Regulations are good because they protect people from the indirect consequences of other people's actions

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I would like to start a conversation about indirect consequences.

While Libertarians protest the negative indirect consequences of governmental actions, I hardly hear about the negative indirect consequences of economic and social activity. The people of the United States are both citizens and consumers, amongst other things. We need to realize that "unintended consequences" is a phenomena in the private sector, not just the public sector.

My moral argument for the morality of regulating the indirect consequences allowed for both public and private economic activity is two fold.

#1-- I have a right to protect myself from experiencing the indirect consequences of other people's economic and social activity, and not just to be merely compensated for property damage after the fact.

#2-- Those people who find the regulations in an area to be difficult or even immoral can use the political process to change the regulations, or they can simply leave and go live where the regulations are more to their liking.

micahjr34
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Feb. 7, 2011 3:57 pm

Comments

Is anyone out there willing to answer this post, because I think that it is a valid point? When I go on this site, I do it to gain truth, even if it is truth that I do not like. Believe it or not, I do not mind being wrong, and I do not mind posting that I made a mistake or error. I seriously invite anyone whether they are left or right, selfish or charitable, libertarian or socialist, to comment here. This is an important issue! If I get totally beat up, I am willing to take it so that I can learn.

micahjr34
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Feb. 7, 2011 3:57 pm

Well, yeah. The best example is healthcare - if some guy in Oklahoma gets ebola, who cares? The problem is, he's going to come in contact with someone who's going to fly to Los Angelese and then get me sick.

chilidog
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Jul. 31, 2007 3:01 pm
Quote micahjr34:

#1-- I have a right to protect myself from experiencing the indirect consequences of other people's economic and social activity, and not just to be merely compensated for property damage after the fact.

It's the rare Libertarian that deals with this issue honestly. Usually modern Libertarians are just too enamored with the market to deal with very real transfers via such indirect social costs. Yet is not the homeowner whose health and property are degraded by the pollution of some profit making activity of others not subsidizing those profits?

This does not mean, however, all regulations do good. Some are just stupid. For example here in Mass is the giant Quabbin Reservoir. One can use a motorized boat for fishing but one can't canoe or kayak. Gee... which protects water quality better?

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Pierpont
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Feb. 29, 2012 1:19 pm

Pollution is a trespass. It is a violation of an individual's property rights. The right to their own body and the right to their physical property. The polluter should be enjoined by a court to stop the polluting and pay damages.

To the OP, "negative indirect consequences of economic and social activity" is too vague. Rights violations are what libertarians think the government should protect. There is a constant mischaracterization that the free market means that people can do anything they want. This is nonsense. People can do want they want as long as they don't violate the rights of others. That is what the law is for.

I favor abolition of all regulations. By regulations, I'm am referring to what comes out of regulatory agencies. I do not oppose laws that protect individuals against force and fraud.

And yes, you do have a right to protect yourself. Insurance protects from unforseen events. And you have the right to defend yourself from attackers. You don't have a right to a certain quality of life or a neighborhood that looks a certain way.

LysanderSpooner's picture
LysanderSpooner
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Jul. 31, 2007 3:01 pm

LysanderSpooner,

What I am refering to are when the "rights," as you put it, of a person are harmed through the indirect consequences of other peoples exchanges or interactions. The classic example is pollution is one, another is when a neighbor plays loud music at midnight, which wakes a person up and robs them of sleep. What I am trying to get at is that nothing happens in isolation within a society. If a government is truly to protect people, it must protect them from harm done indirectly as well as directly.

If an economic/commerce exchange for goods or services happens with no fraud or force, it can still be immoral if that exchange sets up a cascade of seemingly unrelated events that causes harm to someone else. I am not talking about quality of life or neighborhood appearance. It is about not letting both the public sector and the private sector get away with doing wrong just because it was not intentionally inflicted. People complain about the unintended consequences of government activity, and rightly so. However, what about the unintended consequences of an economic activity facilitated by a private sector entity? All a regulation is is a law that attempts to stop negative unintended consequences before they happen. This goes for both governments and businesses.

micahjr34
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Feb. 7, 2011 3:57 pm

LysanderSpooner,

I concede to you that not all regulations are good, as was mentioned by a previous poster whose name is Pierpont. I would agree with you if you stated that some regulations make life difficult for organizations and individual people that are in the business economy while not actually protecting anyone.

