Archive for May, 2010

Rights, Risk, and Regulation

Sunday, May 23rd, 2010

Libertarians oppose government regulations. This is arguably their defining characteristic. It is also the reason that many Americans reject libertarian political philosophy as unworkable, utopian, or just plain foolhardy. Other political philosophies on both the left and the right embrace government regulation to some degree; they simply disagree about what and how to regulate.

Personally, I feel uneasy about libertarianism’s blanket rejection of government regulation, and for some time I have tried to reconcile this uneasiness with concepts that are critically important to me like self-ownership and individual equality. I have struggled to explain my uneasiness because I believe that no government action can be justified by mere efficiency, expediency, or convenience. I’m not sure I’ve found a good solution, but here’s what I’ve come up with.

Drawing on principles of human equality and individual rights, libertarianism easily seizes the high ground in any discussion of political principles. But there is, I think, a tendency among libertarians—as well as fiscal conservatives, constitutionalists, and anarcho-capitalists—to overstate the reach of these rights-based arguments against government regulation.

Rights-based arguments against government regulation usually run as follows: I have a right to do X; this regulation restricts me from doing X; and since this regulation violates my right, it should be struck down or repealed. This is a persuasive argument, but it is frequently misapplied. The problem, unsurprisingly, is in determining whether the regulated action truly is an individual right.

Generally, individual rights fall into the three categories that were recognized in the Declaration of Independence: Life, Liberty, and Property (Pursuit of Happiness). These rights are phrased broadly, but it is important to recognize that an individual’s rights are always limited by the rights of others. For example, an individual’s right to life evaporates when he attacks someone else: his right to life yields to his victim’s right to life—expressed as the right of self-defense.

It is easy to accept that no individual has the right to intentionally harm innocent others. This is a clear limit to individual rights, and it is fundamental to criminal law. But government regulations go much further. Government regulations often limit actions which are not meant to cause harm, but which create a risk of unintentional harm. Regulations of this kind cause controversy because they restrict actions which may never actually harm anyone. Libertarians seize on this fact and reject these regulations as a violation of individual rights. On its face, this is potent criticism.

True human equality means that individual liberty cannot be restricted unless it is being exercised in a way that violates others’ rights. Actions which don’t in fact harm anyone don’t seem to violate anyone’s rights, so there doesn’t seem to be any principled justification for government regulation. In general, this is an excellent argument, but it fails in the context of unreasonable risk of irreparable harm.

Individuals have a right to be free from unreasonable risk created by others’ behavior. This is heresy to libertarian philosophy, but I think it is right nonetheless. Individuals have a right not to be exposed to unreasonable risk created by others’ behavior. When individuals choose their home, job, transportation method, recreation, and lifestyle, they simultaneously choose to subject themselves to a certain risk level. They accept that risk level because they believe that it is worth it. If that risk level increases because someone in the community chooses to engage in unreasonably risky behavior, then that person has violated the rights of the other members of the community. Differentiating between unreasonable risk and reasonable risk (risk that is just an unavoidable part of life) is difficult, but community standards provide a benchmark.

Unreasonable risk by itself is not enough to justify regulation, however. Regulation is appropriate only when there is unreasonable risk of irreparable harm. Irreparable harm is harm that cannot be undone by the payment of money, such as death and serious bodily injury. If the harm can be undone by payment of money, then the appropriate remedy is a lawsuit rather than regulation. The reason for this is that regulations are necessarily imprecise. Regulations are general rules that cover a whole class of individuals or activities, so, inevitably, some individuals will be included in the class and subjected to the regulation who should not be. If harm can be undone by the payment of money, the individual who was harmed can be put in approximately the same position as he would have been in had the harm never occurred. So the imprecision of regulation is unjustified.

There are easy cases and hard cases, of course, but I think the principles are clear. Consider the following example. A contractor decides to cut costs by storing his dynamite supply in the basement of his home. He does not intend to injure anyone, but he is nevertheless exposing his neighbors to significant additional risk. In a residential community this risk is unreasonable because dynamite storage is more hazardous than most residential activities and dynamite is not commonly stored in residences. Additionally, if the dynamite explodes, it will likely cause irreparable injury. The opportunity to sue in the event of an accidental explosion is not a good solution to this situation because recovering money in a lawsuit is never adequate recompense for death or serious injury. So, a government regulation prohibiting residential dynamite storage is justified and does not violate the contractor’s rights.

I am only tentatively attached to these arguments. The critical leap is the premise that individuals have a right to be free from unreasonable risk of irreparable harm. I think this is right, but this comes more from gut feeling than reasoned argument.