Journal of Applied Philosophy, Vol. 3, No. 2, 1986 217

Future Generations, Locke’s Proviso and Libertarian Justice

ROBERT ELLIOT

ABSTRACT Libertarian justice arguably permits much that is harsh. It might plausibly be thought to generate only minimal obligations on the part of present people toward future generations. This turns out not to be so, at least on Nozick’s version of libertarian justice, which is among the most thoroughly worked-out versions. Nozickian justice generates extensive obligations to future people. This provides an indirect argument for environmentalist policies such as resource consmation and wildmess preservation. The basis for these obligations is Nozick’s use of Locke’s proviso, which is spelled out using the notion of the baseline. This paper explains how the extensive obligations are implied by the core ideas of Nozickian justice. There is also a discussion of some of the dificulties involved in understanding the notion of the baseline. However, these dificulties do not destroy the theoretical basis for obligations to future generations contained within Nozickian justice. Provided that libertarian justice involves some such device as Locke’s proviso the enforcement of substantial environmentalist policies comes within the ambit of the libertarian minimal state.

I

Libertarian justice arguably permits much that is harsh. One of the best worked-out versions of libertarian justice, namely Robert Nozick’s, has the reputation of permit- ting much that widely supported competing theories of justice count as impermissible. Accordingly one might expect Nozickian justice to impose only comparatively weak constraints on present actions affecting future generations. Robin Attfield for one is severely critical of what he sees as the inadequacy of Nozickian justice in theoretically accounting for the extensive obligations which he believes are obviously owed to future generations by present people. Attfield claims that Nozickian justice is “grounded in entitlements to property” and implies that only minimal obligations deriving from justice “will be owed to the people of the future, who never hold property rights at the same time as any of their predecessors” [ 11. There is an implicit strategy in this line of argument to which many philosophers might take exception. Attfield is assuming that theories of justice (and indeed moral theories in general) may be overturned if a number of particular judgments in particular cases which they are intended to cover conflict with them. Whether this is a good strategy in normative argument is not the issue here. Rather the issue is whether a distinct assumption, that Attfield for one has made, is sustainable. This is the assumption that Nozickian justice and other similar libertarian theories of justice, properly understood ,and conscientiously applied, yield minimal obligations to future people on the part of present people.

It turns out that the assumption is not sustainable and that arguments against theories of justice which rely on it are consequently flawed. An examination and reconstruction of Nozick’s views on the topic reveal that there are extensive obliga-

218 R. Elliot

tions owed to future people. This paper gives an account of these obligations, strives to show that they are extensive and shows how they derive from views within the core of Nozick’s theory of justice. A crucial theoretical idea employed in this reconstruction is Nozick’s notion of the baseline. Although there are certain problems concerning it these do not destroy the theoretical basis for obligations to future generations within Nozickian justice. Moreover any libertarian theory of justice which incorporates the notion of a baseline which is, like Nozick’s, modelled on Locke’s proviso concerning the acquisition of property in the state of nature, will support extensive obligations to future generations [2].

Four points need to be stressed before I go on. First, it should not be thought that this paper is intended as a defence of libertarian justice in general or Nozickian justice in particular. Rather it aims to show that a view of justice which arguably permits much that is harsh in fact places considerable constraints on our treatment of future people. It aims to provide indirect support for environmentalist policies by showing that such policies are required by a view of justice which is thought unlikely to require them. This is an important result because once it is secured it can be used to thwart the arguments of libertarians, economic individualists, free marketeers and their ilk for the deregulation of practices which affect the environment and for the privatisation of the environment [3]. This is because the moral rights recognised by libertarian justice, and which the minimal state permitted by libertarian political philosophy must protect, include rights to environmental goods. While this paper concerns the having of such rights by future generations it should be noted that existing people will have such rights as well. These might likewise be appealed to in urging the legitimacy of environmentalist policies within the ambit of the minimal state.

Secondly, Nozick touches only fleetingly on the topic of obligations to future generations. However, there is no reason to think that his theory of justice is meant to be anything less than comprehensive and hence no reason to think that it is not in principle extendable to include future generations. While thus extending the theory requires something like a reconstruction of Nozick’s position, this is legitimate provided that it is consonant with, and suggested by, the ideas at the core of Nozick’s theory as he applies it to present people. This paper operates within this constraint.