For example, I support the legalization of certain rereational "drugs." However, I believe that there should be a regulation stating that any product containing them carry a warning so that people can know if a food or drink has such substances in them, a person will know about before they ingest it and have the opportunity to not use it. If this does not clarify my position, then you can ask me again.

To me it would be immoral to ban drugs outright, but regulations based on informed consent allow people to take drugs while making it possible for different people to easily tell if something has such a substance in it.

micahjr34
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Feb. 7, 2011 3:57 pm

Wonder why the "regulators" allow this to be put in a lot of our foods? And so-called prescription drugs that have more harmful side effects than the ailment they are supposed to prevent or cure? Could it be that those doing the regulating are controlled by those they are supposed to be regulating?

http://www.wereyouwondering.com/possible-and-suspected-carcinogens-found...

darlinedarline1@aol.com's picture
darlinedarline1...
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Aug. 29, 2012 8:27 am

Good point DarlineDarline1. As I said above, a bad regulation creates a situation that hampers people while not protecting anyone!

micahjr34
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Feb. 7, 2011 3:57 pm

The "regulators" we complain about are now bought and paid for tools for the free market. That's why a libertarian style free market can't work. It will always allow the most powerful and influential to exploit whomever they want to. Deregulation has helped to build the gap between the rich and the poor to such a high level. Now the very rich have control of so called regulation because they can buy whatever lawmakers and law enforcers they want to. Who is going to protect people's private property rights when the lawmakers and enforcers work for the opressor? How does that work out in the libertarian free market utopia?

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Bush_Wacker
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Jun. 25, 2011 6:53 am
Quote LysanderSpooner:

Pollution is a trespass. It is a violation of an individual's property rights. The right to their own body and the right to their physical property. The polluter should be enjoined by a court to stop the polluting and pay damages.

Why should the onus be on the victims to fight and fight court battles to protect their rights NOT to be trespassed upon? In the end... what if the person... the polluter... has greater resources to win such battles? So they will be free to pollute and have a market advantage over a polluter who LOST in court and now has to cover the overhead of pollution controls?

I think prior restraint through regulations makes more sense. It kills two birds with one stone. It protects citizens from pollution AND when all polluters have to pay the same costs... none get a market advantage. Under your scheme states would allow themselves to become pollution protection zones. Some states would also lower worker safety rules, unemployment benefits etc. Your dystopian world under the guise of perfect liberty is nothing but the rush to the bottom.

While not all regulations make sense... I'll take them over your nightmare world because it's much easier to fix bad regulations than it is to refight the titanic battle of the 20th century to tame a rat-eat-rat, fend for yourself, amoral market system.

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Pierpont
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Feb. 29, 2012 1:19 pm
Quote Pierpont:
Quote LysanderSpooner:

Pollution is a trespass. It is a violation of an individual's property rights. The right to their own body and the right to their physical property. The polluter should be enjoined by a court to stop the polluting and pay damages.

Why should the onus be on the victims to fight and fight court battles to protect their rights NOT to be trespassed upon? In the end... what if the person... the polluter... has greater resources to win such battles? So they will be free to pollute and have a market advantage over a polluter who LOST in court and now has to cover the overhead of pollution controls?

I think prior restraint through regulations makes more sense. It kills two birds with one stone. It protects citizens from pollution AND when all polluters have to pay the same costs... none get a market advantage. Under your scheme states would allow themselves to become pollution protection zones. Some states would also lower worker safety rules, unemployment benefits etc. Your dystopian world under the guise of perfect liberty is nothing but the rush to the bottom.

While not all regulations make sense... I'll take them over your nightmare world because it's much easier to fix bad regulations than it is to refight the titanic battle of the 20th century to tame a rat-eat-rat, fend for yourself, amoral market system.

Regulations help big business. Read Marxist historian Gabriel Kolko. The big boys lobbied for regulations during the Progressive Era. It help them cartelize industry.

What if those with more resources buy off the politicians and regulators? I think you have a better chance with a court enjoining the polluters. And the onus is on the aggrieved party because of the innocent until proven guilty principle of our legal system.

Do you support prior restraint as it regards free speech?

Decentralization is a better guarantor of liberty and protection of property rights that centralized government. The Pentagon, according to a Boston Globe report from the 90's is the biggest polluter. Last time I check the Pentagon is the government.

