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Source link: http://archive.mises.org/4939/law-property-rights-and-air-pollution-by-murray-rothbard/

Law, Property Rights, and Air Pollution , by Murray Rothbard

April 21, 2006 by


Law is a set of commands; the principles of tort or criminal law, which we shall be dealing with, are negative commands or prohibitions, on the order of “thou shalt not” do actions X, Y, or Z. In short, certain actions are considered wrong to such a degree that it is considered appropriate to use the sanctions of violence (since law is the social embodiment of violence) to combat, defend against, and punish the transgressors.

There are many actions against which it is not considered appropriate to use violence, individual or organized. Mere lying (that is, where contracts to transfer property titles are not broken), treachery, base ingratitude, being nasty to one’s friends or associates, or not showing up for appointments, are generally considered wrong, but few think of using violence to enjoin or combat them. Other sanctions, such as refusing to see the person or have dealings with him, putting him in Coventry, and so on, may be used by individuals or groups, but using the violence of the law to prohibit such actions is considered excessive and inappropriate.

If ethics is a normative discipline that identifies and classifies certain sets of actions as good or evil, right or wrong, then tort or criminal law is a subset of ethics identifying certain actions as appropriate for using violence against them. The law says that action X should be illegal, and therefore should be combated by the violence of the law. The law is a set of “ought” or normative propositions.

CONTINUE READING

{ 20 comments }

Geoffrey Allan Plauche April 21, 2006 at 4:30 pm

“putting him in Coventry”

I see somebody had been reading Heinlein! :)

Dennis Sperduto April 21, 2006 at 8:06 pm

Given certain lengthy “discussions” that have recently taken place on the Mises Blog, the posting of Rothbard’s article, which first appeared over 20 years ago in 1982, is certainly appropriate.

For about a week, I have been wondering what his evaluation would have been of the assertion that man is responsible for the relatively small amount of atmospheric warming that has occurred over the past 100 years or so, especially given the evidence that very significant climate change occurred many times before man arrived on earth or emitted any notable amount of carbon gases. Given Rothbard’s trenchant indictment of much that passed and still passes for knowledge in the social sciences and history, I believe I have a reasonable idea.

Peter April 21, 2006 at 9:21 pm

Eh? What’s the relation to Heinlein?

Geoffrey Allan Plauche April 22, 2006 at 3:33 pm

The Coventry reference, unless I’m mistaken.

Charles Hanes April 22, 2006 at 6:52 pm

“Coventry” is a short story by Robert Heinlein, published in 1940, re-published in 1953 in a revised form.

It describes a society in which all members are required to not harm other members.

If they do, they are excluded from normal society, and required to enter a domain called Coventry.

Here is a link to a review of the story:

http://www.heinleinsociety.org/rah/works/shortstories/coventry.html

Peter April 22, 2006 at 11:27 pm

Oh. Being sent to Coventry is an old expression for shunning a person, going way back before 1940.

David K.Meller April 26, 2006 at 3:05 pm

A brilliant and long-overdue contribution to an environmental movement that has been crippled for far too long by sundry anti-property, anti-market, and utterly useless Marxist prejudices. The blind faith in the State and its attempt to protect the environment through their inane and counterproductive regulations(especially in Socialist and formerly socialist countries) has wrecked hugh amounts of wilderness, depleted valuable resources, and endangered many species of irreplaceable and precious species of wildlife, both on land and sea.

The “greens” and their current program are thus plainly defective, both in conception, and in implementation, because of their pre-Rothbard collectivistic ideology.

Both the natural environment,and the many people who cherish it around the world, deserve something better. In this essay on the law, private property and the environment, Prof. Rothbard has given us just that!

Certainly if the natural environment can be preserved, and perhaps even enhanced, more effectively and permanantly through the free market, through the primacy of contract and the sanctity of private property, rather than through our blind faith in the goodness, environmental “consciousness” of lawmakers, and the “honesty” of governments, we should do so. Certainly if it is likely that natural resources can be used more productively, and pollution can be prevented through the enforcement of correctly understood, and properly upheld and homesteaded private property rights, every effort should be undertaken to do so. If disease and the grinding poverty in the third world can be ameliorated, the lives of billions of people and THEIR legally protected private property can be improved, and vast NEW resources discovered and marketed by removing the unnecessary choice between so-called economic development on one hand, and the discovery of new private property rights in the capital value of the many parts of rainforest, river, ocean, atmosphere, and other aspects of the natural environment and its preservation,(or even enhancement!!)on the other. I think that we should opt for the latter course.

Being largely unowned, the natural environment is currently subject to all manner of political depredation, overuse, and abandonment at the behest of politicians and their client corporations, most of whom are based overseas and thus have NO direct interest in the resources and their future value under the existing anti-market legal and political system, still less in the people who are being impoverished by the defective status quo.

