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<title>E.4 Can laissez-faire capitalism protect the environment?</title>

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<h1>E.4 Can laissez-faire capitalism protect the environment?</h1>

<p>
In a word, no. Here we explain why using as our example the arguments
of a leading right-"libertarian."
</p><p>
As discussed in the <a href="secE3.html">last section</a>, there is plenty of reason to doubt
the claim that private property is the best means available to protect 
the environment. Even in its own terms, it does not do so and this is
compounded once we factor in aspects of any real capitalist system which
are habitually ignored by supporters of that system (most obviously, 
economic power derived from inequalities of wealth and income). Rather
than the problem being too little private property, our environmental 
problems have their source not in a failure to apply market principles
rigorously enough, but in their very spread into more and more aspects
of our lives and across the world.
</p><p>
That capitalism simply cannot have an ecological nature can be seen from
the work of right-"libertarian" Murray Rothbard, an advocate of extreme
laissez-faire capitalism. His position is similar to that of other free
market environmentalists. As pollution can be considered as an infringement 
of the property rights of the person being polluted then the solution is
obvious. Enforce "absolute" property rights and end pollution by suing 
anyone imposing externalities on others. According to this perspective, 
only absolute private property (i.e. a system of laissez-faire capitalism)
can protect the environment. 
</p><p>
This viewpoint is pretty much confined to the right-"libertarian" defenders 
of capitalism and those influenced by them. However, given the tendency of
capitalists to appropriate right-"libertarian" ideas to bolster their 
power much of Rothbard's assumptions and arguments have a wider impact
and, as such, it is useful to discuss them and their limitations. The 
latter is made extremely easy as Rothbard himself has indicated why 
capitalism and the environment simply do not go together. While paying 
lip-service to environmental notions, his ideas (both in theory and in 
practice) are inherently anti-green and his solutions, as he admitted 
himself, unlikely to achieve their (limited) goals.
</p><p>
Rothbard's argument seems straight forward enough and, in theory, promises
the end of pollution. Given the problems of externalities, of companies 
polluting our air and water resources, he argued that their root lie not 
in capitalist greed, private property or the market rewarding anti-social 
behaviour but by the government refusing to protect the rights of private 
property. The remedy is simple: privatise everything and so owners of 
private property would issue injunctions and pollution would automatically 
stop. For example, if there were "absolute" private property rights in 
rivers and seas their owners would not permit their pollution:
</p><p><blockquote><i>
"if private firms were able to own the rivers and lakes . . . then anyone 
dumping garbage . . . would promptly be sued in the courts for their 
aggression against private property and would be forced by the courts to
pay damages and to cease and desist from any further aggression.  Thus, 
only private property rights will insure an end to pollution-invasion of 
resources. Only because rivers are unowned is there no owner to rise up
and defend his precious resource from attack."</i> [<b>For a New Liberty</b>, 
p. 255]
</blockquote></p><p>
The same applies to air pollution:
</p><p><blockquote><i>
"The remedy against air pollution is therefore crystal clear . . . The 
remedy is simply for the courts to return to their function of defending 
person and property rights against invasion, and therefore to enjoin 
anyone from injecting pollutants into the air . . . The argument against 
such an injunctive prohibition against pollution that it would add to the 
costs of industrial production is as reprehensible as the pre-Civil War 
argument that the abolition of slavery would add to the costs of growing
cotton, and therefore abolition, however morally correct, was 'impractical.' 
For this means that the polluters are able to impose all of the high costs 
of pollution upon those whose lungs and property rights they have been 
allowed to invade with impunity."</i> [<b>Op. Cit.</b>, p. 259]
</blockquote></p><p>
This is a valid point. Regulating or creating markets for emissions 
means that governments tolerate pollution and so allows capitalists 
to impose its often high costs onto others. The problem is that Rothbard's 
solution cannot achieve this goal as it ignores economic power. Moreover, 
this argument implies that the consistent and intellectually honest 
right-"libertarian" would support a zero-emissions environmental policy. 
However, as we discuss in the <a href="secE4.html#sece41">next section</a>, 
Rothbard (like most right-"libertarians") turned to various legalisms like 
"provable harm" and ideological constructs to ensure that this policy would 
not be implemented. In fact, he argued extensively on how polluters <b>could</b> 
impose costs on other people under his system. First, however, we need 
to discuss the limitations of his position before discussing how he later 
reprehensibly refuted his own arguments. Then 
in <a href="secE4.html#sece42">section E.4.2</a> we will 
indicate how his own theory cannot support the privatisation of water or 
the air nor the preservation of wilderness areas. Needless to say, much
of the critique presented in <a href="secE3.html">section E.3</a> is also applicable here
and so we will summarise the key issues in order to reduce repetition.
</p><p>
As regards the issue of privatising natural resources like rivers, the
most obvious issue is that Rothbard ignores one major point: why <b>would</b> 
the private owner be interested in keeping it clean? What if the rubbish 
dumper is the corporation that owns the property? Why not just assume 
that the company can make more money turning the lakes and rivers into 
dumping sites, or trees into junk mail? This scenario is no less plausible. 
In fact, it is more likely to happen in many cases as there is a demand
for such dumps by wealthy corporations who would be willing to pay for
the privilege.
</p><p>
So to claim that capitalism will protect the environment is just another 
example of free market capitalists trying to give the reader what he 
or she wants to hear. In practice, the idea that extending property 
rights to rivers, lakes and so forth (if possible) will stop ecological 
destruction all depends on the assumptions used. Thus, for example, if
it is assumed that ecotourism will produce more income from a wetland
than draining it for cash crops, then, obviously, the wetlands are 
saved. If the opposite assumption is made, the wetlands are destroyed.
</p><p>
But, of course, the supporter of capitalism will jump in and say that if 
dumping were allowed, this would cause pollution, which would affect others 
who would then sue the owner in question. "Maybe" is the answer to this
claim, for there are many circumstances where a lawsuit would be unlikely
to happen. For example, what if the locals are slum dwellers and cannot
afford to sue? What if they are afraid that their landlords will evict
them if they sue (particularly if the landlords also own the polluting
property in question)? What if many members of the affected community
work for the polluting company and stand to lose their jobs if they sue?