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LysanderSpooner
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Jul. 31, 2007 3:01 pm

I take back my extreme emphasis on freedom being to leave a bad situation. While being able to escape a bad situation is certainly an important part of freedom, so is having the ability to stay out of a bad situation in the first place.

micahjr34
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Feb. 7, 2011 3:57 pm

LysanderSpooner,

You make a good point. Regulations need to apply to public entities as well as private entities. However, the problem that can develop in not allowing regulations to stop a malfeance before it happens is potentially tragic.

For example, workers in a coal mine. With out regulations, if there is an accident then the families of dead workers can only sue the coal mining business after the fact of an accident. With regulations an attempt can be made to protect worker safety before an accident happens.

However, LysanderSpooner, I concede that bad regulations hamper people while not protecting anyone. I give you that.

micahjr34
Joined:
Feb. 7, 2011 3:57 pm
Quote LysanderSpooner:
Quote Pierpont:
Quote LysanderSpooner:

Pollution is a trespass. It is a violation of an individual's property rights. The right to their own body and the right to their physical property. The polluter should be enjoined by a court to stop the polluting and pay damages.

Why should the onus be on the victims to fight and fight court battles to protect their rights NOT to be trespassed upon? In the end... what if the person... the polluter... has greater resources to win such battles? So they will be free to pollute and have a market advantage over a polluter who LOST in court and now has to cover the overhead of pollution controls?

I think prior restraint through regulations makes more sense. It kills two birds with one stone. It protects citizens from pollution AND when all polluters have to pay the same costs... none get a market advantage. Under your scheme states would allow themselves to become pollution protection zones. Some states would also lower worker safety rules, unemployment benefits etc. Your dystopian world under the guise of perfect liberty is nothing but the rush to the bottom.

While not all regulations make sense... I'll take them over your nightmare world because it's much easier to fix bad regulations than it is to refight the titanic battle of the 20th century to tame a rat-eat-rat, fend for yourself, amoral market system.

Regulations help big business. Read Marxist historian Gabriel Kolko. The big boys lobbied for regulations during the Progressive Era. It help them cartelize industry.

That's it? What a pathetic objection. Your case for gutting ALL regulations is because you object to a few... not that your even proved this to be true. At least give some examples. Dowd Frank certainly did what you said by not breaking up the too-big-to-fail banks. But how do pollution controls or worker safety laws/regulations cartelize the economy?

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Pierpont
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Feb. 29, 2012 1:19 pm

On Bill Moyers last week, economist Richard Wolff thought regulations were ineffective as Glass Steagall showed-those affected will either evade or undo any regulation.

DynoDon
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Jun. 29, 2012 9:24 am
Quote Pierpont:
Quote LysanderSpooner:
Quote Pierpont:
Quote LysanderSpooner:

Pollution is a trespass. It is a violation of an individual's property rights. The right to their own body and the right to their physical property. The polluter should be enjoined by a court to stop the polluting and pay damages.

Why should the onus be on the victims to fight and fight court battles to protect their rights NOT to be trespassed upon? In the end... what if the person... the polluter... has greater resources to win such battles? So they will be free to pollute and have a market advantage over a polluter who LOST in court and now has to cover the overhead of pollution controls?

I think prior restraint through regulations makes more sense. It kills two birds with one stone. It protects citizens from pollution AND when all polluters have to pay the same costs... none get a market advantage. Under your scheme states would allow themselves to become pollution protection zones. Some states would also lower worker safety rules, unemployment benefits etc. Your dystopian world under the guise of perfect liberty is nothing but the rush to the bottom.

While not all regulations make sense... I'll take them over your nightmare world because it's much easier to fix bad regulations than it is to refight the titanic battle of the 20th century to tame a rat-eat-rat, fend for yourself, amoral market system.

Regulations help big business. Read Marxist historian Gabriel Kolko. The big boys lobbied for regulations during the Progressive Era. It help them cartelize industry.

That's it? What a pathetic objection. Your case for gutting ALL regulations is because you object to a few... not that your even proved this to be true. At least give some examples. Dowd Frank certainly did what you said by not breaking up the too-big-to-fail banks. But how do pollution controls or worker safety laws/regulations cartelize the economy?

Start-ups don't have the capital to comply with the regulations. The big boys do. I don't object a few. I object to all regulation. I supports tort and contract law.

THE POLLUTION SOLUTION

by Dr. Mary J. Ruwart

We all want a safe, pollution-free environment - and with hope in our hearts many of us have turned to government rules and regulations to protect ourselves and our loved ones from the horrors of a ravaged world. Yet pollution of our air and water still threatens. In South America the rainforests are cleared so rapidly that some of us may live to see them vanish from the earth. In Africa, big game animals are hunted to extinction. Where has our environmental strategy failed? What can we do to make things right again?

