Libertarians want to say that my right to my body entails that you may not shoot me. Presumably they also want to say that you may not shoot a gun with only one bullet at me even if the gun has many, many empty chambers (even millions). I have a right, I imagine they must want to say, that you not put me at such risk even when the risk is very small. But then I was wondering how I get to fly my plane in areas where there is some, admittedly very small, chance that it will lose control and fly into your house or person, and thereby violate your rights. I am assuming for present purposes that it would count as a reductio to prohibit even well made planes from flying in populated areas without getting unanimous consent from the relevant population.

It seems not available to the Libertarian to say that the benefits of flight to society are sufficient to justify such a small involuntary imposition of a risk to my rights (whereas the benefit to society of permitting someone to aim a weird gun at me and pull the trigger do not). That sounds like the serpent winding of consequentialism that they want to avoid. I was wondering if they could say that there is a difference between my rights being put at some small risk being part of your aim vs. being merely foreseen. I am guessing such a view would be non-standard and might perhaps allow me to establish an involuntary survival lottery for organs where your organs are put at very small risk but my aim is to save as many people as possible.

I think most broadly the worry boils down to how Libertarians can make room for the permissibility of some small involuntary risks to that which we have a right without some consequentialist-style reasoning.

In the context of thinking about such issues, Steve Wall yesterday brought to my attention Railton’s “Locke, Stock, and Peril” which, despite its silly name, strikes me as presenting the above vague misgivings with great power and clarity. It is included in his collected papers. I recommend it. Railton wisely puts the case primarily in terms of the permissibility of polluting. He argues that the basic commitments of the view have the result that the government should be much more rather than less active and prohibit all (unconsented to) pollution, which in the actual world would surely be most of it. That would be a very active and restrictive government. Some of the ideas below are swiped from his paper.

The most obvious immediate replies strike me as unworkable. One might try saying that the relevant kind of consent is hypothetical. If one would have consented, had one been informed and rational (and presumably self-interested), then no rights violation. But this would license rather than be fundamentally hostile to some paternalism, esp. state paternalism. This would allow people to take one’s property without one’s consent so long as it is actually good for you that this be done. That does not sound like Libertarianism to me. Could the state also involuntarily sign me up for a survival lottery which improves my life expectancy but risks my losing my organs against my will? If so, then Libertarianism has changed beyond recognition.

Tacit consent seems even less promising than usual here as pollution and the effects of global warming are, well, global. One can hardly say that one has consented to such stuff because one has not left the planet.

One might try saying that the basic natural rights permit people to impose a very small risk on one without violating one’s rights. But this would allow the person to pull the trigger of the odd gun mentioned above. It would also have the result that lots of people could together do stuff that poisons my air and water such that I am very likely to die from this, yet no one will have violated my rights since no one person added a risk greater than the permissible amount. Again, each person could put a needed organ of mine at a small risk with the collective result that I am likely involuntarily to lose my organ again without a rights violation. Alledged advantages over consequentialism here seem to have vanished.

One might try saying that we are better off because people polluted, or flew, or whatever. If previous generations had been forbidden from doing this, we would have much less material wealth. But again, I might be better off if someone straps me down and involuntarily gives me a root canal, but still, I would have thought, that does not show that doing so does not violate my Libertarian rights. The polluter seems to not leave as much and as good air, water, whatever, for the rest of us, thus seemingly violating the Lockian Proviso. One might try to compensate for the loss but I don’t see how to put a price on the loss. One might give the loss a market price but I might truthfully not have been willing to make the trade at that price. One could try asking me what price I want, but that will result in strategic issues and some rabid anti-pollution folks who will not sell at any price. Further, although I may have been willing to sell something at a certain price, I may be unwilling to have someone take it without my consent and give me the price that I would have accepted had it been done the right way. Thus none of these maneuvers seems to me to earn the right to say that I have been treated in ways that I consent to.

Thus, I do not yet see how the Libertarian can successfully handle cases of pollution or global warming. It may really be that despite appearances, a proper Libertarian government would not be laissez faire at all but would instead find much of what we think of as private activity, such as driving our cars, as violating people’s rights.

I should say that I am not up on the Libertarian literature so perhaps there is a lot of work I am not aware of that addresses such concerns. If so, I hope people will tell me what progress has been made since Railton’s paper.

(I should add a hat tip to Justin Moss, a UNL grad student, whose ideas started me off in this direction.)

55 Replies to “Libertarianism and Pollution

  1. “I should say that I am not up on the Libertarian literature so perhaps there is a lot of work I am not aware of that addresses such concerns. If so, I hope people will tell me what progress has been made since Railton’s paper.”
    It seems to me you went about this backwards. You may have more success reading the appropriate literature first and then writing your commentary afterwards. It shouldn’t be left up to the reader to correct your lack of research.

  2. Mike,
    I see what you are saying. And given the relative newness of philosophical blogs such as this one it is not surprising that people would have different ideas about how similar to published work ideas presented here should be. My take is that this forum is designed for and encourages unfinished work in progress which is less seriously researched than something submitted to a journal should be. I hope others share this conception of what is appropriate to Pea Soup. My own take on things is that the lack of posts here recently is perhaps a sad reflection of people holding themselves closer to publishing standards when they post here. If so, I say that is a pity. We have plenty of journals already. Pea-Soup would be most valuable if it encouraged a different standard in its posts than those appropriate to a finished product for a journal.

  3. Why not discuss Chapter 4 of Anarchy, State and Utopia (“Prohibition, Compensation, and Risk”)? Nozick discusses risk and compensation at great length. His treatment of risk is a crucial feature of his argument for the minimal state. You might worry that he doesn’t directly address the concerns you’ve raised but it isn’t hard to construct a Nozickian response to your concerns, I don’t think.

  4. Kevin,
    I thought of myself as responding to the Nozickian idea of violation and compensation, tho admittedly not under that description, above when I consider the final response that I find unconvincing.

  5. I’m not sure why this is a problem for distinctively libertarian deontological views, as opposed to absolutist deontological views more generally. I’m using “absolutism” in the sense in which Jackson and Smith’s use it in their “Absolutist Moral Theories and Uncertainty,” (JPhil 2006), where it means something like “views according to which some rights are inviolable no matter the benefits of violating them.” They present general arguments that absolutist views face troubles in cases like the ones you’re considering (i.e., cases involving small risks of rights violations).
    It seems to me that what’s distinctive about libertarianism isn’t that it is an absolutist deontological view, but which rights it is absolutist about. We might construct similar arguments against Rawlsian views by considering policies that have a .00001% chance of making the least well off slightly worse off, but are certain to make everybody else better off.
    Furthermore, insofar as we prefer to be non-absolutist deontologists (i.e., if we say that rights can be violated if the benefits are great enough), we can be non-absolutist libertarians–that is, we can say that the benefits must be very great before we can justifiably violate property/liberty rights.

