Thinking about property rights.
In the midst of a fruitful conversation with a critic of libertarianism, the following question arose:
I have been trying to pin you down for some time now to speak more clearly on what rights there are, could you please elaborate on to whom those rights belong. The right to be left alone, perhaps. I would like to be left alone to breathe clean air, enjoy clean water, eat clean food for example. My rights in this regard seem to be subjugated under a corporate right to pollute the public’s air with carbon emissions and other pollutants, dump calamitous amounts of oil and other carcinogens on the public’s beaches and to contaminate our national food supply with artificially genetically modified organisms that are now in the wild and affecting other growers who do not wish or want to use the technology. Is there a right to profit at the expense of public goods? Does it supersede an individual’s right to enjoy those public goods?
In regards to GMO’s, it is Monsantos position that if sell their goods to one farmer and the pollen blows over to the next farmer’s land, they (Monsanto) assert that they have a right to put the second farmer out of business for patent infringement. This is not a hypothetical. Where do libertarian beliefs fall in a case like this? Should the second farmer have to do business with Monsanto because of a chance gust of wind?
As I feel the answers to these questions are too long to write in one sitting, I chose to type it out here where I have the option to save drafts.
Anyone who has diligently considered the writings and ideas of libertarians has probably already come across the term homesteading. For those who are not familiar with how libertarians use the term, I will describe that first the best that I can, and I will use the situation described in the second paragraph to make the point. I’ll set the patent question aside for now, and consider first the more traditional conflict of unwanted items blowing away from one person’s land and onto the land of another.
The basic principle of homesteading is that the first person who arrives on the scene to use a resource establishes an ownership right over it. This is similar to john Locke’s famous Labor Theory of Property, whereby one who mixes his labor with the land comes into ownership of the land. That ownership follows from labor does not necessarily follow logically, as the libertarian theorist Robert Nozick observed, but I believe most reasonable people would agree that those who work on unclaimed resources ought to retain the benefits of their labor. Traditionally, original land owners have erected boundaries around the areas they have appropriated through use, and excluded others from entering. Homesteading offers a more flexible alternative to rigid boundary lines in determining how the first user of one plot of land may also use surrounding land for some purposes. Murray Rothbard used the example of an airport, which emits sound beyond its geographic boundaries. The owners of the airport have homesteaded the surrounding land for the specific purposes of propagating sound waves and as a through-way for low flying aircraft, provided no prior resident comes forward to oppose these user. Those who later wish to move in next to the airport may do so, provided they acknowledge and accept the prior established use of the land.
The first in time principle should settle the dispute between the farmers. Imagine a farming town out in Farm Country called Frankentown. The farmers of Frankentown have all used GMO seeds from Monstanto for generations. Nobody has ever raised any objection. The farmers of Frankentown have all homesteaded their neighbors’ land for the limited purpose of blowing frankenpollen there. Suppose one of the farmers in the center of Frankentown sells his farm to the tight-jeaned and bespectacled Hipsterfarmer, who wants to start Frankentown’s first organic farm. I believe Hipsterfarmer should run into trouble, because the other farmers in Frankentown have homesteaded Hipsterfarmers land for the purpose of blowing frankenpollen all over it, that being the earlier established and accepted use of the land. Alternatively, imagine another farming town, across the river, called Organicsville. The farmers of Organicsville have all resisted using Monsanto’s GMO seeds because they are wary of heretofore undiscovered potential health and environmental effects. Organicsville is proudly GMO free by choice. Suppose one of the farmers of Organicsville sells his land to the wild-eyed, lab-coated mad scientist, Frankenfarmer, who wishes to try out his new experimental frankenseeds right in the heart of Organicsville. I believe Frankenfarmer should run into trouble, as his pollen blow-over would substantially interfere with his neighbor’s prior use of proudly growing GMO free crops. Frankenfarmer must either build himself some sort of biodome or build his farm elsewhere, as otherwise the blow-over of frankenpollen onto neighboring land would present a nuisance for which the neighboring organic farmers out to be entitled to relief.
In the situation offered in the question, an inquiry into the history of the use of each property should offer guidance. The earlier established and unchallenged use of the land should prevail. The later arriving farmer is not entitled to impose a restriction upon the earlier established farmer. Future uses should be allowed so long as they do not conflict with the prior use. Prior farmers are not entitled to relief of future nearby uses unless they can show a conflict. Now that I have described the rights and responsibilities of the farmers with regard to one another, I’ll discuss the Monsanto patent issue.
