August 02, 2005
So You Want to Live in a Free Society (5): Common Property, Common Carriers, and the Case of the Conscientious Objecting Pharmacist
Anderson on Political Economy, Elizabeth Anderson: August 2, 2005
Imagine that you lived in a place where you had to ask someone else's permission to leave your property. Even if the other person always gave permission, you wouldn't be free. You'd be under conditional house arrest, with the other person your discretionary jailor. The case wouldn't be much better if you had a choice of 5 people to ask, any one of whose permission would let you leave your property. Then those 5 would be your joint jailors. You'd have somewhat wider opportunities, assuming their decisions were not coordinated. But you'd still be dominated by them. To be fully free, it's not enough just to have wide opportunities. People must be free from the prospect of domination--the power of others to arbitrarily put them in a state of subjection, where they must beg to get an opportunity critical to living a free life. It's worse, from the perspective of freedom, to be deprived of a critical opportunity by the arbitrary exercise of another's will, than to lack it due to natural causes or lack of technological development. It's worse to be unable to cross an unnavigable river because others arbitrarily forbid one from using the bridge, than because the technology for building a bridge at that point is lacking. In the first case, one lives in a state of subjection to others; in the second, one is merely technologically poor.
The "house arrest" case does not require that the "jailors" be state agents. They could be private property owners, in a property regime that enforces an absolute right against tresspass, and in which an entire territory is completely privately appropriated, such that some parcels of private property are wholly surrounded by other parcels. Then the owners of the surrounded parcels would all be effectively trapped by the owners of the surrounding ones. They'd be unfree. They'd be unfree even if helicopter travel were feasible, and private property owners didn't have airspace rights, so one could fly over their property. A property regime that makes escape from one's property either massively expensive, inconvenient, rarely scheduled, and likely beyond one's budget, or conditional on someone's arbitrary will, is nearly as bad from the perspective of freedom as one that conditions it on someone's arbitrary will alone.
I'm going to argue that consideration of freedom in cases like these yields:
1. An argument in favor of keeping certain parcels of land in the commons;
2. An argument in favor of the common carrier rule (the common law rule that operators of transportation, communication, and hotel services offer their services to all, without discrimination);
3. An argument in favor of applying the common carrier rule to pharmacists and other providers of medical care.
Robert Nozick considered cases like these (Anarchy, State, and Utopia, p. 55). He rightly argued that in such circumstances, property rights against trespass should yield to the compelling liberty interest of trapped persons in being free to leave their property. Nozick's answer entails that the bundle of rights that should go along with a parcel of private property may properly vary with the impact the exercise of those rights has on the liberty of other people. It recognizes a point I made in an earlier post: in securing an exclusive right to the owner, private property takes away certain liberties of others. This raises the question of whose liberties should prevail in determining the proper scope of a property right.
Nozick answered this question by invoking what he called "the Lockean Proviso": a diminution of one's freedoms due to the private property appropriations of others is ok as long as it doesn't make one worse off than one would have been in a state of nature without any private property (Anarchy, State, and Utopia, p. 175). The case of being trapped makes one worse off than if one could move around, which one was free to do in the pre-appropriation state. So Nozick can claim that surrounded individuals have a right to an easement across the property of the surrounding owners under the Lockean Proviso.
Brad DeLong has offered a devastating internal criticism of Nozick's Lockean Proviso. The Proviso permits taking away people's natural rights (to use the whole earth freely--which they enjoy before there is any appropriation) just so long as this makes people no worse off in terms of utility. Utilitarians are of course happy with this. But the whole point of Nozick's system is to oppose such tradeoffs of rights against utility. DeLong argues that Nozick is inconsistent: he's got to allow such tradeoffs to get private property off the ground, but after that, he wants to prohibit them.
To be consistent, Nozick should have judged property regimes in the currency of freedom, rather than utility. Moreover, Nozick should have considered that the important comparison is not between having his specification of a private property regime and having no private property, but between alternative specifications of property regimes. If freedom is what matters, then we should choose the specification that best promotes the freedom of everyone. It is not sufficient to justify Nozick's specification of private property rights that it satisfies the Lockean proviso, if lots of alternative specifications would equally well satisfy it, but generate a superior package of freedoms for people generally. We should choose the specification that generates the best package of freedoms overall.
Given that every specification of a private property right secures some freedoms at the cost of others, we need a rough metric of the value of freedoms to determine which specification would be best. In general, the answer will depend upon two factors:
1) Whether each person has a more compelling interest in exercising a given person-specific liberty in himself (for example, P deciding whether P shall leave P's property) than in exercising that liberty in the person of another (P deciding whether S shall leave S's property); and
2) Whether permitting the liberty to be used, transferred, or constrained in the ways specified has dynamic effects that generally enhance people's overall package of liberties.