  6. Daniel,
    Thanks those are helpful thoughts. I appreciate your comments.
    Yes, I agree that the problems I mentioned might be problems for more than just Libertarians. Perhaps if a non-Libertarian absolutist ethical theory claimed that one has an absolute right against being killed, then we could construct a similar puzzle for them. Perhaps it follows from having a right against being killed that I have a right to not be put at any risk of being killed and perhaps any pollution could be seen as violating that right. That may be so. I just thought the case was clearer than Libertarian sanctioned rights were violated by pollution.
    I also agree that there can be non-absolutist variants of Libertarianism, indeed Nozick himself offered one. I guess first I wonder if you think the worries I offer force the move away from an absolutist version of the view. Second, it seems to me the move away from absolutism as you (and Nozick) describe it comes with real costs for the Libertarian. As so far described it seems rather ad hoc for collective welfare to not matter at all until the costs get very high. What if the property right violation is quite small? Does it still take a big loss of well-being to justify it? If so, isn’t that odd. Could a lesser loss of well-being, for example, make it ok to restrict a person’s property right even if it cannot justify taking the property. Does a .5 risk to the critical level of well-being loss justify doing something that would have a .5 chance of violating rights? It seems to me that the most plausible versions of such a move will allow that collective well-being plays a broader role in determining what is right than Nozick allowed.
    I also wonder what happens to some cherished anti-consequentialist arguments if we take this path. Are we still respecting the separateness of persons, for example, if we may sacrifice your right to control what happens to your body if the benefit to the rest of us is great enough?
    I also wonder what the great benefit is supposed to be that makes it ok for me to drive my car, put fertilizer on my lawn, or use dishwashing liquid with phosphates. In the former case I can see a big benefit to people generally being able to move about great distances individually. I assume it must be the benefit of this practice generally that I put up to explain why I may violate your property right? But then surely the person whose right is violated should be able to put up on his side the collective number of rights violations involved in my action. Or should we think that once the well-being costs reach the critical level, any number of rights violations are therefore permissible? Perhaps instead we should think that there should be a trade off—if the loss of well-being per rights violation is high enough, then we may violate the rights. If that is the picture, and if generally pollution violates many people’s rights, then I doubt that the critical level of well-being loss per rights violation will exist to justify my driving my car. Or if it does, then aggregate well-being is now playing a very broad role in the theory.

  7. Mike,
    David is right that our policy at PEA Soup is to host a wide range of discussions, from highly polished commentaries to thoughtful but rough sketches of ideas (even including ‘blegs’ for help for research). To quote from our editorial policy, which can be found by clicking on the “About” link at the top of the page, “many authors put forth their contributions tentatively, as a way of trying out new ideas.”

  8. David,
    this is very interesting. A long time ago I did my first philosophical paper on this topic, and I have to agree with Daniel – these are hard issues for anyone. Just a couple of quick points:
    1. I find the first two sentences perhaps the most interesting. It’s true that libertarians give fundamental emphasis on our right to our own body where this is understood as an absolute property-right. Now, they might want to say that this right rules out risk-impositions, but I’ve never understood how they could get to that. Intuitively, if I own something, my right forbids you to take that thing from me, from changing that thing, from impinging on it, from taking away my ability to control the object, and the like. However, I have difficulties in seeing how an imposition of a mere risk in cases in which the risk is not realised does any of that. So, I don’t see how there’s a step from property right to a right not to be imposed a risk on. In fact, if such a step existed, there would be a libertarian argument against free markets.
    2. Pollution might be even trickier than risk any issues to do with risk. The difficulty with pollution seems to have less to do with risk impositions and more to do with prisoner’s dilemma kind of paradoxes of game theory. It could be that my car driving imposes no risk at all for you in terms of pollution, nor does it harm you in any way. In terms of global warming for instance, your situation would have been just the same if I hadn’t driven a car and likewise for any other individual. It’s just that the actions of many enough people not only impose a risk on you but also harm you. So, this problem seems to be independent of the risk issue. Of course this doesn’t make it any easier for the Libertarian.

  9. But then I was wondering how I get to fly my plane in areas where there is some, admittedly very small, chance that it will lose control and fly into your house or person, and thereby violate your rights.
    This raises an really interesting point, since for any outcome O that you plan to achieve, there is always some small chance that you fail to achieve O and murder someone instead. Al Hajek raises this point in another context. That leaves you with nothing that you can plan to achieve, morally, if you cannot place anyone at any risk of being murdered. That can’t be right. But I wonder if Libs. are stuck with this. If so, then likely they’d retrench to intentionally putting at risk, and distinguish that from knowingly putting at risk.

  10. So, I don’t see how there’s a step from property right to a right not to be imposed a risk on.
    But what if someone has been playing Russian roulette with you without you knowing it? Each morning he aims a loaded pistol at you, from across the street, as you’re eating breakfast, and “click”. Would you say that a moral advisor should tell him that it’s ok that he continue to do so, since he is doing nothing wrong? For my part, I think a moral advisor should urge him to stop.

  11. Libertarians can accept that it is sometimes permissible to infringe a person as a side-effect of an act which causes the good. For example, libertarians might accept that it is permissible to divert a trolley from a track with 5 on it to a track with 1 on it. This would infringe the right of the one, but not violate it.
    Libertarians, perhaps (and I think not very plausibly), must deny that it is ever permissible to infringe the rights of one person as a means to benefit others – to harm a person as a means to an end, we might think, is no different to compelling a person to pursue that end at the same cost, and libertarians are committed to rejecting the permissibility of the latter.
    Your case of pollution involves doing something that imposes a risk of infringement of rights as a side-effect. Libertarians can permit that. A person who thinks that it is never permissible to infringe rights as a side-effect of one’s actions is just daft.

  12. So we have two proposals on the table. First, a direction I mentioned would be for the Libertarian to say that, when one has a right to something, one only has a right that others not aim to deprive one of that. One would have no right that others not deprive one of that so long as they merely foresee rather than aim at depriving one of that thing. Second, the Libertarian could say that when one has a right to something, one has a right that others not violate that right as a means to benefitting others, but one has no right that others not mess with one’s property as a side-effect of their action.
    Both proposals, at least without significant further elaboration and emendation, seem to me much too permissive. The drunken driver is not aiming at running into us as we sleep in our bed, although they may foresee that this is more likely as a result of their actions. Surely if they do run into us, they have violated our Libertarian rights. The company that dumps toxic chemicals into the stream that provides water to the town is harming people only as a side-effect of their action, but surely we must all want to say that they are violating the townspeople’s rights. If necessary one could obviously come up with similar cases where the actions did not merely make the apparent rights violation more likely, but rather made it certain (or certain enough).
    I don’t mean to attribute the unelaborated and unemended views to the two commentators who suggested them, but rather just point out that until we get the elaboration and emendation the views do not look attractive.

  13. I, too, am nothing like an expert on the field, but I also wonder precisely who the target of the criticism is.
    While I know nothing of the literature, I do know that there are activist/lobbying organizations which are consequentialist-libertarian. While such a view seems wildly implausible to me (committed to the claim that the world is better when people are left alone, rather than when forced to give small amounts to save huge numbers of lives), it is in fact a position.
    This makes me think that your attack is not against Libertarians, since there is more than one philosophical foundation for such a position. And it is not against all deontologists, it seems to me, since you are particularly concerned with the use of coercive power. A moral theory might be implausible for ruling out reasonable risks, but a political philosophy would be crazy if it disallowed air travel. So, the target is rights-based libertarians, of a Nozickian variety.
    I don’t know if that is helpful, but it seems like it might at least put a finer point on the challenge.

