Freeman

ARTICLE

Capitalism and the Environment

JULY 01, 1990 by TIBOR R. MACHAN

Tibor Machan teaches philosophy at Auburn University in Alabama. This article is based on a longer treatment forthcoming in his book, Private Rights, Public Illusions, soon to be published by the Independent Institute of San Francisco.

Although capitalism is mostly discussed in economic terms, especially when it comes to environmental or ecological questions, advocates of capitalism have usually tied its features to political and legal principles. In particular, capitalism is best described by reference to those of its features that have emerged from the tradition of political philosophy associated with the thought of John Locke.

Essentially, the normative capitalism that gained its classic statement in Locke’s works derives the system of justice for human community life from the political principles of natural rights. Specifically, these are the rights of every person to life, liberty, and property. Such a system rests on (and, within certain limits, seeks to promote) the ideals of the independence and the freedom of individual persons in their existence, actions, and productivity. No one may be forced to advance the goals of others. Relatedly, no one may be interfered with unless prior permission is secured, nor may one’s labor and produce be used, destroyed, or otherwise controlled by others without permission by the owner, regardless of the importance or nobility of the purpose at hand. These would be the basic political and legal principles of a just society, holds the capitalist, and the proper function of government is to protect the rights of the individual citizen, not to advance the “general welfare” (beyond making it possible for citizens to do so on their own and with each other’s voluntary help).

Capitalism—or as some prefer to call it, the free market system—is the socio-economic arrangement of communities which aims to preserve, enhance, and protect the ideals mentioned above, primarily, its proponents believe, because only with such a system in force is it possible for human beings both to live in dignity and fully pursue their happiness.

This approach to understanding and defending capitalism is different from the utilitarian defense of capitalism. The utilitarian defense emphasizes the practical value of capitalism—the system’s supposed utility as an effective means for achieving the goals of those partaking in it, regardless of what those goals are. Like the Lockean defense, the utilitarian support involves certain values—even though most of those who advance it like to de-emphasize the fact and insist that they are advancing a “value-free” defense. But, unlike the Lockean approach, the utilitarian locates the standard of right and wrong in the value of the consequences rather than in respect for the individual and his or her rights.

In the Lockean view, the autonomy and independence of individual human beings should be affirmed and protected in a community, something that requires recognition of private property rights. If there is a legally protected sphere of personal authority, specifiable by reference to the limits of each individual’s legitimate autonomy or independence—in Harvard philosopher Robert Nozick’s words, moral space—then individuals will be at liberty to make choices concerning their lives within those limits, enjoying the benefits and shouldering the liabilities of their free choices.

For example, if John’s life is his to govern, and a certain sphere of authority is acknowledged and protected for him, then, were John to choose to be a bum, which leads to his poverty, others should not interfere “for his own good,” or for the good of others (for example, John’s wife) who have chosen to associate with him. On the other hand, if John chooses to be a productive person, thereby acquiring various valuable items through his productivity and prudence, he is to be protected from any interference with his use and disposal of these items, provided only that he doesn’t violate the rights of others in the process. In a capitalist system, if a person neglects his health and shelter, then he and no one else is to blame, while if he takes care of his health and shelter, then he and no one else (unless there is mutual agreement to the contrary) deserves to have the benefits of his labor.

Some people argue that by its own tenets the capitalist system must make room for quite a large public sector, since in advanced industrial states people have rights to being provided with numerous goods and services, at least when they cannot provide for themselves. So-called positive rights (e.g., to health care, welfare, education, employment) would, if they exist, require governments to do much more than capitalism might appear to allow. One reason suggested for this is that destitute people wouldn’t benefit much from just having their right to liberty protected and preserved. It would be meaningless, we are told, for the abject poor to be free from others’ intrusion if they couldn’t advance on their own; so they must be provided with some initial help by society.

While some destitute people no doubt exist in any society, the fundamental issue is whether this is a political matter at all. People need not be destitute because of any interference by others, so to make it obligatory for others to help them—that is, to regard others’ help as a right—would be to impose an unearned punishment on others. And though not obligatory, basic human decency and charity probably would cause people to reach out to the abject poor anyway. If people failed to help, there is no reason to suppose that governments would do any better at the task of securing for the needy what other people refuse to provide.

But the bottom line is that there is no basic right to welfare, since lack of well-being is not a uniquely social problem but rather a problem of living itself. Poverty requires solutions from individuals, by themselves or in voluntary cooperation with others. The only basic rights that make clear sense are ones specifying limits of social interaction, that is, ones that specify what people in society may not do to each other.

Capitalism and Pollution

How does capitalism address the problem of environmental pollution? To answer this, we need first to know what pollution is. The concept of pollution is problematic from the start. Dictionaries differ as to what it means. One says pollution is “the act of defiling or rendering impure, as pollution of drinking water.” Another states that it “occurs when materials are accumulated where they are not wanted.” A third says that to pollute is “to corrupt or defile” and identifies pollution with “contamination of soft, air, and water by noxious substances and noises.”

In the end, a sensible definition of pollution will have to cover air and water pollution from materials, nuclear particles, noise, light, and anything else that is the result of human activity and can be shown to intrude on another person or violate someone’s right to property. Such a definition would preclude anything like “natural” pollution. Nature may render things impure, but only human beings can pollute.

The central problem associated with pollution, as far as the general public is concerned, has to do with the difficulty—perhaps even the impossibility-of confining harms to particular people and places. For example, air pollution occurs when people dump materials into the air which others don’t want there and which harm others or put them at risk of harm. Were it possible to confine these materials in some definite location, the agent doing the dumping could release them without inflicting the pollution on others. But as things are now in many familiar circumstances, pollution is not controllable—or, at any rate, deemed too expensive to contain—in this way. The airborne contaminates from Birmingham’s smokestacks can end in New England’s lakes.

