WEBVTT NOTE 20. Lifeboat Situations 1 00:00:00.000 --> 00:00:04.760 Chapter 20 Lifeboat Situations 2 00:00:04.760 --> 00:00:11.480 It is often contended that the existence of extreme or lifeboat situations disproves any 3 00:00:11.480 --> 00:00:19.380 theory of absolute property rights, or indeed of any absolute rights of self-ownership whatsoever. 4 00:00:19.380 --> 00:00:26.280 It is claimed that, since any theory of individual rights seems to break down or works unsatisfactorily 5 00:00:26.280 --> 00:00:33.520 in such fortunately rare situations, therefore there can be no concept of inviolable rights 6 00:00:33.520 --> 00:00:35.220 at all. 7 00:00:35.220 --> 00:00:40.820 In a typical lifeboat situation there are, let us say, eight places in a lifeboat putting 8 00:00:40.820 --> 00:00:46.540 out from a sinking ship, and there are more than eight people wishing to be saved. 9 00:00:46.540 --> 00:00:51.020 Who then is to decide who should be saved and who should die? 10 00:00:51.020 --> 00:00:56.260 And what then happens to the right of self-ownership, or as some people phrase it, the right to 11 00:00:56.260 --> 00:01:04.260 to Life. The right to life is fallacious phraseology, since it could imply that A's right to life 12 00:01:04.260 --> 00:01:10.100 can justly involve an infringement on the life and property of someone else, that is, 13 00:01:10.100 --> 00:01:18.500 on B's right to life, and its logical extensions. A right to self-ownership of both A and B 14 00:01:18.500 --> 00:01:26.020 avoids such confusions. In the first place, a lifeboat situation is hardly a valid test 15 00:01:26.020 --> 00:01:32.180 Most of a theory of rights, or of any moral theory whatsoever, problems of a moral theory 16 00:01:32.180 --> 00:01:38.540 in such an extreme situation do not invalidate a theory for normal situations. 17 00:01:38.540 --> 00:01:44.340 In any sphere of moral theory we are trying to frame an ethic for man based on his nature 18 00:01:44.340 --> 00:01:51.180 and the nature of the world, and this precisely means for normal nature, for the way life 19 00:01:51.180 --> 00:01:56.180 A pragmatic point related to the rare, extreme, and not-generally encountered situation. 20 00:01:56.180 --> 00:02:03.180 It is a wise maxim of the law for precisely this reason that hard cases make bad law. 21 00:02:03.180 --> 00:02:08.180 We are trying to frame an ethic for the way men generally live in the world. 22 00:02:08.180 --> 00:02:18.180 We are not, after all, interested in framing an ethic that focuses on situations that are rare, extreme, and not generally encountered. 23 00:02:18.180 --> 00:02:24.780 A pragmatic point related to the rarity of the lifeboat case is that, as we know from 24 00:02:24.780 --> 00:02:30.300 economic science, a regime of property rights and the free market economy would lead to 25 00:02:30.300 --> 00:02:36.860 a minimum of lifeboat situations, a minimum of cases where more than one person is battling 26 00:02:36.860 --> 00:02:43.660 over a scarce resource for survival. A free market property rights economy raises the 27 00:02:43.660 --> 00:02:50.060 the standard of living of all persons and ever widens their sphere and range of choice, 28 00:02:50.060 --> 00:02:56.060 thereby harmonizing liberty and abundance and rendering such extreme situations as negligible 29 00:02:56.060 --> 00:02:58.540 as humanly possible. 30 00:02:58.540 --> 00:03:03.460 But this sort of utilitarian argument, we must recognize, does not fully answer the 31 00:03:03.460 --> 00:03:07.660 questions of right and justice. 32 00:03:07.660 --> 00:03:12.660 Let us take an example to illustrate our point outside the sphere of property rights 33 00:03:12.660 --> 00:03:19.060 or Rights in General and within the sphere of ordinary ethical values. 34 00:03:19.060 --> 00:03:23.980 Most people would concede the principle that it is ethical for a parent to save his child 35 00:03:23.980 --> 00:03:25.840 from drowning. 36 00:03:25.840 --> 00:03:31.520 But then our lifeboat skeptic could arise and hurl this challenge, Aha! but suppose 37 00:03:31.520 --> 00:03:36.100 that two of your children are drowning and you can save only one. 38 00:03:36.100 --> 00:03:38.540 Which child would you choose? 39 00:03:38.540 --> 00:03:43.960 And doesn't the fact that you would have to let one child die negate the very moral principle 40 00:03:43.960 --> 00:03:47.980 that you should save your drowning child? 41 00:03:47.980 --> 00:03:53.400 I doubt whether many ethicists would throw over the moral desirability or principle of 42 00:03:53.400 --> 00:04:00.140 saving one's child because it could not be fully applied in such a lifeboat situation. 43 00:04:00.140 --> 00:04:05.540 Yet why should the lifeboat case be different in the sphere of rights? 