Last week I recommended Charles Fried's 2007 book "Modern Liberty" as providing excellent insight into the nature of Liberty and government (characterizing liberty as pre-political, rather than originating from the state, for example).
Regarding different forms of individual liberty, moreover, he properly recognizes that inherent differences may justify incrementally greater governmental regulation of some rights (e.g., property) than of others (e.g., liberty of the mind and liberty of free choice in sex), because “unlike liberty of the mind and sex, property is not a natural right” (property is based on a constructed rules, and arbitrary ones at that).
Even so, it must be said that under a Progressive Liberty regime Fried goes too far in favor of property rights in suggesting that such rights, based largely on the reliance and stability engendered by a state-enforced property regime, should be allowed to prevail over some governmental restrictions designed to protect endangered species or a remote wilderness.
Fried says that a claim for environmental protection that is "not in the name of any other person, not even persons in generations not yet born[; or that is p]erhaps … made in the name of the endangered species or even nature itself,” is simply inadequate to justify a governmental restriction on the use. To make his point, he equates “[g]etting in a distant landowner’s way to protect the [southwestern] arroyo toad” with prohibitions by “those who dislike the very idea that some people they do not know or see are having a kind of sex they find distasteful” on private sexual activity. The motivation for the former looks like that of the latter, he says: “it is the very idea that a species might be disappearing that distresses those who would limit the landowner’s property rights. Such a motivation offends liberty,” as does keeping “undisturbed [the] wilderness of a place so remote and inaccessible that few may ever see it, like the National Wildlife Refuge.”
This approach disproportionately elevates the value of property stability/reliance and too deeply discounts the common collective good following from a governmental program of conservation and environmental stewardship.
Instructive here is the lesson of the tragedy of the commons, which teaches that a common resource is likely to be squandered when each member of the community receives full benefit (1:1) but pays only a pro-rata cost (say, 1:100 in a community of 100 people) for use of the resource. By analogy, where a property owner receives the full 1:1 benefit of a particular use but pays only a pro-rata cost (again, 1:100) for the destruction of the resource, the resource is likely to be degraded.
This assumes a particular cognizable harm to the commons – a harm Fried is perhaps unwilling to acknowledge, but if the current global warming crisis demonstrates anything, it is that human activities have profound impacts on the long-term health of the environment. For the very survival of the species it is incumbent upon us to take steps to protect our habitat. Science demonstrates that habitat loss can lead, in the extreme, to extinction.
None of this is to say that property owners should not be compensated in some way for the loss of choice, perhaps with tax credits since s/he is disproportionately bearing the cost of the commonweal through the government’s prohibition of the desired use, or through use rights of other property, or the like. Liberty demands as much.
By: Michael Anthony Lawrence