Existing “Greens” may riot, demonstrate, demand more power for the UN and a world government, issue press releases about “global warming”, “ozone depletion” and other fairytales, make a lot of noise on the evening news, and the editorial page of the New Republic, the N Y Times, and even the Congressional Record, as they have for the last 30 years or so, but the dysfunctional politics and non-market incentives and opportunities remain in place. At most they are like puppy dogs running in circles chasing their own tails.

Let us take up Rothbard’s challenge. A libertarian, private property based, entreprenurial environmentalism clearly offers men (and women) of goodwill everywhere a way past the economic conundrums and the legal and political bottlenecks that the existing green movement played a big part in creating, and really has no answers to.

Indeed, haven’t we all been greatly inconvenienced by them, with their endless hectoring about “recycling”, their exorbitant lawsuits, and preposterous regulations which often turned out to be useless or counterproductive anyway, along with their media manipulated hysteria such as “global warming”, “peak oil”, their endless anti-human blaming us, (and our technology-dependent lifestyles), and other such disreputable demagogary? In protecting the environment, their socialism is clearly failing, even on its own terms. Let’s try laissez faire capitalism!

Thank you Murray Rothbard!

PEACE AND FREEDOM!!
David K. Meller
dkmeller1953@yahoo.com

BillG (not Gates) April 26, 2006 at 4:30 pm

David Meller wrote:

“Being largely unowned, the natural environment is currently subject to all manner of political depredation, overuse, and abandonment at the behest of politicians and their client corporations, most of whom are based overseas and thus have NO direct interest in the resources and their future value under the existing anti-market legal and political system, still less in the people who are being impoverished by the defective status quo.”

BillG responds:

as a green geo-libertarian I can tell that you come to a completely different result if you start out by establishing the principle that everything that pre-exists human labor is owned in common rather than “unowned”.

David Meller wrote:

“Let’s try laissez faire capitalism!”

BillG responds:

the original laissez-faire, classical liberals – the French Physiocrats were not calling for no taxation…they were calling for shifting taxation off of the products of labor and onto the social surplus or net product (produit net) better known today as economic rent that naturally arises from the private enclosure of the natural commons.

their solution?

l’impot unique (single tax) on land values

http://cepa.newschool.edu/het/schools/physioc.htm

Michael S Costello October 27, 2011 at 12:04 pm

Link doesn’t work anymore.

Peter April 26, 2006 at 7:55 pm

as a green geo-libertarian I can tell that you come to a completely different result if you start out by establishing the principle that everything that pre-exists human labor is owned in common rather than “unowned”.

Big deal. If you start out assuming that the world is 6 feet around, made of cheese, and that you’re a mouse, you’ll come to different conclusions, too. If you start with wrong and insane assumptions, barring accident you’ll arrive at wrong and insane conclusions – who ever suggested otherwise?

BillG (not Gates) April 26, 2006 at 9:11 pm

you are not suggesting that the classical liberals were “wrong and insane” – are you?

Sione April 26, 2006 at 9:43 pm

BillG

You proceed from an erroneous (and collectivist) premise. That is where you are going wrong and the reason why your conclusions end up all wrong.

There is no “ownership in common” (in the sense you posit), same as there are no “collective rights.” Silly stuff.

It would pay for you to start again from scratch.

Sione

BillG (not Gates) April 26, 2006 at 9:50 pm

common rights are individual right only bracketed by the equal rights of other individuals to the same…it is one of the essential principle of the concept of negative liberty.

for instance individual freedom of speech is a recognized common right.

collective rights are group rights and like you I don’t recognize them…

TokyoTom April 27, 2006 at 5:24 am

I think that the paper by Andy Barnett and Bruce Yandle on “The End of the Externality Revolution” is much more helpful than Rothbard on understanding that pollution and other “free rider” problems should be addressed through property rights rather than regulation to “fix” an externality: http://blog.mises.org/archives/003324.asp. I agree with the comments by P.M.Lawrence and tz there.

I also made the following comments at the end of an earlier thread: (http://blog.mises.org/mt/comments?entry_id=4918)

“I’ve found that … Prof. Roy Cordato has a very helpful article on this from May 2005 at this link: http://mises.org/daily/1760.
And wonder of wonders, I that Prof. Cordato’s discussion of the importance of property rights in resolving environmental problems resonates with my own views (although I guess I must have been rubbing some wrong with Coasean concepts of “externalities”). … I take the liberty of quoting some relevant portions here:

“If a pollution problem exists then its solution must be found in either a clearer definition of property rights to the relevant resources or in the stricter enforcement of rights that already exist. This has been the approach taken to environmental problems by nearly all Austrians who have addressed these kinds of issues …. This shifts the perspective on pollution from one of “market failure” where the free market is seen as failing to generate an efficient outcome, to legal failure where the market process is prevented from proceeding efficiently because the necessary institutional framework, clearly defined and enforced property rights, is not in place.”