All in all, this argument ignores the obvious fact that resources are
required to fight a court case and to make and contest appeals. In 
the case of a large corporation and a small group of even average income
families, the former will have much more time and resources to spend 
in fighting any lawsuit. This is the case today and it seems unlikely
that it will change in any society marked by inequalities of wealth
and power. In other words, Rothbard ignores the key issue of economic 
power:
</p><p><blockquote><i>
"Rothbard appears to assume that the courts will be as accessible to the 
victims of pollution as to the owner of the factory. Yet it is not unlikely 
that the owner's resources will far exceed those of his victims. Given this 
disparity, it is not at all clear that persons who suffer the costs of
pollution will be able to bear the price of relief.
</p><p>
"Rothbard's proposal ignores a critical variable: power. This is not 
surprising. Libertarians [sic!] are inclined to view 'power' and 'market' 
as antithetical terms . . . In Rothbard's discussion, the factor owner 
has no power over those who live near the factory. If we define power 
as comparative advantage under restricted circumstances, however, we can 
see that he may. He can exercise that power by stretching out the 
litigation until his opponent's financial resources are exhausted. In 
what is perhaps a worst case example, though by no means an unrealistic 
scenario, the owner of an industry on which an entire community depends 
for its livelihood may threaten to relocate unless local residents agree 
to accept high levels of pollution. In this instance, the 'threat' is 
merely an announcement by the owner that he will move his property, as 
is his right, unless the people of the community 'freely' assent to his 
conditions . . . There is no reason to believe that all such persons would 
seek injunctive relief . . . Some might be willing to tolerate the pollution 
if the factory owner would provide compensation. In short, the owner could 
pay to pollute. This solution . . . ignores the presence of power in the 
market. It is unlikely that the 'buyers' and 'sellers' of pollution will 
be on an equal footing."</i> [Stephen L. Newman, <b>Liberalism at wits' end</b>, 
pp. 121-2]
</blockquote></p><p>
There is strong reason to believe that some people may tolerate pollution 
in return for compensation (as, for example, a poor person may agree to let 
someone smoke in their home in return for $100 or accept a job in a smoke 
filled pub or bar in order to survive in the short term regardless of the
long-term danger of lung cancer). As such, it is always possible that, due 
to economic necessity in an unequal society, that a company may pay to be 
able to pollute. As we discussed in <a href="secE3.html#sece32">section E.3.2</a>, 
the demand for the ability 
to pollute freely has seen a shift in industries from the west to developing 
nations due to economic pressures and market logic:
</p><p><blockquote><i>
"Questions of intergenerational equity and/or justice also arise in
the context of industrial activity which is clearly life threatening
or seriously diminishes the quality of life. Pollution of the air,
water, soil and food in a way that threatens human health is obviously 
not sustainable, yet it is characteristic of much industrial action. 
The greatest burden of the life and health threatening by-products of 
industrial processes falls on those least able to exercise options 
that provide respite. The poor have risks to health <b>imposed</b> on them 
while the wealthy can afford to purchase a healthy lifestyle. In newly 
industrialising countries the poorest people are often faced with no 
choice in living close to plants which present a significant threat 
to the local population . . . With the international trend toward 
moving manufacturing industry to the cheapest sources of labour, 
there is an increasing likelihood that standards in occupational 
health and safety will decline and damage to human and environmental 
health will increase."</i> [Glenn Albrecht, <i>"Ethics, Anarchy and Sustainable 
Development"</i>, pp. 95-118, <b>Anarchist Studies</b>, vol. 2, no. 2, pp. 107-8]
</blockquote></p><p>
The tragedy at Bhopal in India is testimony to this process. This should
be unsurprising, as there is a demand for the ability to pollute from
wealthy corporations and this has resulted in many countries supplying
it. This reflects the history of capitalism within the so-called developed 
countries as well. As Rothbard laments:
</p><p><blockquote><i>
"[F]actory smoke and many of its bad effects have been known ever since 
the Industrial Revolution, known to the extent that the American courts, 
during the late -- and as far back as the early -- 19th century made the
deliberate decision to allow property rights to be violated by industrial
smoke. To do so, the courts had to -- and did -- systematically change and
weaken the defences of property rights embedded in Anglo-Saxon common law
. . . the courts systematically altered the law of negligence and the law 
of nuisance to <b>permit</b> any air pollution which was not unusually greater
than any similar manufacturing firm, one that was not more extensive 
than the customary practice of polluters."</i> [<b>Op. Cit.</b>, p. 257]
</blockquote></p><p>
Left-wing critic of right-"libertarianism" Alan Haworth points out
the obvious by stating that <i>"[i]n this remarkably -- wonderfully -- 
self-contradictory passage, we are invited to draw the conclusion that 
private property <b>must</b> provide the solution to the pollution problem 
from an account of how it clearly did <b>not.</b>"</i> In other words 19th-century 
America  -- which for many right-"libertarians" is a kind of "golden era" 
of free-market capitalism -- saw a move <i>"from an initial situation of
well-defended property rights to a later situation where greater 
pollution was tolerated."</i> This means that private property cannot 
provide a solution the pollution problem. [<b>Anti-Libertarianism</b>, 
p. 113]
</p><p>
It is likely, as Haworth points out, that Rothbard and other free marketeers 
will claim that the 19th-century capitalist system was not pure enough, that 
the courts were motivated to act under pressure from the state (which in turn
was pressured by powerful industrialists). But can it be purified by just
removing the government and privatising the courts, relying on a so-called
"free market for justice"? The pressure from the industrialists remains,
if not increases, on the privately owned courts trying to make a living on
the market. Indeed, the whole concept of private courts competing in a
"free market for justice" becomes absurd once it is recognised that those
with the most money will be able to buy the most "justice" (as is largely 
the case now). Also, this faith in the courts ignores the fact suing would 
only occur <b>after</b> the damage has already been done. It's not easy to replace 
ecosystems and extinct species. And if the threat of court action had a 
"deterrent" effect, then pollution, murder, stealing and a host of other 
crimes would long ago have disappeared.