Thirdly, the notion of the baseline, which is crucial to delimiting the requirements of Nozickian justice, even as it applies to present people, is critically underdeveloped. Nozick’s discussion of it is compressed into a few lines of text and a footnote [4]. Any attempt to apply principles of Nozickian justice requires a more definitive understand- ing of the baseline than Nozick explicitly offers. Moreover, it is not easy to see what guidelines should constrain the more complete spelling out of the notion compatible with its remaining, in some appropriate sense, Nozick‘s notion. On this topic the present paper has to be somewhat speculative.

Fourthly, Nozick’s theory is the only libertarian theory discussed here. I have focused on Nozick since I believe his is the best thought-out and developed, libertarian theory of justice. I shall here simply state my belief that the essential features of libertarian justice, organised around the alleged natural rights to ‘life, liberty and property’ [5], are contained in Nozick’s theory and that the implications of his theory for future generations are generalisable to other libertarian views.

I1

Nozick‘s theory of (distributive) justice is an historical account based on unpatterned

Libertarian Justice 219

principles. It does not link the evaluation of situations as just or unjust to structural features of those situations. Nor does it allow that the justice of holdings is to be determined in relation to some set of natural dimensions of individuals such as moral worth. There are three components of Nozickian justice: justice in acquisition, justice in transfer and justice in rectification (of situations resulting from unjust acquisition or unjust transfer). It is with the first of these components that I shall be mostly concerned.

Nozick highlights Locke’s proviso constraining the legitimate acquisition of re- sources in the state of nature, namely that “enough and as good be left for others”. Nozick then comments that the proviso is “meant to ensure that the situation of others is not worsened” (p. 175). He goes on to suggest that this may be taken in either of two ways. First, an appropriation would be wrong only if it resulted in some individual “losing the opportunity to improve his situation by a particular appropriation or any one” (p. 176). Secondly, an appropriation would be wrong only if it resulted in some individual “no longer being able to use freely what he previously could” (p. 176).

Nozick opts for the first interpretation. He remarks: “If I appropriate a grain of sand from Coney Island, no one else may now do as they will with that grain of sand. But there are plenty of other grains of sand left for them to do the same with. Or if not grains of sand, then other things” (p. 176). The idea is that a particular appropriation is legitimate if it does not decrease, in a way that makes anyone worse off, the resources to which people would have access in a state of nature. Before Nozick appropriates his grain of sand, that grain of sand is there to be used by any individual who chooses to use it and is able to use it. However, the appropriation would be legitimate because there are other grains of sand that may be used in its stead. Moreover, it is even legitimate for Nozick to appropriate all the grains of sand despite the fact that others could have used some of them in order to maintain or improve their positions. This is legitimate provided there is some other substance or commodity freely available which may be equally well put to the same use.

The last constraint needs further spelling out. First, it may be that appropriating all the sand is legitimate provided there are other available substances which would serve as substitutes for the sand in the way that liquid petroleum gas or coal serves as a substitute for petrol. Secondly, the appropriation may be legitimate even if there is no such substitute available provided that something else is available which might differently, but equally, contribute to an individual’s welfare. Thus there may be someone who requires a combustible energy source to heat his house. He may in the past have used oil for this purpose but someone else has appropriated what is available. On Nozick’s view this is allowable provided our sub-Arctic dweller has, and is able to burn, some other substance. For example, there may be utilisable coal deposits nearby. Alternatively, we could also imagine a situation where the second person’s appropria- tion of the oil makes it possible for the sub-Arctic dweller easily, and free of charge, to transport himself to warmer regions. Perhaps the oil is used to accomplish some extraordinary technological advance. It might be suggested that in this case the appropriation of the oil is permissible, despite there being no direct substitute, because something very different is available, viz. the technological advance, which obviates the need for the substitute combustible substance. Subsequent remarks of Nozick’s suggest that he resolves the ambiguity in this second way.

