Chapter 20 Lifeboat Situations
It is often contended that the existence of extreme or lifeboat situations disproves any
theory of absolute property rights, or indeed of any absolute rights of self-ownership whatsoever.
It is claimed that, since any theory of individual rights seems to break down or works unsatisfactorily
in such fortunately rare situations, therefore there can be no concept of inviolable rights
at all.
In a typical lifeboat situation there are, let us say, eight places in a lifeboat putting
out from a sinking ship, and there are more than eight people wishing to be saved.
Who then is to decide who should be saved and who should die?
And what then happens to the right of self-ownership, or as some people phrase it, the right to
to Life. The right to life is fallacious phraseology, since it could imply that A's right to life
can justly involve an infringement on the life and property of someone else, that is,
on B's right to life, and its logical extensions. A right to self-ownership of both A and B
avoids such confusions. In the first place, a lifeboat situation is hardly a valid test
Most of a theory of rights, or of any moral theory whatsoever, problems of a moral theory
in such an extreme situation do not invalidate a theory for normal situations.
In any sphere of moral theory we are trying to frame an ethic for man based on his nature
and the nature of the world, and this precisely means for normal nature, for the way life
A pragmatic point related to the rare, extreme, and not-generally encountered situation.
It is a wise maxim of the law for precisely this reason that hard cases make bad law.
We are trying to frame an ethic for the way men generally live in the world.
We are not, after all, interested in framing an ethic that focuses on situations that are rare, extreme, and not generally encountered.
A pragmatic point related to the rarity of the lifeboat case is that, as we know from
economic science, a regime of property rights and the free market economy would lead to
a minimum of lifeboat situations, a minimum of cases where more than one person is battling
over a scarce resource for survival. A free market property rights economy raises the
the standard of living of all persons and ever widens their sphere and range of choice,
thereby harmonizing liberty and abundance and rendering such extreme situations as negligible
as humanly possible.
But this sort of utilitarian argument, we must recognize, does not fully answer the
questions of right and justice.
Let us take an example to illustrate our point outside the sphere of property rights
or Rights in General and within the sphere of ordinary ethical values.
Most people would concede the principle that it is ethical for a parent to save his child
from drowning.
But then our lifeboat skeptic could arise and hurl this challenge, Aha! but suppose
that two of your children are drowning and you can save only one.
Which child would you choose?
And doesn't the fact that you would have to let one child die negate the very moral principle
that you should save your drowning child?
I doubt whether many ethicists would throw over the moral desirability or principle of
saving one's child because it could not be fully applied in such a lifeboat situation.
Yet why should the lifeboat case be different in the sphere of rights?
In a lifeboat situation, indeed, we apparently have a war of all against all, and there seems
at first to be no way to apply our theory of self-ownership or of property rights.
But in the example cited, the reason is because the property right has so far been ill-defined.
For the vital question here is, who owns the lifeboat?
If the owner of the boat, or his representative, for example, the captain of the ship, has
If a man has died in the wreck, and if he has not laid down known rules in advance of the wreck for allocation of seats in such a crisis, then the lifeboat may be considered, at least temporarily for the emergency, abandoned and therefore, unowned.
At this point, our rules for unowned property come into play, namely that unowned resources become the property of the first people possessing them.
In short, the first eight people to reach the boat are, in our theory, the proper owners and users of the boat.
Anyone who throws them out of the boat then commits an act of aggression in violating the property right of the homesteader he throws out of the boat.
After he returns to shore, then, the aggressor becomes liable for prosecution for his act of violation of property right,
as well, perhaps, for murder of the person he ejected from the boat.
Doesn't this homesteading principle sanction a mad scramble for the seats in the lifeboat?
Scramble, perhaps. But it should be pointed out that the scramble must not, of course, be violent,
since any physical force used against another to keep him from homesteading
is an act of criminal assault against him, and aggression may not be used to establish a homestead right.
Just as one would-be homesteader may not use force to prevent someone else from getting to a piece of land first.
To those who believe that such a homesteading principle is unduly harsh, we may reply,
a, that we are already in an intolerably harsh and fortunately rare situation where no solution is going to be humane or comforting,
and b. that any other principle of allocation would be truly intolerable.
The time-honored principle of women and children first is surely morally intolerable.
By what principle of justice do men have inferior rights to life or self-ownership than women or children?
The same is true of the view that the superior minds should be saved at the expense of the inferior.
Aside from the staggering objection of who is going to decide on who is superior or inferior, and by what criterion,
this view implies that the superior have a right to live at the expense of the inferior,
and this violates any concept of equal rights and renders any ethic for mankind impossible.
In 1884, a British court rejected the plea of necessity by which the defense sought to
justify the murder and cannibalism of a shipwrecked boy by several of his adult companions.
The judge, Lord Coleridge, asked, Who is to be the judge of this sort of necessity?
By what measure is the comparative value of lives to be measured?
Is it to be strength or intellect or what?
It is plain that the principle leaves to him who is to profit by it to determine the necessity
which will justify him in deliberately taking another's life to save his own.
On the other hand, in a previous Pennsylvania case in 1842, United States v. Holmes, the
court proposed to justify the murder of people in a lifeboat if the victims were chosen by
a fair procedure, such as lot.
Why blind chance should be particularly fair was not adequately explained.