</p><p>
To paraphrase Haworth, the characteristically "free market" capitalist 
argument that if X were privately owned, Y would almost certainly occur, 
is just wishful thinking.
</p><p>
Equally, it would be churlish to note that this change in the law (like 
so many others) was an essential part of the creation of capitalism in 
the first place. As we discuss in <a href="secF8.html">section F.8</a>, 
capitalism has always
been born of state intervention and the toleration of pollution was one 
of many means by which costs associated with creating a capitalist system 
were imposed on the general public. This is still the case today, with
(for example) the <b>Economist</b> magazine happily arguing that the migration
of dirty industries to the third world is <i>"desirable"</i> as there is a 
<i>"trade-off between growth and pollution control."</i> Inflicting pollution
on the poorest sections of humanity is, of course, in their own best
interests. As the magazine put it, <i>"[i]f clean growth means slower 
growth, as it sometimes will, its human cost will be lives blighted by 
a poverty that would otherwise have been mitigated. That is why it is
wrong for the World Bank or anybody else to insist upon rich-country
standards of environmental practices in developing countries . . . 
when a trade off between cleaner air and less poverty has to be faced,
most poor countries will rightly want to tolerate more pollution than
rich countries do in return for more growth."</i> [<i>"Pollution and the
Poor"</i>, <b>The Economist</b>, 15/02/1992] That "poor countries" are just as 
state, class and hierarchy afflicted as "rich-country" ones and so it 
is <b>not</b> the poor who will be deciding to <i>"tolerate"</i> pollution in return 
for higher profits (to use the correct word rather than the economically
correct euphemism). Rather, it will be inflicted upon them by the ruling class
which runs their country. That members of the elite are willing to inflict 
the costs of industrialisation on the working class in the form of 
pollution is unsurprising to anyone with a grasp of reality and how
capitalism develops and works (it should be noted that the magazine 
expounded this particular argument to defend the infamous Lawrence 
Summers memo discussed in <a href="secE3.html#sece32">section E.3.2</a>).
</p><p>
Finally, let us consider what would happen is Rothbard's schema could 
actually be applied. It would mean that almost every modern industry 
would be faced with law suits over pollution. This would mean that the 
costs of product would soar, assuming production continued at all. It 
is likely that faced with demands that industry stop polluting, most 
firms would simply go out of business (either due to the costs involved
in damages or simply because no suitable non-polluting replacement 
technology exists) As Rothbard here considers <b>all</b> forms of
pollution as an affront to property rights, this also applies to transport. 
In other words, "pure" capitalism would necessitate the end of industrial 
society. While such a prospect may be welcomed by some deep ecologists and 
primitivists, few others would support such a solution to the problems of 
pollution. 
</p><p>
Within a decade of his zero-emissions argument, however, Rothbard had
changed his position and presented a right-"libertarian" argument which
essentially allowed the polluters to continue business as usual, arguing 
for a system which, he admitted, would make it nearly impossible for 
individuals to sue over pollution damage. As usual, given a choice between 
individual freedom and capitalism Rothbard choose the latter. As such, as 
Rothbard himself proves beyond reasonable doubt, the extension of private 
property rights will be unable to protect the environment. We discuss this 
in the <a href="secE4.html#sece41">next section</a>.</p>

<h2><a name="sece41">E.4.1 Will laissez-faire capitalism actually end pollution?</a></h2>

<p>
No, it will not. In order to show why, we need only quote Murray Rothbard's
own arguments. It is worth going through his arguments to see exactly why 
"pure" capitalism simply cannot solve the ecological crisis.
</p><p>
As noted in the <a href="secE4.html">last section</a>, Rothbard initially presented an argument
that free market capitalism would have a zero-emissions policy. Within
a decade, he had substantially changed his tune in an article for 
the right-"libertarian" think-tank the <b>Cato Institute</b>. Perhaps this 
change of heart is understandable once you realise that most free market 
capitalist propagandists are simply priests of a religion convenient to 
the interests of the people who own the marketplace. Rothbard founded 
the think-tank which published this article along with industrialist 
Charles Koch in 1977. Koch companies are involved in the petroleum, 
chemicals, energy, minerals, fertilisers industries as well as many 
others. To advocate a zero-pollution policy would hardly be in the 
Institute's enlightened self-interest as its backers would soon be out
of business (along with industrial capitalism as a whole).
</p><p>
Rothbard's defence of the right to pollute is as ingenious as it is
contradictory to his original position. As will be discussed in 
<a href="secF4.html">section F.4</a>, Rothbard subscribes to a <i>"homesteading"</i> theory of
property and he utilises this not only to steal the actual physical
planet (the land) from this and future generations but also our 
(and their) right to a clean environment. He points to <i>"more 
sophisticated and modern forms of homesteading"</i> which can be used 
to <i>"homestead"</i> pollution rights. If, for example, a firm is 
surrounded by unowned land then it can pollute to its hearts content.
If anyone moves to the area then the firm only becomes liable for any 
excess pollution over this amount. Thus firms <i>"can be said to have 
<b>homesteaded a pollution easement</b> of a certain degree and type."</i> He
points to an <i>"exemplary"</i> court case which rejected the argument of
someone who moved to an industrial area and then sued to end pollution.
As the plaintiff had voluntarily moved to the area, she had no cause
for complaint. In other words, polluters can simply continue to pollute 
under free market capitalism. This is particularly the case as clean air 
acts would not exist in libertarian legal theory, such an act being 
<i>"illegitimate and itself invasive and a criminal interference with the 
property rights of noncriminals."</i> [<i>"Law, Property Rights, and Air 
Pollution,"</i> pp. 55-99, <b>Cato Journal</b>, Vol. 2, No. 1, p. 77, 
p. 79 and p. 89]
</p><p>
In the <a href="secE4.html">last section</a>, we showed how Rothbard had earlier argued that the 
solution to pollution was to privatise everything. Given that rivers, 
lakes and seas are currently <b>unowned</b> this implies that the current 
levels of pollution would be the initial "homesteaded" level and so 
privatisation will not, in fact, reduce pollution at all. At best, it
may stop pollution getting worse but even this runs into the problem
that pollution usually increases slowly over time and would be hard to 
notice and much harder to prove which incremental change produced the 
actual quantitative change.
