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20. Lifeboat Situations

I t is often contended that the existence of extreme, or "lifeboat,"

situations disproves any theory of absolute property rights, or indeed

of any absolute rights of self-ownership whatsoever. It is claimed

that since any theory of individual rights seems to break down or works

unsatisfactorily in such fortunately rare situations, therefore there can

be no concept of inviolable rights at all. In a typical lifeboat situation,

there are, let us say, eight places in a lifeboat putting out from a sinking

ship, and there are more than eight people wishing to be saved. Who then

is to decide who should be saved and who should die? And what then

happens to the right of self-ownership, or, as some people phrase it, the

"right to life"? (The "right to life" is fallacious phraseology, since it could

imply that A's "right to life" can justly involve an infringement on the life

and property of someone else, i.e., on B's "right to life" and its logical extensions.

A "right to self-ownership" of both A and B avoids such confusions.)

In the first place, a lifeboat situation is hardly a valid test of a theory

of rights, or of any moral theory whatsoever. Problems of a moral theory

in such an extreme situation do not invalidate a theory for normal situations.

In any sphere of moral theory, we are trying to frame an ethic for

man, based on his nature and the nature of the world-and this precisely

means for normal nature, for the way life usually is, and not for rare and

abnormal situations. It is a wise maxim of the law, for precisely this reason,

that "hard cases make bad law." We are trying to frame an ethic for the

way men generally live in the world; we are not, after all, interested in

framing an ethic that focuses on situations that are rare, extreme, and not

generally encountered. l

Let us take an example, to illustrate our point, outside the sphere of

property rights or rights in general, and within the sphere of ordinary ethical values. Most people would concede the principle that "it is ethical

for a parent to save his child from drowning." But, then, our lifeboat

skeptic could arise and hurl this challenge: "Aha, but suppose that two

of your children are drowning and you can save only one. Which child

would you choose? And doesn't the fact that you would have to let one

child die negate the very moral principle that you should save your

drowning child?" I doubt whether many ethicists would throw over the

moral desirability or principle of saving one's child because it could not

be fully applied in such a "lifeboat" situation. Yet why should the lifeboat

case be different in the sphere of rights?

In a lifeboat situation, indeed, we apparently have a war of all against

all, and there seems at first to be no way to apply our theory of selfownership

or of property rights. But, in the example cited, the reason is

because the property right has so far been ill-defined. For the vital question

here is: who owns the lifeboat? If the owner of the boat or his representative

(e. g. the captain of the ship) has died in the wreck, and if he has

not laid down known rules in advance of the wreck for allocation of seats

in such a crisis,2 then the lifeboat may be considered-at least temporarily

for the emergency- abandoned and therefore unowned. At this point, our

rules for unowned property come into play: namely, that unowned resources

become the property of the first people possessing them. In short,

the first eight people to reach the boat are, in our theory, the proper "owners"

and users of the boat. Anyone who throws them out of the boat then commits

an act of aggression in violating the property right of the "homesteader" he

throws out of the boat. After he returns to shore, then, the aggressor becomes

liable for prosecution for his act of violation of property right (as well,

perhaps, for murder of the person he ejected from the boat).

Doesn't this homesteading principle sanction a mad scramble for

the seats in the lifeboat? Scramble perhaps; but it should be pointed out

that the scramble must not, of course, be violent, since any physical force

used against another to keep him from homesteading is an act of criminal

assault against him, and aggression may not be used to establish a

homestead right (just as one would-be homesteader may not use force

to prevent someone else from getting to a piece of land first).

To those who believe that such a homesteading principle is unduly

harsh, we may reply (a) that we are already in an intolerably harsh and

fortunately rare situation where no solution is going to be humane or

comforting; and (b) that any other principle of allocation would be truly intolerable. The time-honored principle of "women and children first" is

surely morally intolerable; by what principle of justice do men have inferior

rights to life or self-ownership than women or children? The same is

true of the view that the "superior" minds should be saved at the expense

of the "inferior"; aside from the staggering objection of who is going to

decide on who is superior or inferior, and by what criterion, this view

implies that the "superior" have a right to live at the expense of the "inferior,"

and this violates any concept of equal rights and renders any ethic

for mankind imp~ssible.~

A far clearer outcome of the lifeboat case occurs where the owner

or his representative still survives or has laid down rules for allocation in

advance. For, in that case, our theory states that the right to allocate spaces

in the lifeboat belongs to the owner of the boat. He may choose to carry

out that allocation in various ways: whether by first come-first served,

women and children first, or whatever. But though we may disagree with

the morality of his criteria, we must concede his right to make the allocation

in whatever way he wishes. Again, any forcible interference with

such owner's allocation, e.g., by throwing people out of their allocated

spaces, is at the very least an act of invasion of property right for which

the aggressor may be repelled on the spot, and for which the aggressor

would later be liable for prosecution. Our theory of absolute property right

is therefore the most satisfactory-or , at the very minimum, the least unsatisfactory-

way out of the tragic lifeboat example.