The Greatest Threat Of All

Toxic Waste: Ironically, the greatest toxic polluter of our nation's environment is the very government we've turned to for protection. The greatest polluter is the US military. Pentagon spokesperson Kevin Doxey told the National Academy of Sciences in 1991 that, "We have found some 17,400 contaminated sites at 1,850 installations, not including formerly used sites." The "contamination" consists of toxic solvents used to de-ice military planes, byproducts of the manufacture of nerve gas and mustard gas, and radioactive debris. In 1988, the Department of Energy estimated that it would take 50 years and $100 billion to clean up a mere 17 of these sites. How can we expect the greatest polluter of all time to effectively halt pollution by business and industry?

Radiioactive Waste:Even when the courts recognize that our government is guilty of killing people with pollution, victims have had no recourse. In 1984, a Utah court ruled that 10 out of 24 cases of cancer brought to its attention were due to negligence of the US military in association with nuclear weapons testing. The Court of Appeals ruled that even though the US government was responsible, it would not have to compensate its victims. The government enjoys "sovereign immunity" – it does not have to right its wrongs. How can a "polluter pays" policy work if the greatest polluter of all cannot be held liable?

Nuclear Power Accidents:Liability is the key to protecting the environment. When those who pollute our air, land, and water are held accountable for the damage they do, would-be polluters are likely to be far more cautious. For example, in the late 1950s, private insurance companies refused to insure nuclear power plants, because the enormous risks associated with a possible accident were unacceptably high. Consequently, power companies refused to consider nuclear power. Congress, however, passed a law (the Price Anderson Act) to limit the amount victims of a nuclear power plant disaster could claim to a maximum of $560 million. Of this amount, over 80% would come from taxes. Once the power companies were able to enjoy limited liability for any damage they might cause, nuclear power plants proliferated. Instead of protecting the public, our government passed laws to protect special-interest profits.

Rainforests:Unfortunately, the above story is not an isolated incident. Governments of all countries have shown a strong tendency to sell out their nation's environmental bounty to special interest groups. Third World dictators have routinely driven natives from their rainforest homes so that those favored by the regime could clear the mighty forests. The cost of such callousness was vividly portrayed in the movie "Medicine Man," in which Sean Connery played a scientist who found a cure for cancer in the rainforest. He watched helplessly as the natives who befriended him were driven from their forest home. The rainforest, along with the cancer cure, were both destroyed. The US government frequently directs "foreign aid" to Third World power-brokers to pay for rainforest devastation. US taxpayer dollars are literally fueling the fire of the slash-and-burn attacks on the tropical woodlands.

It's Only Natural: Betrayals such as those described above hardly seem possible at first, but further reflection illustrates that they are only the natural outcome of political management. Special interests reap great profits from building nuclear power plants while facing little liability, dumping toxic waste without having to clean it up, using radioactive materials without being responsible for the consequences, or harvesting forests for which they didn't have to pay. When they offer government officials part of this profit to betray the public interest, the temptation is often too overwhelming to resist. If an elected official refuses to be bought, special interests simply fund his or her opponent in the next election. Few honest politicians can survive against such odds. Consequently, the special interests win virtually every time. Indeed, it's a wonder that our environment has not been totally devastated long before now!

The Easy Way Out

The answer to environmental protection may be gleaned by observing special interest behavior. Let's take the example of the paper companies who log America's national forests. The US Forest Service, with our tax dollars, builds three to four times as many logging roads as hiking trails, so that vast sweeps of our precious forests can be felled by paper companies with little cost and only token replanting.

However, on lands which they own privately, the paper companies suddenly become staunch environmentalists! They replant so that their ownforest acreage increases each year – while the national ones dwindle. In the South, International Paper makes as much as 30% of its profits from recreational uses of its forests.

Why is there so much difference between how paper companies treat their own land and the way they treat public property? When a paper company is allowed to log a national forest, it has little incentive to harvest in a responsible and sustainable manner. After all, the paper company has no guarantees that it will be allowed access to the same forest again. Without ownership, long-term planning and care of forests just doesn't make economic sense.

Owners, on the other hand, profit from long-range planning because they will eventually reap the fruits of their conservation efforts. Even if they don't wish to keep a property, selling it becomes more profitable when it is well cared for, and this includes forest property.