</p><p>
Which leads to the next, obvious, problem. According to Rothbard you
can sue provided that <i>"the polluter has not previously established 
a homestead easement,"</i> <i>"prove strict causality from the actions of the 
defendant. . . beyond a reasonable doubt"</i> and identify <i>"<b>those who 
actually</b> commit the deed"</i> (i.e. the employees involved, <b>not</b> the
company). [<b>Op. Cit.</b>, p. 87] Of course, how do you know and prove that 
a specific polluter is responsible for a specific environmental or 
physical harm? It would be near impossible to identify which company
contributed which particles to the smog which caused pollution related
illnesses. Polluters, needless to say, have the right to buy-off a suit 
which would be a handy tool for wealthy corporations in an unequal
society to continue polluting as economic necessity may induce people
to accept payment in return for tolerating it.
</p><p>
Turning to the pollution caused by actual products, such as cars, 
Rothbard argues that <i>"libertarian [sic!] principle"</i> requires a return to 
<b>privity,</b> a situation where the manufacturers of a product are not 
responsible for any negative side-effects when it is used. In terms of 
transport pollution, the <i>"guilty polluter should be each individual 
car owner and not the automobile manufacturer, who is not responsible 
for the actual tort and the actual emission."</i> This is because the 
manufacturer does not know how the car will be used (Rothbard gives 
an example that it may not be driven but was bought <i>"mainly for
aesthetic contemplation by the car owner"</i>!). He admits that <i>"the 
situation for plaintiffs against auto emissions might seem hopeless 
under libertarian law."</i> Rest assured, though, as <i>"the roads would be 
privately owned"</i> then the owner of the road could be sued for the 
emissions going <i>"into the lungs or airspace of other citizens"</i> and so
<i>"would be liable for pollution damage."</i> This would be <i>"much more feasible
than suing each individual car owner for the minute amount of pollutants
he might be responsible for."</i> [<b>Op. Cit.</b>,  p. 90 and p. 91]
</p><p>
The problems with this argument should be obvious. Firstly, roads are 
currently "unowned" under the right-"libertarian" perspective (they
are owned by the state which has no right to own anything). This means, 
as Rothbard has already suggested, any new road owners would have already 
created a "homesteading" right to pollute (after all, who would buy a road
if they expected to be sued by so doing?). Secondly, it would be extremely 
difficult to say that specific emissions from a specific road caused 
the problems and Rothbard stresses that there must be <i>"proof beyond 
reasonable doubt."</i> Road-owners as well as capitalist firms which
pollute will, like the tobacco industry, be heartened to read that 
<i>"statistical correlation . . . cannot establish causation, certainly 
not for a rigorous legal proof of guilt or harm."</i> After all, <i>"many 
smokers never get lung cancer"</i> and <i>"many lung cancer sufferers have 
never smoked."</i> [<b>Op. Cit.</b>, p. 92 and p. 73] So if illnesses cluster 
around, say, roads or certain industries then this cannot be considered 
as evidence of harm caused by the pollution they produce. 
</p><p>
Then there is the question of who is responsible for the damage
inflicted. Here Rothbard runs up against the contradictions within
wage labour. Capitalism is based on the notion that a person's 
liberty/labour can be sold/alienated to another who can then use 
it as they see fit. This means that, for the capitalist, the worker 
has no claim on the products and services that labour has produced. 
Strangely, according to Rothbard, this alienation of responsibility
suddenly is rescinded when that sold labour commits an action which 
has negative consequences for the employer. Then it suddenly becomes 
nothing to do with the employer and the labourer becomes responsible 
for their labour again.
</p><p>
Rothbard is quite clear that he considers that the owners of businesses 
are <b>not</b> responsible for their employee's action. He gives the example 
of an employer who hires an incompetent worker and suffers the lost of 
his wages as a result. However, <i>"there appears to be no legitimate reason 
for forcing the employer to bear the <b>additional</b> cost of his employee's
tortious behaviour."</i> For a corporation <i>"does not act; only 
individuals act, and each must be responsible for his own actions and 
those alone."</i> He notes that employers are sued because they <i>"generally 
have more money than employees, so that it becomes more convenient . . . 
to stick the wealthier class with the liability."</i> [<b>Op. Cit.</b>, p. 76 and 
p. 75]
</p><p>
This ignores the fact that externalities are imposed on others in order
to maximise the profits of the corporation. The stockholders directly
benefit from the "tortious behaviour" of their wage slaves. For example,
if a manager decides to save 1,000,000 by letting toxic waste damage to 
occur to then the owners benefit by a higher return on their investment. 
To state that is the manager who must pay for any damage means that the 
owners of a corporation or business are absolved for any responsibility 
for the actions of those hired to make money for them. In other words,
they accumulate the benefits in the form of more income but not the 
risks or costs associated with, say, imposing externalities onto others.
That the <i>"wealthier class"</i> would be happy to see such a legal system
should go without saying.
