central arguments, which is that social benefits can never be an excuse to violate the rights of an individual. He argues:

“…there is no social entity with a good that undergoes a sacrifice for its own good. There are only individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is something is done to him for the sake of others. Talk of an overall social good covers this up…To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good for his sacrifice, and no one is entitled to force this upon him…”[15]

It is clear that with regard to Lucy’s situation, Nozick’s argument describes things perfectly. To allow Jerry to smash Lucy’s window would be to do something to her for the sake of Jerry. Indeed, she would not get any overbalancing good for her sacrifice. And yet, I can not help but feel like Jerry is getting a poor deal. I feel badly for Jerry in a way that I usually don’t with regard to people who want to violate the rights of others. Is there anything that can be said on Jerry’s behalf, to support his smashing Lucy’s window?

Critically Important Opportunities

I believe there is. In her essay, “Some Ruminations on Rights,” Judith Thomson tells the following story:

“There is a child who will die if he is not given some drugs in the future. The only bit of that drug which can be obtained for him in the near future is yours. You are out of town, so we telephone you to ask. You refuse consent. You keep your supply of the drug in a locked box on your back porch.”[16]

Confronted with this scenario, Thomson wonders if it would be permissible to break into the locked box to take the drug, even though you had refused to consent to our doing so. She points out that the morality of this action would seem to have something to do with how much you valued the drug. If you valued the drug very highly, it would be difficult to say how we ought to proceed. But if you valued the drug very little, the proper course of action would be clear: we ought to take the drug. Thomson justifies her conclusion by pointing out that if you value the drug very little, and giving it away would save someone’s life, “…it is indecent for you to refuse to consent…”[17]

Thomson’s account raises an interesting possibility. Could it be that by insisting that your right to your drugs were respected, you were somehow disrespecting the child? It seems to me that this is exactly what Thomson is implying. But how does this view compare to Nozick’s?

It is clear that within Nozick’s framework, your refusal does not cross any boundary. By refusing consent, in effect what you are doing is depriving the child of an opportunity. Specifically, you are depriving the child of the opportunity to do something which can only be done by crossing one of your boundaries. Because in Nozick’s framework, boundaries are indicative of the respect to which one is entitled, he would need to say that it would be disrespectful for the child to cross your boundaries when you had specifically refused consent.

But Thomson is suggesting the opposite: it is disrespectful for you to refuse consent. The basis for this claim seems to be twofold. First, the child requires your drug in order to live. Second, you value the drug very little. An obvious principle can be drawn from these observations: It is disrespectful to refuse to allow a person to cross your boundaries if doing so is absolutely necessary to her, and allowing her to do so would harm you very little.

It seems to me that this principle is very much on the track to being correct. But some difficulties immediately present themselves. First, we have said nothing of compensation. For our purposes, we need not address the question of whether one would be entitled to compensation for a necessary boundary crossing in a case where the boundary crosser could afford to pay the compensation. I suspect that compelling arguments could be made on both sides, and I do not wish to attempt an adequate discussion of this issue here.

The question that concerns this essay is whether it would be disrespectful to refuse to allow a necessary boundary crossing in a case where the boundary crosser could not afford to compensate you for the minor inconvenience of her action. And to answer this question, I propose the following thought experiment. Imagine if you saw someone refusing to give the drug for the child, even though you knew it would be little bother if he gave the drug up. Would you not consider the owner of the drug to be repellent and monstrous? I certainly would. And if the child stole the drug, would you feel disdain for her blatant disregard for the man? I think not. Though I can provide no more substantive argument than that, I will suggest that the boundary crossing would be fully consistent with the child according all due respect to the owner of the drug, and that the refusal of consent displayed a clear lack of respect for the fact that child’s life was the only one she has.

Accepting this, we are one step closer to assenting to Jerry’s smashing Lucy’s window, but an obvious hurdle remains. In Thomson’s example, the child needs the drug to live; in Jerry’s case, he will survive whether or not he smashes Lucy’s window. Further, while the child would have died as a result of failing to take the drug, Jerry would only be left disappointed. And his disappointment, it seems, would only reflect his inability to sacrifice Lucy’s rights for his own interests. Typically, this is not the sort of disappointment which demands sympathy.

And yet, it seems like Jerry does deserve sympathy. His lost opportunity would not kill him, but it still seems that it would be awful for Jerry to lose out on it. Getting the job, we might say, is critically important to Jerry. Could it be fair to say that even critically important opportunities would justify crossing boundaries, regardless of whether compensation could be paid? Again, without offering a substantive argument in my favor, I will suggest that when the damage caused by the boundary crossing is very small, such an act would be justified. Appealing to intuition alone, then, I will adopt the principle that it is disrespectful to refuse consent to a boundary crossing which would do little harm to you, but would deprive the boundary crosser of a critically important opportunity, even if the boundary crosser would not be able to compensate you for the damage she caused.