So what would a consistently administered capitalist political economy mean for the problem of environmental pollution? In plain terms, capitalism requires that pollution be punishable as a legal offense that violates individual rights.

This may appear to be a rather peculiar thing to say if one regards the United States and other Western democracies as capitalist societies. In fact, however, none of these countries is capitalist in the strict sense of the term, but only in the sense that, more than ever in previous times and places, individual rights, including the right to private property, have gained substantial, though sporadic, legal recognition in them. (Of course, neither is, for example, the Soviet Union a fully socialist society—plenty of low-key capitalist endeavors prevail there and are, indeed, not only legally tolerated but encouraged.)

Still, a fledgling capitalist nation like the United States provides some clues as to how a purely capitalist political and economic system would enforce the legal proscription against polluting. For example, in the United States polluters are often sued, under what are called tort or nuisance laws, for harm done to others. And the Supreme Court has held that when pollution occurs, merely considering the overall public cost of preventing it cannot be construed as an adequate determinant of whether to allow that pollution to continue.

Regrettably, however, at least viewed from the perspective of pure (i.e., private property-fights respecting) capitalism, most Western democracies treat pollution on an overall cost-benefit basis. For example, whether factories and power plants surrounding Buffalo and Cleveland will be allowed to pollute Lake Erie is determined by some alleged cost-benefit calculation pertaining to the overall well-being of the region’s population (including, perhaps, members of future generations).

Inviolate Property Rights

There is evidence that individual property rights are sometimes treated by the courts as inviolate, as they should be, given capitalist theory. Dump-ing—the act of deliberately or negligently causing the intrusion of harmful wastes upon another’s domain—is generally regarded to be a crime in the United States. Pollution, in turn, is a type of dumping, namely, one that occurs in connection with the public realm, as when a chemical firm pours harmful wastes into a public lake or the atmosphere.

Under capitalism any pollution which most likely would lead to harm being done to people who have not consented to being put at risk would have to be legally prohibited. As with people who have a contagious disease, so with processes of production which involve pollution—o long as the harmful imposition upon others occurs without the consent of the victims, the process may not be carded out. This may lead to an increase in the cost of production or to the elimination of some production process and, in either case, to increased unemployment and related hardship. Still, that would be the consistent way to apply the capitalist principles in the legal system. The intentional or negligent violation of individual rights, including the rights of life, liberty, and property, must be legally prohibited. To allow the polluting course of production to continue on grounds that this will sustain employment would be exactly like permitting the continuation of other crimes on grounds that allowing them creates jobs for others.

More generally, pure capitalism rejects, in principle, the use of social (risk-) cost-benefit analysis as a basis legally to justify the redistribution of pollution. Even if some region of the country would experience an extensive economic downturn as a result of the prohibition of air or water pollution, for example, that is no reason to allow the pollution to continue. No one has a right to benefit from acts or practices that violate the rights of others.

An analogy might be that of a person with a serious contagious disease who wishes to carry on his daily activities in public. Such a person would not be permitted to go about his activities, according to capitalist thought, although it would be the responsibility of the officials of the legal system to prove that his activities cause the violation of others’ rights. (The onus of proving a criminal wrongdoing is on the prosecution, since without such proof untoward and restrictive actions by the authorities would easily violate individual rights.)

Unlike someone who intentionally assaults others to satisfy his needs or desires, the person with a contagious disease may not intend any harmful results to befall members of the public. However, the activities of this person would harm others, or put them at grave risk of serious harm, without their consent. We need not be able to tell who will contract the disease before we can justify limiting the carrier’s liberty. The fact that exposure to someone with the disease would harm some indeterminate number of the public, or place them at risk of significant harm, without their consent, suffices to invoke a quarantine against this person.

In a similar fashion, although the polluter may not intend to harm anyone, and even granting that we are unable to say which people will be harmed, the fact that someone’s activities lead to pollution suffices to justify prohibition of those activities, unless the activities can be carried out without the polluting side effect.

The Moral Superiority of Capitalism

If the natural rights theory which underlies the capitalist political economy has solid foundations in moral theory, and if the moral theory supporting it is rationally superior to its competitors, then the capitalist system is clearly superior to its alternatives.

Natural rights theory rests, essentially, on the idea that it is possible for us to understand human nature and to derive from this understanding, together with our knowledge of the world around us, what would be the proper conditions for social life. Although much controversy surrounds these matters, the crux of the capitalist claim—or at least one line of reasoning advanced by defenders of capitalism about these matters—is that knowledge of human nature is no more difficult in principle than knowledge about the nature of other things we encounter. That knowledge includes the recognition that people are the sort of beings that have a moral dimension to their existence, a moral worth or dignity, which, then, must be taken into account in the formulation of social institutions, including legal systems.

Whether this is ultimately a successful philosophical endeavor cannot be fully explored here. But at least this theory avoids the most glaring deficiencies endemic to other :systems. Unlike fascism, capitalism doesn’t allocate special powers to an “inspired” leader and, unlike pure democracy or democratic socialism, pure capitalism won’t allow the interests of the majority to override the rights of the individual. Moreover, while centrally planned socialism rests on a very dubious metaphysical theory about the gradual but revolutionary development of the human species, with little guidance as to what we should do at present, libertarianism involves a theory about the dignity and worth of people here and now and, as we shall see shortly, offers specific guidance regarding current problems calling for public action. The welfare state, one might say, is of two minds about the val-ues it aims to advance, what with liberty and welfare always in potential conflict and with no clear way to resolve that conflict.