  14. David,
    Of course, there are other constraints on infringements of rights. There is a tight constraint on infringing rights as a means (for libertarians, perhaps an absolute constraint). There is a less tight constraint on infringing rights as a side-effect (the harm done must not be disproportionate).
    The general idea of harming as a means needs spelling out carefully. There is disagreement in the literature. Some people focus on all intentional harming, some on a subclass of intentional harming, and some on causal relations between the harm and the good.
    It is likely that proportionality judgements are complex. The field where they are being worked out in most depth, to my knowledge at least, is in the context of the philosphy of war (see Jeff McMahan’s Killing in War for a good example).

  15. Jussi,
    Thanks, those are very interesting and difficult topics. I certainly did not mean to imply that these issues are not hard.
    Railton has a very nice and complex discussion of issues involved in your first question. I will try before long to summarize what he says. The first move is to distinguish what he calls “pure risk” (in which the person whose rights might be violated is literally in no way affected by the risk) from risk where, for example, your smoke gets in my lungs and makes me somewhat more disposed to have problems, but I never actually get any of the problems that I am now more disposed towards. We also, he thinks, need to distinguish objective wrongness from subjective (or information-relative) wrongness. But all that is a long story.
    On your second point: I suspect it will be rather rare when my pollution literally in no way at all alters your environment. What will be common is that my pollution does so in undetectable ways. As I understand what the scientific community is saying these days, each puff of a cigarette puts one at greater risk. It is not the case, I think they are saying, that some small amount of smoke is harmless. Let us suppose that that is literally true. Then I think the Libertarian still has the problems I was claiming they had.
    It is, however, quite interesting what to say about imaginable cases where my contribution to a polluting practice has literally no impact at all on your health, but many people acting as I do has a significant negative impact on one’s health. I meant to be suggesting in the body of my post that such collectively caused harms surely must count as violations of my rights. (As I recall Railton suggests this as well.) But surely if I have had my rights violated, someone acted as they ought not to act (even if perhaps blamelessly). So the option of saying that no one violated my rights in such a case does not look like a good option for a Libertarian. The other option would be to say that each person impermissibly contributed to my right being violated (at least so long as no one found a way to free-ride on the practice of contributing to my right being violated).

  16. Travis,
    Thanks! That is a good question and gives me an opportunity to say something I should have said earlier. Locke, for example, sometimes justifies aspects of his view by saying that they help achieve God’s goal of things going well for us. Very broadly speaking, one can hear parts of Locke’s story as a Rawlsian “Two Concepts of Rules” sort of Consequentialism. I don’t really care to what extent this is a good interpretation of Locke, I just mean to be drawing attention to the sort of rationale some might have for lassez faire government, namely, that it makes people better off. While such a view is perhaps worth calling Libertarian, I did not mean to be talking about such views. I meant to be talking only about views which claim that there are natural rights about what we are entitled to, how to acquire new entitlements, trade or give away entitlements, and so on which do not need a further vindication in terms of how such a system of entitlements makes people better off or allows for pareto-optimal exchanges. So perhaps I am only meaning to talk about a subset of views worth calling Libertarian. One might think of it as Self-Standing Libertarianism that I mean to be discussing.

  17. Thanks David,
    I need to go back and have a look at that paper – it’s been years. Not immediately clear how those distinctions fill in the gap from property rigths to a right against risk imposition. There might be a long story which I need to check. For what’s it worth, I do think risk imposition is wrong in many cases but I don’t think this is because of it violates one’s right to one’s body.
    About the second thing. I’m actually thinking that these cases are fairly typical in real life. It has been argued often by scientists that there are many environmental tresholds. The environment can absorb certain amount of pollution until it collapses at some point completely. Some of these cases might be of the type – if x amount of co2 is released then the tempirature rises by y degrees which is the turning point for some environment (Arctic glaciers will melt, forests will turn to desert and so on which will all have harmful physical consequences for us).
    Typically we overshoot these tresholds by a mile for certain disastrous causal mechanisms being set in motion. Triggering the catastrophe is thus overdetermined by the actions of individuals. It would have happened without the contribution of any one individual.
    As you suggest, one way to go is to think that the community/society violates rigths of an agent in these cases. But, this doesn’t sound very libertarian – they tend not to believe in group agents at all. If communities could act, they might have obligations and thus perhaps also rights and well-being and off we would be. The other way is to talk about the contributions off individuals to rights violations (as you say), but if one’s action doesn’t make any difference discernible difference to the natural facts, then it is slightly odd to say that one contributed to the rights violation.

  18. Jeff Moriarty very helpfully pointed out to me that a very recent paper by Jonathan Adler appears to agree with Railton and me about the implications of Libertarianism on topics such as Global Warming and seems therefore tempted towards the picture where Libertariansm requires a very restrictive government. Warning: In accordence with my style, I have not yet read the paper.

  19. David,
    Another, older source that appears to roughly agree with you, and that is pretty authoritative (as far as that goes), is John Hospers’ “Libertarian Manifesto,” where he claims that polluters violate the property rights of the rest of us.
    He also claims that, in essence, the compensation for this violation should be built in at the production level. So there’s an argument for mandatory carbon pricing from someone who has both scholarly cred and activist cred (the first Lib. Party US Pres. candidate)!

  20. Thanks Josh, I appreciate that! I guess I am trying to sell the idea that we don’t have a workable compensation scheme and that even if we did, it is not clear to me that violation and compensation should be thought of as, prospectively, a permissible combination (although of course if one has violated, then compensation would be in order). So I am trying out the idea that the upshot for Libertarianism of the fact that polluting violates our rights is that pollution should not happen. If that really were an implication of the view, I myself am tempted to see that as a reductio of the view rather than a surprising finding about the unacceptablilty of just about any polluting.

