Tuesday, April 29, 2008

Climate Change and the Right to Culture

The Right to an Opportunity for Cultural Integration

Focusing only on property damage caused by climate change, it may be noted, seems to leave out a large part of the picture of why people are concerned about climate change. In addition to the impacts discussed so far, many would find objection the fact that climate change will deprive members of certain social groups of the opportunity to integrate themselves into the societies in which they were raised, as a result of changes in the physical context in which those societies have been able to flourish. In many situations, entire cultures will be forced to relocate in order to continue to exist, and in some, they could vanish altogether. Surely this is a troubling consequence of climate change. But does it represent an infringement of rights?

In examining this question, we must take care to isolate the deprivation of an opportunity for cultural integration from the other sorts of rights infringements which we have been discussing so far. For example, if you are so deprived because your farm was flooded by ocean water and you were forced to move, then the problem seems to be one of property rights, and we already know what to say about it. To avoid confusion, we will discuss cases where the deprived party’s property is not being damaged in any way, and the only harm being done seems to be the kind of cultural deprivation that we are concerned with here.

Accordingly, we will imagine a hypothetical scenario in which a young Pacific Islander, Akiko, is setting about deciding what she wants for her life. She owns no property, and has not settled in to any profession or living situation. She is simply evaluating her options in order to choose how she will begin her adult life.

The Intergovernmental Panel on Climate Change (IPCC) suggests that small island communities will be particularly vulnerable to climate change. In addition to submerging land on the island, sea level rise will likely make storm surges more dangerous and exacerbate erosion and other coastal hazards. On land, water resources will likely be seriously compromised, and the introduction of salty ocean water into the environment will likely make agriculture more difficult. In the ocean itself, changing environmental conditions could fundamentally alter ecosystems, possibly affecting populations of fish and other organisms on which the islanders rely. Further, a number of studies have concluded that the effects of climate change on the tourism industry will produce generally negative outcomes for island economies. All things considered, it might be unfeasible for Akiko to try to start a traditional life for herself on the island. Changing environmental conditions could make it impossible for her to live the kind of life which has characterized her people in the past, and she must act accordingly.

It seems clear that this is something of a sad story. But it might here be noticed that there are plenty of ways which one might deprive a person of the opportunity to live in the manner for which their culture is adapted, which would not involve any violations of their rights. For example, we might imagine a community of small-scale farmers who have fallen on hard times on account of the emergence of a large agribusiness corporation, whose greater efficiency and high output caused market prices for the farmers’ goods to fall below a level which could support their traditional lifestyles. Jebediah, a child growing up in such a community, would seemingly be faced with a set of circumstances similar to Akiko’s. Circumstances would make it impossible for Jebediah to take his place in the culture of his upbringing, much like Akiko was driven away from her heritage by the changing environmental conditions on her island brought about by climate change.

Presumably, we would not think that the agribusiness corporation, in bringing its products to market in higher quantities and better prices, was doing anything wrong, even if it had no significant moral reason to support its actions. In fact, we might applaud it for representing an increase in the wellbeing of its customers, who could use the money they saved on purchasing food products to improve their material conditions in ways that would have been otherwise unavailable to them. So surely its actions would not represent infringements of any rights held by the young members of the farming community, like Jebediah, who would be denied an opportunity to carry on in the traditions of their parents. And so we might think that in the same way, Akiko’s rights are not infringed when she is denied the opportunity to become integrated into the culture of her upbringing by climate change.

One might object that there is a difference between Jebediah’s case and Akiko’s, in that Akiko’s situation is the result of rights-infringing damage to the environment in which her culture existed, whereas Jebediah’s situation is the result of customers exercising their right to withdraw their patronage from producers who do offer noncompetitive products. Jebediah lost his opportunity because it was built upon an assumption of support from others which proved to be false, and neither he nor any of his predecessors had any right to this support. Akiko’s elders, however, did have a right to the things that Akiko would need in order to exercise her opportunity, and Akiko was only denied access to them because a third party actor acted in a way that infringed upon rights.

But as we mentioned at the beginning of this section, we have to be careful to avoid focusing on infringements of the rights of those whose property is damaged by climate change. Those factors have already been accounted for. And remember, we have stipulated that none of the property which is damaged belongs to Akiko. So this avenue of establishing Akiko’s rights seems closed: it seems fairly clear that Akiko has no claim to the property of other people, and her rights are not infringed when we damage that property.