The crucial step in understanding Nozick’s view is to clarify what he has in mind when he speaks of worsening the situation of others. Clearly the notion requires considerable qualification. My appropriating certain natural resources and using them

220 R. Elliot

to produce goods in competition with others, thus making those others worse off by reducing their profits, does not itself make my appropriation illegitimate (p. 178). Nozick wants to exclude worsening which is due to appropriations limiting the opportunities of others in a wide range of circumstances; he also wants to exclude worsening which is due to the legitimate functioning of the free market. In one sense this is a circular enterprise since Nozick needs to appeal to Locke’s proviso in order to demarcate the legitimate functioning of the free market. However, in spelling out Locke’s proviso he appeals to the notion of the market’s legitimate functioning. The process is similar to Rawls’s reflective equilibrium. It is not so much a process of fitting one’s theory to one’s intuitions as a process of the mutual adjustment of the proviso and the market. Each is used to explain and refine the other,

What Nozick suggests (p. 177) in the end is that the appropriate notion of worsening be spelled out by reference to a baseline, consisting of resources, which partly determines opportunities to use resources in the state of nature. The obvious difficulty here has to do with fixing the level of the baseline. Unless we can fix it in some reasonably determinate and non- arbitrary way the Nozickian theory is impracti- cable. What Nozick does claim is true is that the level of welfare at the baseline is very low in comparison to the welfare levels which are the norm in the developed, industrial nations, presumably because real opportunities are so comparatively limited [6 ] . To take an example, my appropriation of oil may result in future people having a considerably lower level of welfare than I happen to have. It does not follow that my appropriation has worsened their situation to the extent of bringing it beneath the baseline and that it is hence illegitimate. My own welfare level is considerably above the baseline so even if I make others comparatively much worse off it does not follow that I have made them worse off to the relevant degree. Moreover, in a state of nature people may not have access to oil since access to it is dependent upon a developed technology. In short I am appropriating something they could not have appropriated in the state of nature anyway.

Unfortunately Nozick says little explicitly on the topic of defining the baseline. I shall return to the topic presently and both attempt to construct an answer on the basis of other remarks of Nozick and to draw attention to the chief problems that beset such an enterprise. What is true is that the notion of the baseline leaves open the strong possibility that Nozickian justice generates extensive obligations to future generations. In the next section I shall defend this claim.

I11

Nozick observes:

Fourier held that since the process of civilisation had deprived the members of society of certain liberties (to gather, pasture, engage in the chase), a socially guaranteed minimum provision for persons was justified as a com- pensation for the loss. But he puts the point too strongly. This compensation would be due to those persons, if any, for whom the process of civilisation was a net loss, for whom the benefits of civilisation did not counterbalance being deprived of these particular liberties. (pp. 178-9, fn)

The discussion here is couched in terms of liberties foregone but it would seem that the same point would have to be made concerning opportunities to make use of resources. It is interesting that Nozick’s reply to Fourier leaves room for legitimately

Libertarian Justice 221

taking something that is, in an attenuated sense, someone else’s, that is for legitimately crossing boundaries defined by the rights of others. Doing this is deemed acceptable in those cases where suitable compensation is given. Moreover he says that compensation is given in the case Fourier discusses.

Nozick considers in some detail the question of whether boundary-crossing acts , for which consent has not been obtained, are permissible. He considers cases which are relevantly similar to ones in which future people are affected by present practices concerning natural resources and the natural environment. Concerning a case in which an agent learns that some act of his might well infringe the rights of some other person, he asks: “Shouldn’t those who have not gotten their victim’s prior consent (usually by purchase) be punished?” (p. 77). His immediate answer is that in those cases where such consent could not be obtained, and not for want of trying to obtain it, the boundary-crossing act might be permissible provided that, among other things, suitable compensation is given. With cases involving future generations temporal distance puts paid to the possibility of obtaining prior consent. Although Nozick does not consider exactly this case, he considers analogous cases where “it might be known who the victim will be, and exactly what will happen to him, but it might be temporarily impossible to communicate with him. Or it might be known that some person or other will be the victim of an act, but it might be impossible to find out which person” (pp. 71 -72). About such cases Nozick says “any border-crossing act which permissibly may be done provided compensation is paid afterwards will be one to which prior consent is impossible or very costly to negotiate ... But not vice versa” (p. 72). This is a statement of a necessary condition for permissible infringements without consent but it is not, in Nozick’s view, a sufficient one. He is inclined to dismiss a criterion of efficiency, that is a criterion which permits an infringement if it “foregoes the fewest net beneficial acts” (p. 73). Certainly he rejects the suggestion in cases where net benefits are only marginally increased and he is not happy with the suggestion that infringements be allowed when net benefits are greatly increased.