A far clearer outcome of the lifeboat case occurs where the owner or his representative
still survives or has laid down rules for allocation in advance.
For in that case, our theory states that the right to allocate spaces in the lifeboat belongs
to the owner of the boat.
He may choose to carry out that allocation in various ways, whether by first-come, first-served,
women and children first, or whatever.
But though we may disagree with the morality of his criteria, we must concede his right
to make the allocation in whatever way he wishes.
Again, any forcible interference with such owner's allocation, for example by throwing
Making people out of their allocated spaces is, at the very least, an act of invasion
of property right for which the aggressor may be repelled on the spot, and for which
the aggressor would later be liable for prosecution.
Our theory of absolute property right is therefore the most satisfactory, or, at the very minimum,
the least unsatisfactory way out of the tragic lifeboat example.
An even starker version of the lifeboat case, and one where there is no question of someone's
prior ownership of the lifeboat, occurs when, to cite an example mentioned by Professor
Eric Mack, two shipwrecked men are battling over a plank that can only support one.
Does the concept of aggression and property right apply even here?
Yes, for again our homestead principle of property right comes into play.
That is, the first person who reaches the plank owns it for the occasion, and the second
person throwing him off it is at the very least a violator of the former's property
and perhaps also liable for prosecution for an act of murder.
Again, neither of the persons may use force against the other in preventing the latter
from reaching the plank, for this would be an act of physical aggression against his
person.
It may well be objected to our theory as follows, that a theory of property rights, or even
of self-ownership, is derivable from the conditions by which man survives and flourishes in this
world, and that therefore in this kind of extreme situation where a man is faced with
the choice of either saving himself, or violating the property rights of the lifeboat owner,
or, in the above example, of the homesteader in the boat.
It is then ridiculous to expect him to surrender his life on behalf of the abstract principle
of property rights.
Because of this kind of consideration, many libertarians who otherwise believe in property
rights gravely weaken them on behalf of the contextualist contention that given a choice
between his life and aggressing against someone else's property or even life, it is moral
for him to commit the aggression, and that therefore in such a situation these property
rights cease to exist.
The error here on the part of the contextualist libertarians is to confuse the question of
the moral course of action for the person in such a tragic situation with the totally
separate question of whether or not his seizing of lifeboat or plank space by force constitutes
is an invasion of someone else's property right.
For we are not, in constructing a theory of liberty and property, that is, a political
ethic, concerned with all personal moral principles.
We are not herewith concerned whether it is moral or immoral for someone to lie, to be
a good person, to develop his faculties, or be kind or mean to his neighbors.
We are concerned in this sort of discussion solely with such political-ethical questions
as the proper role of violence, the sphere of rights, or the definitions of criminality
and aggression. Whether or not it is moral or immoral for Smith, the fellow excluded by
the owner from the plank or the lifeboat, to force someone else out of the lifeboat,
Or whether he should die heroically instead is not our concern, and not the proper concern
of a theory of political ethics.
Moreover, Eric Mack's example fails to show a necessary conflict between property rights
and moral principles.
The conflict in his example is between property rights and the dictates of prudence or self-interest.
But the latter is only dominant in morality if one adopts moral egoism, which indeed
Professor Mack does, but which is only one possible moral theory.
The crucial point is that even if the contextualist libertarian may say that, given the tragic
context, Smith should throw someone else out of the lifeboat to save his own life, he is
is still committing, at the very least, invasion of property rights, and probably also murder
of the person thrown out, so that even if one says that he should try to save his life
by forcibly grabbing a seat in the lifeboat, he is still, in our view, liable to prosecution
as a criminal invader of property right, and perhaps as a murderer as well.
Whether he is convicted, it would be the right of the lifeboat owner or the heir of the person
tossed out to forgive Smith, to pardon him because of the unusual circumstances.
But it would also be their right not to pardon and to proceed with the full force of their
legal right to punish.
Once again, we are concerned in this theory with the rights of the case, not with whether
Whether or not a person chooses voluntarily to exercise his rights.
In our view, the property owner or the heir of the killed would have a right to prosecute
and to exact proper punishment upon the aggressor.
The fallacy of the contextualists is to confuse considerations of individual personal morality.
What should Smith do with the question of the rights of the case?
The right of property continues, then, to be absolute, even in the tragic lifeboat situation.
Furthermore, if the lifeboat owner, Jones, is being aggressed against by Smith and has
the right to prosecute Smith later on, he therefore also has the right to use force
to repel Smith's aggression on the spot.
Should Smith try to use force to preempt a spot on the lifeboat, Jones or his hired defense
Smith's agent certainly has the right to use physical force to repel Smith's active invasion.
Professor Herbert Morris takes a similar view of rights.
Speaking of the concept of rights in general rather than merely in lifeboat situations,
Morris defends the idea that rights must be absolute rather than merely a prima facie
presumption.
In those cases where it might perhaps be considered moral from a personal point of view to invade
To sum up the application of our theory to extreme situations, if a man aggresses against
another's person or property to save his own life, he may or may not be acting morally
in so doing.
That is none of our particular concern in this work.
Regardless of whether his action is moral or immoral by any criterion, he is still a
criminal aggressor against the property of another, and the victim is within his right
to repel that aggression by force and to prosecute the aggressor afterward for his crime.