44 00:04:05.540 --> 00:04:11.340 In a lifeboat situation, indeed, we apparently have a war of all against all, and there seems 45 00:04:11.340 --> 00:04:17.820 at first to be no way to apply our theory of self-ownership or of property rights. 46 00:04:17.820 --> 00:04:24.640 But in the example cited, the reason is because the property right has so far been ill-defined. 47 00:04:24.640 --> 00:04:29.820 For the vital question here is, who owns the lifeboat? 48 00:04:29.820 --> 00:04:35.340 If the owner of the boat, or his representative, for example, the captain of the ship, has 49 00:04:35.340 --> 00:04:53.340 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. 50 00:04:53.340 --> 00:05:03.340 At this point, our rules for unowned property come into play, namely that unowned resources become the property of the first people possessing them. 51 00:05:03.340 --> 00:05:11.060 In short, the first eight people to reach the boat are, in our theory, the proper owners and users of the boat. 52 00:05:11.060 --> 00:05:20.820 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. 53 00:05:20.820 --> 00:05:29.020 After he returns to shore, then, the aggressor becomes liable for prosecution for his act of violation of property right, 54 00:05:29.020 --> 00:05:33.020 as well, perhaps, for murder of the person he ejected from the boat. 55 00:05:33.020 --> 00:05:39.020 Doesn't this homesteading principle sanction a mad scramble for the seats in the lifeboat? 56 00:05:39.020 --> 00:05:46.020 Scramble, perhaps. But it should be pointed out that the scramble must not, of course, be violent, 57 00:05:46.020 --> 00:05:51.020 since any physical force used against another to keep him from homesteading 58 00:05:51.020 --> 00:05:58.020 is an act of criminal assault against him, and aggression may not be used to establish a homestead right. 59 00:05:58.020 --> 00:06:06.020 Just as one would-be homesteader may not use force to prevent someone else from getting to a piece of land first. 60 00:06:06.020 --> 00:06:12.020 To those who believe that such a homesteading principle is unduly harsh, we may reply, 61 00:06:12.020 --> 00:06:23.020 a, that we are already in an intolerably harsh and fortunately rare situation where no solution is going to be humane or comforting, 62 00:06:23.020 --> 00:06:29.020 and b. that any other principle of allocation would be truly intolerable. 63 00:06:29.020 --> 00:06:36.020 The time-honored principle of women and children first is surely morally intolerable. 64 00:06:36.020 --> 00:06:44.020 By what principle of justice do men have inferior rights to life or self-ownership than women or children? 65 00:06:44.020 --> 00:06:51.020 The same is true of the view that the superior minds should be saved at the expense of the inferior. 66 00:06:51.020 --> 00:07:00.020 Aside from the staggering objection of who is going to decide on who is superior or inferior, and by what criterion, 67 00:07:00.020 --> 00:07:06.020 this view implies that the superior have a right to live at the expense of the inferior, 68 00:07:06.020 --> 00:07:14.020 and this violates any concept of equal rights and renders any ethic for mankind impossible. 69 00:07:14.020 --> 00:07:21.020 In 1884, a British court rejected the plea of necessity by which the defense sought to 70 00:07:21.020 --> 00:07:28.340 justify the murder and cannibalism of a shipwrecked boy by several of his adult companions. 71 00:07:28.340 --> 00:07:34.540 The judge, Lord Coleridge, asked, Who is to be the judge of this sort of necessity? 72 00:07:34.540 --> 00:07:39.300 By what measure is the comparative value of lives to be measured? 73 00:07:39.300 --> 00:07:42.940 Is it to be strength or intellect or what? 74 00:07:42.940 --> 00:07:48.540 It is plain that the principle leaves to him who is to profit by it to determine the necessity 75 00:07:48.540 --> 00:07:55.500 which will justify him in deliberately taking another's life to save his own. 76 00:07:55.500 --> 00:08:02.180 On the other hand, in a previous Pennsylvania case in 1842, United States v. Holmes, the 77 00:08:02.180 --> 00:08:07.540 court proposed to justify the murder of people in a lifeboat if the victims were chosen by 78 00:08:07.540 --> 00:08:11.420 a fair procedure, such as lot. 79 00:08:11.420 --> 00:08:18.660 Why blind chance should be particularly fair was not adequately explained. 80 00:08:18.660 --> 00:08:23.820 A far clearer outcome of the lifeboat case occurs where the owner or his representative 81 00:08:23.820 --> 00:08:29.620 still survives or has laid down rules for allocation in advance. 