Rights as a Member of a Community

However, one might point out that Akiko’s claim is not centered on the property damage itself, but rather its implications for the island community as a whole. Viewed holistically, Akiko’s community is composed of a system of interdependences which can be “benefited” or “harmed” in a way that cannot be understood simply as the sum of impacts on individual members. From this perspective, we harm the community not only when we harm a given individual, but also when we interfere with an individual’s fulfillment of her function in the community. For example, if a community depends on the agricultural products supplied by a particular farmer, and we damage the farmer’s land so that his productivity is constrained, then we not only harm the farmer, in that his property is damaged, but we also harm the community as a whole, in that the farmer filled an important “niche” as the provider of food for the rest of the community.

From Akiko’s perspective, climate change is not only damaging a great deal of others’ property, but it is also destroying the integrity of the community in which she was raised, and of which she expected and hoped to become a part. As we have described them, the opportunities that Akiko has been deprived of seem to have been dependent on the health of the community. So it might be that in objecting to the loss of her opportunity to be integrated into her culture, what Akiko is really objecting to is the loss of her community’s integrity due to the impairment of members’ functions due to climate change.

But what is so special about the “community” in this example which sets it apart from other instances where an individual’s social functions are impaired in a way that has negative implications for others? Imagine that Russell has been training himself to work as a laborer at a pogo stick factory in his town. But when he arrives at the factory to apply for a job, he discovers that it has been destroyed by terrorists. Unfortunately, Russell’s only hope of supporting himself in his town was to work at the pogo stick factory, and its destruction will force him to leave his community.

In this case, it does not seem that the terrorists infringed on Russell’s rights (though they almost certainly infringed on the factory owners’ rights). But it is nevertheless true that Russell depended on the factory’s ability to fulfill its function as a provider of jobs, and by impairing that function, the terrorists deprived Russell of the opportunity to integrate himself into his community. It seems as though the only difference between Russell’s situation and Akiko’s is that Russell’s situation was brought about by the impairment of the functioning of a single member of the community, whereas Akiko’s was brought about by the impairment of the functioning of multiple members. I see no reason to think that this difference is morally significant. Accordingly, it seems fair to conclude that, while her tale is a sad one (as are Jebediah’s and Russell’s), Akiko’s rights are not infringed as a result of her being deprived of the opportunity to integrate herself into the culture of her upbringing.

Monday, April 28, 2008

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

Climatic Shifts and the Right to Environmental Conditions

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

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

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

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

Altered Climate Systems and Diverted Damage

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

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

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

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

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

Rights and Risk

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

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

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

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

Tuesday, April 22, 2008

Rights and Entitlements

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

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

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

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

Further sharpening our conception of rights, we might therefore say that to have a right to something means to be entitled against deprivation of it by other moral agents, except when the right-holder has somehow “aggressed” against someone else. But once again, counterexamples present themselves. Joel Feinberg writes:
Suppose that you are on a backpacking trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble upon an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing all these things, and yet you have infringed the clear rights of another person.

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

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

Wednesday, April 9, 2008

What Does It Mean to Advocate a Market Solution to Climate Change?

The purpose of this post will be to tie together some ideas I've been toying around with in other posts, in order to start working towards a coherent introduction to my thesis on the libertarian approach to thinking about climate change. Here goes nothing.

Moving Past the Science

As a group, libertarians have not dealt well with the prospect of anthropogenic climate change. As most of the world scrambles to find "solutions" to what they anticipate will be a serious problem for human civilization, the typical libertarian approach to the issue has been to deny that climate change is real, or to deny that humans have caused it. There are two problems with this position. First, the most vehement critics of what has become the "mainstream" view are not particularly well qualified for their missions, and often demonstrate a misunderstanding of their opponents' views which seem to indicate that they don't actually know what they're arguing against. Further, where there are well-qualified and well-informed "skeptics," their positions tend to be less vitriolic and more nuanced, being based more on uncertainty and imperfect knowledge, to the point where their views end up falling relatively close to those which are accepted by the mainstream scientific community. As far as I can tell, a relatively strong case can be made in favor of questioning our ability to know the precise truth about climate change, and our ability to predict future states of the climate; the same cannot be said about the position that climate change is not happening, or that humans are not causing it, or that it will not continue into the future in any significant way.