Capitalism, by contrast, proclaims the ultimate moral significance of the lives of individuals, and it proposes a social order in which the negative rights of individuals are the primary guidelines for public policy. It does not concern itself with some widely touted values, such as, for example, universal equality, absolute fairness, and unbreachable moral duty to lend help where it is needed. It does not reject anyone’s efforts, alone or in concert with others, to pursue such values, but it rejects making the general welfare a basis for setting public policy, since that can, and likely will, lead to violations of individual rights. Capitalism assures that neither the tyranny of a hero leader nor of a majority will threaten individual rights.

Within the confines of a capitalist system each person would be completely free of others’ uninvited intrusions or could count on legal sanctions when such intrusions occur. But the rest is up to individuals acting in voluntary groups, establishing noncoercive institutions, or doing whatever is necessary to secure what they value. This may not hold out the promise of some environmental utopia, where full ecological rationality is guaranteed by government. Nor does this approach pretend to guarantee something less ambitious, “reasonable” environmentally sound living conditions for all. The capitalist system succeeds in comparison with alternative systems, not in comparison with some fantastic ideal the attainment of which is impossible.

Problems of Implementation

How could the pure capitalist apply his theory in practice? This is the crux of the matter. If capitalism is to make good its claim to being the most suitable political theory (and granting that not everything will be fully satisfactory in it), it must be applicable in the real world, and then in difficult, not only in easy, cases. To show a theory’s application to the problem of pollution is by no means easy. Thus the problem of pollution provides an interesting, important test case for assessing capitalism’s theoretical mettle. How could the capitalist position regarding pollution find expression in a system of law? The following observations are meant to explain, at least partially, how the ideal of a capitalist political economy might find a home in the real world of law and public policy as regards environmental management.

1. We may treat as pollution any form of objectively unwanted harmful by-product of human action that is not confined to an area or location but is disbursed so it may intrude on unidentifiable other persons. (Toxic waste, for example, is not yet pollution without harming someone who did not choose to be harmed.) Economists call such substances uninternalizable negative externalities, although the term “uninternalizable” is somewhat of a hyperbole, since in many cases these substances are in fact simply very expensive to internalize—i.e., keep from spreading throughout some occupied region.

2. Stationary sources of pollution contained within the boundaries of the polluter% own property present no insurmountable problem to capitalism. Toxic as well as nuclear wastes, for example, can be identified as polluting, and if owners of firms dealing with these would act in a proper fashion, they would have to confine their operations to areas where others are left unharmed. Any breach of this requirement could meet extremely severe penalties—the punishment would have to fit the crime.

If operations of such finns would be impossible without pollution—that is, without causing emissions that are harmful to others who have not consented to suffer such harm—the operations would have to be shut down. Thus if people are harmed, they would be the ones who contractually would have given their informed consent to run the risks associated with pollution. Workplace pollution would raise the issue of workers’ rights, but in a capitalist framework these, too, would be recognized and protected by contract law, including laws regarding fraud and “assumption of risk.” Essentially, then, any stationary source of pollution would be dealt with in the way familiar to us in connection with the operations of the free market system of economic and legal affairs—that is, the system of individual private property rights would guide the conduct of members of the society.

Aside from the problematic nature of “rights” of nonexisting (future) persons—which would not be invoked in the capitalist framework since a mere potential, nonexisting person cannot haveactual, existing, and binding rights-future owners of private property could manage the problems of contained “pollution” under contract law—for example, deed covenants running with the land. There would be some problems with abandoned property, which no one consents to take over, and with bankruptcies, where the owner is incapable of meeting liabilities. (Such a society wouldn’t carry the ridiculously lenient policies on bankruptcy now afoot virtually everywhere, policies that engender wholesale irresponsibility in business and industry.) In such cases one could rely, in part, on insurance provisions which on occasion may be legally mandated, given the reasonably anticipated problems with the property in question.

3. Stationary sources placed on (or non-station-ary sources which move to) another’s property with the consent of the owner (whether private person or public entity) seem to present the same contractual considerations and difficulties as were mentioned above. For instance, automobiles are non-stationary sources which often move from private property to private property, but which may do so only if the owners of the properties have granted their permission (perhaps for consideration, perhaps gratis). Without that permission, however, and barring the availability of space within the atmosphere so that no threshold has been reached, automobile exhaust fumes would constitute pollution and should be internalized or prohibited. Chemical wastes dumped on stationary sources might seep out and contaminate other places than those on which they had been dumped, so once again arrangements with owners would have to be made to gain permission. If that is unfeasible—for example, the seepage leads to the contamination of the commons (i.e., public spheres)—internalization or prohibition are the only legitimate capitalist alternatives.

It can be argued that during the last several decades the governments of existing societies have given their implicit (and often quite explicit) permission tO have the public’s property—lakes, parks, forests, the atmosphere—polluted. To correct this would require some drastic measures, including, first and foremost, the privatization of public properties, where that is possible, and total prohibition where no privatization is possible (recalling the quarantine analogy). To the objection that it may be too late, the capitalist would have to reply that indeed it is better late than never, because to allow current practices to continue is to exacerbate the existing pollution problems. As to seepage and similar movements, the development of the law of trespass and strictures against dumping could again handle these problems. But these fall into our category of difficulties.

4. Stationary sources placed on (or non-stationary sources which move to) another’s property without the consent of the owner is the most difficult category. For example, air traffic, factory waste emission, automobile emission on (so-called) public property, and so on, are examples of these kinds of harmful emissions others would suffer without their consent (explicit or implicit—that is, by agreeing to suffer them or by acting in ways which imply such agreement). This sort of pollution might be handled, first of all, through what we might call preventive market measures—for example, insurance premiums against the possibility of court suits for liability, or liability bonds. Here there is ample room for reflection but it seems that the earlier mentioned policy of quarantine could be employed to handle the most troublesome cases.