If we agree to this principle, then it becomes clear that Jerry would be justified in smashing Lucy’s window. This would be true not because Jerry strongly desires to smash Lucy’s window, or because Jerry’s benefits would outweigh Lucy’s costs. Reasons like these would immediately fall prey to Nozick’s demand that we properly respect Lucy’s individuality. Rather, Jerry would be justified in smashing Lucy’s window because it is critically important to Jerry that he do so, and because it would harm Lucy very little. Or to put it another way, we could say that Jerry would be justified in smashing Lucy’s window because it would be disrespectful to not allow him to smash it.

By saying this, am I implying that Lucy does not have the right to not have her window smashed by Jerry? I do not believe so. It seems to me that it is because of Lucy’s right to not have her window smashed that we must have this conversation in the first place. Lucy does have the right to not have her window smashed, and violating it would be disrespectful of her right. What we are saying here is that by smashing Lucy’s window, Jerry infringes upon Lucy’s right, but does not violate it, because he is not acting wrongly. If the harm to Lucy were greater, or Jerry’s opportunity less critical, we might come to the opposite conclusion.

Operationalization

Thus it should be noticed that I have left two central terms undefined in my account so far. I have said nothing about what constitutes a critically important opportunity, and equally little about what constitutes a small harm to the victim. This has been by design, as I hope to avoid objections based on my definitions of those terms. I can only appeal to intuition in saying that however we define a critically important opportunity, Jerry’s circumstances represent one, and similarly, Lucy’s losses seem small enough to justify Jerry’s smashing the window.

This will not be a sufficient answer for someone seeking to put this principle into action. And it will not do to suggest that in the common law, vague guidelines such as these are rather common. My opponents might argue that “The beauty of the property rights approach…is that it need not become mired in…subjective quicksands. It assigns property to its rightful owners, and places the burden of purchase on those who would alter these allocations.”[18] If I seek to convince them, I would need to be able to avoid appeals to vague, subjective notions of comparative valuation.

There are two ways to proceed from here. The first is to suggest that perhaps there is no way to put my principle into action. Nozick himself points out, “Because great transaction costs may make the fairest alternative impracticable, one may search for other alternatives…These alternatives will involve constant minor unfairness and classes of major ones.”[19] It may be that we would prefer to live in a society which prohibited Jerry’s actions in order to avoid allowing objectionable rights violations in cases where our principle were not applicable, but where it would be impossible to determine that this were the case. It does not then harm my argument to say that Jerry would be justified in smashing Lucy’s window, but that we might never be able to form an adequate policy to allow this, and therefore we might simply end up punishing Jerry unfairly.

The other way to proceed would be to argue that there are ways to put my principle into action that would not be objectionable because of unfair comparisons of utility between individuals. It seems to me that this could obviously work in extreme cases. And because my principle is designed specifically for extreme cases, it may be that we would never feel the need to apply it in a situation where its applicability would be questioned.

But what of the possibility that an adjudicator would declare a harm to be insignificant, even though the victim subjectively felt it was severe, or that an individual would feel that an opportunity was critically important, though others could not understand why? Putting my principle into action likely would result in the potential for major unfairness in these sorts of scenarios. And to this possibility I have no response; if as a society, we would rather err on the side of the victim, then I can provide no objective argument in opposition.

Implications

I recognize that I have attempted here is nothing short of audacious. I also believe that what I have said makes a lot of sense. The implications of accepting my principle, however, might be too much for many people to stomach. Specifically, it seems like we could justify certain redistributive policies by applying it, where providing some critically important value to the needy would come at a comparatively insignificant cost to the victims.

I do not want to defend such an incendiary suggestion here. I will only suggest that we consider the possibility that this would be fair. As Nozick writes:

“…the term “redistributive” applies to types of reasons for an arrangement, rather than to an arrangement itself. We might elliptically call an arrangement “redistributive” if its major (only possible) supporting reasons are themselves redistributive…Finding compelling nonredistributive reasons would cause us to drop this label.”[20]

Perhaps what we have accomplished here is to provide such reasons. But I do not wish to get ahead of myself. For now, I will be satisfied if we agree that Jerry would be justified in smashing Lucy’s window, and that to say this does not imply any disrespect for Lucy whatsoever.

[1] Mises, L. von, 1990 (1920), Economic Calculation in the Socialist Commonwealth, page 2. Available online at http://www.mises.org/econcalc/econcalc.pdf.

[2] Nozick, R., 1974, Anarchy, State, and Utopia, Cambridge: Better Books, Inc., pages 333-334.