In the end it is not altogether clear what Nozick‘s view of the matter is. He does think it is permissible to impose risks on other people, that is to do things which might possibly infringe their rights. This is permissible within a system that compensates “those upon whom risks eventuate” (p. 77). He does discuss the case of pollution which he characterises as “the dumping of negative effects upon other people’s property such as their houses, clothing and lungs, and upon unowned things which people benefit from, such as a clean and beautiful sky” (p. 77). In some cases of pollution, agents do know that their activities will infringe the rights of bystanders. In other cases they won’t know this since only time and research will reveal the extent of the infringements. In the cases where the effects are immediate and obvious Nozick suggests that boundary crossing is permissible provided that the benefits of the polluting activity outweigh the costs and provided that those who actually benefit compensate those upon whom the pollution cost was initially thrown. Using Nozick’s own example, the noise and general nuisance created by an airport are justified if (i) the benefits to those who use it are greater than the costs of those who put up with it, and (ii) compensation collected from the former (e.g. through increased fares) is paid to the latter.

The interesting questions arise when the compensation offered is deemed insuffici- ent by the person to whom it is offered. One can imagine an airport neighbour, who predates the airport, insisting that the only thing which would satisfy him is the closure of the airpon. No amount of money might induce him to happily tolerate the noise or

222 R. Elliot

to move elsewhere. Nozick is less than candid about what he would recommend in such a situation. If he recommended acting in violation of the resident’s wish then, even if he also required that the resident be set up elsewhere in princely style, he would be recommending something which sits uneasily with his professed side- constraints understanding of rights which “forbids you to violate those moral con- straints in pursuit of your goals; whereas the view whose objective is to minimise the violation of these rights allows you to violate the rights (the constraints) in order to lessen their total violation in society” (p. 29) [7].

Another example reinforces the point. Imagine someone who has legitimately acquired a tract of land in an idyllic river valley in order to live in solitude free from unwanted corollaries of life in industrial society. Some years later our Arcadian is assaulted by fallout from the coal-fired electricity generating stations that have been built nearby. He complains that his rights are being violated and is offered compensa- tion. However he argues that nothing will compensate for what has been done except closure of the stations (assuming that is the only way of eliminating the fallout). He argues that he had exactly what he wanted from life and that, because of the special relationship he has developed with his land he could not be fully satisfied elsewhere. In short he cannot be compensated. Any attempt to move him coercively would violate his rights just as the continued use of the station would also violate them. The example recalls those observations of Fourier’s which led him to demand a “socially guaranteed minimum provision”. The example shows Nozick’s response to Fourier to be flawed in that it is insufficiently sensitive to some people’s assessment of the benefits of civilisation. They simply do not count them as benefits.

If we accept Nozick’s view, implied in his adoption of Locke’s proviso, that people have rights of some kind to resources which were available in the state of nature, then in both examples the victim might justifiably complain that he does not have free access to something to which he would have had free access had he lived in a state of nature. Haven’t their (Nozickian) rights been violated? The answer has to be affirmative. Moreover it is difficult to see how, on a side-constraint view of rights, the violation could be justified.

It is relevant to consider in this context Nozick’s treatment of the free-rider problem. He considers the case of Fred who lives in a community which has a public address system. Some members of the community arrange a series of entertaining and educational broadcasts. They have drawn up a roster of all community residents allotting them a day on which they must man the system. Fred’s day is the 138th day after operations commence. Fred has enjoyed immensely the programmes he has heard. Despite this Fred is not prepared to do his bit nor did he ever say that he would. There is something else he would like to do even if his doing it meant that there would have been no broadcasts during the previous 137 days. Nozick’s view is that Fred has no obligation to man the public address system. He says: “the fact that we partially are ‘social products’ in that we benefit from current patterns and forms created by the multitudinous actions of a long string of long-forgotten people, forms which include institutions, ways of doing things, and language ... does not create in us a general floating debt which the current society can collect and use as it will’’ (p. 95). And more bluntly: “you may not decide to give me something, for example, a book, and then grab money from me to pay for it, even if I have nothing better to spend the money on7’ (p. 98).