Wherever activities resulting in pollution cannot be carried out without injury to third (non-consenting) parties, such activities have to be prohibited as inherently in violation of the rights of members of the community. (This would not include trade in pesticide-treated fruits, for example, where the risk of harm from eating such fruit is lower than or equal to normal risks encountered in everyday life.)

When pollution occurs along lines of thresholds, such that only once so much emission has occurred could the emission be actually polluting (i.e., harmful to people) rather than simply defiling, a system of first come, first served might be instituted, so that those who start the production first would be permitted to continue, while others, who would raise the threshold to a harmful level, would not. This might appear arbitrary, but in fact numerous areas of life, including especially commerce, make good use of this system, and human ingenuity could well be expended toward making sure that one’s firm is not a latecomer.

A word about thresholds. The earth—as well as any part of the universe where life support is reasonably imaginable-can often absorb some measure of potentially injurious waste. (This can be expected, since life itself produces waste!) Most toxic substances can dissipate up to a point. Arguably this is no different from the simple observation that within a given territory only so much life can be supported, after which the quantity and quality of life is lowered.

Barring the privatization of such spheres, where they can be kept apart and separated from others, a judicially efficient management of toxic substance disposal must take into account how far disposal can continue before the vital point is reached. Technical measurements would need to be employed and correlated with information about the levels of human tolerance for the toxic substance in question. Risk analysis would need to be performed so as to learn whether the risk of falling victim to toxic substance disposal corresponds with or exceeds expected risks not produced by human pollution.

Standards of Tolerance

It is important to state that the natural rights capitalist standard of tolerance might very well be far lower than even those who support it would imagine. Many free market advocates favor a social cost-benefit approach here, based on the utilitarian idea that what ultimately matters is the achievement of some state of collective satisfaction. This is not the approach that flows from the idea that individuals have natural negative rights to life, liberty, and property.

Assuming the soundness of the natural rights stance, it may be necessary to prepare for some drastic lifestyle changes, so that some past abuses can be rectified. For example, whereas automobile wastes have been poured into the atmosphere with an understanding that from a utilitarian perspective it is worth doing so (based on social cost-benefit analysis), from the natural rights capitalist viewpoint it would be necessary to insist on the full initial cost being borne by antomobile drivers/owners, thereby at least temporarily prompting a considerable rise in the prices of vehicles.

Certainly a capitalist political economy’s government wouldn’t have the authority to rely on the utilitarian notion, used by many courts today in their refusal to enforce “public nuisance laws,” that those harmed by pollution have to “pay” since the benefits of industrial growth outweigh such costs in health and property damage as are caused by pollution. Instead the principle of full liability would apply: The polluter or others who are bound by contract with the polluter, such as nude-ar utilities which may have a pact to share insurance premiums and liability resulting from an accident at one member’s plant, would be held liable. Benefits not solicited cannot be charged for, if one respects the individual’s right to choose, as the capitalist system is committed to do.

Of course, there are environmental problems for which solutions are difficult even to imagine. Even if one country has managed to institute the legal/constitutional measures that would best handle environmental problems—a system of strictly observed and enforced basic private property rights—the international arena will still remain unmanaged. Various problems of judicial inefficiency, the tragedy of the commons, public-choice- based deadlocks, and the like will continue to permeate the international public realm.

The destruction of the ozone layer is a threat to virtually everyone, yet it is at present uncertain whether human beings are responsible for it—the main cause appears to be volcanic eruption. If it should turn out that certain kinds of human activities cause this damage and if harm to people will be the result, those activities may be curtailed or even prohibited. After all, no one may place poison in the atmosphere with impunity, and the problem with the ozone layer is not unlike that—the destruction of something that is not anyone’s property and thus no one’s to destroy at will, while the destruction, nonetheless, does harm to individuals.

Another type of problem to which it is difficult to construct a solution without plenty of scientific evidence is illustrated by the destruction of the Amazon rain forest, in this case by people who own it. (We leave it aside for now whether ownership was come by in a fashion consistent with individual rights.) Here, too, the only point that can be made is that if it is demonstrated that this destruction will produce a result that is injurious to others who have not consented to be so treated, the process must be legally stopped. The reason, once again, is that if one even unintentionally but knowingly violates the rights of others by depriving them of life, liberty, or property—i.e., one doesn’t set out to do this but one’s actions can be known to result in this deprivation—the action can be a kind of negligent assault or even negligent homicide.

A more accessible model might be one’s building a very tall but weak structure near another’s home in a high wind region. Since the structure is very likely to invade the other’s sphere of jurisdiction-private property—there is reason to forbid its building. The strong probability of causing such invasion is a justification for prohibition. If, then, cutting down the trees in the Amazon can be shown to result in the destruction of the lives and properties of others, this can be cause for legally prohibiting it.

Quid Pro Quo

Of course, when there are no proper institutional instruments—i.e., a constitution of natural human individual rights—to guard against such actions, it is difficult tO suggest where one should turn. The most effective approach in these cases would be to tie various diplomatic negotiations—including military cooperation, bank credit, cultural exchanges—to terms that would effectively express the principles of private property rights. The quid pro quo approach might be utilized on numerous fronts—including in the drafting of treaties—and once the principles and terms have become firmly entrenched, even military action might be justified when environmental destruction occurs on a massive enough scale.

Consider that if Brazil wishes to maintain friendly relations with the United States or some other country, and this other country’s legal system firmly acknowledges the environmental implications of the private property fights system, such friendly relations would have to be manifested in part by Brazil’s complying with the international implications of such a system. This would apply even if Brazil itself doesn’t adhere to such legal measures within its borders.