This leads to the second problem with the libertarian habit of questioning the scientific basis for concern about climate change: it does not address the question of what position libertarians would endorse if climate change were happening. There is no reason to believe that anthropogenic climate change, or some substantively similar phenomenon, could not happen. Accordingly, it seems extremely reasonable to ask what libertarians would say about such a phenomenon, if we knew that it was occurring right now. In this article, I will sketch the kind of answer we should be looking for.

Market Failures and Government Inefficacy

Where climate change has been discussed, by libertarians and others, it has generally been labeled as a market failure. Economic theory tells us that market failures occur whenever inefficient social outcomes result from individuals acting on their own desires. Looking at climate change from this paradigm, we would notice that for most individuals, the benefits of, say, driving a car instead of taking the bus more than outweigh any costs they would ever incur from their incremental contribution to climate change. Accordingly, it will be in everyone's interest to drive their car. But the predictable result of everyone making the sort of choices that result in driving everywhere, instead of using public transportation, is that we end up with climate change. As Garrett Hardin famously wrote "...we are locked into a system of "fouling our own nest," so long as we behave only as independent, rational, free enterprisers."

Simply recognizing this problem will not solve it. Mitigating climate change will involve sacrifices, and individuals will undoubtedly resist making these sacrifices if they do not have the assurance that others will follow suit. Unfortunately, getting individuals to voluntarily cut down on their contributions to climate change would be fraught with difficulties, ranging from the large costs of negotiating the agreement to the pervasive incentive to "cheat". These hurdles seem to rule out the kind of decentralized solution that the free-market is capable of providing. The most obvious and widely discussed solution is the one Hardin suggests: legislation. If we know that we will "foul our own nest" if left to our own devices, then it seems reasonable to impose rules on ourselves, and to punish those who violate those rules, in order to ensure that we don't bring about our own destruction.

But many libertarians bristle at the suggestion that central planning can solve the problems presented by market failures. It seems unreasonable, they argue, to suggest that we can fix an imperfect market by simply turning the matter over to the government. After all, governments have problems of their own. As Gene Callahan points out, "Government interventions and "five year plans," even when they are sincere attempts to protect the environment rather than disguised schemes to benefit some powerful lobby, lack the profit incentive and are protected from the competitive pressures that drive private actors to seek an optimal cost-benefit tradeoff."

Accordingly, a number of libertarians have apparently taken the stance that we cannot hope for an "optimal" level of climate stability, so our best option is to simply face the realities of our suboptimal state of affairs. And because, they continue, the free market is the most efficient system we know of for allocating resources to best suit the needs of society, the best way to face climate change would be to allow individuals the freedom to adapt in their own way. As George Reisman writes, "Even if global warming is a fact, the free citizens of an industrial civilization will have no great difficulty in coping with it - that is, of course, if their ability to use energy and to produce is not crippled by the environmental movement and by government controls otherwise inspired."

Climate Change: A Matter of Justice

This view of the issue leaves out an important consideration which is central to the libertarian paradigm: According to most accounts, climate change will have victims. This fact brings us out of the realm of mere economic efficiency and forces us to confront the issue from an ethical standpoint. Imagine if we were trying to determine the proper social response to a particular theft. It might be true that of all social systems, a victim of theft would be best equipped for dealing with her loss in an unfettered free-market. She would not need to consult a central planning board in order to replace the things that were taken, and her higher purchasing power – brought about by her participation in a thriving market economy – would enable her to afford the replacement with comparative ease.

But surely libertarians would not be satisfied with this “solution.” In our story, the thief violated the rights of his victim by stealing from her, and therefore he should be held accountable for fixing the damage he caused. It is crucial to acknowledge that holding the thief responsible does not represent a departure from the normal course of the free-market; the very functioning of the free-market is predicated on the recognition of rights. This reveals an important feature of the libertarian position that the proper response to climate change is to simply allow individuals the freedom to adapt to it: It assumes that climate change does not represent an injustice. If climate change were an injustice, then the proper response would not simply be to allow people to adapt: libertarians would need to advocate the enforcement of justice.