  21. David,
    You say:
    I meant to be talking only about views which claim that there are natural rights about what we are entitled to, how to acquire new entitlements, trade or give away entitlements, and so on which do not need a further vindication in terms of how such a system of entitlements makes people better off or allows for pareto-optimal exchanges.
    I know what you mean here, but one way of reading this would rule out Nozick and Locke. For both of them invoke facts about people being better off in the sort of system they favor than in a state of nature.(Recall the day laborer in England passage.) Or to put it another way, their stories about how one gets entitlements invoke facts about how allowing such entitlements doesn’t make people worse off. And whether a person is made worse off by someone acquiring an entitlement can depend on the overall balance of costs and benefits that accrue to others. Insofar as your comment suggest that no “further vindication” beyond the story of people’s rights to acquire entitlements it is literally true. But we have to be careful not to think we’ve ruled out all talk of costs and benefits.
    I think that most libertarians of the sort you mean to target include in their theories of appropriate acquisition of parts of the world some analogue of Locke’s provision that we leave enough and as good for others. Nozick gives it a rather weak reading (as a wonderful paper by G. A. Cohen points out) but others — especially left libertarians such as Otsuka and Valentine endorse a proviso with more bite. I like to think of it as required by the thought that appropriation of an unowned part of the world is unobjectionable so long as that acquisition harms no one. And then I think of each of the more specific provisos that these folks endorse as their way of spelling out what it takes to harm no one.
    Suppose a Libertarian works with that nonconsequentialist idea. Then appropriation from nature in a form that pollutes it will only be justified if that pollution can be shown to not violate the correct interpretation of the proviso. Take Otsuka’s reading of the proviso as one that requires appropriation to leave others with an opportunity for welfare that is equal to that of the appropriator. Pollution would be OK (at least as far as the proviso is concerned) only up to that point where it effects people’s opportunity for welfare so that it is no longer equal.
    This would seem to me to justify acquisition of property limited by constraints imposed to assure that one’s use of such property did not pollute to the point that it effected people’s equal opportunity for welfare. One could freely pappropriate and use property in ways that pollute up to that point (for all libertarian constraints say) but beyond that there would be constraints on using the property in polluting ways. Either one would not use it to pollute further, or one would have to compensate those whose prospects had been harmed by pollution to the point where their opportunity for welfare was once again equal.
    I think that other interpretations of the proviso would be able to generate a similar story and impose similar constraints.
    Something related goes on in Locke’s suggestion that original appropriation of nature is permissible even though there is not enough for everyone to get some land. He suggests that even those without property in land are not worsened by its appropriation insofar as they are compensated with opportunities to work and earn money from those that did get some land. As I recall this is just a suggestion in Locke’s text (his main reply seems to be that there is still unappropriated land in America) but Nozick adopts the argument and endorses a version of it.
    While cheating by interpreting the proviso to weakly to be plausible, Nozick is actually pretty sophisticated in grasping the implications of having a proviso. He talks about the “shadow of the Lockean Proviso” by which he means to designate the constraints that have to be put on otherwise permissible transfers when such transfers make people less well off than they were before. The basic thing that is important is that individual acts of acquisition which don’t make anyone worse off by themselves can wind up making them worse off if they are coupled with transfers that disadvantage people. And this means that a libertarian might have to allow limits on transfers of legitimately appropriated property in order to ensure that appropriation was legitimate by libertarian rights. If that’s correct, it isn’t a much further step to suggest that there may be libertarian grounds to limit certain (polluting) uses of property in order to keep from violating the proviso.
    So I tend to think that libertarians who take something like the Lockean proviso seriously (that is left-libertarians)have a way to justify policies that limit pollution or tax those who pollute so as to reverse the bad effects of pollution on other people. And it is built in at the ground floor of their theories in the story of how you acquire rights to parts of the world.
    This is not to say that I think this is the correct account of what all is wrong with certain sorts of pollution or that I agree with libertarians on the extent of the requirements of morality. Just that I think their underlying commitments have room both to allow some pollution and to ban or require compensation of those harmed by significant pollution.

  22. I don’t know the literature on risk per se very well, but I do count myself as being pretty familiar with the literature on libertarianism. And this issue, in my view, is one of the most seriously underworked and troubling issues for that position. As Daniel suggested, it may be a problem for absolutist deontological views as a class and not just for libertarians. But still, I think there’s something to the idea that it’s a special problem for libertarians given that they often (as I think is explicit in Nozick) see themselves as distinctive precisely because of the consistency with which they uphold the separateness of persons, and because of the prominence of the “property – invasion” model in libertarian thought and rhetoric.
    I can’t think of anything that hasn’t already been mentioned that addresses the topic in a novel way. It’d be interesting to see what someone like Lomasky or Mack would say about it – if they haven’t already. Still, I guess if the problem is really one for deontologists generally, libertarians should be able to draw on the same kinds of deontological analysis, e.g. the sort found in JJ Thomson’s work.
    It’s also worth noting that the earliest statement, of which I’m aware, of this problem as a special problem for libertarians came from a libertarian – though one of the consequentialist variety. Chapter 41 of David Friedman’s The Machinery of Freedom presents it as a kind of twofold problem: absolute libertarian property rights have a difficult time dealing with infringments that are small in probability (e.g. driving an airplane over your home = small probability of very large harm), and infringements that are small in effect (my shining a small flashlight onto the wall of your house without your consent). For Friedman, of course, this is a reason to go full-bore for consequentialism. Another possible view, of the sort I believe is held by Roderick Long, is that considerations like these lend plausibility to the idea that consequences play a role in the correct specification of natural rights, not the idea that natural rights should be scrapped in favor of consequentialism altogether.

  23. I would second the strategy Matt cites Rod Long as advocating. If there is any point to libertarianism as an account of the legitimacy of political authority and obligation, it has to make sense of its principles in light of a messy world in which virtually everything we do exposes others to risk, either actual and small or potential and large, or somewhere in between. I am certainly sympathetic with Dave’s curiosity as to how that story might go, but it does seem to me a mistake to think that the empirical messiness dictates a consequentialist approach to the commitments. It might be that a (roughly) natural rights approach is compatible with seeing some degree of indeterminacy in the specific contents of those rights.

    Those contents need determination in a system of positive law (this I take to be roughly Kant’s account of private right), and that is the level at which managing risk must be undertaken. But that saying that doesn’t entail that the justificatory framework for determination can only be consequentialist; it might take as its foundations some sort of natural right to self-ownership and try to interpret that right empirically, in positive law. Of course, that’s just an outline for a research program, not really an answer to Dave’s question.

  24. Jussi,
    Good points. Perhaps what I should try saying is that if Libertarianism cannot deal successfully with possible (but let us grant, for the sake of argument) but not actual kinds of pollution, that would be a real problem for the view. Just as, I take it, not much hinges on whether there are actual utility monsters. The coherent possibility of such and the Consequentialist’s alleged difficulty in handing such cases would show a flaw in the view regardless of the actuality of the sort of cases that provide the alleged counter-example. So the coherence of the possibility that be pollution of the sort I (and Railton) posit may be enough to do the work we are looking for.

  25. Mark,
    Your remarks raise a wide range of really interesting questions and I am sure I still have a lot of thinking to do in these areas and my ideas seem especially unsettled in these areas. Here are a few questions I think your remarks raise and some thoughts on the questions:
    1: What percentage of self-styled Libertarians allow value-based considerations to shape the rational for basic entitlements?
    I guess I don’t really know. I wonder if others would speak to this question. Let me say a few words about the shape of the view I thought of as a paradigm of the, to me, most tempting and distinctive Libertarian position. Such a view would not be well positioned to help themselves generally to the normative significance of what does and does not benefit a person, or what would or would not provide a person with a fair opportunity for welfare. Rather, I see them as starting with a system of primitive natural entitlements and it is not because it makes me or others well off or provides a fair opportunity for happiness that I own my own liver. The view I have in mind, it seems to me, should say that I have a right that you not paint my house even if you do so in a way that I prefer to the status quo. Indeed, I am not sure pollution is the only key sort of case. Suppose you were able to make all the air permanently a bit sweeter in a way that everyone liked and which harmed no one. I was supposing the Libertarian should still say that you violated my rights if you did so without securing my permission. I had a right to my fair share of what was offered to us in common and I may, if I like, stand on that right (even against my own interests) such that you count as violating the Lockian proviso (as I think they should understand it).
    #2: Suppose a Libertarian did allow value-based considerations to shape the rationale for basic entitlements. How would they likely do so?
    A Libertarian might allow such considerations into their rationale for the original holdings, the rules of exchange, the rules for rectification, and/or the rules associated with the Proviso. It seems to me that the place where value-based considerations get the most explicit role to play in shaping the structure of entitlements is in the last two, but again it no doubt hurts how behind in the literature I have become. You only, I think, mention using value-based considerations in shaping the Proviso.
    It seems to me that there is a plausible story about how my non-Proviso Libertarian rights are violated by pollution and there is also a plausible story about how my Proviso Libertarian rights are violated by pollution. Even if the story about value or equality of opportunity for welfare has a home in the Proviso story, it may have no home in the non-Proviso generated rights. If that were so, then pollution would violate rights that are not shaped by welfare (broadly construed) as well as violate rights that are partially shaped by welfare considerations. If that were so I would think that pollution would be ruled out, unless consented to, independently of the aspect of our rights shaped by welfare. And that would be bad news for the hope of showing that the fact that the violated rights are shaped by welfare considerations helps along the idea that pollution should be tolerated if it is needed for things that are quite valuable (but not so valuable as to trigger a Nozickian “sky is falling” exception.
    Additionally, even if the value-based story has a home in the rectification part, that should not persuade us that, prospectively, it is permissible to violate and compensate. And it appears to be that which would be needed to allow pollution to continue.
    #3: If value-based considerations shape the fundamental entitlements, what is the upshot for the fundamental entitlements?
    No doubt this will vary from Libertarian to Libertarian. As best I can remember, Lomasky had it that it was the fundamental significance to us of our ability to pursue our projects that provided the rationale for the basic entitlements. But the resulting entitlements themselves were not themselves value sensitive. He thought, as best I can recall, that we owe a not terribly burdensome share to help keep people from becoming so poor as to not be in a position to pursue projects, but beyond that the entitlements were not, once established, much sensitive to value.
    I guess generally I still need persuading that even the Libertarians who allow in value-based considerations in shaping their fundamental entitlements have tended to develop a set of attractive and motivated set of entitlements that could allow pollution. It would be plenty for my purposes here if those Libertarians that have done better at this have been those that presupposed and relied more heavily on, broadly speaking, Consequentialist-friendly value based considerations in the shaping of the fundamental entitlements, such as, I would think, opportunity for welfare or equality of opportunity for welfare.