This is no different from other international agreements in which countries commit themselves to legal measures vis-à-vis citizens and organizations of other countries that they don’t observe within their own borders. Trade agreements, contract laws, and numerous economic regulations bind foreign nationals in their interaction with a given country’s population, even if within the foreign national’s country these do not apply. The same kind of restrictions could be achieved on the environmental front.

We may now return to the more general implications of the private property rights approach to managing environmental problems. For one, we must acknowledge that in some cases protecting the rights of individuals in this strict manner may lead to their not enjoying certain benefits they might have regarded to be even greater than the benefit of not suffering the harms of pollution.

But this is irrelevant. The just treatment of individuals must respect their autonomy and their choice in judging what they think is best for themselves, even when they are mistaken, so long as this does not involve violating others’ rights. Paternalism and consistent capitalism are incompatible political ideals! The system of rights which grounds the legal framework that supports consistent capitalism is sound precisely because as a system of laws it is the one that is most respectful of individual rights—it rests on the acknowledgment of the sovereignty of individual human beings.

This general virtue shows equal respect for every person who embarks on social life, and it is this equal respect for all that justifies the establishment of government for all, even if such a system doesn’t guarantee that everyone will make the most of its provisions. Nor does it guarantee that all values sought by members of human communities would be best secured via such a system—for example, technological progress in outer space travel might be enhanced by not paying heed to the strict liability provisions of the natural rights capitalist legal system.

In short, the ultimate objective of such a system is a form of justice—not welfare, not progress, not equality of condition, not artistic advancement. The justice at hand pertains to respecting every person’s status as a being with dignity, as a being with the freedom and the responsibility to achieve a morally excellent life.

What Is Done Is Done

One must be careful not to expect something impossible of a certain field of inquiry. For too long demands placed on the fields of morality and politics have been unjustly severe: Final, irrefutable, timeless answers were sought, and in response to the inevitable failure to produce these, a cynicism about the prospects of any workable answers has gained a foothold throughout the intellectual community, as well as among members of the general public.

As a result, it is now part of the received opinion that no solid intellectual solution to any of the value- oriented areas of human problems can be reached. The best we can expect is some kind of consensus which vaguely represents the tastes and preferences of a significant number of the concerned population. Yet this “consensus” is a house of cards. Tastes and preferences are unstable, flexible, and so indeterminable that the only thing to emerge is some kind of arbitrary public policy concocted either by bureaucrats or by dictators, official or unofficial.

In morality and politics, and thus in public policy as well, there can be some very general answers that are stable enough, ones that apply to human life, so long as there is such an identifiably stable phenomenon as human life. Human life and human community involve certain lasting considerations. And innumerable changing problems that emerge in them can be approached fruitfully by taking into account some of these considerations.

Our discussion of capitalism and the environment appeals to such basic factors with a view to dealing with one of the more thorny problems of the present epoch of human community life—pollution. Pollution proves to be an important, diffi-cult test for any political system including fascism, the welfare state, and capitalism.

Capitalism stresses the ultimate’ importance of the rights and value of the individual, gauging the acceptability of public policies by their success in protecting individual human rights, even where other values, such as progress in science and technology, might have to be set aside.

This discussion by no means exhausts the treatment of the pollution problem, nor does it enter into great technical detail concerning this topic. And we don’t pretend to be able to handle everything smoothly. Nevertheless, it has been argued that the capitalist approach to pollution accords most fully with that prime objective of community life—justice. Ironically, it appears that this approach to the environment and ecology often yields stricter measures than those championed by most environmentalists.

In any case, the arguments and theories advanced here should serve as a useful starting point in considering some of the problems of the environment as they emerge in the actual, day-to-day affairs of individuals living in communities and around the world. []


1.   Blakiston’s Gould Medical Dictionary, 4th ed. (New York: McGraw-Hill Book Company, 1979), p. 1073.

2.   Richard B. Steward and James E. Krier, Environmental Law and Policy, 2nd ed. (New York: Bobbs- Merrill, 1978), p. 3.

3.   Black’s Law Dictionary, 5th ed. (St, Paul, Minn.: West Publishing Company, 1979), p. 1043.

4.   See Robert K. Best and James I. Collins, “Legal Issues in Pollution-Engendered Torts,” Cato Journal, Spring 1982, pp. 101-36.

5.   See Joseph P. Martino, “Inheriting the Earth,” Reason, November 1982, pp. 30-36, 46.

6.   For a discussion of the pervasiveness of the violation of individual rights on grounds that people should not benefit without paying, see Tibor R. Machan, “Some Philosophical Aspects of National Labor Policy,” Harvard Journal of Law and Public Policy, Vol. 4 (Summer 1981), pp. 67-160.

7.   A version of this essay, “Pollution and Political Theory,” appeared in Tom Regan (ed.), Earthbound (New York: Random House, 1984).
Tibor Machan teaches philosophy at Auburn University in Alabama. This article is based on a longer treatment forthcoming in his book, Private Rights, Public Illusions, soon to be published by the Independent Institute of San Francisco.

Although capitalism is mostly discussed in economic terms, especially when it comes to environmental or ecological questions, advocates of capitalism have usually tied its features to political and legal principles. In particular, capitalism is best described by reference to those of its features that have emerged from the tradition of political philosophy associated with the thought of John Locke.