With this in mind, we can propose a two-part strategy for environmental protection which can turn each person's greed into a desire to nurture Mother Nature:

  • individual ownership of the environment, and
  • personal liability for damage caused to the property of others.

Owning A Piece Of The Earth:The British long ago learned how to stop pollution of their rivers. Fishing rights in British streams and rivers are a private good that can be bought and sold. For the last century, polluters have been routinely dragged into the courts by angry owners and forced to rectify any damage they may have caused. Every owner on these rivers has in fact become an environmental protector – because each stands to profit from nurturing the environment.

In the Gulf of Mexico, shrimp fishermen once claimed parts of the ocean as their property in the time-honored practice of homesteading. They formed a voluntary association to keep the waters productive and to avoid over-fishing – until the US government took over as caretaker in the early 1900s.

Just as the US government took over the fisheries, so too have Third World governments taken over the rainforests and handed them over to special interests. An important element in protecting the rainforests is to respect the homesteading rights of the native peoples who have consistently exhibited a history of sustainable use. Conservation publications, such as Cultural Survival, recognize that upholding the property rights of native peoples is absolutely crucial to saving the rainforests. Private ownership encourages preservation of endangered species as well. For example, Zimbabwe respects the homesteading claims of natives to the elephants on their land. Like other private property, elephants and their products can be legally sold. As a result, the natives jealously protect their valuable elephants from poachers. The natives have every incentive to raise as many elephants as possible so they can sponsor safaris and sell elephant ivory, hide, and meat. As a result, the elephant population has increased from 30,000 to 43,000 over the past ten years. People will protect the environment when they own it and can profit from it.

On the other hand, when governments try to shepherd wild animal herds, disaster is the predictable result. For example, the Kenyan government claims ownership of all elephants, and hunting has been banned in Kenya. While Zimbabwe's herds thrived, elephants in Kenya have declined 67% over the last decade.

Environment that is "unowned," suffers a condition described by Dr. Garrett Hardin in a 1968 paper as "the tragedy of the commons." He revealed that property that belongs to "everyone" is the responsibility of no one. Ocean fish, for example, are considered to belong to anyone who catches them; consequently, everyone tries to catch as many as they can today, before a competitor gets them tomorrow. If the ocean could be homesteaded, as with the shrimp fisheries described above, owners would have an incentive to make sure the fish population was maintained and even expanded.

Making Polluters Pay: If someone pollutes or destroys that piece of the earth owned by another, he or she should be required to restore it. In practice, this could be so expensive that a polluter could be bankrupted by his or her own carelessness. If corporate officers were made personally responsible for deliberate acts of pollution, they would have little incentive to poison the air, land or water. Making polluters, not taxpayers, responsible for the damage they do takes the profit out of pollution.

The Bottom Line

Privatizing the environment gives owners the incentive to protect it. Making sure that polluters – not taxpayers – compensate their victims is the best deterrent. We can save the earth by making greed work for, instead of against us. What could be more natural?

Mary J. Ruwart, Ph.D., a member of ISIL's Board of Directors, spent over 25 years in pharmaceutical research. Cited in many prestigious biographical works, she has authored over 100 scientific publications. Dr. Ruwart is the author of the libertarian primer, Healing Our World: The Other Piece of the Puzzle and Short Answers to the Tough Questions (both available from ISIL). Her web column can be found at www.self-gov.org/ruwart/

This pamphlet was originally published in 1993. It is part of ISIL's educational pamphlet series. Click here for the full index of pamphlets online.

All ISIL educational pamphlets are available in hard copy for 5¢ each. Click here for the ISIL Store.

LysanderSpooner's picture
LysanderSpooner
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Jul. 31, 2007 3:01 pm

LysanderSpooner,

Concerning all of the issues you mention above such as pollution, I think that they are crimes, not just a civil matter where an offending entity should be fined. If someone pollutes, that person should go to jail, not just be fined. If a business pollutes that business should go out of business and the people who run it should go to jail. Money won't cut it. Incarcerating somone requires law and government.

micahjr34
Joined:
Feb. 7, 2011 3:57 pm

This reminds me of a question I asked on another thread about global climate change. IF the science is so settled and the climate is actually changing, why doesn't government pass laws and regulations and go after the guilty parties? Why? Could it be that those same guilty parties are in collusion with government? The big corporate culluders that write the regs that are complicated and costly, mailnly to drive out or prevent smaller competition, because they can't afford heards of lawyers to deal with those regs, that actually do nothing to address the problem, and then lobby to get THEIR regs passed to accomplish the above. And moonbats think that a huge centralized omnipotent inefficient government, that needs to confiscate more and more of working people's hard earned money, is the answer.