Accordingly, it seems like the proper libertarian stance on climate change needs to be stated in terms of justice. The scientific disputes and efficiency-based arguments which have thus far characterized the libertarian position are wholly unbecoming of a political philosophy built on the foundation of respect for individuals’ rights. The libertarian community needs to ask what kinds of rights, if any, are infringed by climate change, and what should be done about those infringements. Anything else would simply be unlibertarian.

Intertemporal Pollution, Accountability, and Justice in Appropriation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 7, 2008


I'm happy to announce to the world that I've been offered a internship for the summer by the Foundation for Economic Education. I'm incredibly excited about the opportunity, and figured it was worth mentioning here. If anyone's free over the summer, please consider coming to one of the many great seminars being offered; I'll be there!

Thursday, April 3, 2008

Is There a Right to Culture?

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 2, 2008

Preemptive Compensation

One question I've been thinking about recently is the idea of preemptive compensation; that is, compensation paid in advance of a particular damaging event actually happening. I wanted to broach the subject here, as a starting point for future discussion. I'll start by sketching why the idea of preemptive compensation is important at all.

Let's say that Betsy launches a rocket into space, and calculates that it will eventually return to the Earth and land on Murray's house, but that this will take 10 years. Betsy acknowledges that when the rocket returns to Earth, it will damage Murray's house, and she should be held accountable for that damage. But sadly, Betsy is quite old, and doesn't expect to live anywhere near long enough to see the impact.

Murray considers the situation in which he finds himself, and sees a problem looming. He anticipates that Betsy will spend all of her savings by the time she dies (Betsy is willing to acknowledge that this is likely to be the case), and if he waits until the rocket lands on his house, there will be no way to do anything about it. Betsy won't be around anymore, and there will be no estate from which he can demand compensation.

It seems to me that Murray would be right to demand that he be guaranteed compensation for the future damage which will be dealt to him. To require that Murray wait until the damage eventuates would be to deny him compensation entirely. And given that we already know what will happen to Murray, and we agree that Betsy ought to be held accountable for what happens to him, it seems unfair that we should deny Murray restitution for the damage that he will surely be dealt.

One way to approach this would be to say that Murray should only be entitled to compensation when the harm eventuates, and so Betsy is only responsible for ensuring that when the rocket lands on his house, proper arrangements have been made to compensate Murray. So, for example, if there will be $50,000 of damages that Murray can legitimately claim (including the damage to his house, as well as any compensation for the inconvenience), Betsy only needs to ensure that when the rocket lands, there is $50,000 available to compensate him. Betsy wouldn't have to pay Murray the $50,000 immediately, but would only have to guarantee that it would be given to him when the rocket landed. Because it might be difficult to administer such a rule, it might be fair for the courts to require that Betsy pay Murray the present value of the damage in the future, or to require that Betsy secure a no-risk, interest-bearing investment on Murray's behalf which would pay the $50,000 at the appropriate time. This would ensure that Murray was compensated, but also that Betsy was not deprived of more than we might think she ought to be.

But in reaching this conclusion, we have not mentioned what is undoubtedly the most important consideration in this problem, which is uncertainty. We have spoken as if we knew exactly what would happen to Murray 10 years after Betsy launched the rocket, when it landed on his house and damaged it. It's quite probable that in any case like this one, we won't actually know what will happen to Murray's house. Perhaps there is a range of levels of damage we can conceive of as being possible scenarios for when Betsy's rocket hits Murray's house. What then?

One possible way to approach this problem would be to gather more information. But it might not be possible to collect the necessary information before it's too late. As Murray is unable to wait to see what the damage actually is, it could be that he has no real choice but to go to court with considerable uncertainty over the consequences of Betsy's action. Perhaps he can demonstrate that the actual damage will, with a high level of confidence, be within the range of $40,000-60,000, with a "best guess" of $50,000. What should Betsy be held accountable for?

One answer would be to say that since Murray can't prove the precise nature of Betsy's offense, that he fails to meet the burden of proof which would be required to hold Betsy responsible at all. But this seems clearly wrong. We agree that Betsy's actions will cause damage to Murray, and we agree that we won't know the precise nature of the damage until it's too late. It seems patently unfair to completely deny Murray's case on the basis of him lacking knowledge of the exact amount of the damage.