Essentially, the normative capitalism that gained its classic statement in Locke’s works derives the system of justice for human community life from the political principles of natural rights. Specifically, these are the rights of every person to life, liberty, and property. Such a system rests on (and, within certain limits, seeks to promote) the ideals of the independence and the freedom of individual persons in their existence, actions, and productivity. No one may be forced to advance the goals of others. Relatedly, no one may be interfered with unless prior permission is secured, nor may one’s labor and produce be used, destroyed, or otherwise controlled by others without permission by the owner, regardless of the importance or nobility of the purpose at hand. These would be the basic political and legal principles of a just society, holds the capitalist, and the proper function of government is to protect the rights of the individual citizen, not to advance the “general welfare” (beyond making it possible for citizens to do so on their own and with each other’s voluntary help).

Capitalism—or as some prefer to call it, the free market system—is the socio-economic arrangement of communities which aims to preserve, enhance, and protect the ideals mentioned above, primarily, its proponents believe, because only with such a system in force is it possible for human beings both to live in dignity and fully pursue their happiness.

This approach to understanding and defending capitalism is different from the utilitarian defense of capitalism. The utilitarian defense emphasizes the practical value of capitalism—the system’s supposed utility as an effective means for achieving the goals of those partaking in it, regardless of what those goals are. Like the Lockean defense, the utilitarian support involves certain values—even though most of those who advance it like to de-emphasize the fact and insist that they are advancing a “value-free” defense. But, unlike the Lockean approach, the utilitarian locates the standard of right and wrong in the value of the consequences rather than in respect for the individual and his or her rights.

In the Lockean view, the autonomy and independence of individual human beings should be affirmed and protected in a community, something that requires recognition of private property rights. If there is a legally protected sphere of personal authority, specifiable by reference to the limits of each individual’s legitimate autonomy or independence—in Harvard philosopher Robert Nozick’s words, moral space—then individuals will be at liberty to make choices concerning their lives within those limits, enjoying the benefits and shouldering the liabilities of their free choices.

For example, if John’s life is his to govern, and a certain sphere of authority is acknowledged and protected for him, then, were John to choose to be a bum, which leads to his poverty, others should not interfere “for his own good,” or for the good of others (for example, John’s wife) who have chosen to associate with him. On the other hand, if John chooses to be a productive person, thereby acquiring various valuable items through his productivity and prudence, he is to be protected from any interference with his use and disposal of these items, provided only that he doesn’t violate the rights of others in the process. In a capitalist system, if a person neglects his health and shelter, then he and no one else is to blame, while if he takes care of his health and shelter, then he and no one else (unless there is mutual agreement to the contrary) deserves to have the benefits of his labor.

Some people argue that by its own tenets the capitalist system must make room for quite a large public sector, since in advanced industrial states people have rights to being provided with numerous goods and services, at least when they cannot provide for themselves. So-called positive rights (e.g., to health care, welfare, education, employment) would, if they exist, require governments to do much more than capitalism might appear to allow. One reason suggested for this is that destitute people wouldn’t benefit much from just having their right to liberty protected and preserved. It would be meaningless, we are told, for the abject poor to be free from others’ intrusion if they couldn’t advance on their own; so they must be provided with some initial help by society.

While some destitute people no doubt exist in any society, the fundamental issue is whether this is a political matter at all. People need not be destitute because of any interference by others, so to make it obligatory for others to help them—that is, to regard others’ help as a right—would be to impose an unearned punishment on others. And though not obligatory, basic human decency and charity probably would cause people to reach out to the abject poor anyway. If people failed to help, there is no reason to suppose that governments would do any better at the task of securing for the needy what other people refuse to provide.

But the bottom line is that there is no basic right to welfare, since lack of well-being is not a uniquely social problem but rather a problem of living itself. Poverty requires solutions from individuals, by themselves or in voluntary cooperation with others. The only basic rights that make clear sense are ones specifying limits of social interaction, that is, ones that specify what people in society may not do to each other.

Capitalism and Pollution

How does capitalism address the problem of environmental pollution? To answer this, we need first to know what pollution is. The concept of pollution is problematic from the start. Dictionaries differ as to what it means. One says pollution is “the act of defiling or rendering impure, as pollution of drinking water.” Another states that it “occurs when materials are accumulated where they are not wanted.” A third says that to pollute is “to corrupt or defile” and identifies pollution with “contamination of soft, air, and water by noxious substances and noises.”

In the end, a sensible definition of pollution will have to cover air and water pollution from materials, nuclear particles, noise, light, and anything else that is the result of human activity and can be shown to intrude on another person or violate someone’s right to property. Such a definition would preclude anything like “natural” pollution. Nature may render things impure, but only human beings can pollute.

The central problem associated with pollution, as far as the general public is concerned, has to do with the difficulty—perhaps even the impossibility-of confining harms to particular people and places. For example, air pollution occurs when people dump materials into the air which others don’t want there and which harm others or put them at risk of harm. Were it possible to confine these materials in some definite location, the agent doing the dumping could release them without inflicting the pollution on others. But as things are now in many familiar circumstances, pollution is not controllable—or, at any rate, deemed too expensive to contain—in this way. The airborne contaminates from Birmingham’s smokestacks can end in New England’s lakes.

So what would a consistently administered capitalist political economy mean for the problem of environmental pollution? In plain terms, capitalism requires that pollution be punishable as a legal offense that violates individual rights.

This may appear to be a rather peculiar thing to say if one regards the United States and other Western democracies as capitalist societies. In fact, however, none of these countries is capitalist in the strict sense of the term, but only in the sense that, more than ever in previous times and places, individual rights, including the right to private property, have gained substantial, though sporadic, legal recognition in them. (Of course, neither is, for example, the Soviet Union a fully socialist society—plenty of low-key capitalist endeavors prevail there and are, indeed, not only legally tolerated but encouraged.)