An even starker version of the "lifeboat" case-and one where there

is no question of someone's prior ownership of the lifeboat--occurs when

(to cite an example mentioned by Professor Eric Mack) two shipwrecked

men are battling over a plank that can only support one. Does the concept of aggression and property right apply even here? Yes, for again, our

homestead principle of property right comes into play: i.e., the first person

who reaches the plank "owns" it for the occasion, and the second person

throwing him off is at the very least a violator of the former's property and

perhaps also liable for prosecution for an act of murder. Again, neither of

the persons may use force against the other in preventing the latter from

reaching the plank, for this would be an act of physical aggression against

his person.*

It may well be objected to our theory as follows: that a theory of property

rights or even of self-ownership is derivable from the conditions by

which man survives and flourishes in this world, and that therefore in this

kind of extreme situation, where a man is faced with the choice of either

saving himself or violating the property rights of the Lifeboat owner (or,

in the above example, of the "homesteader" in the boat), it is then ridiculous

to expect him to surrender his life on behalf of the abstract principle of

property rights. Because of this kind of consideration, many libertarians

who otherwise believe in property rights gravely weaken them on behalf

of the "contextualist" contention that, given a choice between his life and

aggressing against someone else's property or even life, it is moral for

him to commit the aggression and that therefore in such a situation, these

property rights cease to exist. The error here on the part of the "contextualist"

libertarians is to confuse the question of the moral course of action for the

person in such a tragic situation with the totally separate question of

whether or not his seizing of lifeboat or plank space by force constitutes

an invasion of someone else's property right. For we are not, in constructing

a theory of liberty and property, i.e., a "political" ethic, concerned

with all personal moral principles. We are not herewith concerned whether

it is moral or immoral for someone to lie, to be a good person, to develop

his faculties, or be kind or mean to his neighbors. We are concerned, in this

sort of discussion, solely with such "political ethical" questions as the proper

role of violence, the sphere of rights, or the definitions of criminality

and aggression. Whether or not it is moral or immoral for "Smith"-the

fellow excluded by the owner from the plank or the lifeboat-to force someone

else out of the lifeboat, or whether he should die heroically instead, is

not our concern, and not the proper concern of a theory of political ethics5

The crucial point is that even if the contextualist libertarian may say that,

given the tragic context, Smith should throw someone else out of the lifeboat

to save his own life, he is still committing, at the very least, invasion

of property rights, and probably also murder of the person thrown out.

So that even if one says that he should try to save his life by forcibly grabbing

a seat in the lifeboat, he is still, in our view, liable to prosecution as a criminal

invader of property right, and perhaps as a murderer as well. After he is

convicted, it would be the right of the lifeboat owner or the heir of the person

tossed out to forgive Smith, to pardon him because of the unusual circumstances;

but it would also be their right not to pardon and to proceed with

the full force of their legal right to punish. Once again, we are concerned

in this theory with the rights of the case, not with whether or not a person

chooses voluntarily to exercise his rights. In our view, the property owner

or the heir of the killed would have a right to prosecute and to exact proper

punishment upon the aggressor. The fallacy of the contextualists is to confuse

considerations of individual, personal morality (what should Smith

do?) with the question of the rights of the case. The right of property continues,

then, to be absolute, even in the tragic lifeboat situation.

Furthermore, if the lifeboat owner, Jones, is being aggressed against

by Smith, and has the right to prosecute Smith later on, he therefore also

has the right to use force to repel Smith's aggression on the spot. Should

Smith try to use force to pre-empt a spot on the lifeboat, Jones, or his hired

defense agent, certainly has the right to use physical force to repel Smith's

act of in~asion.~

To sum up the application of our theory to extreme situations: if a

man aggresses against another's person or property to save his own life,

he may or may not be acting morally in so doing. That is none of our particular

concern in this work. Regardless of whether his action is moral or

immoral, by any criterion, he is still a criminal aggressor against the property

of another, and the victim is within his right to repel that aggression

by force, and to prosecute the aggressor afterward for his crime.

adopts moral egoism, which indeed Professor Mack does, but which is only one possible

moral theory.