Similarly, the fact that the environmentalist or the wilderness-lover has benefited from the products of civilisation and industrialisation does not mean that he has

Libertarian Justice 223

consented to the sacrifice of the environment in general, nor of particular bits of it, in order that such products be made available. Nor does it mean that he would prefer those products to intact ecosystems, clean air and the absence of the noise of commerce. Nor does consenting to civilisation and industrialisation to some degree entail consenting to them to any degree whatsoever. Someone may lament the imminent destruction of a temperate rainforest as part of a hydro-electricity scheme. It might be pointed out to such a person that she would not be prepared to live in a state of nature, that she would prefer some reasonable level of civilised life. However, a level of civilisation from a pre-industrial age might be preferred to the destruction of a forest. The forest was available in the state of nature and there is no level or style of civilised, social life which our complainant desires which necessarily requires the destruction of the forest. Given this it would seem that her (Nozickian) rights are violated by the destruction of the forest. Her case parallels Fred’s case.

The difficulty of confining the discussion of this case to the individualistic frame- work that Nozick employs is noteworthy. The case involves a decision about a project affecting rather large numbers of people. Such projects may be necessary in order to ensure that most members of society remain above the baseline, perhaps by ensuring directly or indirectly the continued supply of commodities, or substitute commodities, freely available in the state of nature. In circumstances where some must be pushed below the baseline in order that others be raised above it, something which justice in rectification may require, it is difficult to see how the conception of rights as side- constraints can be kept intact. A maximisation strategy, combined with a policy of compensation for those whose rights the strategy requires to be overridden, appears to have some merit. Perhaps Nozick’s flirtation with the idea that some acts of boundary crossing for -which permission has not been obtained are permissible indicates that he perceives this merit.

There is a crucial point that needs to be kept in mind here. First, the baseline is not a level of welfare though it will determine a level of welfare. The baseline is defined by opportunities to use and to enjoy resources available in the state of nature. Depriving X of something which is guaranteed her by the baseline in order to lift Y’s level of welfare to some minimally decent level is not legitimate, given Nozick’s libertarianism. On the side-constraints view the former consideration always wins out against the latter. It is only when the entitlements of X and Y to something available at the baseline cannot both be met that a balancing or maximising principle even begins to look consistent with the side-constraints view, one of the essential elements of Nozick’s libertarianism.

There will be numerous instances of environmentalist protest, concern and the like in which preservation of opportunities available at the baseline is the issue. In all the relevant cases things accessible in the state of nature, such as clean air, unpolluted water, wild rivers, untamed wilderness, unspoilt beaches, or resources exploitable without benefit of the technological fruits of civilisation, are no longer available because of past appropriation or will not be available at some time in the future because of past and present appropriations. These cases could be side-stepped by arguing that appropriating resources breaches no one’s rights, least of all the rights of future people. One might stress that this is exactly the difference between appropria- tion and theft. One might go on to suggest that whether one is in a position to appropriate, to stake a claim, is a matter of luck, of being in the right place at the right time. In other words being born into a world where the baseline is eroded as a result of human actions is a bit of tough luck that cuts no moral ice. The problem with this

224 R. Elliot

reply is that it disregards the issue of why libertarians like Nozick see the need for the Lockean proviso in the first place. Nozick thinks that in the state of nature accessible resources are at everyone’s disposal. If people care, or, presumably, might come to care, to make use of them they can freely do so. People in the state of nature have something like a right to these resources. We might think of these as proto-property rights since they prefigure the fully-fledged property rights which derive from legitimate appropriation. Nozick is effectively saying that every person’s rights, no matter where the person is located historically, are to be judged from the point of view of how things would have been for him in the state of nature. To a significant extent the luck of the temporal draw is checked and substantial obligations to future generations ensue, which obligations will frequently be discharged by the adoption of environmentalist policies. Moreover their adoption may have to be enforced by the state in the same way, and for the same reasons, as individual rights to life, liberty and property may have to be enforced by the state. This claim is developed in the next section.

IV The view that people in the state of nature and indeed all people who exist at any point in history possess proto-rights is evident in Nozick’s discussion of Rashdall’s oasis in the desert. We are to suppose that P comes to an oasis in the desert a few hours before some other people. Nozick suggests that it would be impermissible for P to appropriate the oasis. This is not because the later arrivals have a need for the water but rather because the water was there in the state of nature, accessible to all. Nozick, after suitably embellishing the Rashdall case, remarks: “The situation would be different if his water-hole didn’t dry up, due to special precautions he took to prevent this” (p. 180 fn.). If the water-hole was not dry just because such precautions had been taken, then it wouldn’t have contained water in the state of nature. And consequently the appropriator does nothing unjust if he withholds from others something that is necessary for their basic welfare, indeed, for life itself.

