Mr. Burt is president of the Association for Rational Environmental Alternatives, a national organization of professionals dedicated to the advancement of private nongovernmental alternatives for the planning and use of the environment.
For further information about the work of the organization, Mr. Burt may be reached at 532 Prospect Ave., #3, Brooklyn, N.Y. 11215.
Spreading the idea of liberty is often thought to be the sole province of the philosopher, the political theorist, the economist. Not so! Freedom is a prerequisite of successful use of the human mind, from which all human action originates. Thus, it is everyone’s concern. And the insights of many occupations and professions, especially those I will label the “technicians”—engineers, planners, scientists—can be of considerable assistance in advancing liberty.
How? Certainly their expertise in pointing to the ways in which a free economy would enrich our lives cannot be the main tool for “marketing” liberty. That main justification rests on the premise that liberty from coercion is the only social condition consistent with human nature. To emphasize the market’s abundance over its essential morality traps one into the very old error of supposing that production and prosperity are automatic.
Now, it is true that people will achieve their just aims more successfully in freedom than under the point of a gun, but there is no assurance that the streets will be paved with gold. And, as an historical aside, one may fairly say that some of the most massive government intrusions into American business—railroad regulation and land use control in particular—received impetus from the keen disappointment expressed by immigrant settlers who had been promised “America, land of plenty,” not “America, land of liberty.”
Philosophy Spurned
It is not enough, however, to continually reiterate to the public at large that the good human existence requires the banishment of coercion. “Oh, that’s just philosophy,” will come the retort, meaning “Oh, that’s just gibberish.” And, after the way in which philosophy, law, and economics have been abused in the service of state expansion, it should surprise no one that many people who quietly practice justice and individualism in their own lives nonetheless reject any philosophical argument as just another attack upon their liberties.
Thus it may seem that we are hemmed in. We know that promising a cornucopia which no man can guarantee is not the way to teach or justify the freedom philosophy. On the other hand, slavishly repeating first principles is not appropriate, either. The middle ground—simply compromising the two methods—is worst of all.
The paradox is more apparent than real, however. What is represented as one problem—disseminating the freedom philosophy—actually involves two distinct subproblems: translation and teaching. Before a rational being can be asked to judge a proposition, he must have it presented in a way that is meaningful to him. Only this can give him the incentive to expend the effort of understanding it more thoroughly. Where the words to express the proposition do not exist in his language (or where those which do exist are all suspect), then a practical demonstration may be necessary and appropriate.
In the minds of many potential adherents, libertarianism will remain just another “absurd” philosophy (“like all the rest…”) until these individuals are given a reason to believe that “it works”; i.e., that it is consistently relevant to the real world. It implies no diminishing of our commitment to philosophical integrity to supply this reason. It is precisely here that the libertarian technician can answer the public’s “show me” stance, and thereby stave off acquiescence to the nostrum that government must “do” something. Let’s see how.
Land Use
Groups of citizens fighting tooth and nail to salvage their property rights from ever-increasing land use regulation have been with us almost as long as the zoning ordinance itself. But their role has been primarily defensive, and until very recently most would have agreed with the State planners’ major contention that land use control is necessary to counteract the “chaos” of the marketplace, that only low density and slow property turnover make an unregulated market in land possible. Having conceded this, it becomes only a question of “when,” not “whether,” property rights are to disappear under a net of zoning regulations and the like.
Planners have told me that it was common knowledge and even a bit of an embarrassment within the planning profession that Houston, Texas, along with several other medium-sized American cities had long managed quite well without zoning. From another angle, those of us who admired the splendid new shopping malls built in recent years could see that much of the order and aesthetic excellence supposedly attainable only through regulation was being promoted by private managements. But knowledge of the true extent of this phenomenon was bottled up within the real estate business. That is, until free-market oriented “technicians” informed the public that what “couldn’t be done” was being accomplished by private enterprise.