  26. Matt,
    I am quite relieved to learn that these issues still seem live to people who are much more up on the literature than I am.
    My reply to Mark above tries to talk a bit about how things might go for the pollution topic if Libertarians did allow value considerations to play a role in shaping the fundamental entitlements. I’d be very keen to hear any further thoughts you might have on the topic.

  27. Mark LeBar,
    Good, it certainly also feels to me like there is secure room in logical space for such a view. I guess even if one has a teleologicalish rationale for the fundamental entitlements, the entitlements themselves need not be sensitive to such teleological consideration. But we have to avoid the feel of a Rawlsian “Two Concepts of Rules” broadly instrumental rationale for the fundamental entitlements, I suppose.
    My quite vague misgiving is that the less the entitlements are themselves sensitive to values, the less I see how the view makes the right kind of room for pollution and other small, seemingly justified involuntary impositions. I maybe sort of see how the Proviso based entitlements might make a more direct appeal to value based consideration, but if pollution violates my initial rights to my body that might not be enough. So, and here I am being admittedly wildly fast and loose, it feels to me like the entitlements of self-ownership themselves would have to be explicitly connected not just in foundations to the values, but the resulting entitlements to my person would have to give way for the values (and seemingly not just when the heavens would otherwise fall) if pollution-type concerns are to be dealt with successfully. I reiterate that that is not a conclusion I think I have earned by a long stretch. But I hope it is clear why a tolerably reasonable person would have concerns in that direction.

  28. I will have to allow myself to be a bit slower than I have been in response for the next few days. We have Ruth Millikan in town for a few days. I hope people are willing to continue talking about these issues as I am learning a lot and finding the discussion very helpful.

  29. Hi David,
    You’re right that I was always using proviso based libertarian views and only using value based judgments to effect the shape of the basic entitlements via their interaction with the proviso. So I’m going to stay on that branch of the varieties of libertarianism in answering your remarks.
    The way I think of this sort of view is shaped by thinking that the most controversial rights stipulated by Nozick as basic don’t get a good defense by Nozick (to understate the case a bit). But there is a line of defense available that at least makes a prima facie case that they are unobjectionable. It starts roughly with the thought that if an action can be shown to harm no one then no one can reasonably object to it. The proviso constrains appropriation and transfer of worldly stuff to only those combinations which don’t make other people worse off. Thus fundamental rights to appropriate and transfer have to be shaped so as to avoid permitting harm to others.
    But if that is your line of defense of the rights of appropriation and transfer, you have to spend a bunch of energy figuring out what sorts of rights of appropriation and transfer are compatible with not harming others. So I read different Lockean libertarians as proposing different more precise ways of cashing out what the proviso rules out. As I noted above, I think Cohen very nicely shows that Nozick strays from the spirit of such a defense in his very weak interpretation of the proviso.
    But others seem to me to do better. Otsuka, for example, does it in stages. First he says we are permitted to appropriate something from nature if we leave others with the ability to appropriate an “equally advantageous share”. And then he further fills in what such a share is by talking about equal opportunity for welfare. Vallentine has a yet different way of going that is still in the same ball park.
    When people think about these issues they often (mistakenly I think) treat ownership as a kind of natural kind, such that really owning something is incompatible with much in the way of limits on one’s ability to use, control, benefit from, exclude others from, sell, destroy and bequeath what one owns. But if ownership is just a bundle of rights over a thing that you could mix and match in various ways, libertarians who take the proviso seriously should be thinking about which ways of bundling such rights allow a person to appropriate stuff from the environment without harming or disadvantaging others.
    So if we carry that thought over into the issue of whether people can use the air or water in an environment to dispose of their pollutants the question then is what sorts of use of the air for this purpose is compatible with not disadvantaging others. That’s a different question from asking whether we are violating the rights of others if we pollute the air without their permission. But I think the first question is more fundamental for this proviso-based version of libertarianism. It might be that there is an argument that only appropriation with everyone’s permission ensures that we don’t harm others by appropriating. But I think that the sorts of reasons that make you think that it would be implausible to ban all polluting uses of the world could be adapted to show that we can design a system of appropriation and transfer that allows this sort of pollution without harming the interests of others.
    I think this way of going is fundamentally non-consequentialist, but it does use some of the same judgments about what makes a person better or worse off to define the contours of a duty not to harm and to figure out the implications of that duty for rights to appropriate and transfer.
    I don’t think I disagree with what you say about non-proviso invoking views. But I think some sort of proviso based justification is the best that libertarians can do, so I focused my suggestions on that family of views.

  30. Hyper quick quarter response.
    You offer the Libertarian the thought that: if an action can be shown to harm no one then no one can reasonably object to it.
    I do see this thought seeming to play a role in shaping the Proviso, but odd and paradodoxial as this sounds to say given that both Locke and Nozick seem to make use of such thoughts, that thought seems deeply contrary to the spirit of Libertarianism. Or at any rate it seems in tension with the deeply anti-paternalistic aspect of thought that seems characteristic of traditional forms of Libertarianism. It also seems to fit poorly with the huge role serious property rights and consent play in the view. Surely, I would have thought, a traditional Libertarian should say that I do have a complaint if you mess with my property without my consent even if you do not make me less well off by doing so.

  31. Second hyper quick response:
    I was just assuming all the Libertarian views on the table would have some sort of Proviso. I was trying to say that constraints generated from the shaddow of the Proviso will not help if pollution violates pre-Proviso rights, such as the right to our person and to not be hit. And I was just asserting, not really arguing, that it is quite plausible that pollution does violate these pre-Proviso rights.