Still, a fledgling capitalist nation like the United States provides some clues as to how a purely capitalist political and economic system would enforce the legal proscription against polluting. For example, in the United States polluters are often sued, under what are called tort or nuisance laws, for harm done to others. And the Supreme Court has held that when pollution occurs, merely considering the overall public cost of preventing it cannot be construed as an adequate determinant of whether to allow that pollution to continue.

Regrettably, however, at least viewed from the perspective of pure (i.e., private property-fights respecting) capitalism, most Western democracies treat pollution on an overall cost-benefit basis. For example, whether factories and power plants surrounding Buffalo and Cleveland will be allowed to pollute Lake Erie is determined by some alleged cost-benefit calculation pertaining to the overall well-being of the region’s population (including, perhaps, members of future generations).

Inviolate Property Rights

There is evidence that individual property rights are sometimes treated by the courts as inviolate, as they should be, given capitalist theory. Dump-ing—the act of deliberately or negligently causing the intrusion of harmful wastes upon another’s domain—is generally regarded to be a crime in the United States. Pollution, in turn, is a type of dumping, namely, one that occurs in connection with the public realm, as when a chemical firm pours harmful wastes into a public lake or the atmosphere.

Under capitalism any pollution which most likely would lead to harm being done to people who have not consented to being put at risk would have to be legally prohibited. As with people who have a contagious disease, so with processes of production which involve pollution—o long as the harmful imposition upon others occurs without the consent of the victims, the process may not be carded out. This may lead to an increase in the cost of production or to the elimination of some production process and, in either case, to increased unemployment and related hardship. Still, that would be the consistent way to apply the capitalist principles in the legal system. The intentional or negligent violation of individual rights, including the rights of life, liberty, and property, must be legally prohibited. To allow the polluting course of production to continue on grounds that this will sustain employment would be exactly like permitting the continuation of other crimes on grounds that allowing them creates jobs for others.

More generally, pure capitalism rejects, in principle, the use of social (risk-) cost-benefit analysis as a basis legally to justify the redistribution of pollution. Even if some region of the country would experience an extensive economic downturn as a result of the prohibition of air or water pollution, for example, that is no reason to allow the pollution to continue. No one has a right to benefit from acts or practices that violate the rights of others.

An analogy might be that of a person with a serious contagious disease who wishes to carry on his daily activities in public. Such a person would not be permitted to go about his activities, according to capitalist thought, although it would be the responsibility of the officials of the legal system to prove that his activities cause the violation of others’ rights. (The onus of proving a criminal wrongdoing is on the prosecution, since without such proof untoward and restrictive actions by the authorities would easily violate individual rights.)

Unlike someone who intentionally assaults others to satisfy his needs or desires, the person with a contagious disease may not intend any harmful results to befall members of the public. However, the activities of this person would harm others, or put them at grave risk of serious harm, without their consent. We need not be able to tell who will contract the disease before we can justify limiting the carrier’s liberty. The fact that exposure to someone with the disease would harm some indeterminate number of the public, or place them at risk of significant harm, without their consent, suffices to invoke a quarantine against this person.

In a similar fashion, although the polluter may not intend to harm anyone, and even granting that we are unable to say which people will be harmed, the fact that someone’s activities lead to pollution suffices to justify prohibition of those activities, unless the activities can be carried out without the polluting side effect.

The Moral Superiority of Capitalism

If the natural rights theory which underlies the capitalist political economy has solid foundations in moral theory, and if the moral theory supporting it is rationally superior to its competitors, then the capitalist system is clearly superior to its alternatives.

Natural rights theory rests, essentially, on the idea that it is possible for us to understand human nature and to derive from this understanding, together with our knowledge of the world around us, what would be the proper conditions for social life. Although much controversy surrounds these matters, the crux of the capitalist claim—or at least one line of reasoning advanced by defenders of capitalism about these matters—is that knowledge of human nature is no more difficult in principle than knowledge about the nature of other things we encounter. That knowledge includes the recognition that people are the sort of beings that have a moral dimension to their existence, a moral worth or dignity, which, then, must be taken into account in the formulation of social institutions, including legal systems.

Whether this is ultimately a successful philosophical endeavor cannot be fully explored here. But at least this theory avoids the most glaring deficiencies endemic to other :systems. Unlike fascism, capitalism doesn’t allocate special powers to an “inspired” leader and, unlike pure democracy or democratic socialism, pure capitalism won’t allow the interests of the majority to override the rights of the individual. Moreover, while centrally planned socialism rests on a very dubious metaphysical theory about the gradual but revolutionary development of the human species, with little guidance as to what we should do at present, libertarianism involves a theory about the dignity and worth of people here and now and, as we shall see shortly, offers specific guidance regarding current problems calling for public action. The welfare state, one might say, is of two minds about the val-ues it aims to advance, what with liberty and welfare always in potential conflict and with no clear way to resolve that conflict.

Capitalism, by contrast, proclaims the ultimate moral significance of the lives of individuals, and it proposes a social order in which the negative rights of individuals are the primary guidelines for public policy. It does not concern itself with some widely touted values, such as, for example, universal equality, absolute fairness, and unbreachable moral duty to lend help where it is needed. It does not reject anyone’s efforts, alone or in concert with others, to pursue such values, but it rejects making the general welfare a basis for setting public policy, since that can, and likely will, lead to violations of individual rights. Capitalism assures that neither the tyranny of a hero leader nor of a majority will threaten individual rights.

Within the confines of a capitalist system each person would be completely free of others’ uninvited intrusions or could count on legal sanctions when such intrusions occur. But the rest is up to individuals acting in voluntary groups, establishing noncoercive institutions, or doing whatever is necessary to secure what they value. This may not hold out the promise of some environmental utopia, where full ecological rationality is guaranteed by government. Nor does this approach pretend to guarantee something less ambitious, “reasonable” environmentally sound living conditions for all. The capitalist system succeeds in comparison with alternative systems, not in comparison with some fantastic ideal the attainment of which is impossible.

