Suicide as a Natural Right- Part II

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Part I

The Lockean conception of shelf-ownership does not work if we cannot alienate self-hood. In the context of involuntary slavery, our absolute right (p.10) to self-possession is relinquished through coercive force [1]. The notion of natural rights almost always implies that the individual owns. For instance, the right of free speech codified under the First Amendment of the Constitution implies self-ownership. Individuals embroiled in political debate must utilize the very bodies they own and utilize scarce resources (p.2)to engage in the passionate exchange[2]. There is one glaring flaw that most ethical theorists get dead wrong about natural rights. Our negative rights that are part-and-parcel with our personhood may be self-evident, but they are certainly not inalienable. The American Declaration of Independence echoes this sentiment and forever cements it in the public consciousness: 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

The claim that these rights are unalienable does not connote ownership of these rights in any meaningful sense. By the inseparable nature of self-ownership and natural rights, we do not truly have unfettered possession of ourselves. The ability to alienate something is that can only be the consequence of ownership. True ownership implies that an individual can transfer, maintain, sell, deface, lease, destroy, etc. the article in question as they see fit. One of the strongest arguments for this radical interpretation of ownership comes from economist and Libertarian theorist Walter Block. Dr. Block writing “..No law should be enacted prohibiting or even limiting in any way people’s rights to alienate those things they own. This is “full monte” alienability, or commodification…” (p. 6) [3]. Block surmises that an unlimited condition of ownership naturally extends to the person, meaning that if an individual chooses to sell themselves into slavery this is legitimate. Unlike the trans-Atlantic slave trade, the individual being sold is consenting to the arrangement [4].

However, most, and moral theorists would suggest that natural rights, especially selfhood cannot be alienated or dispensed with. As our mind and body are typically inseparable; neither can be reallocated nor disposed of. This supposition suffers from an unfortunate fallacy because a person can voluntarily absolve their will and sentience. In the most extreme case, a person could give themselves a lobotomy effectively alienating their will and severing their mind from their corporal body (p.8) [5]. 

There are less extreme examples of people abstractly selling off natural rights in exchange for material gain. One only needs to look to employment contracts to see a ubiquitous example of this selective selling of rights. It is common for employers to include social media policies as a condition of employment. Effectively acting as a voluntarily acknowledged limit on free expression; a right codified under the First Amendment. Regardless of whether this restriction is a temporary sale of this right or permanent alienation it is a legitimate exchange. From the standpoint of Rothbardian contract law, this arrangement fulfills the criteria for an enforceable contract. Under this theory of contract law, the property must be exchanged for the contract to be binding, any other agreement is a mere promise (p.133-135). At the core of an employment contract or conditions of employment, the property is being exchanged. The employer is transferring compensation (monetary and additional benefits) to the employee. This exchange is contingent upon the employee following the company’s internal policies. Indirectly operating as a form of selling or “renting” natural rights in exchange for employment.

Selling property is merely one means of alienating property. Other more drastic measures can achieve this same outcome. The concept that an individual can condemn their property, mirroring the same privilege current held by various tiers of the U.S. government. The only difference is that when the state does it, they do so without the consent of the owner. Even when eminent domain is practiced within the parameters of the takings clause, however, the property owner generally does not have the right to refuse to surrender their property. Regardless of whether they are justly compensated for the relinquishment of their business, land, or home this arrangement is still inherently coercive. In stark contrast, if a property owner dedicates to transfer or otherwise condemn the land they own, this is legitimate. Effectively, suicide is an example of a person opting to condemn themselves. A person choosing to forever dispose of themselves permanently disables their ability to contribute to society; mimicking how governing institutions can decree that land or a build is no longer fit for occupation or commercial use. The state typically initiates such a directive in the context of habitation or use of the property would pose a “safety hazard”. However, a person contemplating “condemning” themselves does not need to fabricate such vague excuses. If they truly own their own body and mind, they do not have to provide any justification for performing such action. Unlike eminent domain, the individual can consent to the decision they have made. 

