This article is taken from chapter 20 of The Ethics of Liberty.
It is often contended that the existence of extreme, or "lifeboat," situations disproves any theory of absolute property rights, or indeed of any absolute rights of self-ownership whatsoever. It is claimed that since any theory of individual rights seems to break down or works unsatisfactorily in such fortunately rare situations, therefore there can be no concept of inviolable rights at all.
In a typical lifeboat situation, there are, let us say, eight places in a lifeboat putting out from a sinking ship, and there are more than eight people wishing to be saved. Who then is to decide who should be saved and who should die? And what then happens to the right of self-ownership, or, as some people phrase it, the "right to life"?
(The "right to life" is fallacious phraseology, since it could imply that A's "right to life" can justly involve an infringement on the life and property of someone else, i.e., on B's "right to life" and its logical extensions. A "right to self-ownership" of both A and B avoids such confusions.)
In the first place, a lifeboat situation is hardly a valid test of a theory of rights, or of any moral theory whatsoever. Problems of a moral theory in such an extreme situation do not invalidate a theory for normal situations. In any sphere of moral theory, we are trying to frame an ethic for man, based on his nature and the nature of the world — and this precisely means for normal nature, for the way life usually is, and not for rare and abnormal situations. It is a wise maxim of the law, for precisely this reason, that "hard cases make bad law." We are trying to frame an ethic for the way men generally live in the world; we are not, after all, interested in framing an ethic that focuses on situations that are rare, extreme, and not generally encountered.1
Let us take an example, to illustrate our point, outside the sphere of property rights or rights in general, and within the sphere of ordinary ethical values. Most people would concede the principle that "it is ethical for a parent to save his child from drowning." But, then, our lifeboat skeptic could arise and hurl this challenge: "Aha, but suppose that two of your children are drowning and you can save only one. Which child would you choose? And doesn't the fact that you would have to let one child die negate the very moral principle that you should save your drowning child?" I doubt whether many ethicists would throw over the moral desirability or principle of saving one's child because it could not be fully applied in such a "lifeboat" situation. Yet why should the lifeboat case be different in the sphere of rights?
In a lifeboat situation, indeed, we apparently have a war of all against all, and there seems at first to be no way to apply our theory of self-ownership or of property rights. But, in the example cited, the reason is because the property right has so far been ill-defined. For the vital question here is: who owns the lifeboat? If the owner of the boat or his representative (e.g., the captain of the ship) has died in the wreck, and if he has not laid down known rules in advance of the wreck for allocation of seats in such a crisis,2 then the lifeboat may be considered — at least temporarily for the emergency — abandoned and therefore unowned. At this point, our rules for unowned property come into play: namely, that unowned resources become the property of the first people possessing them. In short, the first eight people to reach the boat are, in our theory, the proper "owners" and users of the boat. Anyone who throws them out of the boat then commits an act of aggression in violating the property right of the "homesteader" he throws out of the boat. After he returns to shore, then, the aggressor becomes liable for prosecution for his act of violation of property right (as well, perhaps, for murder of the person he ejected from the boat).
Doesn't this homesteading principle sanction a mad scramble for the seats in the lifeboat? Scramble perhaps; but it should be pointed out that the scramble must not, of course, be violent, since any physical force used against another to keep him from homesteading is an act of criminal assault against him, and aggression may not be used to establish a homestead right (just as one would-be homesteader may not use force to prevent someone else from getting to a piece of land first).
