Abstract
People evolved as part of an ecosystem, making use of the Earth’s bounty without reflection. Only when our ancestors developed the capacity for moral agency could we begin to reflect on whether we had taken in excess of our due. This outlines a ‘green libertarianism’ in which our property rights are grounded in fundamental ecological facts. It further argues that it is immune from two objections levelled at right- and left- libertarian theories of acquisition: that Robert Nozick, without justification, divided people into those who were able to acquire unowned resources, and those would could not; and, that left-libertarian attempts, such as Hillel Steiner’s, to separate choice from circumstance cannot account for the fact that not only people’s decisions to have children, but even their decisions to continue living, affect people’s entitlements to use the natural world.
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Notes
Technically, some of it is wasted as unrecoverable energy, as the system obeys the second law of thermodynamics. Expressed in modern terms as the overall ‘entropy’ of the system increasing in time, this law means that whenever energy is converted from one form to another a portion of it is rendered unusable forever. On the Earth, at least, the Sun provides more than enough energy to outweigh this waste and allow the ecosystem to continue; but in the very long run (4 to 5 billion years), the system will come to an end.
Of course, environmentalists believe the disequilibrium caused by humans cannot last; they argue that, unless we change our ways, it will grow so great that our efforts will not be enough to maintain the biosphere’s support for us, and we too will become extinct.
Herman Daly (Daly 1973) developed provided the seminal analysis of an ecosystem in terms of natural services.
I have modernised Locke’s spelling.
Ripstein argues (Ripstein 2009, 164) that Kant considers every person do be under an obligation to avoid being put in a position where it would be prudent to abandon one’s rightful honour and be used as a mere means. Locke’s argument against being allowed to sell oneself into slavery is similar. Both these interpretations are consistent with the choice theory of rights if one postulates that God holds the right to give up your rightful honour (or to bind you over into slavery); a right which, being a loving God, He never exercises.
An adequate digression into the ethics of self defence would be a luxury this paper cannot afford, though Kant provides a hint about how permissible and impermissible uses of other persons may be distinguished by his use of ‘merely.’ If you have punched someone in the face to defend yourself, or someone else you believe to be a victim or their aggression, it may be possible to justify your use of them to give effect to your will, just as, it may be possible in those circumstances to justify similar acts that would out of all context appear to be a violation of self-ownership.
It is not possible to speak of ‘appropriated land’ at this stage. We shall see later on that what matters is whether someone engages in actions necessary for using a natural service. So, planting something in soil means making use of the soil’s plant-related natural services. Once that has been done (as long, of course, as there is enough and as good left for others who can access the soil) it becomes a rights-violation to interfere with the planting. Another person remains at liberty, however to use the soil for other purposes that are not incompatible with this: she may, for instance, take advantage of its drainage. Before we do so, a further word about the substitutability of natural services is in order. Many natural services are interchangeable. Clean water from one spring is equivalent to clean water from another. In general, one wild rabbit is as good for dinner as the next. It may appear that since the service, not the creature, is the relevant unit, it would be possible to substitute other creatures—perhaps pheasants—for the rabbits. This should not be ruled out but ought to be done with care: as a pheasant inhabits a rather different ecological niche it and the rabbit may provide different services. The rabbit is rather better than the pheasant at providing furs, while the pheasant notably a superior animal from which to obtain feathers. We might call these natural services ‘commodified:’ if a service is commodified, units of it are interchangeable. They can be measured and quantities compared. This means it is possible to divide the output of a commodified natural service into shares (x litres of water per day, or y rabbits per month, and so on).
For simplicity, I have assumed that everyone draws the same amount of water from the river, and therefore that installing the turbine, would require everyone’s equal right to be respected. However, each person does not have to draw an equal amount. If we denote denote person i’s ration as w i , then the total would be ∑ n i = 1 w i , and you would simply have to obtain enough people’s waivers to account for the water taken by the turbine so that everybody who had not waived their right to draw water would be able to continue to do so.
This formulation is consistent with an ‘Otsukan’ (Otsuka 2003) ecosystem in which, because people have different capabilities (i.e. some members might be disabled), they require different amounts of certain natural services to survive, as well as a ‘Steinerian’ one where natural service flows are divided equally.
I Invoke Cicero and Grotius only to credit them with the analogy. A proper treatement of the influence of Roman, and Christian natural law, understandings of property on contemporary theories of rights including the ecological one introduced here would greatly exceed the space afforded by an article.