  32. Hyper quick response to first quarter response.
    I share the reaction that Nozick doesn’t make real use of the thought I’m offering the libertarian. Locke is more complicated since the rights we have partly fall out of our being God’s property and God has given us these rights in order to protect his property. (Or something like that – I’m no Locke scholar). I believe that some people (Simmons?) have readings of Locke on which the proviso is doing substantive work that makes the view much less like right-wing libertarian views.

  33. “I have a right, I imagine they must want to say, that you not put me at such risk even when the risk is very small.”
    No, that’s not what libertarians say. If that were true we couldn’t drive. The argument is that if your conduct imposes risks on me that you are liable for the harms.
    “It seems not available to the Libertarian to say that the benefits of flight to society are sufficient to justify such a small involuntary imposition of a risk to my rights”
    Why is this unavailable, give the clarification I suggest? If we prohibited risk, we wouldn’t have flying driving, medicine, construction projects, shipping, and so on. That’s an impossible world, and no libertarian I know of suggests this.
    “I think most broadly the worry boils down to how Libertarians can make room for the permissibility of some small involuntary risks to that which we have a right without some consequentialist-style reasoning.”
    I don’t see why the move I’m making implies consequentialism. Rights-violative behavior creates liability for the violator.
    “I do not yet see how the Libertarian can successfully handle cases of pollution”
    There’s been a lot of ink spilled on this, actually, no pun intended. Answers typically involve robust conceptions of property rights and tort law redress for violations of property rights.
    Can I add: why are you capitalizing “Libertarian”? Plainly you’re asking questions about a philosophical position, not the policy platform of the Libertarian Party. So it’s at best confusing to capitalize. I take it you don’t capitalize “republican” when discussing theoretical aspects of representative government, or “utilitarian” or “feminist.” So, “libertarian.”

  34. David (and Mark) — I think the questions you are pressing are on a tender point where it is difficult to know how to make the libertarian case. The pollution case is one, but maybe not the most difficult. For a line of argument with real bite, check out a paper by Dan Polsby in Social Philosophy and Policy, 1998, where he worries about bodies as transmitters of risk, e.g. as carriers of communicable diseases; that one is a real bitch for self-ownership liberalism of any sort, including libertarianism.
    The Lockean/Kantian way of thinking about some of these things doesn’t have easy solutions to a lot of these problems (though I’m not sure anybody else does either), but it does suggest a different point of departure in Locke than the proviso. That is the provision for equal authority, in the law of nature (§§4-5).

    The thought, then, is that social arrangements that do impose obligations (as property rights do) have to preserve that kind of authority (Kant’s “innate equality,” or near enough). So that amounts to a formal, not a value-based, constraint on the shapes that legal and political institutions can take. It suggests trying to systematize the solutions to problems into forms that respect those constraints. A lot of theory has to go into translating those into some material form, but the thought is that if you have, say, a pollution problem, to the extent you can craft a system of property rights to meet it, you have all you need, and indeed nobody could ask for more.

    In some cases of pollution, property rights tools work pretty well; in others (e.g. air pollution) it’s tough to see how to get the model to apply. But, as Mark suggested, the avenue for thinking about solving the problem seems to be how to determine the bundle of rights in which property consists, in particular cases and parts of the world. Neither the questions nor the answers ignore value-based considerations, but the constraints on the form answers can take arguably carry some libertarian punch.

  35. Aeon,
    Are you saying that the small l libertarian quite generally thinks that I have no right that others not mess with my property against my will or without my consent, but rather only a right that if you do so that you compensate me? That is, is your view that the libertarian should say that I have no right that you not punch me or take my spare kidney or whatever, only a right that if you do so you compensate me? I would have thought the view to have here and what the libertarian thought was is that prospectively, I ought not violate and compensate, but that if I do violate then I ought to compensate. I also wonder what you think makes it the case that a compensation is adequate? Perhaps that I am no worse for the whole exchange? But if so, there really is no in principle worry about paternalism, right, just a fear that the paternalist will make a mistake about what is in our interests? The real rule would then be just that I may not do combinations of things to you that harm you overall.
    I certainly get it that libertarians are not looking for the outcome that we may not drive cars, etc. My point was that perhaps the logic of their position lands them with such a conclusion unbidden.

  36. David,
    Its a great puzzle among many that revolve around risk. While not addressing libertarians directly, I have taken a stab at the problem of delineating a right against risk impositions in my paper (creatively named), “Towards a Right Against Risking,” 28 Law and Philosophy 367 (2009). Its worth noting, more generally, that there is a growing literature on the ethics of risk imposition within normative legal philosophy, so you might cast a wider research net than you might otherwise cast.

  37. Mark LeBar,
    Thanks a lot for that reference. The case of disease does seem another nice case to worry about.
    I think I will have to ask some questions about the strategy you outlined to see how much of it I am getting.
    You say: The thought, then, is that social arrangements that do impose obligations (as property rights do) have to preserve that kind of authority (Kant’s “innate equality,” or near enough).
    Perhaps the picture is that the way we spell out the thought that property rights impose obligations on others must not be incompatible with people legitimately owning property? But if my owning my body is to be legitimate, then, since I simply cannot help putting you at some risk of catching a disease from me, it must be that the way to spell out the rights associated with property must permit me to put you at such risk?
    If that is something like the idea you had in mind, then it seems that at most it could show that I must be permitted to minimize my risks to you even if that does not take away my risk to you altogether. And that by itself would not be enough to save make room for pollution even if it is enough to make it not wrong for me to live in this potentially disease passing on body.
    But this may just be a long-winded way of saying I may need a bit more help understanding the outline of a proposal. I certainly appreciate your taking the time to help me see how this might work.

  38. “Are you saying that the small l libertarian quite generally thinks that I have no right that others not mess with my property against my will or without my consent”
    Not at all – you do have such a right. But the real world sometimes brings people into contact in such a way that may involve infringing on each other. I took you to be asking the question of whether that implied some sort of policy restrictions, and I was suggsting no, it need not, it need only imply a remedy.

  39. Thanks for the interest David. How about a very compressed and incomplete take on the basis of the right: assuming an interest theory of rights, I offer up a Razian conception of autonomy, emphasizing the importance of a range of choice-worthy options, as the candidate interest upon which the right against risking must be founded. Certain risk impositions, I maintain, foreclose choice-worthy options even if they don’t materially affect anyone, and in this respect, risk impositions can diminish autonomy and so violate one’s rights. So imagine someone risks you by firing a gun in your direction; whether you know it or not, the bullet whizzing towards you makes certain movements fatal, and in that respect, the risk can foreclose choice-worthy or acceptable options otherwise available to you. Even if the bullet doesn’t hit you, and more generally even if a risk doesn’t materially harm you, your choice-worthy options have been curtailed, and thus your autonomy has been diminished. Choosing a safe option, then, doesn’t shield the autonomy of one’s choice.
    This is surely even down-er and dirtier than you had wanted, but its Friday afternoon….

  40. Mark LB,
    I think I agree with your last paragraph, at least mostly and maybe completely. The reason I bring in the proviso is just that it looks like it might provide one way (maybe even the most promising way) to give a justification for the more controversial rights in the libertarian package. But if you can bring in an independent Kantian defense of something like those rights, you might then not need to make heavy use of the proviso.
    Still, it seems to me that there are some attractions for a libertarian of tying the overall justification of the scheme of rights to some sort of not-harming rationale and the proviso provides one way to do that.
    FWIW . . .