Another route would be to come down on Murray's side, and to say that he should be entitled to the maximum amount of damage that could reasonably be expected. The reasoning behind this would be that Betsy is the one who's at fault here; if there's any uncertainty, the burden should fall on her. After all, she's the one who launched the rocket, not Murray; it would be a real shame if the rocket landed and ended up doing more damage than Murray had been compensated for, especially if we knew that there was a reasonable chance that things would turn out the way they did.

I can definitely see why someone would want to argue this way, and I don't think that they'd be wrong to do so. But I could also see why someone would object to this treatment. One could point to that fact that libertarians have generally taken the position that it's somehow worse to let an existing damage go unrepaired than to punish an innocent person for something for which they are not responsible. As Murray Rothbard wrote in his essay, "Law, Property Rights, and Air Pollution," when "...it is unclear whether an individual is committing aggression...the only procedure consonant with libertarian principle is to do nothing; to lean over backwards to ensure that the judicial agency is not coercing an innocent man." But of course, in our example, Betsy is not innocent. In fact, that's the entire intuition behind making her bear the burden of the potential harm.

But the fact remains that if the rocket struck and did less damage than the maximum amount that could have been reasonable expected, then it would mean that Betsy would have been punished for a degree of damage which she did not cause. And because we're talking about the largest reasonably expectable damage, it's extremely likely that this sort of overpunishment will happen under this policy. So for people who believe that we should be protected from being punished more than we deserve, the policy in question here would be extremely troublesome.

Accordingly, we might place the burden of uncertainty on Murray, and say that he is entitled to compensation for the lowest amount of damage that could reasonably be expected. The argument here would be that the burden of proof is on the victim to show that someone harmed them, and the mere possibility of greater damage doesn't satisfy this burden of proof. The lowest amount of damage that could reasonably be expected would constitute the sort of thing that could be looked at as "proven" in court, but moving beyond that would seem to indict Betsy on "the possibility" that she is guilty.

It should be noted that the same sort of problem that confronted the last policy applies to this one, except in reverse: In all likelihood, Murray will be compensated for less damage than he will actually incur. This might make people uncomfortable, for the simple fact that Murray's the victim here. It could seem like we're going out of our way to protect the person who did something wrong, and chose to do it, very likely at the expense of the person who did nothing wrong, and in fact did nothing at all. So this policy is somewhat questionable as well.

A final approach would be to hold Betsy liable for the amount of damage representing the scenario where the chances of more damage eventuating are the same as the chances of less damage eventuating. The core virtue of this policy is obvious: it represents a compromise, placing an equal portion of the burden of the uncertainty on both parties. But of course, in the eyes of many, this virtue will also be its main weakness: by placing half of the burden on Murray, it ensures a good chance that he will be undercompensated, and by placing half on Betsy, it ensures a good chance that she will be overcharged.

It seems to me that this discussion highlights a very simple point: what will appeal to you as the correct way to deal with uncertainty will depend on your views regarding the purpose of the burden of proof. If the spirit of the burden of proof is to ensure that innocent individuals are protected, then you will likely feel that the victim -- who is the only innocent party -- should bear less of the burden of uncertainty. On the other hand, if you view the burden of proof as protecting individuals from having to pay for damage that they have not been proven to have caused, then you will likely come down on the side of placing the burden on the victim. I will not take a stance on this issue here, since I honestly don't know what to think.

Before calling it quits on this subject, I want to touch on one more potential problem for Murray's case against Betsy. Namely, Murray might not be able to prove that Betsy's rocket will hit his house at all. It seems to me that uncertainty of this sort is very different from the kind of uncertainty discussed above. It is uncertainty regarding whether or not the harmful event will occur at all, rather than uncertainty regarding how severe the damage caused by the harmful event will be. On this issue, I think our current system has the tools to tell us what should be done. That is, our normal ideas regarding the burden of proof seem more or less adequate for dealing with cases like Murray's. Perhaps we might want to allow for a slightly more relaxed standard, given that our current standard might create a systemic bias towards placing burdens on victims, but that seems like something that can be discussed without breaking new ground.

So I guess I haven't really reached any firm conclusions about preemptive compensation in this post, but I think that as far as providing a starting point for discussion, I'm happy with this. It seems like the next step needs to be a discussion of what the proper role of the burden of proof ought to be. But I think I'll stop for now and deal with that later.
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