Bernard Siegan’s Land Use Without Zoning’ carefully studied Houston’s non-zoning, and sent what may be properly called a shock wave through the hundreds of local zoning debates going on across the country. Aside from the obvious snag placed in the way of the zoning juggernaut, Siegan’s book awakened interest in the free-market institution of private covenants—a kind of voluntary zoning wherein purchasers of property agree to land use restrictions placed on the deeds by the neighborhood’s developer, or by unanimous approval of all the landowners in a neighborhood. Worked out in various degrees of elaboration and enforced as normal contracts, Houston’s diverse welter of covenants has demonstrated a capability of providing both neighborhood security and the flexibility needed to accommodate change in America’s fastest growing city. Testament to the system’s adaptability is the fact that some of the city’s best-acclaimed private urban renewal would not likely have been permitted under a traditional zoning ordinance.
The Art of Community
In The Art of Community’ anthropologist Spencer H. MacCallum called attention to progress in managing the social aspects of hotels, shopping centers, industrial estates, mobile home parks, and other forms of the “proprietary community,” where the public environment (often including traditionally “government” services) is provided and maintained by a private owner management.
Proprietary communities and, with them, the fast-growing profession of real estate management, succeed precisely because they satisfy by voluntary arrangement between owner and tenant the very real “community” environmental needs which government has only infrequently and poorly met. The reason? Proprietor and tenant are bound by explicit contract, and each rewards the other only for performance. A complete disjunction, on the other hand, lies between ill-defined, grudgingly-delivered government services and the method by which they are priced: taxation by force.
The record of proprietary communities is already remarkable enough to lend considerable credence to MacCallum’s claim that fractionated small-lot “private” ownership interspersed with and fronting on government “no-man’s land” and entangled with coercive regulation represents a breakdown in community organization, and is an interim step between the former “society of kinship” and an evolving “society of contract.” Almost overlooked by property-rights partisans fighting the intrusion of land use legislation, this important free-market trend identified by Mac-Callum has done much to restore hopes and stimulate new ways of thinking. As with Siegan’s non-zoning, proprietary communities provide a means to rescue people from the despairing conclusion that public amenities must be provided by government’s armed might.
Dealing with the Various Problems of Pollution
It is in dealing with the problem of various kinds of pollution—soil runoffs, waterborne effluents, and noxious particles dispersed into the air—that the philosophy of the free market seems to be at its weakest. I have never known anyone to be persuaded by the nonetheless valid proposition that the solution lies in defining and enforcing property rights. All the more valuable, then, if a resourceful libertarian technician can shed some light on how a private property system could meet this tough challenge.
Those close to the problem report, first of all, that conflicts among competing demands for a resource used in common are not at all unusual in the historical development of property law. Mineral rights, construction airspace rights, various rights-of-way all illustrate the fact that technological progress through the years has continually brought more and more parts of the natural environment into the realm of scarce goods. That we are, as they say, always placing greater demands upon the universe’s resources, is something to be rejoiced in, not lamented. For the underlying reason is man’s increasing ability to make his environment serve his needs, to make useful, transact-able property out of what was formerly an inert general condition of human existence. As the market place evolves new kinds of property, so must the law recognize new applications of the principle of property.
The problems of determining the rights bound up in any given kind of ownership are knotty enough in any case, but when law is prevented from resolving conflicts among competing demands for a scarce resource, those conflicts can only multiply and be exacerbated.
Air and water, which long ago became scarce goods in certain contexts, have remained forcibly communalized in such a fashion. And we have seen that regulation of their use “in the public interest” has proved to be a device for managing but not resolving conflict. (This should surprise no one. As we are incessantly reminded, the State exists to manage conflict—implying that State interventions prevent anarchy from breaking out on the market. But it also means that the government’s interest lies in creating and maintaining, albeit within “manageable” limits, conflict which the market would resolve.)
Practices Vary
Polluters are licensed to continue dumping in many cases where clear injustice results, and in other instances people are constrained from using their environment even though allegedly injured neighbors do not object. If justice emanates from this system, it is quite by accident; the only sense in which government air and water quality standards are not arbitrary is that they represent the reachable compromise among the various groups in political power. (This includes mollifying the public’s intellectual leaders that such standards are properly dressed in the trappings of scientific method.) As with land use control, government’s coercive communalization of natural resources does not offer an alternative method of resolving competing demands; regulation merely constitutes a failure to properly deal with the issue.