  41. Mark: my main concern about harm-based arguments is that it seems to me that the notion of harm isn’t primitive, at least in the way necessary to do that sort of work. Consider Mill’s own use of it, when he considers harms to disappointed competitors. He seems to accept that I harm you when you are worse off as a result of a choice I make than you would be if I didn’t make it, or chose differently, so when I choose to sell my car to somebody who offers me more than you, in that sense at least I harm you. But he doesn’t think the Harm Principle precludes my harming you in that way, because of the great social utility of exchange. I have no quarrel with his assessment of overall utilities in this case, but they are the ones doing the work, not the Harm Principle. I think (though I have no argument for this) that our notions of harm will always end up consequent on other features of our theory, so it’s a mistake to think they belong at the front end.

    Dave: me and my big mouth! The question of risk from infection is I think a real poser, and I don’t have a good answer to it. What I’ve suggested is more an idea of a direction in which to develop a strategy than an actual strategy, and the infection case may be an acid test. But, yes, the basic idea is that we settle just what privileges and claims come in the bundle of rights that we associate with self-ownership, rather than thinking they come down on stone tablets a priori (to mix metaphors!). Some are comparatively easy (I don’t have a claim based in self-ownership to swing my fist where your nose is), some are way more difficult than that, like the infection case. Pollution cases are somewhere in between, though obviously nearer the harder end.

    It’s inevitable that we put each other at risk; that’s an unavoidable fact of life. So the question is how to manage the risks to which we put each other, consistent with an overall framework in which we retain equal standing to obligate each other. I think Kant thought that property was the basic framework for thinking about how this occurs in a shared physical world, and I’m attracted to that model. So that rationale for property, for a system of property rights, should constrain the way we can interpret what bundles of rights go with what. That rules out, for example, curtailing or infringing specific rights to property for the sake of social utility, but it doesn’t rule out structuring rights to property so that everybody is better off for doing so. The stronger those constraints are made out to be, the nearer the case for a libertarian interpretation, I think. In the extreme case you’d be able to come up with a property-rights scheme for the goods that pollution sullies (water, air, whatever), and then you’d have a framework for tort claims. But I doubt that’s really achievable or it would already have been done. Since the problem goes to the heart of this kind of justification of libertarian principles, though, it’s a problem worth thinking about.

  42. Aeon,
    It sounds like what you’re implying is that whether I have a right that you not engage in some activity that poses a risk to me or merely a right to compensation if you cause me actual harm depends on the degree of risk, the amount of potential harm, and the social benefit of the activity. So that even someone who has a nonconsequentialist theory of rights has to be a consequentialist about this. Is that accurate?

  43. Aeon,
    I was trying out the claim that non-consensual pollution would be ruled out as impermissible by libertarianism because it would violate people’s rights. You seem to agree that generally it is not the case that, according to libertarianism, one is permitted to violate people’s rights and then compensate. You have not disputed that my pollution that you did not consent to but which puts you at risk does violate your rights. Thus I am not sure exactly how you think the libertarian can make room for the permissibility of pollution.

  44. Jussi,
    Sorry, I thought I was going to have time to go back and re-read the Railton and then get back to your first question, but that now seems pie-in-the-sky to me. Briefly, I think Railton argues, with you if I have you right, that libertarians seemingly would be too permissive with respect to what he calls pure risk. That is risk where I am affected in no way by the risk because I am completely unaware of it and actually not harmed at all. But he thinks that libertarians will be excessively restrictive with respect to very small impure risks. I think I agree that such issues are tricky for all of us. It seems to me that a consequentialist has a somewhat straightforward thing to say, however. They can say it is not objectively wrong to impose risk that turns out to be pure (and so causes no actual harm at all) but it may well be subjectively (or informationally relative) wrong to do so. I don’t see why, in principle, the libertarian can’t say the same thing. So I am not sure I agree with Railton that the libertarian is at a disadvantage to the consequentialist in accounting for the status of pure risk. But I should stress that I could be misrepresenting Railton here as I was not focused on such issues in my first and only read of the paper.

  45. David
    I wonder if more can be said about the reason to focus on risk imposition in particular. I think that we sometimes have stronger reasons to harm by risking harm than we do to harm without risking harm, but not much stronger.
    Consider what I call a ‘closed risk’ case:
    1) A threat will kill us all if I do nothing. I can avert the threat either by diverting it to A, who will then be killed, or diverting it to B and C, one of whom will then be killed.
    I think I ought to divert the threat to B and C.
    I think that there is even a stronger reason to do this when I might risk harm but not harm in fact. I call this an open risk
    2) A threat will kill us all if I do nothing. I can avert the threat either by diverting it to B and C, one of whom will then be killed, or to D and E who will then sequentially suffer a 50% risk of being harmed.
    I believe that I ought to divert the threat to D and E even though I might end up killing both.
    If the risks increase, though, it soon becomes preferable to harm than to risk. For example, if I could divert a lethal threat either to A or to B, C, D and E imposing a 50% risk of death on all three I think that I ought to divert the threat to A.
    No libertarian should rule out imposing side-effect harms or side-effect risks in some cases. If you like rights talk, we should say that these cases involve infringing, but not violating, rights.
    Trickier cases for libertarians involve infringing rights as a means. Imagine that I can prevent my house from burning down only by using your fire-hydrant. Few will think it wrong for me to do this. But this seems more difficult to justify if one is a libertarian. Some libertarians might think that the permissibility of doing this depends on my compensating you. But this is not very plausible. Imagine that I know that I won’t be able to compensate you. It still seems permissible for me to use the hydrant.

  46. Thanks to Victor for alerting me to this thread. I have only skimmed it so far and will go back to read it all in detail, but for now offer the following, as someone who thinks of himself as a left-libertarian although lots of libertarians and leftists disown me (for different reasons).
    1- I don’t believe any absolutist position about rights is plausible. Something along the lines of the violating vs infringing concept urged by Judy Thomson has to be right, and indeed I am inclined to be less absolutist than she (for example she has recently come out against turning the trolley, and I am still undecided about that).
    2- I read and enjoyed Oberdiek’s article on a right against risking, and lean toward a view like it (see also SO Hansson’s article in Erkenntnis). Roughly, I think we should say that you have a right against being subjected to non-reciprocal risks. We sometimes protect rights by a liability rule (if you violate it you must compensate) and sometimes by a property rule (you can be stopped from doing it at all)- see Calabresi & Melamed Harv L Rev around 1970. When we do each is a difficult question I plan to write about soon. I am inclined to discuss it in terms of a distinction Goodin draws between replaceable means and irreplaceable means, and most or all property is replaceable and thus presumptively protected by property rules, but we also need an exception for small risks or else none of us can do anything.
    3- If anything most libertarian views would allow too little pollution, not too much. There is a large literature on this, but most libertarians oppose the trend in nuisance law that took place in the 19th Century that began to allow pollution on consequentialist grounds, or at least to rule out injunctions against it (i.e. to substitute a liability rule for a property rule). The common law rule was arguable the sic utere rule which meant there was a nearly absolute prohibition on any use of your land that harmed the land of others.
    4- Most left libertarians or Georgists, as I consider myself to be, favour a carbon tax as a method that is both efficient and fair. If you believe we have equal rights to the earth that also includes the sky (see P Barnes Who Owns the Sky?) and the use of it as a dumping ground. I tend to accept Parfit’s harmless torturer argument so the argument that my own emissions do no harm doesn’t get me off the hook.
    I think something along the line of Mark LeBar’s last paragraph in his most recent posting is the answer. Essentially, if we each have a right to an equal share of the world, as I think we do, we sometimes have choices about how we divide up our rights in the world, and we should do that with efficiency in mind.
    I have an article coming out in a few months in the OJLS that addresses some of it, and am working on a book of which that article is a part that addresses more of it.