Problems of Implementation

How could the pure capitalist apply his theory in practice? This is the crux of the matter. If capitalism is to make good its claim to being the most suitable political theory (and granting that not everything will be fully satisfactory in it), it must be applicable in the real world, and then in difficult, not only in easy, cases. To show a theory’s application to the problem of pollution is by no means easy. Thus the problem of pollution provides an interesting, important test case for assessing capitalism’s theoretical mettle. How could the capitalist position regarding pollution find expression in a system of law? The following observations are meant to explain, at least partially, how the ideal of a capitalist political economy might find a home in the real world of law and public policy as regards environmental management.

1. We may treat as pollution any form of objectively unwanted harmful by-product of human action that is not confined to an area or location but is disbursed so it may intrude on unidentifiable other persons. (Toxic waste, for example, is not yet pollution without harming someone who did not choose to be harmed.) Economists call such substances uninternalizable negative externalities, although the term “uninternalizable” is somewhat of a hyperbole, since in many cases these substances are in fact simply very expensive to internalize—i.e., keep from spreading throughout some occupied region.

2. Stationary sources of pollution contained within the boundaries of the polluter% own property present no insurmountable problem to capitalism. Toxic as well as nuclear wastes, for example, can be identified as polluting, and if owners of firms dealing with these would act in a proper fashion, they would have to confine their operations to areas where others are left unharmed. Any breach of this requirement could meet extremely severe penalties—the punishment would have to fit the crime.

If operations of such finns would be impossible without pollution—that is, without causing emissions that are harmful to others who have not consented to suffer such harm—the operations would have to be shut down. Thus if people are harmed, they would be the ones who contractually would have given their informed consent to run the risks associated with pollution. Workplace pollution would raise the issue of workers’ rights, but in a capitalist framework these, too, would be recognized and protected by contract law, including laws regarding fraud and “assumption of risk.” Essentially, then, any stationary source of pollution would be dealt with in the way familiar to us in connection with the operations of the free market system of economic and legal affairs—that is, the system of individual private property rights would guide the conduct of members of the society.

Aside from the problematic nature of “rights” of nonexisting (future) persons—which would not be invoked in the capitalist framework since a mere potential, nonexisting person cannot haveactual, existing, and binding rights-future owners of private property could manage the problems of contained “pollution” under contract law—for example, deed covenants running with the land. There would be some problems with abandoned property, which no one consents to take over, and with bankruptcies, where the owner is incapable of meeting liabilities. (Such a society wouldn’t carry the ridiculously lenient policies on bankruptcy now afoot virtually everywhere, policies that engender wholesale irresponsibility in business and industry.) In such cases one could rely, in part, on insurance provisions which on occasion may be legally mandated, given the reasonably anticipated problems with the property in question.

3. Stationary sources placed on (or non-station-ary sources which move to) another’s property with the consent of the owner (whether private person or public entity) seem to present the same contractual considerations and difficulties as were mentioned above. For instance, automobiles are non-stationary sources which often move from private property to private property, but which may do so only if the owners of the properties have granted their permission (perhaps for consideration, perhaps gratis). Without that permission, however, and barring the availability of space within the atmosphere so that no threshold has been reached, automobile exhaust fumes would constitute pollution and should be internalized or prohibited. Chemical wastes dumped on stationary sources might seep out and contaminate other places than those on which they had been dumped, so once again arrangements with owners would have to be made to gain permission. If that is unfeasible—for example, the seepage leads to the contamination of the commons (i.e., public spheres)—internalization or prohibition are the only legitimate capitalist alternatives.

It can be argued that during the last several decades the governments of existing societies have given their implicit (and often quite explicit) permission tO have the public’s property—lakes, parks, forests, the atmosphere—polluted. To correct this would require some drastic measures, including, first and foremost, the privatization of public properties, where that is possible, and total prohibition where no privatization is possible (recalling the quarantine analogy). To the objection that it may be too late, the capitalist would have to reply that indeed it is better late than never, because to allow current practices to continue is to exacerbate the existing pollution problems. As to seepage and similar movements, the development of the law of trespass and strictures against dumping could again handle these problems. But these fall into our category of difficulties.

4. Stationary sources placed on (or non-stationary sources which move to) another’s property without the consent of the owner is the most difficult category. For example, air traffic, factory waste emission, automobile emission on (so-called) public property, and so on, are examples of these kinds of harmful emissions others would suffer without their consent (explicit or implicit—that is, by agreeing to suffer them or by acting in ways which imply such agreement). This sort of pollution might be handled, first of all, through what we might call preventive market measures—for example, insurance premiums against the possibility of court suits for liability, or liability bonds. Here there is ample room for reflection but it seems that the earlier mentioned policy of quarantine could be employed to handle the most troublesome cases.

Wherever activities resulting in pollution cannot be carried out without injury to third (non-consenting) parties, such activities have to be prohibited as inherently in violation of the rights of members of the community. (This would not include trade in pesticide-treated fruits, for example, where the risk of harm from eating such fruit is lower than or equal to normal risks encountered in everyday life.)

Wh

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July 1990

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Unfortunately, educating people about phenomena that are counterintuitive, not-so-easy to remember, and suggest our individual lack of human control (for starters) can seem like an uphill battle in the war of ideas. So we sally forth into a kind of wilderness, an economic fairyland. We are myth busters in a world where people crave myths more than reality. Why do they so readily embrace untruth? Primarily because the immediate costs of doing so are so low and the psychic benefits are so high.
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