Go after the polluters and make them PAY!

darlinedarline1@aol.com's picture
darlinedarline1...
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Aug. 29, 2012 8:27 am

To clarify my point, when I say pollution is a crime, I mean it, but there should still be a range of loose to severe consequences depending on the type of pollution. Some types of pollution would cause more harm than others. "Small" amounts of pollution are a crime, but should be still punished with a fine. When people go to jail, it should be for severe pollution. I say this because LysanderSpooner might suggest the fact that some types of pollution have little to no consequence, while others do have a severe consequence.

micahjr34
Joined:
Feb. 7, 2011 3:57 pm

The Chinese are the worst polluters on earth. What are you going to do to them? Pass some more regulations? Sue them in international court? That would certainly make a whole herd of bloodsucking mouthpieces...er...uh...lawyers rich.

darlinedarline1@aol.com's picture
darlinedarline1...
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Aug. 29, 2012 8:27 am

Darlinedarline1,

Unfortunately China is not within the legal jurisdiction of the United States, so while diplomatic pressure could be exercised towards the end of reducing pollution there, no laws here in the USA could apply regardless of whether I wanted them or not.

"Those with glass houses should not throw stones." -If the United States persecuted China for pollution, they would just say that we are being hypocites, for good reason.

micahjr34
Joined:
Feb. 7, 2011 3:57 pm
Quote micahjr34:

LysanderSpooner,

Concerning all of the issues you mention above such as pollution, I think that they are crimes, not just a civil matter where an offending entity should be fined. If someone pollutes, that person should go to jail, not just be fined. If a business pollutes that business should go out of business and the people who run it should go to jail. Money won't cut it. Incarcerating somone requires law and government.

I think in jurisprudence, pollution used to be considered a tort, a civil wrong.

Rothbard discussed pollution here.

Air Pollution: Law and Regulation

We have established that everyone may do as he wishes provided he does not initiate an overt act of aggression against the person or property of anyone else. Anyone who initiates such aggression must be strictly liable for damages against the victim, even if the action is "reasonable" or accidental. Finally, such aggression may take the form of pollution of someone else's air, including his owned effective airspace, injury against his person, or a nuisance interfering with his possession or use of his land.

This is the case, provided that:

"In sum, no one has a right to clean air, but one does have a right to not have his air invaded by pollutants generated by an aggressor."

  1. the polluter has not previously established a homestead easement;
  2. while visible pollutants or noxious odors are per se aggression, in the case of invisible and insensible pollutants the plaintiff must prove actual harm;
  3. the burden of proof of such aggression rests upon the plaintiff;
  4. the plaintiff must prove strict causality from the actions of the defendant to the victimization of the plaintiff;
  5. the plaintiff must prove such causality and aggression beyond a reasonable doubt; and
  6. there is no vicarious liability, but only liability for those who actually commit the deed.

With these principles in mind, let us consider the current state of air pollution law. Even the current shift from negligence and "reasonable" actions to strict liability has by no means satisfied the chronic special pleaders for environmental plaintiffs. As Paul Downing says, "Currently, a party who has been damaged by air pollution must prove in court that emitter A damaged him. He must establish that he was damaged and emitter A did it, and not emitter B. This is almost always an impossible task."[72] If true, then we must assent uncomplainingly. After all, proof of causality is a basic principle of civilized law, let alone of libertarian legal theory.

Similarly, James Krier concedes that even if requirement to prove intent or unreasonable conduct or negligence is replaced by strict liability, there is still the problem of proving the causal link between the wrongful conduct and the injury. Krier complains that "cause and effect must still be established."[73] He wants to "make systematic reallocation of the burden of proof," that is, take the burden off the plaintiff, where it clearly belongs. Are defendants now to be guilty until they can prove themselves innocent?

The prevalence of multiple sources of pollution emissions is a problem. How are we to blame emitter A if there are other emitters or if there are natural sources of emission? Whatever the answer, it must not come at the expense of throwing out proper standards of proof, and conferring unjust special privileges on plaintiffs and special burdens on defendants.[74]

Similar problems of proof are faced by plaintiffs in nuclear radiation cases. As Jeffrey Bodie writes, "In general the courts seem to require a high degree of causation in radiation cases which frequently is impossible to satisfy given the limited extent of medical knowledge in this field."[75] But as we have seen above, it is precisely this "limited extent of knowledge" that makes it imperative to safeguard defendants from lax canons of proof.