  47. Obviously I am falling behind in responding to Mark, Mark, and now William. I’ll hope to find time soon to think about these complicated comments this week.
    But I have a quick reaction to Victor I can share. It may be plausible that a libertarian can say that diverting a pre-existing threat onto others (as in trolley cases) need not involve violating the rights of the others. But even if we suppose so, I don’t see that that should be thought to justify the much broader thought that we may initiate a threatening sequence (as in the case of pollution) so long as the threat is merely a side-effect of my action. So it seems to me that a person could agree with the intuitions Victor urges in his post above and still not see how this will let pollution in on a libertarian scheme.

  48. So I’m j puzzled . In your original example, you implied that it is permissible to fly a plane over a populated area even if there is some small risk of harm to those in the populated area if the plane loses control. You suggested that libertarians would struggle to show that that is permissible consistent with their commitments whilst also showing that it is wrong to run an organ lottery to save lives.
    I thought that we should treat this case like the trolley problem. Flying over the populated area is a benefit with a small side-effect risk. The benefit is like the saving of the five in the standard trolley case. The risk is like the death of the one. The organ lottery, in contrast, would involve using organs as a means to the greater good. The fact that there is a lottery cannot make this permissible.
    In your latest post, you say that there is a difference between harming as a side-effect and initiating a threatening sequence as a side-effect. In the trolley problem, the harm is death, and yet causing death only infringes rights. surely if it is sometimes permissible to kill a person as a side effect, it is also sometimes permissible to instigate a threatening sequence. I would have thought that it is worse to kill than to initiate a threatening sequence.
    If side-effect deaths can be accommodated by libertarians so can side-effect initiations of threatening sequences. As I noted above, if anything we should think that risking harm is not as bad as harming, so if the latter is sometimes permitted as a side effect so is the former.

  49. Victor,
    I think it would be much too strong to say that harms to others that result from side effects of my actions rather than anything directly intended or intended as a means does not violate other people’s rights. The drunk driver who crashes into my bedroom harms me as a side effect but surely he violates my rights.
    I am guessing you would agree and want to say that when the good that flows from what is intended is large enough, then the side-effect costs to others should not be thought to violate their rights? This is, it seems to me, the serpent winding rationale I mentioned for allowing pollution but not allowing the person to pull the trigger on the weird gun I mentioned in the original post. The difference in the value of the different practices provides the rationale for the difference in which is permitted and which is not.
    But you seem to want to restrict the pure consequentialist thought by saying that even if the good is large enough to justify nonconsensual messing with other people’s property as a side-effect of our action, we still may not intend as a means harm to others (or nonconsensual messing with the property of others). I was not taking a stand myself on such matters, but merely meaning to remind you that some influential philosophers have thought it normatively crucial whether one initiates a harmful sequence or merely diverts an already existing one. A person who held such a view might agree that we may divert trolleys and the like without agreeing that we may initiate threatening sequences where the harm is merely a side-effect.

  50. Thanks David, that’s helpful. I think I see this more clearly now.
    Ok, so it might have been wrong to say that seeking a benefit imposing a threat is the same as diverting a threat to impose a threat.
    I agree that whether either thing is permissible might depend on the value of one’s goals (the significance of the extant threat or the importance of the goal that one will achieve).
    There are two potential differences here to focus on. One is the instigating/ diverting distinction. There might be an important moral difference between diverting an extant threat and initiating a threat to avert another threat that one faces.
    In familiar strategic bomber cases, though, we are not diverting a threat, but instigating in the course of averting a distinct threat. And yet most people believe that it is sometimes permissible to harm civilians as a side-effect in war. So the instigating/diverting distinction, even if it is significant, can’t be determinative.
    The other distinction is between averting a threat and pursuing a benefit. In strategic bomber we are averting a threat, but in the pollution case we are securing a benefit, we might think, and perhaps this is significant. I’m not sure how easy it is to make this distinction secure (what is the baseline used to distinguish threats from benefits?).
    Suppose that there is some way to make this distinction secure. Your attack on libertarianism would be justified if libertarians endorse the view that it is always wrong to risk infringing rights to secure a benefit. But I still don’t see why they need to be committed to that. As your post implies, it is not a plausible view. But why can’t libertarians simply resist it whilst continuing to endorse their basic commitments?
    Perhaps we need to know more about what libertarians are committed to.
    Some might be committed only to the idea that there are no enforceable duties to rescue. So it is always wrong to use my body, talents or property for the sake of others.
    Others might take the more extreme view that it is never permissible to infringe my rights to pursue good consequences. The more extreme view is clearly implausible as your example shows. But a libertarian might endorse the weaker first view (still not an attractive view, but more plausible than the extreme view).

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

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

  53. I have been stunned to see how exactly Nozick anticipated the sorts of concerns I initially expressed, down to the gun with many, many chambers, etc. I am also surprised at how happily Nozick allows that things like pollution do violate rights and yet that the cases where we should permit such violations are those in which the social benefits of allowing such pollution outweigh the costs. (p. 79-80) He also happily allows that “it might be decided that mining or running trains is sufficiently valuable to be allowed, even though each presents risks to the passerby no less than compulsory Russian roulette with one bullet and n chambers (with n set appropriately), which is prohibited because it is insufficiently valuable.” (p. 74) This is exactly the sort of thing I assumed no proper libertarian would tolerate.
    He also seems to assume nearly without comment that my property rights to x do not make it wrong for you to mess with x against my will so long as you compensate me so that I am not worse off. The only cases where he tolerates making something impermissible (that is, for him, punishing it beyond what is needed to compensate) are cases where compensation is unfeasible.
    In essence, he seems to think that the only thing that property rights give me a right to is that others not diminish my well-being (or my own perceived level of well-being) in the way they use my property without my consent. So we would obviously need to start with a notion of what counts as a boundary crossing of my property rights. You clearly can think about my property in ways that diminish my well-being without a boundary crossing having occurred and I surely have no right that you not do so. So let’s say that my property right to my body means, among other things, that you cannot touch it without my consent. But the relevance for Nozick of what is and is not a boundary crossing is not that unconsented to boundary crossings are impermissible or impermissible unless the sky will fall. Rather the relevance of such a boundary crossing is merely that in those cases where you cross a boundary of mine without my consent (or presumably even against my will) you are obligated to compensate me so that I am not worse off for your having done so.
    Or, one might even say that the central ethical question of whether it would be wrong prospectively to plan to violate my rights and compensate me is hardly on his radar. He wonders mainly about where it would be wise for society to attach extra penalties to certain actions beyond what is needed to compensate. But the rationale for attaching such penalties is never simply that the action impermissibly violated a person’s rights but rather always difficulties in compensating.

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

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