“The market,” which is nothing more than many individuals each possessed of his own perception of justice, has no single instant answer to the pollution problem, either. That magnificently comprehensive and consistent body of free market jurisprudence, the common law of property, took centuries to evolve. But the crucial catalyst toward the development of any such law was and is the acknowledgment of the application of property rights to all scarce goods.
Working from this premise, the Chester County (Pa.) Conservation District has shown how soil erosion runoff problems—and, one might suggest, other kinds of pollution—might be handled on the free market. Executive Conservationist Marshall Haws, with the endorsement of the county planning commission, has developed a model arbitration procedure which replaces detailed runoff regulations presently found in most municipal subdivision ordinances.
Aside from the fact that people are allowed to choose their own arbitration panel instead of submitting to a municipally-appointed zoning board, the proposal’s most significant effect is to extract runoff litigation from the sphere of arbitrary regulatory standards and to fix property rights in certain runoff levels. For the arbitration process, in the words of the Chester County storm water management bulletin, is designed to “…permit the property owner to do anything he wants to do on his property, so long as he does not interfere with the right of his neighbor to do anything he (the neighbor) wants to do on his property. One teacup of increased runoff or one teaspoonful of mud passing a property owner’s boundary onto a neighbor’s property is doing damage to that property and is an interference with property rights.”
Signs of Progress
Problems remain, obviously. For instance, it is not at all clear from this proposal whether a “just” level of runoff should be based upon a status quo, or upon some earlier, perhaps “natural condition” criterion. But everything needs to be evaluated within its context. Marshall Haws’ plan for dealing with runoff pollution takes a major step away from coercively-imposed and non-property rights based orthodox regulations, acclimates the state to eventual disengagement from these matters, and inspires individuals to begin solving the theoretical and technical problems of fixing property in previously communalized goods.
Already, the supervisors of East Brandywine (Pa.) township have resolved that the water in the township is the property of residents rather than governmental authority, and the trend towards thinking of pollution in property terms will receive further impetus from the recent case of Breiner v. C&P Home Builders (U.S. Court of Appeals, 3rd Circuit, which found a construction company liable to landowners for increasing the flow of water onto their land.
Thus we have two of many possible examples demonstrating the comprehensiveness, consistency, and real-world relevance of the freedom philosophy. In the environmental field alone, private innovations in energy, transportation, natural resource management, recreational/scenic land use, and “privatization” of services like water, sewers, solid waste disposal, and others all provide equally thought-provoking evidence against the blithe assumption that the market is somehow impotent to satisfy these needs. These innovations have been produced and applied by the largest multinational corporations and by independent back-to-the-land homesteaders. Their appeal knows no class barriers. In the place of the State’s hocus-pocus and misbegotten promises, they offer the picture of real people freely constructing real solutions to their problems.
One would be amiss to not acknowledge the caveats and limitations of our technician’s role. People choose various productive occupations for reasons which, though they may be interesting in another context, are irrelevant to the purpose of advancing liberty. As libertarians, we are not interested in these private alternatives for their own sake, but for their capacity to introduce people to the ethic of freedom. Nor is it good reasoning to regard presently suggested alternatives as “blueprints” for what will take place on the free market when the floodwaters of government intervention recede some sunny day.
The Rightness of Freedom
It also needs to be noted that there is no “practical” answer at all to the collectivism, egalitarianism, and sheer hatred of free productive enterprise which sometimes underlie statist appeals. Only philosophy can respond to these assaults. The technician’s counterexamples to the alleged inefficacy of the private property system are intended solely for those who have been simply misguided by generations of unceasing statist propaganda.
For those who already recognize the fundamental moral value of liberty, knowledge of practical private alternatives to government force is a celebration of the rightness of freedom. Who is not happy knowing that, if he were offered the chance tomorrow, he could begin building a free and just world? It reaffirms an old truth: that in the long run, it is capitalism, not statism, which is creeping up on mankind.
2Published by The Institute for Humane Studies, 1177 University Drive, Menlo Park, Calif. 94025, 1970.
