E.4 Can laissez-faire capitalism protect the environment?

In a word, no. Here we explain why using as our example the arguments of a leading right-"libertarian."

E.4 Can laissez-faire capitalism protect the environment?

In a word, no. Here we explain why using as our example the arguments of a leading right-"libertarian."

As discussed in the last section, 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.

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.

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.

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:

"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." [For a New Liberty, p. 255]

The same applies to air pollution:

"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." [Op. Cit., p. 259]

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 next section, 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 could 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 section E.4.2 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 section E.3 is also applicable here and so we will summarise the key issues in order to reduce repetition.

As regards the issue of privatising natural resources like rivers, the most obvious issue is that Rothbard ignores one major point: why would 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.

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.

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:

"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.

"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." [Stephen L. Newman, Liberalism at wits’ end, pp. 121-2]

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 section E.3.2, 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:

"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 imposed 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." [Glenn Albrecht, "Ethics, Anarchy and Sustainable Development", pp. 95-118, Anarchist Studies, vol. 2, no. 2, pp. 107-8]

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:

"[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 permit 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." [Op. Cit., p. 257]

Left-wing critic of right-"libertarianism" Alan Haworth points out the obvious by stating that "[i]n this remarkably — wonderfully — self-contradictory passage, we are invited to draw the conclusion that private property must provide the solution to the pollution problem from an account of how it clearly did not." In other words 19th-century America — which for many right-"libertarians" is a kind of "golden era" of free-market capitalism — saw a move "from an initial situation of well-defended property rights to a later situation where greater pollution was tolerated." This means that private property cannot provide a solution the pollution problem. [Anti-Libertarianism, p. 113]

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 after 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.

To paraphrase Haworth, the characteristically "free market" capitalist argument that if X were privately owned, Y would almost certainly occur, is just wishful thinking.

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 section F.8, 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 Economist magazine happily arguing that the migration of dirty industries to the third world is "desirable" as there is a "trade-off between growth and pollution control." Inflicting pollution on the poorest sections of humanity is, of course, in their own best interests. As the magazine put it, "[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." ["Pollution and the Poor", The Economist, 15/02/1992] That "poor countries" are just as state, class and hierarchy afflicted as "rich-country" ones and so it is not the poor who will be deciding to "tolerate" 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 section E.3.2).

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 all 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.

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 next section.

E.4.1 Will laissez-faire capitalism actually end pollution?

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.

As noted in the last section, 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 Cato Institute. 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).

Rothbard’s defence of the right to pollute is as ingenious as it is contradictory to his original position. As will be discussed in section F.4, Rothbard subscribes to a "homesteading" 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 "more sophisticated and modern forms of homesteading" which can be used to "homestead" 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 "can be said to have homesteaded a pollution easement of a certain degree and type." He points to an "exemplary" 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 "illegitimate and itself invasive and a criminal interference with the property rights of noncriminals." ["Law, Property Rights, and Air Pollution," pp. 55-99, Cato Journal, Vol. 2, No. 1, p. 77, p. 79 and p. 89]

In the last section, we showed how Rothbard had earlier argued that the solution to pollution was to privatise everything. Given that rivers, lakes and seas are currently unowned 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.

Which leads to the next, obvious, problem. According to Rothbard you can sue provided that "the polluter has not previously established a homestead easement," "prove strict causality from the actions of the defendant. . . beyond a reasonable doubt" and identify "those who actually commit the deed" (i.e. the employees involved, not the company). [Op. Cit., 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.

Turning to the pollution caused by actual products, such as cars, Rothbard argues that "libertarian [sic!] principle" requires a return to privity, 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 "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." 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 "mainly for aesthetic contemplation by the car owner"!). He admits that "the situation for plaintiffs against auto emissions might seem hopeless under libertarian law." Rest assured, though, as "the roads would be privately owned" then the owner of the road could be sued for the emissions going "into the lungs or airspace of other citizens" and so "would be liable for pollution damage." This would be "much more feasible than suing each individual car owner for the minute amount of pollutants he might be responsible for." [Op. Cit., p. 90 and p. 91]

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 "proof beyond reasonable doubt." Road-owners as well as capitalist firms which pollute will, like the tobacco industry, be heartened to read that "statistical correlation . . . cannot establish causation, certainly not for a rigorous legal proof of guilt or harm." After all, "many smokers never get lung cancer" and "many lung cancer sufferers have never smoked." [Op. Cit., 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.

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.

Rothbard is quite clear that he considers that the owners of businesses are not 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, "there appears to be no legitimate reason for forcing the employer to bear the additional cost of his employee’s tortious behaviour." For a corporation "does not act; only individuals act, and each must be responsible for his own actions and those alone." He notes that employers are sued because they "generally have more money than employees, so that it becomes more convenient . . . to stick the wealthier class with the liability." [Op. Cit., p. 76 and p. 75]

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 "wealthier class" would be happy to see such a legal system should go without saying.

The notion that as long as "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" is dismissed as "a legal concept so at war with libertarianism, individualism, and capitalism, and suited only to a precapitalist society." [Op. Cit., 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:

"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." [Bakunin: The Creative Passion, p. 26]

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 section C.2). 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!

