At the Daily Beast, Keli Goff has a piece on “Why Blacks Aren’t Libertarians.” In fact, however, she may be a libertarian; at least, nothing in this piece shows why she cannot be. However, she definitely rejects a kind of dogmatic, absolutist libertarianism that she has encountered – and reasonably so, in my view. Here is the rub:
I presented the caller with the same hypothetical I do to so many of my self-professed libertarian friends: I’m injured in a plane or car crash. There is one hospital located in the town in which the crash has taken place. Do you believe the hospital has a right to refuse to treat me on the basis of race, and that the government has no moral or legal imperative to require the hospital to treat me?
One can make a convincing argument that a florist refusing to provide flowers to a same-sex wedding, or an upscale restaurant not welcoming African Americans, aren’t really major civil rights issues. (Frankly, in this day and age, if a restaurant refused to serve me I might use the power of the Internet to help put it out of business, but I wouldn’t see the point in suing someone to serve me when there are plenty of other dining options.) But when it comes to issues like government-mandated access to health care and education for all Americans, there is more at stake.
I would say that the hospital has a legally enforceable duty to accept anyone at imminent risk of death or injury. This is the “safe harbor” exception to the right to exclude that constitutes part of the bundle of private property rights. The safe harbor exception holds that in cases of dire emergency, you lose the right to exclude others from access to your property.
There are at least two important categories of cases here. One consists of cases in which there is no time to obtain consent: my wife is suffering a heart attack, and to save her I have to break into a locked building and take out its defibrillator. We should be able to assume consent in many cases when it is costly to obtain an answer from the property owner, and the foreseeable costs to the property owner are nil (e.g., I will compensate for any damage I cause).
Another category consists of cases in which original appropriation ends up leading to a monopoly, which if exploited could cause severe harm. One such example is Bill Bradford’s old chestnut: you fall out of an apartment window and on the way down grab a flagpole; the owner of the flagpole leans out and demands, “Let go!” Obviously, you have no obligation to let go. Robert Nozick gave an example of appropriating an oasis in the middle of the desert and demanding all the worldly goods of those who pass by in dire thirst.
So it seems clear to me that the hospital example fits into the latter category. If you’re in a life-or-death situation, you must be given access to the hospital. Now, that doesn’t mean you could conscript (enslave) a person to perform surgery on you – the right to exclude from one’s own body admits of no exceptions. And in extremely rare cases, a free society might therefore result in people’s avoidable deaths from lack of care – but of course that sort of thing happens now, all too often.
Now, I don’t know what Ms. Goff means by “government-mandated access to health care and education for all Americans,” but if she means large bureaucracies that provide these services at immense taxpayer cost on an ongoing basis, then she is indeed not a libertarian, as libertarians would not support that agenda. But neither does such an expansive government role in those industries follow from the emergency exception to the right to exclude just explored.
PILEUS 
She’s making an obvious black-and-white fallacy. She’s equating lack of government control over health care with the right to refuse treatment in case of medical necessity. That hasn’t been the case in America since we legally ended segregation, and we didn’t use government-mandated health insurance to do it. I’ll wager the “abosolutists” she’s encountering aren’t as “absolute” as she views them to be.
That’s probably right – it’s hard to tell where exactly she is going with the “government-mandated” bit.
Also, how does one end up in a libertairan world in which there is a monopoly provider of a service that still excludes service to people based on race?
I’m not saying it’ll never happen, its a lot harder to do that in a libertarian world. But compared to a world with price controls, certificate of need boards, and patchwork regulations, a world where people can start up a business to fill market vacuum would seem to have fewer of these problematic hospitals.
Also a fair point. But it’s at least conceivable that there are life-or-death situations with a badly injured person who can only hold out so long, in which the nearest hospital is quite a distance, and no others are nearby.
Consider the requirements of her hypothetical.
She’s saying that the ONLY AVAILABLE source of medical assistance in an extreme case is a “racist hospital.” Now, as we know, a hospital cannot be racist–only individuals can be racist. So essentially, in order for her case to exist, she essentially posits a hospital which ONLY HIRES racist medical staff–what’s more, only racist staff which is racist in the same way.
Furthermore, this hospital has managed to stay in business, and to be the only provider of medical care in an area large enough that (according to her scenario) it is entirely impossible, given her condition, to get to ANY OTHER source of medical assistance before she dies. It must exist in an area which is simultaneously completely homogeneous ethnically, almost entirely tolerant of racism of the same flavor, remote enough that the entire region is both identical and far from any other possible source of medical assistance, and so on.
So right off the bat, the shear number of things which must come together to create such a perfect storm of racism, medical knowledge, and medical need, is simply staggering. Not to mention that she is now depending for her life on people who are stupid enough to be racist, and simultaneously smart enough to have the requisite medical knowledge and skill to save her life, and cowed by potential government action after the fact to ensure that they overcome their racist beliefs and act to save her life in accordance with government mandate.
First, I say if this scenario is even remotely possible, then point me to a real-world situation in which something even remotely similar exists today.
Second, that any medical professionals likely to be so racist as to refuse care in an emergency situation are likely to be incompetent to provide it.
Third, that any medical professionals likely to be stupid enough to be so racist are also unlikely to concern themselves overmuch with potential consequences from the government should their refusal of service be reported to said government.
And I could keep going.
Anyone can form hypotheticals to support their argument. However, doing so often requires such extremely counter-factual circumstances that they are often selling out any real principles other than what is expedient to pushing their particular notion–and thus essentially is merely a convoluted form of circular reasoning.