(Let me introduce a notation to help us compare the freedoms made available by rival specifications of property rights. We can ignore the liberties that the rival specifications have in common, and consider only where they differ. Since every property right trades off some liberties for others, we can denote property right X in terms of the ways it differs from Y as follows: X = [people have liberty a, and lack liberty b]; Y = [people lack liberty a, and have liberty b].)
Considerations of the first type typically speak to individuals' freedom in the sense of personal independence or non-domination. Some liberties in the person are so critical to freedom that each person has a more compelling liberty interest in possessing them in their own person than in possessing them in the person of anyone else. For each person P, P has a stronger liberty interest in having the freedom to determine what P shall think, whom P will befriend, when P will leave P's property, etc., than in having the freedom to determine what anyone else S shall think, whom S will befriend, whether S will leave S's property, etc. In short, the liberty package [I'm secured against being a slave to anyone, I can't own any slaves] is a more valuable package of freedoms than the package [I could be a slave to someone, I could own slaves]. Such considerations generate grounds not just for "self-ownership," but for inalienable rights in one's own person. (And no, dynamic considerations of free contract do not always override such arguments. Having the right to sell oneself into slavery does not make one freer than not having the right to sell oneself into slavery, because having that right weakens one's bargaining position and thereby shrinks one's opportunities. Opportunities others would have offered to one in a regime in which one enjoys an inalienable right against enslavement they may now offer only on condition of accepting enslavement.)
Considerations of the second, dynamic, type usually speak to individuals' opportunity freedom, and do most of the work in determining how to specify the bundles of rights properly attached to any parcel of property external to the self. Yet, as the "house arrest" cases show, considerations of non-domination or personal independence enter here as well. The liberty package [I can leave my property without having to ask anyone else's permission; others can cross my property if they need to do so to leave their own property] is superior to the package [I can't leave my property without asking someone else's permission; I can forbid anyone from crossing my property].
So far, I have shown that system B, in which all property is privately appropriated, combined with easements for everyone to cross their neighbors' property, secures more freedom than system A, in which all property is privately appropriated, and everyone has strict rights against trespass. Yet there are compelling liberty interests that B would not satisfy. Each of us has a compelling interest in being free to have visitors to our homes, without having to ask anyone else's permission. System C: [all property privately appropriated; anyone has the right to cross anyone's property en route to someone else's home] secures a superior package of freedoms than either A or B. Still, C could be faulted for its failure to limit easement rights. A few people crossing one's lawn is no big deal; but big crushes of people will invade one's privacy and leave one without the freedom to enjoy one's property in peace. C also fails to satisfy our compelling liberty interests in having spaces where we can freely meet larger groups of people than we can fit on our properties, and where we can meet lots of people who might gather spontaneously.
What we really need to have a free society is a system in which each property owner (and renter) has unconditional access to a network of common roads and parks, that links every parcel of private property to every other parcel, so that everyone has access to every place and to common spaces. Such a system could be instantiated in the following ways:
D: Property left in the commons (not privately appropriated, nor under formal collective ownership and management), and by convention dedicated to transport and communication;
E: Private property open to the public on non-discriminatory terms--that is, where any member of the public has a right of access to it, and the private property owner is not allowed to arbitrarily exclude anyone from using it, although they may charge a toll for its use. In other words, privately owned toll roads subject to a common carrier rule.
F: Public property collectively managed for purposes of public transport and communication, and funded by general taxes (not tolls).
There is no sound liberty-based argument for G: private ownership of all roads without a common carrier rule. That is the equivalent of letting some individuals arbitrarily trap others, unable to travel to a destination where they have a right to be. The possibility of competing private roads to the same destination doesn't change this calculation. That's like the case of being surrounded by 5 property owners rather than 1: having five jailors doesn't make it ok for any one of them to arbitrarily deny you the right to cross their property, if you need to do so to escape your own property. If private operation of public access roads is to contribute to a free society, it must be subject to the common carrier rule.
In general, F offers a superior package of freedoms to either D or E. F is more free than D because it allows improvements to common paths that can increase the traffic they can bear, as well as traffic lights and traffic rules than can vastly increase opportunities for mobility. F is more free than E because it doesn't tax communication with others at the margin, as toll roads do. (Thus, the poor and pedestrians generally have a superior package of travel opportunities under F than E, because they can walk on the roads for free; and we all gain opportunities from free communication with others, which would be discouraged if each personal interaction carried a toll.) There may be exceptions to the general superiority of F over E. Sometimes public toll roads can be justified (e.g., fast toll-based lanes designed to relieve highway traffic jams); sometimes privately operated toll roads are (e.g., if the state is too poor or fiscally improvident to manage construction of public roads, and too corrupt to be trusted with tolls). But these cases are peripheral.