</p><p>
The notion that as long as <i>"the tort is committed by the employee in the 
course of furthering, even only in part, his employer's business, then 
the employer is also liable"</i> is dismissed as <i>"a legal concept so at war 
with libertarianism, individualism, and capitalism, and suited only to 
a precapitalist society."</i> [<b>Op. Cit.</b>, p. 74 and p. 75] If this principle 
is against "individualism" then it is simply because capitalism violates 
individualism. What Rothbard fails to appreciate is that the whole basis
of capitalism is that it is based on the worker selling his time/liberty 
to the boss. As Mark Leier puts it in his excellent biography of Bakunin:
</p><p><blockquote><i>
"The primary element of capitalism is wage labour It is this that makes
capitalism what it is . . . The employer owns and controls the coffee
shop or factory where production takes place and determines who will
be hired and fired and how things will be produced; that's what it 
means to be a 'boss.' Workers produce goods or services for their
employer. Everything they produce on the job belongs to the capitalist:
workers have no more right to the coffee or cars they produce than 
someone off the street. Their employer, protected by law and by the
apparatus of the state, owns all they produce. The employer then sells
the goods that have been produced and gives the workers a portion of 
the value they have created. Capitalists and workers fight over the 
precise amounts of this portion, but the capitalist system is based on
the notion that the capitalist owns everything that is produced and
controls how everything is produced."</i> [<b>Bakunin: The Creative Passion</b>,
p. 26]
</blockquote></p><p>
This is clearly the case when a worker acts in a way which increases 
profits without externalities. The most obvious case is when workers'
produce more goods than they receive back in wages (i.e. the exploitation
at the heart of capitalism -- see <a href="secC2.html">section C.2</a>). 
Why should that change 
when the action has an externality? While it may benefit the boss to 
argue that he should gain the profits of the worker's actions but not 
the costs it hardly makes much logical sense. The labour sold becomes 
the property of the buyer who is then entitled to appropriate the produce 
of that labour. There is no reason for this to suddenly change when the 
product is a negative rather than a positive. It suggests that the worker 
has sold both her labour and its product to the employer unless it happens 
to put her employer in court, then it suddenly becomes her's again!
</p><p>
And we must note that it is Rothbard's arguments own arguments which are 
<i>"suited only to a precapitalist society."</i> As David Ellerman
notes, the slave was considered a piece of property under the law <b>unless</b> 
he or she committed a crime. Once that had occurred, the slave became an 
autonomous individual in the eyes of the law and, as a result, could be 
prosecuted as an individual rather than his owner. This exposed a fundamental 
inconsistency <i>"in a legal system that treats the same individual as a thing 
in normal work and legally as a person when committing a crime."</i> Much the
same applies to wage labour as well. When an employee commits a negligent 
tort then <i>"the tortious servant emerges from the cocoon of non-responsibility 
metamorphosed into a responsible human agent."</i> In other words, <i>"the employee
is said to have stepped outside the employee's role."</i> [<b>Property and Contract 
in Economics</b>, p. 125, p. 128 and p. 133] Rothbard's argument is essentially 
the same as that of the slave-owner, with the boss enjoying the positive 
fruits of their wage slaves activities but not being responsible for any 
negative results. 
</p><p>
So, to summarise, we have a system which will allow pollution to continue
as this right has been "homesteaded" while, at the same, making it near
impossible to sue individual firms for their contribution to the destruction
of the earth. Moreover, it rewards the owners of companies for any externalities
inflicted while absolving them of any responsibility for the actions which 
enriched them. And Rothbard asserts that <i>"private ownership"</i> can solve <i>"many 
'externality' problems"</i>! The key problem is, of course, that for Rothbard the 
<i>"overriding factor in air pollution law, as in other parts of the law, should 
be libertarian and property rights principles"</i> rather than, say, stopping 
the destruction of our planet or even defending the right of individual's
not to die of pollution related diseases. [<b>Op. Cit.</b>, p. 91 and p. 99]
Rothbard shows that for the defender of capitalism, given a choice between property 
and planet/people the former will always win.
</p><p>
To conclude, Rothbard provides more than enough evidence to disprove
his own arguments. This is not a unique occurrence. As discussed in the
<a href="secE4.html#sece42">next section</a> he does the same as 
regards owning water and air resources.</p>

<h2><a name="sece42">E.4.2 Can wilderness survive under laissez-faire capitalism?</a></h2>

<p>
No. This conclusion comes naturally from the laissez-faire capitalist defence 
of private property as expounded by Murray Rothbard. Moreover, ironically, he 
also destroys his own arguments for ending pollution by privatising water and 
air.
</p><p>
For Rothbard, labour is the key to turning unowned natural resources
into private property. As he put it, <i>"before the homesteader, no one 
really used and controlled -- and hence owned -- the land. The pioneer, 
or homesteader, is the man who first brings the valueless unused natural 
objects into production and use."</i> [<b>The Ethics of Liberty</b>, p. 49]
</p><p>
Starting with the question of wilderness (a topic close to many 
eco-anarchists' and other ecologists' hearts) we run into the usual
problems and self-contradictions which befalls right-"libertarian" 
ideology. Rothbard states clearly that <i>"libertarian theory must 
invalidate [any] claim to ownership"</i> of land that has <i>"never been 
transformed from its natural state"</i> (he presents an example of an 
owner who has left a piece of his <i>"legally owned"</i> land untouched). 
If another person appears who <b>does</b> transform the land, it becomes 
<i>"justly owned by another"</i> and the original owner cannot stop her 
(and should the original owner <i>"use violence to prevent another 
settler from entering this never-used land and transforming it 
into use"</i> they also become a <i>"criminal aggressor"</i>). Rothbard also 
stresses that he is <b>not</b> saying that land must continually be in 
use to be valid property. [<b>Op. Cit.</b>, pp. 63-64] This is unsurprising, 
as that would justify landless workers seizing the land from landowners 
during a depression and working it themselves and we cannot have that 
now, can we?
</p><p>
Now, where does that leave wilderness? In response to ecologists who oppose
the destruction of the rainforest, many supporters of capitalism suggest 
that they put their money where their mouth is and <b>buy</b> rainforest land. 
In this way, it is claimed, rainforest will be protected (see 
<a href="secB5.html">section B.5</a> 
for why such arguments are nonsense). As ecologists desire the rainforest 
<b>because it is wilderness</b> they are unlikely to "transform" it by human 
labour (its precisely that they want to stop). From Rothbard's arguments 
it is fair to ask whether logging companies have a right to "transform" 
the virgin wilderness owned by ecologists, after all it meets Rothbard's 
criteria (it is still wilderness). Perhaps it will be claimed that 
fencing off land "transforms" it (hardly what you imagine "mixing labour" 
with to mean, but never mind) -- but that allows large companies and rich 
individuals to hire workers to fence in vast tracks of land (and 
recreate the land monopoly by a "libertarian" route). But as discussed
in <a href="secF4.html#secf41">section F.4.1</a>, fencing 
off land does not seem to imply that it becomes 
property in Rothbard's theory. And, of course, fencing in areas of 
rainforest disrupts the local eco-system -- animals cannot freely travel, 
for example -- which, again, is what ecologists desire to stop. Would 
Rothbard have accepted a piece of paper as "transforming" land? We doubt 
it (after all, in his example the wilderness owner <b>did</b> legally own it) 
-- and so most ecologists will have a hard time in pure capitalism 
(wilderness is just not an option). 