In the shipwreck case, which Nozick also discusses, it is wrong for the ‘owner’ of an island to order off a castaway who swims ashore, because in the state of nature the island would have been there. The owner certainly has no obligation, on Nozick’s view, to feed or care for the castaway unless the castaway is made worse off in the appropriate sense as a result of what the owner has done to the island, for example, cleared the land of fruit-bearing trees which were characteristic of its natural state. If the island were built, that is an artefact such as a drilling platform, then presumably the owner would be well within his Nozickian rights to order off the castaway. (There are cases that are difficult to conceptualise in the terms Nozick offers us. Imagine that X ‘salvages’ the oasis after it has been fouled by others. If X repairs the oasis he would have ensured that water was available which otherwise would not be. Perhaps X puts right Y’s breach of the Lockean proviso. Does this mean X now owns the oasis? He has not merely appropriated what was there. However, the oasis would have been there in the state of nature. Does this mean X cannot own it in the absence of as much and as good remaining for others?)

So far as the assessment of resource conservation policies is concerned, the Nozickian scheme requires the division of resources into two kinds. On the one hand there are resources which are accessible even to an individual in a state of nature. These include such things as clean air, pure water and even aesthetically appealing

Libertarian Justice 225

landscapes. On the other hand there are resources which require a certain technological sophistication to extract and use. These include such things as oil, cod, aluminium, iron and in fact most of those resources which contribute to the high levels of welfare associated with developing civilisation. What I have said about Nozick’s discussion of the oasis and island examples suggests that if resource conservation policies are to apply at all then they will apply in the former kinds of case and not in the latter. If the availability of these resources is necessary to maintain the resource baseline for members of future generations, then we are apparently required to leave enough of the resources to serve that purpose. This much at least follows uncontroversially from the Lockean proviso as Nozick interprets it. His comment concerning someone who finds a substance in an out-of-the-way place which effectively cures some disease bears this out: “He does not worsen the situation of others; if he did not stumble upon the substance no one else would have, and others would remain without it. However, as time passes, the likelihood increases that others would have come across the substance; upon this fact might be based a limit to his property right in the substance SO that others are not below their baseline position; for example, its bequest might be limited”

There may be complicated cases. Imagine that the earth undergoes a climatic variation due to some policy such as the clearing of the Amazon rainforests. Regions which were hitherto temperate become downright cold, droughts become more fre- quent and so on. A multitude of things are adversely affected from farming through to energy supplies. Many of the problems could be overcome in the short term if only fossil fuel were available in large quantities, which it isn’t. Morever, its availability would have provided a breathing-space during which long term solutions might have been developed. Without the fossil fuel, which a conservative energy policy would have guaranteed, relevant opportunities shrink in comparison to those available at the baseline if that is defined in terms of how things would have been in a state of nature, in that region at that time, had not the ‘unnatural’ climatic change taken place. Is the earlier appropriation of resources which drains the stock of fossil fuel illegitimate? Or is it legitimate on the grounds that the change in climate could not have been foreseen on the basis of information available at the time of the appropriation? I think Nozick’s answer must be that it is illegitimate. Certainly the earlier appropriation is an inadvertent act of boundary crossing. And while those who appropriated the fossil fuel which could have saved the situation do not themselves create that situation, they have nevertheless benefited from appropriations which if foregone would have kept a future generation above the baseline.

Nozick’s theory is insufficiently worked out and hence it is difficult to say with complete certainty what the Nozickian view would be in such cases. However, it seems to compel the adoption of strategies which minimise the degree to which people would drop below the baseline if the worst occurred. Moreover these strategies would constrain the activities of the free market since it is difficult to see how without the intervention of the state provision could be made for such catastrophic contingencies. Perhaps people might buy up resources to store for their distant descendants but the affective attitudes which would motivate such actions do not seem sufficiently widespread. It must be stressed that the catastrophes involved are not the result of natural bad luck. They are caused by what we do in the present by way of disrupting ecosystems, water-cycles, atmospheric composition and so on. Even in cases where the catastrophes are genuinely natural occurrences and not caused by human actions, the obvious solution to the catastrophe situation may be ruled out by what human beings

(p. 181).

226 R. Elliot

have done in the past. Imagine, for instance, that Q’s island is threatened by a lava flow and that trees out of which Q could have constructed a raft have been long ago appropriated, turned into planks and sold at a profit.