To those who believe that such a homesteading principle is unduly harsh, we may reply (a) that we are already in an intolerably harsh and fortunately rare situation where no solution is going to be humane or comforting; and (b) that any other principle of allocation would be truly intolerable. The time-honored principle of "women and children first" is surely morally intolerable; by what principle of justice do men have inferior rights to life or self-ownership than women or children? The same is true of the view that the "superior" minds should be saved at the expense of the "inferior"; aside from the staggering objection of who is going to decide on who is superior or inferior, and by what criterion, this view implies that the "superior" have a right to live at the expense of the "inferior," and this violates any concept of equal rights and renders any ethic for mankind impossible.3
A far clearer outcome of the lifeboat case occurs where the owner or his representative still survives or has laid down rules for allocation in advance. For, in that case, our theory states that the right to allocate spaces in the lifeboat belongs to the owner of the boat. He may choose to carry out that allocation in various ways: whether by first come-first served, women and children first, or whatever. But though we may disagree with the morality of his criteria, we must concede his right to make the allocation in whatever way he wishes. Again, any forcible interference with such owner's allocation, e.g., by throwing people out of their allocated spaces, is at the very least an act of invasion of property right for which the aggressor may be repelled on the spot, and for which the aggressor would later be liable for prosecution. Our theory of absolute property right is therefore the most satisfactory — or, at the very minimum, the least unsatisfactory — way out of the tragic lifeboat example.
An even starker version of the "lifeboat" case — and one where there is no question of someone's prior ownership of the lifeboat — occurs when (to cite an example mentioned by Professor Eric Mack) two shipwrecked men are battling over a plank that can only support one. Does the concept of aggression and property right apply even here? Yes, for again, our homestead principle of property right comes into play: i.e., the first person who reaches the plank "owns" it for the occasion, and the second person throwing him off is at the very least a violator of the former's property and perhaps also liable for prosecution for an act of murder. Again, neither of the persons may use force against the other in preventing the latter from reaching the plank, for this would be an act of physical aggression against his person.4
It may well be objected to our theory as follows: that a theory of property rights or even of self-ownership is derivable from the conditions by which man survives and flourishes in this world, and that therefore in this kind of extreme situation, where a man is faced with the choice of either saving himself or violating the property rights of the lifeboat owner (or, in the above example, of the "homesteader" in the boat), it is then ridiculous to expect him to surrender his life on behalf of the abstract principle of property rights. Because of this kind of consideration, many libertarians who otherwise believe in property rights gravely weaken them on behalf of the "contextualist" contention that, given a choice between his life and aggressing against someone else's property or even life, it is moral for him to commit the aggression and that therefore in such a situation, these property rights cease to exist.
The error here on the part of the "contextualist" libertarians is to confuse the question of the moral course of action for the person in such a tragic situation with the totally separate question of whether or not his seizing of lifeboat or plank space by force constitutes an invasion of someone else's property right. For we are not, in constructing a theory of liberty and property, i.e., a "political" ethic, concerned with all personal moral principles. We are not herewith concerned whether it is moral or immoral for someone to lie, to be a good person, to develop his faculties, or be kind or mean to his neighbors. We are concerned, in this sort of discussion, solely with such "political ethical" questions as the proper role of violence, the sphere of rights, or the definitions of criminality and aggression. Whether or not it is moral or immoral for "Smith" — the fellow excluded by the owner from the plank or the lifeboat — to force someone else out of the lifeboat, or whether he should die heroically instead, is not our concern, and not the proper concern of a theory of political ethics.5
The crucial point is that even if the contextualist libertarian may say that, given the tragic context, Smith should throw someone else out of the lifeboat to save his own life, he is still committing, at the very least, invasion of property rights, and probably also murder of the person thrown out. So that even if one says that he should try to save his life by forcibly grabbing a seat in the lifeboat, he is still, in our view, liable to prosecution as a criminal invader of property right, and perhaps as a murderer as well. After he is convicted, it would be the right of the lifeboat owner or the heir of the person tossed out to forgive Smith, to pardon him because of the unusual circumstances; but it would also be their right not to pardon and to proceed with the full force of their legal right to punish.
Once again, we are concerned in this theory with the rights of the case, not with whether or not a person chooses voluntarily to exercise his rights. In our view, the property owner or the heir of the killed would have a right to prosecute and to exact proper punishment upon the aggressor. The fallacy of the contextualists is to confuse considerations of individual, personal morality (what should Smith do?) with the question of the rights of the case. The right of property continues, then, to be absolute, even in the tragic lifeboat situation.