These points are probably related to technological development. Suppose a new technology is discovered that makes previously useless desert land, valuable (perhaps desalination allows a previously arid desert to be farmed). Until then nobody could have thought it worthwhile to bother appropriating the land, but desalination had been discovered it would begin to be worth staking claims to (according to some means of acquisition, about which Nozick is neutral). Those around at the time of this discovery (not just the original human beings) would be able to appropriate under Nozick’s weaker proviso.
If a person causes disruption to ecological equilibrium (e.g. by destroying some natural services that belong to someone else), they may be held responsible for interfering with the rights of people, and required to compensate them. This of course opens the possibility that someone might, like the person who buries the time bomb set to explode a hundred years hence in Derek Parfit’s article on the non-identity problem (Parfit 1984). Under the choice theory of rights there are two options: either our vandal is still alive, in which case he may be held liable by the people who suffer an interference in their rights; or, he has died, in which case, they, unfortunately, have no redress against him. But since future people do not exist (and in fact we do not know who they would actually be), they, like the dead, according to the choice theory, do not possess rights. This therefore becomes a matter worthy of condemnation, but not strictly speaking, of injustice.
A sleuth is a group of bears, as a flock is of sheep.
Were fashion to change and demand for bearskins to fall, the bear population might be expected to increase. This would not affect ecological equilibrium, it would simply be the bears reacting (without moral agency) to less intense activity by their chief predator.
Since we have not allowed labour-mixing as a means of acquiring title—our formula of permissible interference with natural services does so instead—it does not seem that the person who finds it has a title to it either. Perhaps, adapting Mack (Mack 2010, 53–78) we might say that nobody has a right to interfere with her taking ownership of it.
Note that I follow Carter in considering threats (‘give me the ore or I’ll chop your hands off’) also to be reductions in freedom, because they reduce the total number of options available. (Carter 1999, 234–232)
It is not possible to develop the argument further here, but it is worth noting that Lockean political theories contain two separate arguments: one to justify property rights, and another to justify monopolistic political authority. Thus Locke argues for property rights in §§25–51 and the legitimacy of government in §§4–25; Nozick in Ch 7 and Chs 2–5. Steiner does not address political authority but suggests that Lockean acquisition need not lead to territorial monopoly (Steiner 2008) and may hint at a mechanism for conscripting individuals, though it may violate rights in limited circumstances, which could perhaps provide a basis for a state in (Steiner 2006).
It is not just a matter of buying a plane ticket and travelling to a location where a natural service is afforded; we would have to actually use the service, and would have to do so while refraining from undermining the stocks underlying the services and also from usurping those already using them.
How this is to be done raises questions of the attribution of responsibility common in the literature on climate justice. Exploring these would be a fruitful avenue for further research.
Two avenues, outside the scope of this paper, suggest themselves: a consequentialist one where rights are, in these circumstances, ranked according to a scale of wellbeing, or a morally tragic one where moral loss is unavoidable. The former is well-trodden. The latter might take as its starting point (Walzer 1973).
When, precisely, they become moral agents is a matter of debate, but it should be sufficient to say that they do so at some point after they are born, but before that parents have duties towards them (even if we adopt Steiner’s position that it is not possible for them to hold choice theory rights) (Steiner 1994, 97, 336, 359).
This is not to say that the other inhabitants of the world are poor; merely that the property they own is equivalent in value to what they had actually earned by their labour and creativity, and they decided (recall that choice theory rights are alienable) to waive their claims to an equal value of natural resources in favour of the Khans.
The dead, argues Steiner, are incapable of choice and therefore cannot bear rights. (Steiner 1994, 251)
The over-appropriator would owe compensation to all those, including these children, deprived by her actions.
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Acknowledgments
This paper benefited greatly from generous and incisive comments by Hillel Steiner, Kimberley Brownlee and two anonymous reviewers, as well as repeated discussion with members of MANCEPT, in particular Stephen de Wijze and Tom Porter upon whom a much earlier version of this paper was inflicted. I also owe special thanks to Nick Herbert who drew my attention to the radio programme that led me to focus on this line of inquiry.
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Walshe, G. Green Libertarianism. Ethic Theory Moral Prac 17, 955–970 (2014). https://doi.org/10.1007/s10677-014-9499-7
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DOI: https://doi.org/10.1007/s10677-014-9499-7