Most people might argue that allowing others to commit suicide with no mandated intervention would squander human lives [6]. Further supporting this statement by repeating tired platitudes about how it is a permanent solution to a temporary problem. No doubt, suicide does come with a wide array of societal costs. The individual can never be replaced nor can their human capital because no two people have the same experiences. If we set aside the externalities of the act, there’s a deeper conflict at play. There’s a long tradition of property owners having the right to destroy what they own. The right to destroy one’s property has its roots in the doctrines of Roman and English Common law (p.8). Moreover, there is a long-standing tradition that arguably supersedes the concerns of modern environmentalists or other public interest initiatives. The concern for wasting resources was even voiced by John Locke back in the seventeenth century:

The same law of nature, which does by this means give us property, does also bound that property. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it to us? To enjoy. As much as anyone can make use of to any advantage of life before it spoils, so much he may by his Tabour fix a property in whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. (p.12).

While Locke provides us with prudent advice regarding resource management, it is nevertheless, a suggestion. A just legal system would defend the property owners’ right to dispose of their property how they choose, even if it is considered wasteful. A legal system that has penalties or restrictions impeding the right to destroy one’s property, provides a perverted form of justice. Much like anything else a person owns, they should be able to “destroy” themselves. In a sense, we legally permit other more protracted forms of incremental suicide. For instance, currently, no laws are prohibiting the sale or consumption of sugar-saturated and chemical ladened soft drinks. Although cigarettes are highly taxed and regulated, we still live in a society where smoking is still legally tolerated. Both soda and cigarettes slowly kill the person ingesting either product; despite this fact, these products should remain legal. Following this same logic, if the person should be able to choose what they put into their body, they can choose to also ultimately dispose of their body.

Footnotes

[1]. The account of Slavery in Locke’s Second Treatise of Government (1690).

[2]. An allusion to  Hans-Hermann Hoppe’s theory of Argumentation Ethics.

[3]. In reference to Block’s postulations related to the possibility of voluntary Slavery.

[4]. How slavery was practiced in the United States was a reprehensible institution. The trans-Atlantic slave trade was incompatible with a property rights justification for self-ownership. 

[5]. An example Walter Block borrowed from legal theorist Stephan Kinsella.

[6]. The idea of wasting human life can be applied in an economic sense. The decreasing fertility rates in the Western world present challenges to the labor force and the tax pool. Especially, after all the Baby-boomers die.

Public Trust Doctrine-Part IV: The Aftermath of A Liberated Doctrine

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Part I

Part II

Part III

Since the introduction of the concept of an “unconfined” application of the Public Trust Doctrine the legal construct has been utilized in a diverse number of ways. Typically in a manner that is divorced from its original purpose of preventing public resources from being occupied by private use. For example, preventing a private owner of an interior river from blocking off passage to anyone headed down. This becomes problematic because the operator of the boat is effectively stuck with no means of arriving at his destination. While there are several ways to resolve the issue of the unreasonable blockade, for example treating the river as a club good, at least the original intentions of the construct were limited to a clear concern for the public good. In the years since the Just case, the public interest justification has become more opaque. The overall lack of clarity and formal limitations on the doctrine has led to an appalling erosion of private property rights. Arguably has created a two-tiered system of public interest. On one hand, the doctrine has served to undermine public interest by destroying confidence in the state’s protection of personal property. The Just case is not a dead ringer for being the Public Trust equivalent of Kelo V. New London. However, both are horrifying demonstrations of how the Eminent Domain and the Public Trust Doctrine can be used in a manner that side-steps the Fifth Amendment.

The ruling on the Kelo case was unacceptable. No proponent of private property rights would argue otherwise. At least this illegitimate transfer of property was purportedly done for economic development. While this approach may have been morally and economically flawed, it still had pragmatic intentions. Whereas the Just case aimed to benefit the public interest in a more circuitous manner. Many of the goals of environmental preservation tend to reflect abstract objectives and ecological metrics that are far removed from the concerns of the average person. This does not mean that is not harm imposed by pollution or other ecologically destructive actions are not problematic. Such actions are loaded with externalities and adverse consequences. It is nearly impossible to separate the pragmatic concerns of the conservation movement from its ideological agenda. In reality, conservation should be about voluntary resource management, rather than forcibly separating American citizens from their property. Much of this conflation between political goals and practical environmental concerns is evident in the Green New Deal proposal.