</p><p>
Moreover, Rothbard's "homesteading" theory actually violates his support
for unrestricted property rights. What if a property owner <b>wants</b> part
of her land to remain wilderness? Their desires are violated by the
"homesteading" theory (unless, of course, fencing things off equals
"transforming" them, which it apparently does not). How can companies 
provide wilderness holidays to people if they have no right to stop 
settlers (including large companies) "homesteading" that wilderness? 
Then there is the question of wild animals. Obviously, they can only 
become owned by either killing them or by domesticating them (the only 
possible means of "mixing your labour" with them). Does it mean that 
someone only values, say, a polar bear when they kill it or capture it 
for a zoo?
</p><p>
At best, it could be argued that wilderness would be allowed <b>if</b> the land 
was transformed first then allowed to return to the wild. This flows from
Rothbard's argument that there is no requirement that land continue to be 
used in order for it to continue to be a person's property. As he stresses,
<i>"our libertarian [sic!] theory holds that land needs only be transformed
<b>once</b> to pass into private ownership."</i> [<b>Op. Cit.</b>, p. 65] This means that 
land could be used and then allowed to fall into disuse for the important 
thing is that once labour is mixed with the natural resources, it remains 
owned in perpetuity. However, destroying wilderness in order to recreate 
it is simply an insane position to take as many eco-systems are extremely 
fragile and will not return to their previous state. Moreover, this process 
takes a long time during which access to the land will be restricted to all 
but those the owner consents to. 
</p><p>
And, of course, where does Rothbard's theory leave hunter-gatherer or 
nomad societies. They <b>use</b> the resources of the wilderness, but they 
do not "transform" them (in this case you cannot easily tell if virgin 
land is empty or being used). If a group of nomads find its traditionally 
used, but natural, oasis appropriated by a homesteader what are they to 
do? If they ignore the homesteaders claims he can call upon the police 
(public or private) to stop them -- and then, in true Rothbardian fashion, 
the homesteader can refuse to supply water to them unless they pay for the
privilege. And if the history of the United States and other colonies are 
anything to go by, such people will become "criminal aggressors" and 
removed from the picture.
</p><p>
As such, it is important to stress the social context of Rothbard's 
Lockean principles. As John O'Neill notes, Locke's labour theory of
property was used not only to support enclosing common land in England
but also as a justification for stealing the land of indigenous 
population's across the world. For example, the <i>"appropriation of 
America is justified by its being brought into the world of commence 
and hence cultivation . . . The Lockean account of the 'vast wilderness' 
of America as land uncultivated and unshaped by the pastoral activities 
of the indigenous population formed part of the justification of the 
appropriation of native land."</i> [<b>Markets, Deliberation and Environment</b>,
p. 119] That the native population was <b>using</b> the land was irrelevant
as Rothbard himself noted. As he put it, the Indians <i>"laid claim to vast 
reaches of land which they hunted but which they did not transform by 
cultivation."</i> [<b>Conceived in Liberty</b>, vol. 1, p. 187]. This meant
that <i>"the bulk of Indian-claimed land was not settled and transformed 
by the Indians"</i> and so settlers were <i>"at least justified in ignoring 
vague, abstract claims."</i> The Indian hunting based claims were <i>"dubious."</i> 
[<b>Op. Cit.</b>, vol. 2, p. 54 and p. 59] The net outcome, of course, was that 
the <i>"vague, abstract"</i> Indian claims to hunting lands were meet with the 
concrete use of force to defend the newly appropriated (i.e. stolen)
land (force which quickly reached the level of genocide).
</p><p>
So unless people bestowed some form of transforming labour over the 
wilderness areas then any claims of ownership are unsubstantiated. At 
most, tribal people and nomads could claim the wild animals they killed 
and the trails that they cleared. This is because a person would <i>"have 
to use the land, to 'cultivate' it in some way, before he could be 
asserted to own it."</i> This cultivation is not limited to <i>"tilling the 
soil"</i> but also includes clearing it for a house or pasture or caring 
for some plots of timber. [<b>Man, Economy, and State, with Power and 
Market</b>, p. 170] Thus game preserves or wilderness areas could <b>not</b> 
exist in a pure capitalist society. This has deep ecological implications 
as it automatically means the replacement of wild, old-growth forests with,
at best, managed ones. These are <b>not</b> an equivalent in ecological terms 
even if they have approximately the same number of trees. As James C. 
Scott stresses:
</p><p><blockquote><i>
"Old-growth forests, polycropping, and agriculture with open-pollinated 
landraces <b>may</b> not be as productive, in the short run, as single-species 
forests and fields or identical hybrids. But they are demonstrably more 
stable, more self-sufficient, and less vulnerable to epidemics and 
environmental stress . . . Every time we replace 'natural capital' (such 
as wild fish stocks or old-growth forests) with what might be termed 
'cultivated natural capital' (such as fish farms or tree plantations), 
we gain ease of appropriation and in immediate productivity, but at the 
cost of more maintenance expenses and less 'redundancy, resiliency, and 
stability' . . . Other things being equal . . . the less diverse the 
cultivated natural capital, the more vulnerable and nonsustainable it 
becomes. The problem is that in most economic systems, the external costs 
(in water or air pollution, for example, or the exhaustion of non-renewable 
resources, including a reduction in biodiversity) accumulate long before 
the activity becomes unprofitable in a narrow profit-and-loss sense."</i> 
[<b>Seeing like a State</b>, p. 353]
</blockquote></p><p>
Forests which are planned as a resource are made ecologically simplistic 
in order to make them economically viable (i.e., to reduce the costs 
involved in harvesting the crop). They tend to be monocultures of one 
type of tree and conservationists note that placing all eggs in one basket 
could prompt an ecological disaster. A palm oil monoculture which replaces 
rainforest to produce biofuel, for example, would be unable to support 
the rich diversity of wildlife as well as leaving the environment vulnerable 
to catastrophic disease. Meanwhile, local people dependent on the crop could 
be left high and dry if it fell out of favour on the global market.