“[F]or Cordato, conflict, that similarly cannot be resolved by the market process, gives rise to catallactic inefficiency by preventing useful information from being captured by prices. A theory of environmental economics and pollution that evolves from problems associated with human conflict then would be a natural implication of each of these welfare standards.

In addition, these standards would argue that irresolvable inefficiencies, i.e., inefficiencies that cannot find a solution in the entrepreneurial workings of the market process, arise because of institutional defects associated with the lack of clearly defined or well enforced property rights. … In the absence of clearly defined and strictly enforced property rights this [exchange] process breaks down and the conflict becomes irresolvable through the market process. Under all three Austrian approaches to welfare economics, therefore, the solution to pollution problems, defined as a conflict over the use of resources, is to be found in either clearly defining or more diligently enforcing property rights.”

I have been trying to argue that air and water pollution problems arise precisely because of the lack of clearly defined or well-enforced property rights. The question then is to how to address what Cordato calls the “legal failure”, “where the market process is prevented from proceeding efficiently because the necessary institutional framework, clearly defined and enforced property rights, is not in place.”

Does resolution of complex pollution problems then not require governmental action to provide the needed legal framework to allow the market process to work?

In partial response to this question, I note that Barnett and Yandle state the following:

“Axiom #2: When free exchange is allowed and transactions are costless, all Pareto relevant
inefficiencies will be negotiated away. …

why are the potential gains from trade unexploited? What prevents people from negotiating an efficient solution? … First, … the costs of negotiating private solutions may exceed potential gains from trade. This might occur, for example, when both (i) large numbers of persons are involved and (ii) the asset for which use gives rise to external effects is a public good. In this case, free-rider problems make it costly for private parties to define property rights such that all impacted parties are included in (Pareto relevant) bargains. This complication may make transactions cost sufficiently high that they swamp even large potential gains from trade. … Air quality, ozone depletion and climate change are possible examples.”

Regards,
Tom

David K.Meller May 2, 2006 at 3:36 pm

Dear Bill G.

There are serious, perhaps insoluble problems, both conceptual and ethical, with ANYTHING owned “in common”, at least as the term “in common” is usually understood. I hope my example below will illustrate:

One, property, if it means anything at all, is the extension of an individual (or group of individuals) into the external world. This individual right is understood to be the right to CONTROL the use of the aforementioned property to the exclusion of everyone else. If the right of use and control is dispersed to include “everyone” there can be no responsibility for the use of the property in question, there is no assignation of the risk and reward for such ownership, and there is no posssibility that any decision regarding its use, either currently or in the future, can be determined. The right of such ownership attaches to the said individual(s) and NO ONE ELSE. Ownership “in common” becomes a very nebulous concept because we all exist as individuals, with individual minds, individual bodies, and individual spheres of action, along with the recognised responsibility for the consequences of action (as it effects the property, i.e. (mental and moral extensions) of other individuals.

Viewed thusly, ownership of property in any sort of commonality denies the foundation of property itself, and is thus self-contradictory. Property cannot exist without at least one person to first use it, to claim it, to claim responsiblity for it, to assert his claim showing it to be an extension of himself into the outside world, and finally, and most importantly, when you are talking about pollution or depletion, RESPONSIBILITY for the CONSEQUENCES of the use, operation, sale, and insurance/maintainance of said property to the property of other owners.

Now what about property said to be held in common, e.g. property of Corporations, Governments, even various collectives, trusts, cooperatives, etc. Each parcel or component of the collectively-owned property cited above was still, at an earlier point, discovered and brought into existence by an individual, often acting in concert with other, like-minded individuals. After such a discovery, it was seen to be an advantage to all of the participant/owners that they could each use their property more effectively (by the criteria they employed at the time) if they acted to combine their individual property titles in an agreed upon way to their mutual advantage, parcelling out the costs and benefits according to previously recognised rules, but it was still their INDIVIDUAL PROPERTY—their individual extensions into the outside world, either physical or mental,—which was being combined, according to recognized rules dealing with them, their ownership and their responsiblities, as private, individual owners of their PRIVATE property, NOT unowned collective property.

Pollution is thus understood to be a form of aggression against the property, (including even the self-ownership) of other individuals and their properies. It can be defined, corrected and even forbidden only in the context that it is the result of human agency, human action, and human aggression against the justly held property domains of other people. If you try to deny this, you would end up doing things like blaming pollution on hurricanes, volcanic eruptions and other non- human agency and would sound quite silly.