The libertarian community is split on the issue of intellectual property. Many libertarians would decide against Monsanto simply upon reading the word patent. I personally discourage the use of state power whenever possible, so I would scrutinize Monsanto’s patent claims very closely. Based on what little information is offered in the question, Monsanto’s claim seems frivolous to me, but I would like to read Monsanto’s complaint to understand the basis for its action. If Monsanto could perhaps establish that the new farmer moved adjacent to the farm that was using Monsanto seeds for the hidden purpose of receiving the benefits of Monsanto’s frankenpollen without paying for them, then Monsanto could potentially have a claim that the newer farmer intentionally pirated Monsanto’s technology. The claim seems far-fetched to me, and since I’m inclined to disfavor intellectual property claims anyway, I would presume that the invasion of frankenpollen upon the aggrieved farmer was an unwanted nuisance unless Monsanto established otherwise under a heavy burden of proof.
You would like to be left alone to breathe clean air. I believe that you have properly stated a legitimate claim. Unfortunately, 19th century American court judges began our national trend against vindicating these sorts of claims. I recall reading the following passage from the New York case Losee v. Buchanan, 51 N.Y. 476 (1873), in law school. In that case, a steam boiler at a paper mill exploded. Pieces of it flew onto a neighbor’s lawn and caused damage. I assume that the paper mill did not homestead the surrounding land for the purpose of receiving pieces of exploded machinery. This was not an established prior use of the land. Nevertheless, the court found for the defendant paper mill, reasoning as follows:
By becoming a member of civilized society, I am compelled to give up many of my natural rights, but I receive more than a compensation from the surrender by every other man of the same rights, and the security, advantage, and protection which the laws give me. So, too, the general rules that I may have the exclusive and undisturbed use and possession of my real estate as not to injure my neighbor, are much modified by the exigencies of the social state. We must have factories. machinery, dams, canals, and railroads. They are demanded by the manifold wants of mankind, and lay at the basis of all our civilization. If I have any of these on upon my lands, and they are not a nuisance, and are not so managed to become as such, I am not responsible for any damage they accidentally and unavoidably do my neighbor. He receives his compensation for such damages by the general good, in which he shares, and the right which he has to place the same things upon his lands. I may not place or keep a nuisance upon my land to the damage of my neighbor, and I have my compensation for the surrender of this right to use my own as I will by the similar restriction imposed upon my neighbor for my benefit. I hold my property subject to the risk that it may be unavoidably or accidentally injured by those who live near me; and as I move about the public highways and in all places where others may lawfully be, I take the risk of being accidentally injured in my person by them without fault on their part. Most of the rights of property, as well as of person, in the social state are not absolute but relative, and they must be so arranged and modified, not unnecessarily infringing upon natural rights, as upon the whole to promote the general welfare.
The bold portions here are the ones that I highlighted in my textbook. This is but one example of the public courts subjugating the property rights of individuals to the “right” of factory owners to create nuisances, so long as those nuisances might be described as either “accidental” or “unavoidable”. In For a New liberty, Murray Rothbard described how courts applied the same reasoning to air pollution, i.e. factory pollution is necessary for the “common good”. I recall hearing in one of the many lectures I’ve listened to over the years that homemakers used to take factory owners to court over the factory soot that would sully the laundry hanging on their lines, among other things. Before long, courts favored the factories over the homemakers. The courts based their decisions to allow pollution on appeals to the general welfare and the common good. Modern non-libertarians now use the same appeal to advocate for stricter government controls on businesses. The common good seems to be whatever the advocates of any policy say it is. Strict enforcement of individual property rights, on the other hand, is a more objective and predictable principle upon which to settle disputes. Property rights are established in the manner described above, with the earlier established use prevailing..
