Property Rights and the Pollution Problem

Murray Rothbard and other libertarians support self-ownership. Part of being a self-owner is that no one may physically harm your body without your consent, unless you first violate someone else’s rights. David Friedman raised a famous objection to this principle, and the problem has also been discussed by Walter Block. In his book The Machinery of Freedom, Friedman states the problem in this way: “The final question to be dealt with is how property rights should be defined—the question implicit in my discussion of trespass by single photons and single molecules of carbon dioxide.” If you say that transmitting photons onto someone’s property violates rights, doesn’t this make a wide variety of common actions, such as turning on the lights in your own house, violations of rights? Friedman’s account of the problem is about violations of property rights in land, but the problem obviously applies to trespass against people’s bodies as well.

The political philosopher Nicola Mulkeen doesn’t mention Friedman or Block, but she discusses the same issue in an excellent recent article, “Rescuing Self-Ownership: Tackling the Pollution Problem” (in Critical Review of International Social and Political Philosophy, vol. 22 [2019]) and I’d like to discuss a few points she raises.

One way around the difficulty is not to count trivial harms as violations of your rights. Mulkeen offers two objections to this solution. First, if doing something of value outweighs minor boundary crossings of your rights, doesn’t this lead to making rights less important than adding to social utility, just what those in favor of rights don’t want? They think rights are more important than social utility. She mentions the philosopher David Sobel, who has made a proposal of this kind:

His own view is that proponents of self-ownership must abandon the uniform stringency against infringements and permit encroachments of self-ownership for social gain. More specifically, he proposes that we sell different-sized infringements for different amounts of social welfare so that the lower the risk of an infringement an act causes, and the less harm it threatens, the cheaper it should be in terms of social good to make permissible…. He says “perhaps the fact that an infringement causes N amount of the relevant sort of infringement harm requires that the act produce at least 20N of social gain to be permissible.”

She objects that this would allow severe harms to a few people, so long as social gain was twenty times higher. Her objection is a good one, but it fails to meet a modification of Sobel’s proposal. To claim that you can commit a trivial infringement of rights if the gain is sufficient doesn’t entail that you can gravely injure someone’s rights so long as this condition is met. A modification of Sobel’s proposal that confines it to cases of trivial infringement is still in the running. (I don’t favor this proposal, but I’m not now giving my own view of the problem.)

This leads to her second objection. She imagines a case in which the government requires vitamins to be put in orders of coffee in a coffee bar. Suppose (I add this) the vitamins make no difference to the coffee’s taste. The government claims that this will have great health benefits. Doesn’t someone who hates the vitamins have a right to refuse them? To claim otherwise is to support paternalism, and this libertarians surely don’t want.

Self-ownership is appealing precisely because it expresses equal respect for all. It does not allow others to treat us paternalistically, nor does it allow our rights to be violated for the benefit of others or allow others to make fundamental decisions about our person.

This deals very well with the vitamin case, but it is irrelevant to cases where trivial rights violations aren’t undertaken for someone else’s benefit. The person who turns on the lights in his own house isn’t doing so to benefit the neighbors; he just wants his lights on. The modification I suggested to Sobel’s suggestion, i.e., that it should apply only to trivial boundary crossings, hasn’t been refuted.

An objection has probably already occurred to many readers, and this is one that Mulkeen deals with in her own proposal. I’ve been talking about “trivial” boundary crossings, but what if the person affected doesn’t consider the matter a trivial one? Suppose, e.g., that he dreads other people’s photons impinging on his body and demands an enormous amount of money as compensation if light rays from someone else’s lamp reach him. Or suppose he refuses compensation, and prohibits others from turning on lamps when he is around? What is the best response to situations like this?

Mulkeen’s answer depends on the fact that people need to engage in certain activities in order to survive. Beyond that, people need to have wide freedom of movement in order to lead a normal life. If restrictions imposed on your activities by the self-ownership rights other people have over their bodies become so great that people can’t survive or lead normal lives, then you shouldn’t be required to respect such limits. You have no reasonable alternative to survival or leading a normal life, and, according to her, you are morally responsible for doing something only if you have a reasonable alternative to doing it. The self-ownership rights of others can’t prevent you from breathing, even if air that you exhale will spread in their direction. As she puts it,

If we examine the living conditions in which we are born, we can note that our survival requires that we breathe, eat, drink and keep our body at a constant temperature. And the only way of doing these things involves using the world’s resources. We know that all of these actions produce pollutants. But, for us to abstain from these activities in their entirety would be fundamentally life-threatening. It is, for example, a fact that we cannot avoid breathing out carbon dioxide, nor can we avoid spreading germs: germs live in our food and water, and food that is not cooked or stored at a suitable temperature contains very harmful bacteria. We spread these germs when we breathe and talk, which might cause various degrees of harms to persons whom we expose. In these instances, we foreseeably cause incursions or pose a threat to others. But we are innocent of wrongdoing because we have no reasonable alternative available: it is beyond the bounds of possibility for us to live in a way that produces zero contamination.

If you have no reasonable alternative to doing what you did, you don’t have to compensate those whose boundaries you cross, or at least the compensation you owe is much reduced.

Mulkeen’s proposal is valuable, which isn’t to say that she is right. A great deal in her idea depends on what is regarded as a “normal” activity, and it would seem that answering this depends to a large extent on social convention, from which many libertarians recoil. But is there a reasonable alternative to it?