82 00:08:29.620 --> 00:08:35.260 For in that case, our theory states that the right to allocate spaces in the lifeboat belongs 83 00:08:35.260 --> 00:08:37.520 to the owner of the boat. 84 00:08:37.520 --> 00:08:43.840 He may choose to carry out that allocation in various ways, whether by first-come, first-served, 85 00:08:43.840 --> 00:08:46.760 women and children first, or whatever. 86 00:08:46.760 --> 00:08:52.880 But though we may disagree with the morality of his criteria, we must concede his right 87 00:08:52.880 --> 00:08:56.400 to make the allocation in whatever way he wishes. 88 00:08:56.400 --> 00:09:02.640 Again, any forcible interference with such owner's allocation, for example by throwing 89 00:09:02.640 --> 00:09:08.080 Making people out of their allocated spaces is, at the very least, an act of invasion 90 00:09:08.080 --> 00:09:13.560 of property right for which the aggressor may be repelled on the spot, and for which 91 00:09:13.560 --> 00:09:17.760 the aggressor would later be liable for prosecution. 92 00:09:17.760 --> 00:09:24.560 Our theory of absolute property right is therefore the most satisfactory, or, at the very minimum, 93 00:09:24.560 --> 00:09:31.200 the least unsatisfactory way out of the tragic lifeboat example. 94 00:09:31.200 --> 00:09:36.600 An even starker version of the lifeboat case, and one where there is no question of someone's 95 00:09:36.600 --> 00:09:42.360 prior ownership of the lifeboat, occurs when, to cite an example mentioned by Professor 96 00:09:42.360 --> 00:09:49.960 Eric Mack, two shipwrecked men are battling over a plank that can only support one. 97 00:09:49.960 --> 00:09:54.520 Does the concept of aggression and property right apply even here? 98 00:09:54.520 --> 00:10:00.560 Yes, for again our homestead principle of property right comes into play. 99 00:10:00.560 --> 00:10:06.360 That is, the first person who reaches the plank owns it for the occasion, and the second 100 00:10:06.360 --> 00:10:11.760 person throwing him off it is at the very least a violator of the former's property 101 00:10:11.760 --> 00:10:16.440 and perhaps also liable for prosecution for an act of murder. 102 00:10:16.440 --> 00:10:22.080 Again, neither of the persons may use force against the other in preventing the latter 103 00:10:22.080 --> 00:10:27.400 from reaching the plank, for this would be an act of physical aggression against his 104 00:10:27.400 --> 00:10:28.920 person. 105 00:10:28.920 --> 00:10:34.520 It may well be objected to our theory as follows, that a theory of property rights, or even 106 00:10:34.520 --> 00:10:40.680 of self-ownership, is derivable from the conditions by which man survives and flourishes in this 107 00:10:40.680 --> 00:10:46.200 world, and that therefore in this kind of extreme situation where a man is faced with 108 00:10:46.200 --> 00:10:53.360 the choice of either saving himself, or violating the property rights of the lifeboat owner, 109 00:10:53.360 --> 00:10:57.360 or, in the above example, of the homesteader in the boat. 110 00:10:57.360 --> 00:11:02.660 It is then ridiculous to expect him to surrender his life on behalf of the abstract principle 111 00:11:02.660 --> 00:11:05.160 of property rights. 112 00:11:05.160 --> 00:11:10.120 Because of this kind of consideration, many libertarians who otherwise believe in property 113 00:11:10.120 --> 00:11:16.360 rights gravely weaken them on behalf of the contextualist contention that given a choice 114 00:11:16.360 --> 00:11:22.840 between his life and aggressing against someone else's property or even life, it is moral 115 00:11:22.840 --> 00:11:28.440 for him to commit the aggression, and that therefore in such a situation these property 116 00:11:28.440 --> 00:11:31.520 rights cease to exist. 117 00:11:31.520 --> 00:11:37.320 The error here on the part of the contextualist libertarians is to confuse the question of 118 00:11:37.320 --> 00:11:42.880 the moral course of action for the person in such a tragic situation with the totally 119 00:11:42.880 --> 00:11:49.780 separate question of whether or not his seizing of lifeboat or plank space by force constitutes 120 00:11:49.780 --> 00:11:53.700 is an invasion of someone else's property right. 121 00:11:53.700 --> 00:11:59.260 For we are not, in constructing a theory of liberty and property, that is, a political 122 00:11:59.260 --> 00:12:04.180 ethic, concerned with all personal moral principles. 123 00:12:04.180 --> 00:12:09.740 We are not herewith concerned whether it is moral or immoral for someone to lie, to be 124 00:12:09.740 --> 00:12:16.040 a good person, to develop his faculties, or be kind or mean to his neighbors. 