Libertarians would have enforced individual property rights in the case of the paper mill, in the case of the homemaker hanging laundry on the line, and in the case of your lungs. Courts should vindicate any claim you may have against any polluter and award you damages. The trend of the 19th century was for courts not to do so, thereby enabling the proliferation of pollution. The trend of the 20th century has been to promulgate regulations to prevent pollution, rather than return to enforcing property rights. I believe this is an example of one of the underlying tensions between libertarians and non-libertarians: Whereas libertarians would rather deter harmful conduct by vindicating claims retroactively in court, non-libertarians would prevent harm proactively with regulation. Both strategies have merit, but I believe non-libertarians consistently fail to acknowledge the high opportunity costs of regulation. Many businesses that would create many useful things for many people are either shut down or never start up on account of regulation, and the harm averted through regulation is often overstated. This is a great boon to wealthy corporations who enjoy the reduced competition when start-ups that can not afford to abide by the regulations are put out of business. The libertarian strategy would allow these start-ups to continue, to innovate their own solutions to the problems of nuisance and pollution, and hold them strictly accountable if harm results from their failure to do so.
I believe there are some few situations in which strict enforcement of property rights is impractical. If some few identifiable factories create a known pollution problem, bringing them to justice is relatively straightforward. On the other hand, when innumerable perpetrators each contribute tiny transgressions that aggregate into a larger problem, I recognize that bringing them each to their tiny individual justices presents a logistical problem where resources for administering justice are limited. Pollution from automobile exhaust is the prime example when it aggregates into smog and climate change. In the absence of a practical way to administer justice against all transgressors, I’m willing to consider other suggestions for reducing aggregated harm, provided the courtesy is returned to me when I request an honest confrontation of the economic effects of the suggestions.
The “cap and trade” issue arose in another thread. The first time I heard of this policy was in a Mises Institute podcast by the libertarian economics professor Walter Block. He advocated the policy as a market substitute. So long as the market fails, a market substitute should be the next best option. When the policy later came into public prominence, I was surprised to see opposition to it from conservatives and libertarians, but I probably should not have been. I know Ron Paul came out against it. As far as I’m concerned, “cap and trade” might be the best of a number of bad options, and I would tolerate that until innovators introduce better alternatives. I think libertarians generally prefer to deny what they consider to be “the global warming religion” rather than confront the thorny property rights question, which is unfortunate. I am not a climatologist, so I avoid opining on that subject. I believe instead that thoughtful libertarians who have not studied climatology should have a set of principles ready to apply in the case that the climate science on global warming is true, in addition to the case that it is false. In my observation, logistical problems arise in this special case of aggregation when attempting to enforce an otherwise noble and beneficial theory of property rights.
I think progressives err, however, by taking this principle of aggregated harm too far and using it to justify all manner of injurious interventions. I’ve spoken with progressives who believe that everything everybody does affects everybody else entirely, as if they had derived their political philosophy from the label of a bottle of Dr. Bronner’s Magic Soap. This is a mistake. I maintain that the vast majority of rights violations involve a limited number of identifiable perpetrators who should be brought to justice as individuals before the public should call upon government to impose a one-size-fits-all regulatory burden on all perpetrators and non-perpetrators alike.
You would like to be left alone to enjoy clean water, and have lamented the dumping of oil and carcinogens onto public beaches. I agree that pollution of waterways is unfortunate, but the problem as I see it is that the government, having decreed itself to be the owner of the rivers and oceans, has failed diligently to enforce its own self-granted property rights. The government should relinquish these rights to private parties who would better enforce them. Citizens will always demand to enjoy clean water. In the marketplace, businessmen should earn profits by servicing that need, and the businessmen who do will have a direct interest in diligently policing the waterways that they have put to that use. Their livelihoods will depend on it. The trouble with government ownership of the waterways is that, since the livelihoods of bureaucrats do not depend on the cleanliness of the waters they oversee, the bureaucrats have a lesser incentive to keep these waters enjoyable. In one famous incident, the government encouraged deep water off-shore drilling in the Gulf of Mexico, where underwater problems would be more difficult to solve, by offering discounted leases to oil prospectors to drill in these areas. The government oversaw regulation of the drilling,which many critics described as lax. The government limited oil company liability by law, almost as if the government was disinterested in enforcing its own self-granted property rights.