There are, of course, innumerable statutes and regulations that create illegality besides the torts dealt with in common-law courts.[76] We have not dealt with laws such as the Clean Air Act of 1970 or regulations for a simple reason: None of them can be permissible under libertarian legal theory. In libertarian theory, it is only permissible to proceed coercively against someone if he is a proven aggressor, and that aggression must be proven in court (or in arbitration) beyond a reasonable doubt. Any statute or administrative regulation necessarily makes actions illegal that are not overt initiations of crimes or torts according to libertarian theory. Every statute or administrative rule is therefore illegitimate and itself invasive and a criminal interference with the property rights of noncriminals.

Suppose, for example, that A builds a building, sells it to B, and it promptly collapses. A should be liable for injuring B's person and property and the liability should be proven in court, which can then enforce the proper measures of restitution and punishment. But if the legislature has imposed building codes and inspections in the name of "safety," innocent builders (that is, those whose buildings have not collapsed) are subjected to unnecessary and often costly rules, with no necessity by government to prove crime or damage. They have committed no tort or crime, but are subject to rules, often only distantly related to safety, in advance by tyrannical governmental bodies. Yet, a builder who meets administrative inspection and safety codes and then has a building of his collapse, is often let off the hook by the courts. After all, has he not obeyed all the safety rules of the government, and hasn't he thereby received the advance imprimatur of the authorities?[77]

The only civil or criminal system consonant with libertarian legal principles is to have judges (and/or juries and arbitrators) pursuing charges of torts by plaintiffs made against defendants.

It should be underlined that in libertarian legal theory, only the victim (or his heirs and assigns) can legitimately press suit against alleged transgressors against his person or property. District attorneys or other government officials should not be allowed to press charges against the wishes of the victim, in the name of "crimes" against such dubious or nonexistent entities as "society" or the "state." If, for example, the victim of an assault or theft is a pacifist and refuses to press charges against the criminal, no one else should have the right to do so against his wishes. For just as a creditor has the right to "forgive" an unpaid debt voluntarily, so a victim, whether on pacifist grounds or because the criminal has bought his way out of a suit[78] or any other reason, has the right to "forgive" the crime so that the crime is thereby annulled.

"It should be underlined that in libertarian legal theory, only the victim (or his heirs and assigns) can legitimately press suit against alleged transgressors against his person or property."

Critics of automobile emissions will be disturbed by the absence of government regulation, in view of the difficulties of proving harm to victims from individual automobiles.[79] But, as we have stressed, utilitarian considerations must always be subordinate to the requirements of justice. Those worried about auto emissions are in even worse shape in the tort law courts, because libertarian principle also requires a return to the now much scorned nineteenth-century rule of privity.

The privity rule, which applies largely to the field of products liability, states that the buyer of a defective product can only sue the person with whom he had a contract.[80] If the consumer buys a watch from a retailer, and the watch does not work, it should only be the retailer whom he can sue, since it was the retailer who transferred ownership of the watch in exchange for the consumer's money. The consumer, in contrast to modern rulings, should not be able to sue the manufacturer, with whom he had no dealings. It was the retailer who, by selling the product, gave an implied warranty that the product would not be defective. And similarly, the retailer should only be able to sue the wholesaler for the defective product, the wholesaler the jobber, and finally the manufacturer.[81]

In the same way, the privity role should be applied to auto emissions. The guilty polluter should be each individual car owner and not the automobile manufacturer, who is not responsible for the actual tort and the actual emission. (For all the manufacturer knows, for example, the car might only be used in some unpopulated area or used mainly for aesthetic contemplation by the car owner.) As in the product liability cases, the only real justification for suing the manufacturer rather than the retailer is simply convenience and deep pockets, with the manufacturer presumably being wealthier than the retailer.

While the situation for plaintiffs against auto emissions might seem hopeless under libertarian law, there is a partial way out. In a libertarian society, the roads would be privately owned. This means that the auto emissions would be emanating from the road of the road owner into the lungs or airspace of other citizens, so that the road owner would be liable for pollution damage to the surrounding inhabitants. Suing the road owner is much more feasible than suing each individual car owner for the minute amount of pollutants he might be responsible for. In order to protect himself from these suits, or even from possible injunctions, the road owner would then have the economic incentive to issue anti-pollution regulations for all cars that wish to ride on his road. Once again, as in other cases of the "tragedy of the commons," private ownership of the resource can solve many "externality" problems.[82]

LysanderSpooner's picture
LysanderSpooner
Joined:
Jul. 31, 2007 3:01 pm

LysanderSpooner,

I need to take some time read and reread your post. While I need to take care of business and won't be able to reply til late tonight, I will keep you busy with this problem.

