The best thing ever written on this type of issue, in my opinion, is this:
Rothbard, Murray N. 1982. "Law, Property Rights, and Air Pollution," Cato Journal, Vol. 2, No. 1, Spring; reprinted in Economics and the Environment: A Reconciliation, Walter Block, ed., Vancouver: The Fraser Institute, 1990, pp. 233-279; http://mises.org/story/2120; http://www.mises.org/rothbard/It is an application, to trespass of dust particles, of libertarian (Lockean) homesteading theory. It’s basic premise is that the first person to homestead anything is the rightful owner. Anyone else, “comes to the nuisance.” So to answer your first question:
“Under libertarian principle, if there are desert areas, say outside Las Vegas or in Arizona, could a resident stop a neighbor from planting a tree or flower that would produce allergy causing pollen that would otherwise result in a pollen free area?”
If the resident was already there, here was there first, he homesteaded land, and now a second person comes along, the “neighbor,” who is contemplating planting a tree that would harm the first person, then, yes, the first person should be able to stop the second person from doing that. It would be the same if an airport (noise), or a pig farm (smell), or a factory (dust particles) were to set up in an already settled area, and then visit the noxious phenomena on the property owners. The latter should get an injunction from the libertarian court to prevent that (I’m now assuming everything Murray assumes, such as de minimus – the law cannot take account of trifles.)
“Under libertarian principle, regardless of when a neighbor planted a flower or tree that produced allergy causing pollen (or if the flowers/trees were already on the land prior to the current owner gaining control of the property) would a neighbor have the right to demand that the flowers/trees be cut down?”
You say “regardless of when…” But this is an absolutely crucial point: who was there first. If the “neighbor” had first planted the “allergy causing pollen” trees, then he would have the right to keep them, even if the new settlers were hurt by them. (There is always the possibility of one person buying out these rights from the other, but this becomes difficult when there are many people involved.)
I hope and trust this will be of help to your deliberations on this matter.
Woot! Exactly what I said yesterday in the comments :)
ReplyDeleteSelf-ownership takes precedence over property. What if the allergy sufferer is visiting the tree owner? Or visiting the neighbor next door? What if the cause wasn't tree pollen but a sting by a bee from the neighbor's bee hives? What if the neighbor has a visitor who is stung and goes into anaphylactic shock? Who's responsible? Is anyone responsible?
ReplyDeleteThe issue should first be centered on self-ownership given that wherever you are your person is your property and should be protected against harmful affects by others absent your informed express consent.
The central issue then becomes to what degree should someone be held responsible for *avoiding* some harmful affect versus the person who has accidentally caused it? This should fall under a doctrine of due care. In other words, if the tree owner has planted trees and a person suspects an allergy, that person should take reasonable measures to determine the risk and avoid the affect beforehand.
And if the person who's actions creating the harmful condition didn't act with gross negligence or intent and the person who suffered the affect didn't exercise reasonable care, then I say there is no fault even though harm resulted.
Since the tree owner had no intent to cause harm, then the dispute should be treated as a civil matter by the courts (except in case of criminal negligence). And as such, the tree owner and allergy sufferer should first be required (by law) to mediate their dispute. Only in the case of an impasse should the matter go to court for arbitration but still be treated as a civil matter (no one goes to jail).
As a civil matter, the court should then rule based on whether the tree owner and the allergy sufferer had both taken reasonable care or whether one or both acted negligently. In other words, there can be degrees of responsibility - it's not a question of guilt or innocence. One outcome could be that the trees must be removed but the allergy sufferer pays for their removal... a compromise. The court should have that latitude and the outcome shouldn't be zero-sum.
So I think in agreement with Prof. Block's opinion, if I were sitting on the presiding court and the trees had preceded the allergy sufferer, I'd likely decide in favor of the tree owner but with partial remedy for the sufferer. If not, then the reverse if proven beyond my reasonable doubt that the trees were the cause of the problem. This is the kind of outcome I'd expect in a libertarian state.