It is appropriate to conclude this section with some remarks about the notion of the baseline. If Nozick’s theory is to be applied we need first of all a means by which to fix the baseline. Remarks merely about how things would be in a state of nature are insufficiently precise to yield a guide to normative evaluation. For one thing it is worth asking if the baseline might vary from person to person. Obviously life in the state of nature in the environment of the Simpson Desert would result in a drastically lower baseline than life in the state of nature in the environment of fifteenth-century Tahiti. Or again, if I happen to have set up house in the Simpson Desert and have made myself comfortable with the benefits of technology (a refrigerator) and civilisation (books), then does life without these benefits in that environment define the baseline for me? If I went to the Simpson Desert from my house in a well-watered valley in central, coastal Queensland does life in the state of nature there define my baseline? Or is it fixed by the average life in the average wilderness? Or do we fix the baseline according to those environments in which human life developed, in which homo sapiens emerged as a distinct species? Life in the state of nature would in all likelihood be less grim at certain times than others, much as it is likely to be less grim in the tropics than in the Antarctic. It is believed that the earth experiences cold phases and warm phases and that this accounts for phenomena such as ice-ages. Is the baseline more appropriately defined in terms of environments specific to one kind of phase or the other? An obvious answer would be to define it in terms of present environments. Apart from the obvious problem of which present environment there is also the problem that an enormous proportion of present environments are products of human activity. Do we then have to run computer simulations and calculate how things would be now if human beings had not shaped the environment? And of course in a state of nature human beings are not prohibited from wreaking environmental harm, for example by lighting fires. How is this to be taken into account, if at all? The answers to these questions are not clear, but what is clear is that Nozickian justice generates obligations to future generations, many of which require adoption of environmentalist and conservationist policies, in proportion to the level at which the baseline is fixed. It is theoretically possible that these obligations will be extensive given a reasonably strong understanding of the baseline. Nozick’s interpretation and development, albeit truncated, of Locke’s proviso certainly suggests a strong understanding. Moreover this conclusion seems generalisable to any libertarian theory which takes Locke’s proviso seriously and which seeks to ensure that opportunities and entitlements are not absolutely constrained by the luck of the temporal draw and by the deals one’s ancestors have won on or lost on. As I indicated in Section I, libertarian justice provides, contrary to the beliefs of vocal, self-styled libertarians, a position of strength from which to argue against environmental deregulation and privatisation of the natural environment.

Acknowledgements

I wish to thank Robert Young, the members of the Philosophy Department Seminar at the University of Queensland and the referees of this journal for their helpful comments on earlier versions of this paper.

Libertarian Justice 227

Correspondence: Robert Elliot, Brisbane College of Advanced Education, 130 Victoria Park Road, Kelvin Grove, Queensland 4059, Australia.

NOTES

[l] ROBIN ATTFIELD (1983) The Ethics of Environmental Concern, p. 96 (Oxford, Blackwell). [2] I am supposing here that there is no conceptual impossibility involved in the claim that future people

have or will have rights in a way that constrains present actions. TIBOR MACHAN, in his (1984) Pollution and political theory, in: TOM REGAN (Ed.) Earthbound: new introductory essays in environ- mental ethics (Random House, New York), remarks on “the problematic nature of ‘rights’ of non- existing (future) persons, which would not be involved in the libertarian framework since a mere potential, non-existing person cannot have actual, existing, and binding rights” (p. 101). This alleged conceptual problem arises for all theories of justice, not just libertarian ones, which take rights seriously. Moreover, if the problem is resolved for non-libertarian theories the results will be generalisable to libertarian ones. I believe the problem can be resolved but that is a separate topic.

[3] For a sample of these arguments see MACHAN, op. cit., and ROBERT J. SMITH (1982) Privatizing the environment, Policy Review, 20.

[4] ROBERT NOZICK (1974) Anarchy, State and Utopia, p. 177 and fn (Oxford, Blackwell). (All references to Nozick are to this work.)

[5] MACHAN, op. cit., p, 95. [6] Talk in terms of the norm disguises the real possibility that many people living in developed, industrial

nations may fall below the baseline. [7] Although it should be noted that Nozick does hint at this point that side constraints may very

occasionally be violated; “The question of whether these side constraints are absolute, or whether they may be violated in order to avoid catastrophic moral horror,. . . is one I hope largely to avoid” (p. 30 fn).