I believe this is not a shortcoming of any particular political party. I believe that electing more democrats or more greens will not solve this problem, although that might help. The best solution, from the libertarian point of view, would be to put these waters under the direct control of the people whose livelihoods directly rely on their being clean and enjoyable. The government’s arbitrary ideas about its own alleged property rights do not serve the people. The Supreme Court recently heard a dispute over the ownership of Montana’s rivers. Long ago, the federal government granted property rights over the “navigable” rivers to state governments. Where the federal government got this authority is beyond me, but that’s beside the point. The point is that the determination of ownership turned on whether the waters were navigable at the time of Montana’s entry into the union. This entailed, among other fanciful things, a review of the journals of Lewis and Clark for their assessments of the navigability of the waters. This arbitrary method for determining property rights is nothing short of madness, but it the sort of madness one should expect from a bureaucrats who assert ownership over the rivers without basis, and whose livelihoods do not directly depend on the rivers’ use and enjoyability. Libertarians would credit and respect the earliest established use of the rivers and disallow later conflicting uses. Regarding river pollution, I believe many of our more harmful toxins were developed after uses for the rivers have been established, and private owners of the rivers should have had greater standing and reason to challenge the harmful dumping of chemicals in them.
You would like to be left alone to eat clean, GMO-free food. This claim of right is not like the others, each of which involve some element of a commons or a public good. Air is an ever-moving resource, from which every living being draws, that defies capture and private ownership. Government has asserted ownership over waters and riverbeds and holds them in common allegedly for the public benefit. In no similar way, except perhaps to hunter-gatherers, is food a public good. Any food item that was grown by a farmer is the farmer’s private property until he sells it to another party. Only the farmer has standing to challenge the misconduct of another that has made his food unclean, although his customers may support him in this action. In most situations, however, I find that the farmers themselves have caused the alleged uncleanliness through practices common enough to be called “conventional”. Farmers who wish to deliver a higher quality, more pristine, more unconventional product should establish farms for that purpose, provided they do not impose upon earlier established uses of the land. Courts should enjoin later conflicting uses of neighboring lands would diminish the quality of these farmers’ crops. At no time, however, do end consumers enjoy a right to clean, GMO free food. Any such alleged right is subject to the willingness and ability of some farmer to produce the same. If no farmer produces the same, then consumers must either accept the conventional food products on offer or produce their own unconventional food (i.e. be the change they wish to see).
A final observation about the subject of externalities. You mentioned in a subsequent post:
Corporations, by law and tradition, are duty bound to derive profit regardless of costs to others. To this end, corporations must externalize all the possible costs of their operations onto others. In other words, they must, to the greatest extent possible, force upon others the payment of those costs they create, that they can discharge. Pollution of the environment is but one of these externalizable costs. Thus, if they can dispose of their waste products safely, but it is less expensive to the corporation to spew the wastes into the environment and harms others by depriving them of clean air, water or soil, they are duty bound to do so.
I am familiar with the rule of law, and I oppose it. I learned it in law school as the “business judgment rule” articulated in Dodge v. Ford Motor Company, 204 Mich. 459 (1919). In my opinion, the corporation should be duty bound only to be open, frank, and honest with shareholders with their future intentions for their businesses, and leave shareholders to decide whether to continue holding stock in the company in light of those intentions. Many shareholders might appreciate a move toward better corporate citizenship in spite of a reduction in profits. Many conscientious investors evaluate corporate citizenship when deciding whether to buy shares in the first place. I was once a member of Co-op America, now Green America, which assisted novice investors in doing just that through a process I believe they called green investing. So I oppose this rule of law that encourages the money über alles attitude in the conduct of business. As you have stated, and as I agree, other interests are at stake.
I believe the discussion above should have clarified the libertarian view on externalities and how courts ought to remedy claims of intrusion. Remember, however, that not every claim of injury or cost imposed on a neighbor deserves a remedy. Only valid claims deserve a remedy. As mentioned above, those first in time enjoy rights over later comers in the use of neighboring land. Also, if a new market entrant competes with an established business for customers, no violation of right occurs if the established business loses business. The established business enjoys rights over its property, but not over the minds of customers who might choose to patronize competitors.
Lastly, private businesses are not the only ones who impose externalities on others. Governments do it in spades, with one obvious example being the outcomes of elections. If a candidate wins an election by 55%, the election immediately imposes a four-year externality on the 45% of voters who would have preferred a different outcome. Prof. Tom DiLorenzo delivered a lecture called Economics of the Public Sector in which he described many political externalities that seem to go unaccounted for by those who recommend government solutions to private externalities. I highly recommend a listen.
There will always be questions, I’m sure, but I hope I have made some in-roads here to your understanding of how libertarians like myself apportion rights.
Posted by RestoreByTim 
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