F and E share a common feature: In a free society, it is impossible for private individuals to avoid supporting the freedom of others to do things of which they disapprove. Under F, we all pay taxes to support the public roads, which enable people to travel to the church of their choice, however much we may disapprove of their choice. There is no conscience exemption to withold that portion of one's taxes that supports a road to a church that one believes promotes a false religion. Nor would freedom be gained on net by modifying E (under the common carrier rule) to H: giving private operators of public road accommodations a limited conscience exemption to the common carrier rule, to prevent individuals from using their road to travel to the church of what they regard as a false religion. The package [I'm free to travel to the church of my choice; I can't prevent anyone from travelling to the church of their choice] is superior to the package [road operators are free to block me from using the roads needed to travel to the church of my choice; I am free to block others from using my road to travel to the church of their choice]. To those private road operators who would find it unconscionable to facilitate others' travel to the church of what they regard as a false religion, the proper response of a free society is not to let them block the travel, but to advise them that they had better get out of the road business.
There are many public accommodations that secure a superior package of freedoms under a common carrier rule than under a rule that permits arbitrary discrimination on the grounds of individual conscience, or other arbitrary grounds. The Civil Rights Act of 1964, barring discrimination in access to public accommodations such as buses, restaurants, and hotels on grounds of race, is based on the claim that the package [I am free from discrimination to use any public accomodation; I am not free to use my ownership of a public accommodation to advance a racial caste system] secures a superior set of freedoms than the package [others are free to try to make me an untouchable in civil society; I am free to use my ownership of a public accommodation to advance a caste system]. Note here that considerations of non-domination are important over and above opportunity. Even if someone else is willing to offer me a room at a hotel without regard to my race (so I don't lack the opportunity to stay overnight in some city), this does not remove the subjection inherent in anyone trying to make me a subordinate caste, by depriving me of a hotel room on account of my race.
This argument generalizes. The operators of a private telephone system should not be able to claim a right of religious conscience to eavesdrop on telephone conversations, so they can cut off blasphemous phone calls. The operator of an ambulance service that takes public calls, who is a Christian Scientist, may not claim a right of religious conscience to refuse to transport any emergency case to the hospital, unless it is for the treatments permitted to a Christian Scientist (bone setting, pulling an infected tooth). A Talibanesque taxi driver may not conscientiously refuse to serve women unaccompanied by male relatives, on the ground that he might thereby be facilitating their sinful consorting with the opposite sex. And similarly, a pharmacist may not claim a right of religious conscience to refuse to fill a prescription for birth control to women, or to single women, on the ground that he might thereby be facilitating the sin of fornication.
In the original debates over the Civil Rights Act of 1964, opponents claimed that operators of public accommodations had a sacred right to freedom of association, as if all that was at stake was the right to exercise one's idiosyncratic tastes over whom one wants to serve. (Even if that were all that was at stake, it should still have to yield to the common carrier rule, which underpinned the CRA.) But the "taste" for not serving blacks was inseparable from the desire to reduce them to an untouchable caste. Similarly, the "tender religious conscience" against filling birth control prescriptions is inseparable from a religious world-view that regards women as properly confined to a mothering caste (with their sexuality limited to reproductive purposes). The Christian pharmacist who refuses to fill birth control prescriptions differs only in degree and not in kind from the Talibanesque taxi driver who refuses to serve women who are unaccompanied by their male relatives.
The potential availability of competing pharmacists who assert no conscience exemptions is no argument in favor of allowing them in some cases. For there may be no such providers. (Recall the frequency of this situation for blacks in the U.S. before 1964, where they met comprehensive discrimination in many markets in the North, even in the absence of Jim Crow laws.) Even if there are some in a distant county, or on the Internet, this is like the person who can escape her property only by helicopter. Even if there are some in the same county, this is like the person who has five independent jailors rather than just one. If women in many towns and counties are not to be turned into a subordinate, unfree caste, limited to the opportunity package [motherhood, celibacy] by the dominion of others, then pharmacists must not have a right to deny them access to birth control. The freedom to use one's pharmacy as an instrument for promoting one's religious beliefs is nothing compared to the freedom of escape from subordinate caste status-- and even to the freedom of being branded with the badges of subordinate caste status (in the case where women have other easily accessible pharmacies willing to serve them, but still may be snubbed by this or that pharmacist).
There are some public accommodations of such vital interest to each person that each has a compelling liberty interest in unfettered access to it, without being subject to the arbitrary decisions of those who operate them. The right to operate a public accommodation is not the right to inflict one's religious beliefs on others. The pharmacist's license is a license to practice pharmacy for others, not a license to practice one's religion on others. The state, in the name of freedom, properly enforces a common carrier rule in such cases.
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