125 00:12:16.040 --> 00:12:21.640 We are concerned in this sort of discussion solely with such political-ethical questions 126 00:12:21.640 --> 00:12:27.160 as the proper role of violence, the sphere of rights, or the definitions of criminality 127 00:12:27.160 --> 00:12:34.320 and aggression. Whether or not it is moral or immoral for Smith, the fellow excluded by 128 00:12:34.320 --> 00:12:40.380 the owner from the plank or the lifeboat, to force someone else out of the lifeboat, 129 00:12:40.380 --> 00:12:46.860 Or whether he should die heroically instead is not our concern, and not the proper concern 130 00:12:46.860 --> 00:12:49.340 of a theory of political ethics. 131 00:12:49.340 --> 00:12:56.040 Moreover, Eric Mack's example fails to show a necessary conflict between property rights 132 00:12:56.040 --> 00:12:58.400 and moral principles. 133 00:12:58.400 --> 00:13:05.140 The conflict in his example is between property rights and the dictates of prudence or self-interest. 134 00:13:05.140 --> 00:13:11.280 But the latter is only dominant in morality if one adopts moral egoism, which indeed 135 00:13:11.280 --> 00:13:17.020 Professor Mack does, but which is only one possible moral theory. 136 00:13:17.020 --> 00:13:23.460 The crucial point is that even if the contextualist libertarian may say that, given the tragic 137 00:13:23.460 --> 00:13:30.260 context, Smith should throw someone else out of the lifeboat to save his own life, he is 138 00:13:30.260 --> 00:13:36.420 is still committing, at the very least, invasion of property rights, and probably also murder 139 00:13:36.420 --> 00:13:43.060 of the person thrown out, so that even if one says that he should try to save his life 140 00:13:43.060 --> 00:13:49.580 by forcibly grabbing a seat in the lifeboat, he is still, in our view, liable to prosecution 141 00:13:49.580 --> 00:13:55.820 as a criminal invader of property right, and perhaps as a murderer as well. 142 00:13:55.820 --> 00:14:00.740 Whether he is convicted, it would be the right of the lifeboat owner or the heir of the person 143 00:14:00.740 --> 00:14:06.860 tossed out to forgive Smith, to pardon him because of the unusual circumstances. 144 00:14:06.860 --> 00:14:12.300 But it would also be their right not to pardon and to proceed with the full force of their 145 00:14:12.300 --> 00:14:14.980 legal right to punish. 146 00:14:14.980 --> 00:14:20.560 Once again, we are concerned in this theory with the rights of the case, not with whether 147 00:14:20.560 --> 00:14:25.820 Whether or not a person chooses voluntarily to exercise his rights. 148 00:14:25.820 --> 00:14:31.360 In our view, the property owner or the heir of the killed would have a right to prosecute 149 00:14:31.360 --> 00:14:35.460 and to exact proper punishment upon the aggressor. 150 00:14:35.460 --> 00:14:42.600 The fallacy of the contextualists is to confuse considerations of individual personal morality. 151 00:14:42.600 --> 00:14:47.600 What should Smith do with the question of the rights of the case? 152 00:14:47.600 --> 00:14:54.720 The right of property continues, then, to be absolute, even in the tragic lifeboat situation. 153 00:14:54.720 --> 00:15:00.880 Furthermore, if the lifeboat owner, Jones, is being aggressed against by Smith and has 154 00:15:00.880 --> 00:15:06.520 the right to prosecute Smith later on, he therefore also has the right to use force 155 00:15:06.520 --> 00:15:10.360 to repel Smith's aggression on the spot. 156 00:15:10.360 --> 00:15:16.840 Should Smith try to use force to preempt a spot on the lifeboat, Jones or his hired defense 157 00:15:16.840 --> 00:15:23.920 Smith's agent certainly has the right to use physical force to repel Smith's active invasion. 158 00:15:23.920 --> 00:15:27.280 Professor Herbert Morris takes a similar view of rights. 159 00:15:27.280 --> 00:15:33.200 Speaking of the concept of rights in general rather than merely in lifeboat situations, 160 00:15:33.200 --> 00:15:38.480 Morris defends the idea that rights must be absolute rather than merely a prima facie 161 00:15:38.480 --> 00:15:40.480 presumption. 162 00:15:40.480 --> 00:15:46.380 In those cases where it might perhaps be considered moral from a personal point of view to invade 163 00:15:46.380 --> 00:16:04.300 To sum up the application of our theory to extreme situations, if a man aggresses against 164 00:16:04.300 --> 00:16:10.420 another's person or property to save his own life, he may or may not be acting morally 165 00:16:10.420 --> 00:16:12.220 in so doing. 166 00:16:12.220 --> 00:16:15.860 That is none of our particular concern in this work. 167 00:16:15.860 --> 00:16:21.820 Regardless of whether his action is moral or immoral by any criterion, he is still a 168 00:16:21.820 --> 00:16:26.900 criminal aggressor against the property of another, and the victim is within his right 169 00:16:26.900 --> 00:16:33.020 to repel that aggression by force and to prosecute the aggressor afterward for his crime.