And we must note that it is Rothbard’s arguments own arguments which are "suited only to a precapitalist society." As David Ellerman notes, the slave was considered a piece of property under the law unless 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 "in a legal system that treats the same individual as a thing in normal work and legally as a person when committing a crime." Much the same applies to wage labour as well. When an employee commits a negligent tort then "the tortious servant emerges from the cocoon of non-responsibility metamorphosed into a responsible human agent." In other words, "the employee is said to have stepped outside the employee’s role." [Property and Contract in Economics, 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.

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 "private ownership" can solve "many ‘externality’ problems"! The key problem is, of course, that for Rothbard the "overriding factor in air pollution law, as in other parts of the law, should be libertarian and property rights principles" rather than, say, stopping the destruction of our planet or even defending the right of individual’s not to die of pollution related diseases. [Op. Cit., 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.

To conclude, Rothbard provides more than enough evidence to disprove his own arguments. This is not a unique occurrence. As discussed in the next section he does the same as regards owning water and air resources.

E.4.2 Can wilderness survive under laissez-faire capitalism?

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.

For Rothbard, labour is the key to turning unowned natural resources into private property. As he put it, "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." [The Ethics of Liberty, p. 49]

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 "libertarian theory must invalidate [any] claim to ownership" of land that has "never been transformed from its natural state" (he presents an example of an owner who has left a piece of his "legally owned" land untouched). If another person appears who does transform the land, it becomes "justly owned by another" and the original owner cannot stop her (and should the original owner "use violence to prevent another settler from entering this never-used land and transforming it into use" they also become a "criminal aggressor"). Rothbard also stresses that he is not saying that land must continually be in use to be valid property. [Op. Cit., 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?

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 buy rainforest land. In this way, it is claimed, rainforest will be protected (see section B.5 for why such arguments are nonsense). As ecologists desire the rainforest because it is wilderness 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 section F.4.1, 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 did legally own it) — and so most ecologists will have a hard time in pure capitalism (wilderness is just not an option).

Moreover, Rothbard’s "homesteading" theory actually violates his support for unrestricted property rights. What if a property owner wants 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?

At best, it could be argued that wilderness would be allowed if 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, "our libertarian [sic!] theory holds that land needs only be transformed once to pass into private ownership." [Op. Cit., 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.

And, of course, where does Rothbard’s theory leave hunter-gatherer or nomad societies. They use 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.

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 "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." [Markets, Deliberation and Environment, p. 119] That the native population was using the land was irrelevant as Rothbard himself noted. As he put it, the Indians "laid claim to vast reaches of land which they hunted but which they did not transform by cultivation." [Conceived in Liberty, vol. 1, p. 187]. This meant that "the bulk of Indian-claimed land was not settled and transformed by the Indians" and so settlers were "at least justified in ignoring vague, abstract claims." The Indian hunting based claims were "dubious." [Op. Cit., vol. 2, p. 54 and p. 59] The net outcome, of course, was that the "vague, abstract" 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).

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 "have to use the land, to ‘cultivate’ it in some way, before he could be asserted to own it." This cultivation is not limited to "tilling the soil" but also includes clearing it for a house or pasture or caring for some plots of timber. [Man, Economy, and State, with Power and Market, p. 170] Thus game preserves or wilderness areas could not 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 not an equivalent in ecological terms even if they have approximately the same number of trees. As James C. Scott stresses:

"Old-growth forests, polycropping, and agriculture with open-pollinated landraces may 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." [Seeing like a State, p. 353]

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.

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.

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.

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 "valueless unused natural objects" for it people valued them, they would use — i.e. transform — them. But unused things may be of considerable value to people, wilderness being a classic example. And if something cannot 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 The Overworked American on how working people’s desire for shorter working hours was not transformed into options on the market).

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.

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.

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:

"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 not true, however, of fishing 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." [Man, Economy, and State, with Power and Market, pp. 173-4]

In a footnote to this surreal passage, he added that it "is rapidly becoming evident that air lanes for planes are becoming scare and, in a free [sic!] society, would be owned by first users."

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 should 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?

Looking at the issue of land and water, Rothbard asserts that owning water is "directly analogous" 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.

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.

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).

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:

"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!" [What is Property?, p. 106]

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 not enough and as good left for others). Perhaps it comes as no surprise that Rothbard rejects the "Lockean proviso" (and essentially argues that Locke was not a consistent Lockean as his work is "riddled with contradictions and inconsistencies" and have been "expanded and purified" by his followers. [The Ethics of Liberty, p. 22]).

Rothbard is aware of what is involved in accepting the Lockean Proviso — namely the existence of private property ("Locke’s proviso may lead to the outlawry of all private property of land, since one can always say that the reduction of available land leaves everyone else . . . worse off" [Op. Cit., p. 240]). The Proviso does 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, The Political Theory of Individualism, pp. 203-20] As we discussed in section B.3.4, 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 section B.4.2 for details). By getting rid of the Proviso, Rothbard simply exposes this theft of our common birthright in all its unjust glory.

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:

"Water, air, and light are common things, not because they are inexhaustible, but because they are indispensable; 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.

"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." [Op. Cit., p. 107]

To conclude, it would be unfair to simply quote Keynes evaluation of one work by von Hayek, another leading "Austrian Economist," namely that it "is an extraordinary example of how, starting with a mistake, a remorseless logician can end up in bedlam." 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 section F, Rothbard’s claims to being an "anarchist" are as baseless as his claim that capitalism will protect the environment.