The aftermath of the “liberated” Public Trust Doctrine is evident in the subsequent ruling giving a difference to this uncodified legal norm. It is difficult to conclusively say that using this construct to hold public property is inherently in the interest of the public. Public interest infers that all individual citizens benefit from the policy. In actuality, it operates more as an averaged aggregate of well-being, “… following utilitarian standards…” (p.159). The individual who is forced to surrender their property for the sake of environmental objectives without compensation is worse off. The matter is only compounded by the fact that the decision to transfer private property for public use is made by a third party with no rights to that property (p.159). This third party is the judges interpreting the law on the behalf of the state. Having the conditions under which this amorphous construct can be applied in case law does little to inspire that individual property rights will be considered. Especially because the metrics and even definition of public welfare are as unclear as to the constraints of the Public Trust Doctrine.

National Audubon Society v. Superior Court (1983)

The National Audubon case colloquially knows as the Lake Mono case does not directly address the issue of the conflict between Public Trust and private property. As the dispute was focused on the interests of the municipal government of Los Angeles and environmentalism goals. But it demonstrates another graduation in the flexibility of the interpretation of the doctrine. The city of Los Angeles was diverting from tributaries to Lake mono, as prescribed under state law (p. 196). However, the National Audubon Society decide to challenge the validity of these water withdrawals from various tributaries. Why? As water levels began to fall it started to have adverse consequences for the wildlife native to the ecosystems surrounding these bodies of water (p.196). Justifying questioning these redistributions of water and suggesting that the state was neglecting its Public Trust responsibilities.

What makes this case significant to expanding the scope of the doctrine is that it was no longer being limited to navigable bodies of water. There may have been some hints of this departure from this unspoken restraint in Just. But the “Lake Mono” case formally cements this shift in jurisprudence in case law. The California court ruled :

“ The purpose of the trust; the scope of the trust, particularly as it applies to non-navigable tributaries of a navigable lake; and the powers and duties of the state as trustee of the public trust (33 Cal. 3d at 434).. (p.197)”

The above statement alone arguably is a departure from the traditional interpretation of public trust. In terms of managing navigable waters ways, the management of tributaries is an adjacent concern. Such an expansion appears to be a mild form of judicial mission creep. This 1983 ruling went further in its claims of further broadening the doctrine. Suggesting that the doctrine isn’t locked into merely sticking to the “traditional triad” of navigation, fishing, and commerce (p.197). The doctrine needs to be made amendable to the growing and ever-changing concerns of public welfare (p.197). Opening up the doctrine to more progressive and looser applications in the broad sphere of public interest. Without a precise definition or sound metrics to assess whether these open applications are benefiting the public, at best advocacy of the doctrine’s expansion is audaciously careless. Making any absolute claims of benefits spurious. Particularly when the outcomes of the unconstrained doctrine only benefit a select few.

The Expansion into Recreation:

If it wasn’t concerning enough that the doctrine was being applied to opaque conservation goals, the foray into recreational justifications only serves to push the doctrine one step closer to being a fixture of arbitrary law. In Montana Coalition for Stream Access v. Curran, it was decided that the public has the right to have access to any body of water in the state for recreational purposes (p.197). This serves to go beyond the original Common Law and Roman Law precepts of the doctrine. However, it does not go so far as to invalidate the navigability requirements of the submerged lands covered under the doctrine (p.197). In the years since this 1984 decision, the recreational justification for invoking the doctrine has continued to be used. However, over two decades later in 2008 test of navigability requirement comes under scrutiny. In a disturbing twist, in Bitterroot river protection Ass’n V. Bitterroot river Conservation Dist., which expanded public right to recreational use of water for non-navigable and private water sources. Citing the Steam Access Law “… enacted in response to Curran…” for justifying this expansion into privately owned bodies of water (p.198). This byproduct of an expanded Public Trust Doctrine defies even the most conventional Samuelsonian definitions of public goods. A privately owned body of water that is non-navigable is most certainly excludable. Would it be appropriate to allow strangers to use the Koi pond in your backyard for “recreational” purposes? I believe that most people would oppose such an encroachment on private property rights. Reading the Bitterroot River decision without any context and could lead to such obtuse conclusions.  

