Risk and Rights
Does a person have the right to impose risks on other people without their consent? Take the classic example: Suppose I take a revolver, load one bullet into a chamber, spin the cylinder and take aim at you. Am I violating your rights? Are you within your rights (or are you violating my rights) if you take steps to stop me from pulling the trigger? If you think the answer is obvious, modify the situation so that the hypothetical revolver has a cylinder with a hundred, a thousand, or a million chambers. Does the answer change?
This question needs to be answered, and in some reasonable way, because we all expose each other to risks every day. What’s the probability of your tire blowing out while you drive down the road, resulting in you running down some pedestrians? Surely they don’t have the right to shoot at you because you are endangering their life.
Perhaps you think the answer simply lies in the motive of the person taking the action. The guy with the gun, you say, is assaulting me, whereas the person in the car is just minding his own business. Is this really true though? I don’t think you can draw any sort of firm distinction between “assault” and any other kind of risk. If the guy with the gun really intended to kill you, why would he spin the cylinder instead of aligning the correct chamber? Why is his decision to play Russian roulette with people any more frivolous than someone driving around for pleasure, with no particular place to go? We could even replace the gun example with something more elaborate. Suppose your next door neighbor fills his basement with TNT and has his computer generate a random number (between one and X) every minute. If the random number comes up one, the computer detonates the TNT. How does his selection of X affect your right to break into his house and turn off his computer? I could come up with many more examples, but I think it should be apparent that intent really has no bearing on the problem; people knowingly put each other at risk, intent is irrelevant.
I can think of four possible answers to our question: (1) It is a violation of a person’s rights to put him at risk without his consent, period, (2) You are entitled to put a person at risk so long as you are willing and able to pay the damages if you end up harming him, (3) You are entitled to put people at risk, but if the risk materializes, you are liable, and (4) You are entitled to impose risks on others below some arbitrary level; above that level you are no longer entitled.
Number four is obviously kind of stupid. The fact that “some arbitrary level” is required to be selected makes it highly suspect as any sort of universal truth. The reason I included it is because I think something along those lines is included in most peoples’ (mis)conceptions about rights and risks. I think the laws of most countries amount to some combination of #3 and #4: people can put others at risk and are generally liable, but risks that are “very large” are banned outright. I think what the laws are attempting to approximate is answer #2; they ban activities that are likely to result in damages beyond an average individual’s ability to pay. Number two is enforced as law in cases where an activity is extremely dangerous, but banning it is unacceptable – car insurance is a prime example.
Backing up to number one – it’s obviously unworkable. If we can’t impose any risk on others, we couldn’t leave the house. Strictly speaking, we couldn’t even allow ourselves to live since we may breathe out germs that end up infecting somebody. Even if this is the right answer, we have to seek a compromise. The compromise is #2. I think #2 is the correct answer, so let’s continue to #3 and come back to #2.
I think #3 is the standard libertarian position, but what are the consequences? Well, back to our example, the consequence is that you have no right to stop me before I pull the trigger on my revolver, even if it has only two cylinders (or one; it might misfire, or I might miss). After all, if you shoot me, or even slap the gun out of my hand, you have violated my rights, by any standard. If you can slap the gun from my hand, can you shoot the tire out of cars passing by you on the road, or break into the house with the computer attached to TNT? Why or why not? I think it’s impossible to answer; you’re back to picking some arbitrary risk level. Without picking an arbitrary risk value, you are in a position where others can impose risks of death on you nearing one (and no activity will ever be exactly one) and you have no right to interfere. This is obviously unacceptable.
So, back to #2. This says that you can impose risks on others, but you need to be in a position to pay the damages if they materialize. The part about being able to pay is critical. What happens if people are liable but can’t pay? It means that society-wide, more harm will be done to victims than is able to be paid by perpetrators. It means in-justice is built into the system. It means that people who risk the lives of others are profiting (not necessarily in dollars) at the expense of everyone else.
Think of it this way: if I take an action that will cause a $100,000 in damage with a probability of 1%, then the expected amount of damage I will cause is $1000. A large class of people acting just like me will cause $1000 worth of damage per person. It should be clear that it is not right for this class of people to pass the damage along to the victims. Thinking of it statistically like this makes the answer obvious though; everyone should be insured. If we get insurance, each of us will pay our $1000 up front. No single person gets hit with the $100,000 fine of which he can only pay a fraction.
Strict liability and insurance is the most efficient market solution to risk because it makes those who impose the risk bear the cost. Nobody should complain about having to pay for their insurance, especially if they expect to be paid for wrongful harm when it happens to them. But what if you don’t care about getting paid when you are injured and are more than happy to forego this in exchange for not paying your share of the risk either? A properly arranged legal system would allow this by allowing you to sell your rights to any future damages; you could sell insurance to the insurance company. The insurance company would pay you a monthly fee proportional to your probability of being injured and collecting damages. If this happens, they get the money instead of you. Unless you are imposing and extraordinarily high risk on others, you should easily be able to receive as much back in “reverse insurance” payments as you owe in normal liability insurance. You might even get extra back. Of course, by going this route, you have no basis for complaint when you are injured and have no means to pay your medical bills!
The subject of risk is one that I think is all too often glossed over by libertarians and others who are focused on individual rights. This inability or unwillingness to accept the fact that risk does violate the rights of others sometimes leads these people to adopt absurd positions on issues. Libertarians are on the right track when they say that objects and activities should not be illegal outright, but it does not follow that society owes us a blank check for the risks and damages associated with our actions.