</p><p>
To summarise, capitalism simply cannot protect wilderness and, by extension,
the planet's ecology. Moreover, it is no friend to the indigenous population
who use but do not "transform" their local environment.
</p><p>
It should also be noted that underlying assumption behind this and similar 
arguments is that other cultures and ways of life, like many eco-systems 
and species, are simply not worth keeping. While lip-service is made to 
the notion of cultural diversity, the overwhelming emphasis is on 
universalising the capitalist model of economic activity, property rights 
and way of life (and a corresponding ignoring of the role state power 
played in creating these as well as destroying traditional customs and 
ways of life). Such a model for development means the replacement of 
indigenous customs and communitarian-based ethics by a commercial system 
based on an abstract individualism with a very narrow vision of what 
constitutes self-interest. These new converts to the international order 
would be forced, like all others, to survive on the capitalist market. 
With vast differences in wealth and power such markets have, it is likely 
that the net result would simply be that new markets would be created out 
of the natural 'capital' in the developing world and these would soon be 
exploited.
</p><p>
As an aside, we must note that Rothbard fails to realise -- and this 
comes from his worship of capitalism and his "Austrian economics" -- 
is that people value many things which do not, indeed cannot, appear 
on the market. He claims that wilderness is <i>"valueless unused natural 
objects"</i> for it people valued them, they would use -- i.e. transform 
-- them. But unused things may be of <b>considerable</b> value to people, 
wilderness being a classic example. And if something <b>cannot</b> be 
transformed into private property, does that mean people do not value 
it? For example, people value community, stress-free working environments, 
meaningful work -- if the market cannot provide these, does that mean 
they do not value them? Of course not (see Juliet Schor's <b>The Overworked 
American</b> on how working people's desire for shorter working hours was 
not transformed into options on the market).
</p><p>
So it should be remembered that in valuing impacts on nature, there is a 
difference between use values (i.e. income from commodities produced by 
a resource) and non-use values (i.e., the value placed on the existence 
of a species or wilderness). The former are usually well-defined, but 
often small while the latter are often large, but poorly defined. For 
example, the Exxon Valdez oil spill in Alaska resulted in losses to people 
who worked and lived in the affected area of an estimated $300 million. 
However, the existence value of the area to the American population was 
$9 billion. In other words, the amount that American households were 
reportedly willing to pay to prevent a similar oil spill in a similar 
area was 30 times larger. Yet this non-use value cannot be taken into 
account in Rothbard's schema as nature is not considered a value in 
itself but merely a resource to be exploited.
</p><p>
Which brings us to another key problem with Rothbard's argument: he simply 
cannot justify the appropriation of water and atmosphere by means of his own 
principles. To show why, we need simply consult Rothbard's own writings on
the subject.
</p><p>
Rothbard has a serious problem here. As noted above, he subscribed to a 
Lockean vision of property. In this schema, property is generated by 
mixing labour with unowned resources. Yet you simply cannot mix your 
labour with water or air. In other words, he is left with a system of 
property rights which cannot, by their very nature, be extended to 
common goods like water and air. Let us quote Rothbard on this subject:
</p><p><blockquote><i>
"it is true that the high seas, in relation to shipping lanes, are probably 
inappropriable, because of their abundance in relation to shipping routes. 
This is <b>not</b> true, however, of <b>fishing</b> rights. Fish are definitely not 
available in unlimited quantities, relatively to human wants. Therefore, 
they are appropriable . . . In a free [sic!] society, fishing rights to the 
appropriate areas of oceans would be owned by the first users of these areas 
and then useable or saleable to other individuals. Ownership of areas of water 
that contain fish is directly analogous to private ownership of areas of land 
or forests that contain animals to be hunted . . . water can definitely be 
marked off in terms of latitudes and longitudes. These boundaries, then 
would circumscribe the area owned by individuals, in the full knowledge 
that fish and water can move from one person's property to another."</i> [<b>Man, 
Economy, and State, with Power and Market</b>, pp. 173-4]
</blockquote></p><p>
In a footnote to this surreal passage, he added that it <i>"is rapidly 
becoming evident that air lanes for planes are becoming scare and, in 
a free [sic!] society, would be owned by first users."</i> 
</p><p>
So, travellers crossing the sea gain no property rights by doing so
but those travelling through the air do. Why this should be the case
is hard to explain as, logically, both acts "transform" the commons
by "labour" in exactly the same manner (i.e. not at all). Why <b>should</b> 
fishing result in absolute property rights in oceans, seas, lakes and 
rivers?  Does picking a fruit give you property rights in the tree or 
the forest it stands in? Surely, at best, it gives you a property 
right in the fish and fruit? And what happens if area of water is so 
polluted that there are no fish? Does that mean that this body of water 
is impossible to appropriate? How does it become owned? Surely it cannot 
and so it will always remain a dumping ground for waste? 
</p><p>
Looking at the issue of land and water, Rothbard asserts that owning 
water is <i>"directly analogous"</i> to owning land for hunting purposes. Does 
this mean that the landowner who hunts cannot bar travellers from their
land? Or does it mean that the sea-owner can bar travellers from crossing 
their property? Ironically, as shown above, Rothbard later explicitly 
rejected the claims of Native Americans to own their land because they 
hunted animals on it. The same, logically, applies to his arguments that 
bodies of water can be appropriated. 