Bill G, I hope that Murray Rothbard,(and I) have shown that collective ownership, (or “property” in a state of nature) that you, and many of your fellow “greens” seem to like so much, is unrealizable in practice, and far from ideal, even for your stated purposes, even in theory. Let us work together in trying to discover ways that enhance our privacy, co-operation and harmony both with other people along with nature, recognising our individual rights and responsibilities as property holders, owners, and traders, using our knowledge of society and the market to everyone’s advantage.

PEACE AND FREEDOM!!
David K.Meller
dkmeller1953@yahoo.com

Scott Nicol June 1, 2006 at 8:00 am

I want to bring to your attention a pending threat to property rights in our nation that is being promoted (in all ignorance, likely) by the same conservative legislators that publicly champion property rights. In the pending Immigration legislation, which is in conference committee right now, the House version calls for 700+ miles of border fencing, the Senate version “only” 300+ miles. This is not just a couple of strands of barbed wire, it is 2 layers, 15 feet tall, with a road between them and 24 hour spotlights. That means that anyone owning private property in the designated areas has to give it up whether they want to or not. You might think, “good thing there are laws protecting private property.” One problem – according to 2005′s Real ID act,

(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.
(2) NO JUDICIAL REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), no court, administrative agency, or other entity shall have jurisdiction–
(A) to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1); or
(B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision.

So, no private property laws apply. What exactly was it that we were trying to protect with this fence?

Scott Nicol
Annikadel@hotmail.com

vaibhav January 8, 2009 at 3:42 am

ganesh naik said City will have more centres to check air pollution

The National Environment Engineering and Research Institute (NEERI) and the Automotive Research Association of India (ARAI) would monitor the pollutants in Mumbai and Pune, said Raja. Appreciating the MPCB’s compliance of court orders on air pollution, he said the pilot project would develop new intervention plans for cities exposed to this hazard. The agencies would have to submit their reports in 18 months’ time to the CPCB, which would devise an air pollution control strategy based on the findings

Maharashtra Minister for Environment Ganesh Naik said the state needed Rs3,700 crore for various environment projects and to set up common effluent treatment plants and bio-medical waste treatment centres. “The money will be raised through private-public participation and by floating a special purpose vehicle,”…

http://www.dnaindia.com/report.asp?NewsID=1006046

http://ganeshnaik-navimumbai.blogspot.com

vaibhav January 8, 2009 at 3:42 am

ganesh naik said City will have more centres to check air pollution

The National Environment Engineering and Research Institute (NEERI) and the Automotive Research Association of India (ARAI) would monitor the pollutants in Mumbai and Pune, said Raja. Appreciating the MPCB’s compliance of court orders on air pollution, he said the pilot project would develop new intervention plans for cities exposed to this hazard. The agencies would have to submit their reports in 18 months’ time to the CPCB, which would devise an air pollution control strategy based on the findings

Maharashtra Minister for Environment Ganesh Naik said the state needed Rs3,700 crore for various environment projects and to set up common effluent treatment plants and bio-medical waste treatment centres. “The money will be raised through private-public participation and by floating a special purpose vehicle,”…

http://www.dnaindia.com/report.asp?NewsID=1006046

http://ganeshnaik-navimumbai.blogspot.com

vaibhav January 8, 2009 at 3:43 am

ganesh naik said City will have more centres to check air pollution

The National Environment Engineering and Research Institute (NEERI) and the Automotive Research Association of India (ARAI) would monitor the pollutants in Mumbai and Pune, said Raja. Appreciating the MPCB’s compliance of court orders on air pollution, he said the pilot project would develop new intervention plans for cities exposed to this hazard. The agencies would have to submit their reports in 18 months’ time to the CPCB, which would devise an air pollution control strategy based on the findings

Maharashtra Minister for Environment Ganesh Naik said the state needed Rs3,700 crore for various environment projects and to set up common effluent treatment plants and bio-medical waste treatment centres. “The money will be raised through private-public participation and by floating a special purpose vehicle,”…

http://www.dnaindia.com/report.asp?NewsID=1006046

http://ganeshnaik-navimumbai.blogspot.com

Devin April 20, 2010 at 9:42 pm

Here Rothbard asserts that one can shoot looters because defense and restitution are two different things. However, in the Ethics of Liberty, Rothbard says that the position that he appears to take here as maximalist and disproportionate. He says, the criminal, or invader, loses his own right to the extent that he has deprived another man of his p. 80, and so shooting a robber would be illegal unless someone or yourself was in eminent danger that the attack could turn deadly, as required by the strict liability theory. I find his earlier view to be cogent and consistent, while his view here to be a mere assertion. Was Rothbard convinced that his previous argument was in error?

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