You’re right that her specific scenario is very implausible. But that’s also a reason for us not to hoist ourselves onto that spike. We can freely concede that in this lifeboat scenario, the normal rules of social intercourse should be suspended, without thereby damaging in any way our broader critique of government and society.
I think you’re exactly right. In any life-or-death emergency, a priori rules and policies will and should go by the wayside. I don’t think we need to worry about whether it’s appropriate to forcefully intervene to save someone’s life in the immediacy of a crisis. But we do need to wonder if it’s necessary or even beneficial to use the necessities of extraordinary crises as a basis for developing the laws and policies that do guide ordinary circumstances.
Whether or not the racist hospital staff ought to be intimidated into providing medical care after the hypothetical plane crash is an entirely separate question from whether the federal Civil Rights Act – a piece of codified legislation enforced by a permanent bureaucracy and a fixture in the everyday circumstances of life as much as extraordinary situations – is a good idea.
Here’s a slightly related question, though: if, in a crisis, Alice does quantifiable harm to Bob in order to save the life of Carol, is it reasonable to regard that Alice owes some form of restitution to Bob after the crisis is settled?
Fully agree with all that.
In your hypothetical, I would say that Alice likely does owe compensation, because when we think of property rights as a bundle of rights, we see that losing (temporarily) the right to exclude certainly does not mean losing all the other rights attendant upon ownership, such as a right to compensation for damage.
Lifeboat exceptions strike me as the philosophy equivalent of arbitrary domain restrictions. If reality is logically consistent, shouldn’t morality also be logically consistent? You can’t just ignore the logic of one’s premises when you don’t like their implications, and say you have to abide by them when you like the implications.
Also, it seems arbitrary to say that you legally have put x amount of effort into saving a person as they are about to die but you don’t have to put x amount of effort into doing things that can prolong someone else’s life over time. Let’s say someone is about to die who would otherwise live 20 years, and you can save them for roughly $20. Let’s say there is a child in Africa whose life could also be prolonged for 20 years by giving $20 to a clean water charity. But the child is not about to die. The two scenarios seem equivalent to me.
If other people have moral claims on your time during emergencies, they have something of a claim in non-emergencies.
The term “exception” implies arbitrariness, but I don’t think they are arbitrary in these examples. It’s just that the truth of the matter about property rights is highly complex.
WRT to donating to prolong someone’s life, the element of the situation that makes the crucial difference is whether you are “specially placed” to assist, meaning that I can do it better than others, or have a pre-existing relationship with the person that would imply such duties. I have a moral duty to save someone’s life if I’m in as good a position to save that person as anyone else (I believe). I don’t have a moral duty to save a particular person’s life if others are in a better position to do so, though I may have what’s called an “imperfect duty” to try to save others & prolong their lives when and how I can. Prolonging life makes it less likely that I’m better able to help than others, that I’m specially placed to assist. Still, I would likely have a duty to try to help my family members and friends prolong their lives.
>It’s just that the truth of the matter about property rights is highly complex.
I guess this is where I’ve been waiting too long to hear from philosophers who favor property rights from a deontological perspective as to how to justify that complexity. I’ve tried to keep my ear close to the libertarian philosopher ground for 20 years and found nothing persuasive. By my own reasoning, it seems contradictory to me unless one takes a teleological approach.
Why would teleology generate complexity while a standard like “respect for persons” would not? It seems to me what’s special about property rights, compared to rights in your own body, is that they require some standard for initial appropriation of an unowned stock. So any system of property rights, taken as a whole, will have to meet a fairly demanding standard of being in everyone’s interest, relative to no appropriation.
Teleology is about an endpoint, whether it be life, happiness, greatest happiness for greatest number, excellence, etc. Whatever rules or activities are most likely lead to that end point are good. Therefore, a telos of maximizing lifespans would dictate you have property rights, but there are some legal or moral exceptions for lifeboat scenarios, because the whole point is to maximize lifespans.
Deontology treats actions as right or wrong by themselves. Results aren’t supposed to matter. Thus, when deontological rules lead to results you don’t like, your only recourse is to carve an exception from their logic.
>So any system of property rights, taken as a whole, will have to meet a fairly >demanding standard of being in everyone’s interest, relative to no >appropriation.
Are property rights derived from interest or from something else? Under this understanding, they don’t seem deontological at all, because the rules of property rights would not be right or wrong in themselves, but subject to the veto of interests.
I would differ on the understanding of deontology. Deontologists assess the morality of actions according to the validity of maxims justifying them. I don’t think it makes any sense to think of actions as having inherent rightness or wrongness – I accept Hume’s critique of this view as implying nonsense like holding the growth of trees immoral. I also think deontologists are fine with looking at results. You can’t draw a sharp distinction between an action and its consequences (is pulling a trigger an action and firing a bullet the consequence? or is firing the bullet part of the action, and the impact of the bullet a consequence? or is it all part of the action?).
>Deontologists assess the morality of actions according to the validity of maxims >justifying them.
Would teleologists disagree with this? The difference is that for them, maxims are derived from some ultimate endpoint.
I find it difficult to understand teleology. 🙂 My understanding is that teleologists don’t see virtue as inhering in a will that conforms to a valid maxim, but instead in a character that is given to action conducive to well-being. Then consequentialists are distinguished from both in evaluating acts directly according to how they maximize some end.