</p><p>
Given that Rothbard is keen to stress that labour is required to transform 
land into private property, his arguments are self-contradictory and highly 
illogical. It should also be stressed that here Rothbard nullifies his 
criteria for appropriating private property. Originally, only labour 
being used on the resource can turn it into private property. Now, however, 
the only criteria is that it is scare. This is understandable, as fishing 
and travelling through the air cannot remotely be considered "mixing labour" 
with the resource.
</p><p>
It is easy to see why Rothbard produced such self-contradictory arguments
over the years as each one was aimed at justifying and extending the reach
of capitalist property rights. Thus the Indians' hunting claims could be
rejected as these allowed the privatising of the land while the logically
identical fishing claims could be used to allow the privatisation of bodies 
of water. Logic need not bother the ideologue when he seeking ways to justify 
the supremacy of the ideal (capitalist private property, in this case). 
</p><p>
Finally, since Rothbard (falsely) claims to be an anarchist, it is
useful to compare his arguments to that of Proudhon's. Significantly,
in the founding work of anarchism Proudhon presented an analysis of 
this issue directly opposite to Rothbard's. Let us quote the founding
father of anarchism on this important matter:
</p><p><blockquote><i>
"A man who should be prohibited from walking in the highways, from 
resting in the fields, from taking shelter in caves, from lighting 
fires, from picking berries, from gathering herbs and boiling them 
in a bit of baked clay, -- such a man could not live.  Consequently 
the earth -- like water, air, and light -- is a primary object of 
necessity which each has a right to use freely, without infringing 
another's right.  Why, then, is the earth appropriated? . . . 
[An economist] assures us that it is because it is not INFINITE. 
The land is limited in amount.  Then . . . it ought to be appropriated.  
It would seem, on the contrary, that he ought to say, Then it ought 
not to be appropriated.  Because, no matter how large a quantity of 
air or light any one appropriates, no one is damaged thereby; there 
always remains enough for all. With the soil, it is very different. 
Lay hold who will, or who can, of the sun's rays, the passing breeze,
or the sea's billows; he has my consent, and my pardon for his bad 
intentions.  But let any living man dare to change his right of 
territorial possession into the right of property, and I will 
declare war upon him, and wage it to the death!"</i> [<b>What is Property?</b>,
p. 106]
</blockquote></p><p>
Unlike Locke who at least paid lip-service to the notion that the
commons can be enclosed when there is enough and as good left for
others to use, Rothbard turn this onto its head. In his "Lockean" 
schema, a resource can be appropriated only when it is scare (i.e.
there is <b>not</b> enough and as good left for others). Perhaps it 
comes as no surprise that Rothbard rejects the <i><b>"Lockean proviso"</b></i>
(and essentially argues that Locke was not a consistent Lockean
as his work is <i>"riddled with contradictions and inconsistencies"</i>
and have been <i>"expanded and purified"</i> by his followers. [<b>The
Ethics of Liberty</b>, p. 22]).
</p><p>
Rothbard is aware of what is involved in accepting the Lockean Proviso
-- namely the existence of private property (<i>"Locke's proviso may lead 
to the outlawry of <b>all</b> private property of land, since one can always
say that the reduction of available land leaves everyone else . . . 
worse off"</i> [<b>Op. Cit.</b>, p. 240]). The Proviso <b>does</b> imply the end 
of capitalist property rights which is why Rothbard, and other 
right-"libertarians", reject it while failing to note that Locke himself 
simply assumed that the invention of money transcended this limitation. 
[C.B. MacPherson, <b>The Political Theory of Individualism</b>, pp. 203-20] 
As we discussed in <a href="secB3.html#secb34">section B.3.4</a>, it 
should be stressed that this limitation
is considered to be transcended purely in terms of material wealth rather 
than its impact on individual liberty or dignity which, surely, should be
of prime concern for someone claiming to favour "liberty." What Rothbard 
failed to understand that Locke's Proviso of apparently
limiting appropriation of land as long as there was enough and as good
for others was a ploy to make the destruction of the commons palatable 
to those with a conscience or some awareness of what liberty involves. This can be seen 
from the fact this limitation could be transcended at all (in the same way, 
Locke justified the exploitation of labour by arguing that it was the 
property of the worker who sold it to their boss -- see 
<a href="secB4.html#secb42">section B.4.2</a> for details). By getting
rid of the Proviso, Rothbard simply exposes this theft of our common
birthright in all its unjust glory.  
</p><p>
It is simple. Either you reject the Proviso and embrace capitalist property 
rights (and so allow one class of people to be dispossessed and another 
empowered at their expense) or you take it seriously and reject private 
property in favour of possession and liberty. Anarchists, obviously, favour 
the latter option. Thus Proudhon:
</p><p><blockquote><i>
"Water, air, and light are <b>common</b> things, not because they are 
<b>inexhaustible</b>, but because they are <b>indispensable</b>; and so 
indispensable that for that very reason Nature has created them in 
quantities almost infinite, in order that their plentifulness might 
prevent their appropriation. Likewise the land is indispensable to 
our existence, -- consequently a common thing, consequently 
unsusceptible of appropriation; but land is much scarcer than the 
other elements, therefore its use must be regulated, not for the 
profit of a few, but in the interest and for the security of all.
</p><p>
"In a word, equality of rights is proved by equality of needs. Now, 
equality of rights, in the case of a commodity which is limited in 
amount, can be realised only by equality of possession . . . From 
whatever point we view this question of property -- provided we go 
to the bottom of it -- we reach equality."</i> [<b>Op. Cit.</b>, p. 107]
</blockquote></p><p>
To conclude, it would be unfair to simply quote Keynes evaluation of
one work by von Hayek, another leading "Austrian Economist," namely
that it <i>"is an extraordinary example of how, starting with a mistake, 
a remorseless logician can end up in bedlam."</i> This is only partly
true as Rothbard's account of property rights in water and air is
hardly logical (although it is remorseless once we consider its impact 
when applied in an unequal and hierarchical society). That this
nonsense is in direct opposition to the anarchist perspective on this
issue should not come as a surprise any more than its incoherence.
As we discuss in <a href="secFcon.html">section F</a>, Rothbard's claims 
to being an "anarchist"
are as baseless as his claim that capitalism will protect the environment.
</p>

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