I believe that a person has a right to pay no taxes if, and only if, that person uses nothing from the government. I know that you already gave something of an answer to this problem, but let me say how I feel about it.

Suppose I lived in Los Angeles. If the roads, the sidewalks, and the buses are either built or maintained by the city government, how can a non-citizen get anywhere if the roads and sidewalks are government? The buses being subsidized by the government, I couldn't use them either. The only way I could get around is through a taxi driven by someone who is a citizen. See the problem? It is just so difficult not to use government stuff that a noncitizen would be stuck in their own home practically!

I need to go now. While you wait for me to start the conversation we are having again, I need to say that in very abstract theory the libertarian paradigm may make sense, but I feel that it can be impractical for the analogical argument I just gave. It is just extremely, extremely difficult in our society to not interact with some sort of government. Where I live, for example, the moment I step out of my front door I am stepping on something governmental. How can anyone be a noncitizen by choice and not even be able to leave their home with out using something government in a way that is a voluntary use? See you soon.

micahjr34
Joined:
Feb. 7, 2011 3:57 pm
Quote LysanderSpooner:
Quote Pierpont:
Quote LysanderSpooner:
Quote Pierpont:Why should the onus be on the victims to fight and fight court battles to protect their rights NOT to be trespassed upon? In the end... what if the person... the polluter... has greater resources to win such battles? So they will be free to pollute and have a market advantage over a polluter who LOST in court and now has to cover the overhead of pollution controls?

I think prior restraint through regulations makes more sense. It kills two birds with one stone. It protects citizens from pollution AND when all polluters have to pay the same costs... none get a market advantage. Under your scheme states would allow themselves to become pollution protection zones. Some states would also lower worker safety rules, unemployment benefits etc. Your dystopian world under the guise of perfect liberty is nothing but the rush to the bottom.

While not all regulations make sense... I'll take them over your nightmare world because it's much easier to fix bad regulations than it is to refight the titanic battle of the 20th century to tame a rat-eat-rat, fend for yourself, amoral market system.

Regulations help big business. Read Marxist historian Gabriel Kolko. The big boys lobbied for regulations during the Progressive Era. It help them cartelize industry.

That's it? What a pathetic objection. Your case for gutting ALL regulations is because you object to a few... not that your even proved this to be true. At least give some examples. Dowd Frank certainly did what you said by not breaking up the too-big-to-fail banks. But how do pollution controls or worker safety laws/regulations cartelize the economy?

Start-ups don't have the capital to comply with the regulations. The big boys do. I don't object a few. I object to all regulation. I supports tort and contract law.

This is a baby and the bathwater argument. Even if true... then the solution here isn't to gut pollution controls BUT TO ENFORCE ANTI-MONOPOLY laws and break up "cartels". But then Libertarians usually don't care about monopolies. Just the market at work.

On a side note I think at least one cartel might be useful... forming a US oil buying agency representing ALL US end users, to compete against the organized oil supplier carter.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 1:19 pm

LysanderSpooner,

I am back now! Well, to continue...

I acknowledge that allowing a person to stop paying taxes if, and only if, that person uses nothing that the government funds may seem attractive, it would be a hard life. In fact it has the potential to actually reduce personal freedom because such a person would forfeit some or possibly all police protection, which could make the person more vulnerable to "force and fraud."

For example, while the concept can make some sense, I am more than willing to be part of a community with a government with mutual responsibility among its members, even if it means that sometimes I don't have everything I want. Of course, I do believe that no one should be forced into such a community against their will. This brings up the old problem, which is how do groups of people work together in communities for some sort of mutual support while minimizing involuntary loss of freedom?

micahjr34
Joined:
Feb. 7, 2011 3:57 pm

Currently Chatting

The Death of the Middle Class was by Design...

Even in the face of the so-called Recovery, poverty and inequality are getting worse in our country, and more wealth and power is flowing straight to the top. According to Paul Buchheit over at Alternet, this is the end result of winner-take-all capitalism, and this destruction of the working class has all been by design.

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