Public Trust Doctrine: Part I

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The Public Trust Doctrine is a legal concept that has its basis in ancient Roman law and English Common Law. Being a legal construct, it has been subject to interpretation causing it to evolve over the centuries. Arguably some of the most radical shifts in its judicial application have occurred in the nineteenth and twentieth-century American courts. Shapeshifting from a doctrine used to prevent monopolization of public waterways to a blunt instrument wielded by the interests of the environmentalism movement. Subordinating water usage rights and other forms of private property to loosen conditions that public trust law has been applied. Some scholars such as Joseph Sax perceiving a contextual application of the concept as being too narrow. Believing that having more malleability with the application of the doctrine will help sustains its core function (p.4). This function being putting common resources to the best use for society. Rather than allow these resources to be sold off and alienated by private interests.

At first glance, Sax’s assessment of the doctrine may seem fair to those who are concerned about economic equality. The keen insights of legal scholar Richard Epstein provide an interesting perspective on the Public Trust Doctrine. He essentially likens the concept to be an inverted version of Eminent Domain law (p.8). Meaning that the Public Trust Doctrine mitigates private individuals from commandeering public lands without just compensation. Implying that an individual for example buying public land should not be doing so below the market price. Mirroring how just compensation is an implied right in any takings case as depicted under the Fifth Amendment of the Constitution.  In a society where taxes have been collected this premise makes sense. As taxpayers being the primary contributors to public funds, they own all public assets. In instances, where the costs of selling a public good to a private party outweigh the benefits it can be disputed whether the asset(s) should be sold.

Epstein successfully demonstrates the reciprocal nature of both Eminent Domain and the Public Trust Doctrine. The reason why both legal concepts parallel each other is the fact they are at their core interpretations of property rights. Both provide a framework for the conditions under which property can be transferred from one party to another. One describing the contingencies under which private property can be transferred for public use. The other presenting the conditions under which public property can be alienated for the use of a private party. If we are to hold property rights in high esteem both are subject to the conditions of the Takings Clause.  Unfortunately, both concepts wavered in front of protecting property rights. Proponents of a liberated form of the Public Trust Doctrine have no problem utilizing its amorphous nature to circle property rights to achieve environmental objectives. Theorists such as Sax show little concern for this erosion of property rights. Anything even remotely of a Classical Liberal disposition can be nothing but horrified by the diminished regard for private property in the American legal system.  In terms of the property being misappropriated to satisfy environmental objectives, it is easy to point to Sax being the linchpin for this decades-long trend.

It is not fair or intellectually honest to point all of the blame on Sax, technically the unfettered application of the doctrine began back in the nineteenth century.  Formulating from the seminal case Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892) considered by many to layout the rubric for the modern American interpretation of the doctrine. However, legal scholars such as Richard J. Lazarus point out that there was a precipitous change in the interpretation of the legal doctrine in the years following the 1970s (p.3). Displaying that there was a radical shift in the jurisprudence surrounding the doctrine that happened to coincide not only with the insights of Sax but also with the nascent period of the Environmental movement. Surmising that the environmental movement hastened the development of the doctrine isn’t at all outlandish. Especially considering it has traditionally been utilized as a legal construct to manage public waterways. Shedding some light on why property rights and environmentalism have historically been at odds. Truly prudent environmentalism manifests itself in sound resource usage and allocation. This can only take place in a world where property rights are enforced. Not nullified through arbitrary and tilted interpretations of legal traditions. Particularly ones that have never even been fully fleshed out in statutory law that take on capricious attributes. Merely shift due to a change on the whim of social trends.

If good resource management aligns itself with good economic policy, why couldn’t more market-friendly approaches to environmental problems be proposed as a compromise? At the very least devise compromises that respect the ownership of private property. One such compromise could entail a theoretical statutory codification of the Public Trust Doctrine. This would mandate compensation regardless of conditions under which land is transferred by the state. While the author is not completely comfortable with the idea of formal written law, this would be a pragmatic solution for two reasons. First off, it would operate as a formal constraint against loose interpretations of the Public Trust Doctrine. Second, it would demand compensation to those who were experience damages by the transfer of a property. Through a formal revision, not only can the doctrine be constrained to its original purpose it also will serve as a safeguard against unjust takings.