[3] Nozick, R., op cit., pages 30-31.

[4] Nozick, R., op cit., page 72.

[5] Nozick, R., op cit., page 71.

Sauer, G. L., 1982, “Imposed Risk Controversies: A Critical Analysis,” Cato Journal, Vol. 2, No. 1, page 234.

[7] Nozick, R., op cit., page 71.

Nozick, R., op cit., page 70.

[9] Thomson, J. J., 1986a, “Self-Defense and Rights,” in Rights, Restitution, & Risk, Cambridge: Harvard University Press, page 40.

[10] Thomson, J. J., 1986a, op cit., pages 40-41.

[11] Nozick, R., op cit., page 71.

[12] Nozick, R., op cit., page 73.

[13] Harsanyi, J. C., 1985, “Does Reason Tell Us What Moral Code to Follow and, Indeed, to Follow Any Moral Code at All?” Ethics, Vol. 96, No. 1, page 45.

[14] Harsanyi, J. C., op cit., page 47.

[15] Nozick, R., op cit., pages 32-33.

[16] Thomson, J. J., 1986b, “Some Ruminations on Rights,” in Rights, Restitution, & Risk, Cambridge: Harvard University Press, page 57.

[17] Thomson, J. J., 1986b, op cit., page 58.

[18] McGee, R. W., and Block, W. E., 1994, “Pollution Trading Permits as a Form of Market Socialism and the Search for a Real Market Solution to Environmental Pollution,” Fordham Environmental Law Journal, Vol. 6, No. 1, page 76.

[19] Nozick, op cit., page 77.

[20] Nozick, op cit., 27.

Can Dead People Have Rights?

Donny with an A — Wed, 13 Feb 2008 23:54:00 GMT

[Cross-posted on the parent blog]

So I've been discussing whether or not future people can have rights, and I've started considering the possibility that they don't. But an interesting parallel occurred to me the other day when I was talking to one of my TA's (not the one from the Glue Man debate). Perhaps we could learn a lot about our relationship with future people by thinking about our relationship with the deceased. There are, of course, obvious differences, but in a lot of ways, the questions that we face when thinking about the deceased are very similar to the ones that we face when we think about future people.

For one thing, it's hard to see how we can really harm the deceased. Ignoring the possibility of their souls existing in some other realm, where they would be able to see what we did, it seems like we could fairly say that people who are deceased no longer exist as persons (that is, as beings with moral standing). And very significantly, they will never exist in the future (this is even stronger than what we face when we talk about potential future people). So really, to say that we do anything to them seems shaky at best.

So, then, if we can't do anything to the deceased, can we really say that they have rights? In his essay, "Original Rights and Just Redistribution," Hillel Steiner argues that the answer is no. He writes, "...although we undoubtedly do have serious moral duties with regard to dead and future persons, these are not correlative ones. Dead and future persons have no rights." By "correlative," He elaborates, saying, "...in arguing against the notion of a right to bequeath, I don't commit myself to the view that there cannot be utilitarian or interest-based accounts of the practice of bequest. There clearly can be. And insofar as there are, these will go some way to justifying enfranchisement of the dead."

What Steiner has in mind is that we might not respect duties regarding the dead because of rights held by the deceased individuals themselves, but rather because of some other kind of consideration to which we attribute moral significance. For example, a "utilitarian" reason of the sort Steiner is talking about would be the fact that people might be more productive and lead better lives if they believe that after they die, their wishes will be honored. If this were true (and I think it's quite obvious that it is), then it seems like we would have a good reason to think that we are morally obliged to respect the wishes of dead individuals, that reason being that we want our own wishes to be respected after we die.

This kind of reasoning is seemingly dependent on the notion of a veil of ignorance approach to morality (or some essentially similar substitute). In his essay, "Does Reason Tell Us What Moral Code to Follow and, Indeed, to Follow Any Moral Code at All?," John Harsanyi explained this way of choosing between moral codes: "...Taking an impartial point of view, that is, disregarding what your own social position would be in either society, would you prefer to live in a society governed by the first moral code or in a society governed by the second?" And this seems like what some people have in mind when we say that we should respect the wishes of the dead. We would prefer to live in a society governed by a moral code such that the wishes of the dead were respected, because such a society would likely be a much better place to live.

The thing to think about, though, is whether or not it would be unjust to ignore the interests of the dead. That is, whether we would be justified in using coercion against someone who was going to do it. If so, then that seems like it would be very important for my discussion of climate change; it might lead us to a way of denying that climate change infringes on any rights while simultaneously supporting the permissibility of coercion to prevent people from contributing to it. But I'll pause for now and get back to this later.