Furthermore, if the lifeboat owner, Jones, is being aggressed against by Smith, and has the right to prosecute Smith later on, he therefore also has the right to use force to repel Smith's aggression on the spot. Should Smith try to use force to preempt a spot on the lifeboat, Jones, or his hired defense agent, certainly has the right to use physical force to repel Smith's act of invasion.6
To sum up the application of our theory to extreme situations: if a man aggresses against another's person or property to save his own life, he may or may not be acting morally in so doing. That is none of our particular concern in this work. Regardless of whether his action is moral or immoral, by any criterion, he is still a criminal aggressor against the property of another, and the victim is within his right to repel that aggression by force, and to prosecute the aggressor afterward for his crime.
- 1. A pragmatic point related to the rarity of the lifeboat case is that, as we know from economic science, a regime of property rights and the free-market economy would lead to a minimum of "lifeboat situations" — a minimum of cases where more than one person is battling over a scarce resource for survival. A free-market, property-rights economy raises the standard of living of all persons, and ever widens their sphere and range of choice — thereby harmonizing liberty and abundance, and rendering such extreme situations as negligible as humanly possible. But this sort of utilitarian argument, we must recognize, does not fully answer the questions of right and justice. For a sardonic protest against the use of grossly abnormal examples in moral philosophy, see G.E.M. Anscombe, "Does Oxford Moral Philosophy Corrupt the Youth?" The Listener (14 February 1957 ): 267.
- 2. If he has laid down such advance rules, then those rules for deciding on the use of his property — the lifeboat — must apply. I owe this point to Mr. Williamson M. Evers.
- 3. In 1884, a British court rejected the plea of "necessity" by which the defense sought to justify the murder and cannibalism of a shipwrecked boy by several of his adult companions. The judge, Lord Coleridge, asked:
Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own.
The Queen v. Dudley and Stephens, 14 Q.B.D. 273 (1884), quoted in John A. Robertson, "Involuntary Euthanasia of Defective Newborns: A Legal Analysis," Stanford Law Review (January 1975): 241. On the other hand, in a previous Pennsylvania case in 1842, United States v. Holmes, the court proposed to justify the murder of people in a lifeboat if the victims were chosen "by a fair procedure, such as lot." Why blind chance should be particularly "fair" was not adequately explained. 26 F. Cas. 360 (No. 15,383) (C.C.E.D. Pa. 1842). See ibid., pp. 240–41, n. 243. For an interesting though inconclusive discussion clearly based on these two cases, see Lon L. Fuller, "The Case of the Speluncean Explorers," Harvard Law Review (February 1949): 616–45.
- 4. For a critique of the sort of "contextualism" employed by Mack in this example, see immediately below. Cf. Eric Mack, "Individualism, Rights, and the Open Society," in Tibor Machan, ed., The Libertarian Alternative (Chicago: Nelson-Hall, 1974), pp. 29–31.
- 5. Moreover, Eric Mack's example fails to show a necessary conflict between property rights and moral principles. The conflict in his example is between property rights and the dictates of prudence or self-interest. But the latter is only dominant in morality if one adopts moral egoism, which indeed Professor Mack does, but which is only one possible moral theory."In those cases where it might perhaps be considered moral from a personal point of view to invade someone's rights, the point to stress is that those rights are nevertheless invaded."
- 6. Professor Herbert Morris takes a similar view of rights. Speaking of the concept of rights in general rather than merely in lifeboat situations, Morris defends the idea that rights must be absolute rather than merely a prima facie presumption; in those cases where it might perhaps be considered moral from a personal point of view to invade someone's rights, the point to stress is that those rights are nevertheless invaded, and that that infringement is therefore subject to punishment. See Herbert Morris, "Persons and Punishment," The Monist (October 1968): 475–501, esp. pp. 497ff.