In an article entitled Why I Am Not a Libertarian: the Dilemma of the commons the author writes the following (emphasis added):
Take the example of a farmer who lives upriver and a fisherman who lives downriver. The farmer may need to use nitrogen fertilisers to promote the growth of his crops; but runoff from those fertilisers that leaks into the river can lead to blooms of phytoplankton that suck all the oxygen from the water, creating dead zones that suffocate the fish that fishermen depend on for their livelihood. Clearly, private property is not going to solve this problem; both farmer and fisherman need to make a living, both can reasonably claim ownership over their section of the river, and the requirements of each are inimical to the other’s livelihood.
In this post I hope to explain why the author’s claim that the institution of private property is incapable of solving this problem is premature. I’ll do this by sketching a possible solution set in the social order advocated by anarcho-capitalists. This is a stateless private-law society. It’s necessary to understand the fundaments of how law would be provided under this order before getting on to how the river situation gets solved. If you prefer this primer in video form here's an animated illustration I made accompanying a lecture by David Friedman:
Back to the scenario alleged to be an problem that property rights are unable to resolve: A farmer upstream owns part of a river. A fisherman downstream owns part of it too. The farmer wants to use a fertiliser on his soil, this will help the farmer, but will also pollute the river and end up damaging the livelihood of the fisherman, because it will kill his fish.
In a fully developed private law society, with established norms for the ownership of bodies of water, this isn’t as big a problem as the Daylight Atheism author assumes it must be.
Bricks and buzzers
In todays world everyone understands that they’ll be in legal trouble if they open a window of their house, and throw a brick across the road, smashing the window of their neighbours house.
An action I carried out, while on my own property, using my own material, had a harmful effect on my neighbour’s property. We have no difficulty in establishing liability. There’s no reason that the same cannot be true if we consider a river.
In the case of the brick through the window, we have a background idea about reasonable wear and unreasonable harm that another person can cause to your property. For instance the material wear associated with pushing a person’s doorbell is very different, legally, to the damage caused by a brick thrown through a window. In both cases the physical makeup of the property has changed, but law makers draw a line somewhere between using a doorbell and throwing a brick which delimits the limit of acceptable behaviour. At least as far as common law (rather than state legislation) is concerned, exactly where that line is drawn is arrived at in response to the subjective values of the people for whom legal services are is being provided.
The brick example shows that there’s no barrier for us to arriving at a set of norms about what constitutes acceptable and unacceptable transformations of another person’s property arising from one’s actions. And that’s all we need to form the basis of useful aqueous property rights.
Unacceptable transformation of someone else’s chunk of water
What are people likely to value about part of a river? The capacity to sustain marine life would be a very desirable quality I think. Even if the person wasn’t personally interested in fishing, it would be in their interest that fish were able to live in this part of the river, because this would increase its market value. The ability to support fish would likely end up protected by law against polluters in the same way as the integrity of your house was protected against brick-throwers.
It seems likely there would be standards established specifying acceptable ranges for the chemical make-up of the river water. If a person’s actions changed the make-up of his neighbour’s water outside of that range, the polluter would be liable for damages.
Because the cumulative damage to downstream owners is potentially very great in the case of river ownership, the farmer who polluted the river may well end up going bankrupt as a result of the associated legal penalties.
Establishing guilt
Because of the potential for massive claims from downstream owners, it would be in the interest of any owner of part of the river to be able to present any investigating defence agency with credible evidence that he or she was not a polluter. Under these conditions there would be a market opportunity for entrepreneurial providers of pollution measuring systems. The more demonstrably tamper-proof and reliable the system, the more it would be worth to river-owners.
If all owners of the river installed such systems, it would be very easy to see where the pollution originated. If all but the polluter installed such a unit, it would be similarly very easy to pin-point the likely source of the problem.
River owners may not end up paying for the pollution detection units directly.
It would also be in the interests of defence agencies specialising in river property to be able to confidently identify polluters, and to unambiguously establish the innocence of their own clients–because all this would save them money. So it may be a condition of subscription to such a service that new clients agree to the installation of such a device.
Solution
When an agency receives a call from a client complaining that someone upstream is polluting the river, they’ll figure out who did it, perhaps by consulting data from an array of pollution sensors. Whichever court has ultimate decision making authority over the resulting case (as determined by the preexisting agreements between defence agencies) will want to maintain its good reputation and stay in business, and so will rule against the culprit, who will be ordered to pay reparations.
Under the conditions of anarcho-capitalism, the solution to the problem seems quite straight-forward.
The farmer is unlikely to contaminate the river with fertiliser because he knows that there are extremely steep penalties for severe and unauthorised transformation of other people’s property.
This story is based on an article I originally published here.
Here are some other things I wrote that you might appreciate:
I'm Tomasz Kaye. I made George Ought To Help and other pro-liberty propaganda films. You can support my work on Patreon.com. I'm also on Twitter and Facebook.