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Similarly, James Krier concedes that even if requirement to prove
intent or unreasonable conduct or negligence is replaced by strict
liability, there is still the problem of proving the causal link between
the wrongful conduct and the injury. Krier complains that cause and
effect must still be established. 73 He wants to make systematic
reallocation of the burden of proof, that is, take the burden off the
plaintiff, where it clearly belongs. Are defendants now to be guilty
until they can prove themselves innocent?
The prevalence of multiple sources of pollution emissions is a
problem. How are we to blame emitter A if there are other emitters or
if there are natural sources of emission? Whatever the answer, it must
not come at the expense of throwing out proper standards of proof,
and conferring unjust special privileges on plaintiffs and special
burdens on defendants.74
Similar problems of proof are faced by plaintiffs in nuclear
radiation cases. As Jeffrey Bodie writes, In general the courts seem
to require a high degree of causation in radiation cases which
frequently
72
Paul B. Downing, An Introduction to the Problem of Air Quality, in Air
Pollution and the Social Sciences, Downing, ed. (New York: Praeger, 1971), p. 13.
73
James E. Krier, Air Pollution and Legal Institutions: An Overview, in ibid., Air
Pollution and the Social Sciences, pp. 107-8.
74
See section entitled Joint Torts and Joint Victims for a discussion of joint
tortfeasors, multiple torts, and class actions suits.
Law, Property Rights, and Air Pollution 159
is impossible to satisfy given the limited extent of medical knowledge
in this field. 75 But as we have seen above, it is precisely this limited
extent of knowledge that makes it imperative to safeguard
defendants from lax canons of proof.
There are, of course, innumerable statutes and regulations that
create illegality besides the torts dealt with in common-law courts.76
We have not dealt with laws such as the Clean Air Act of 1970 or
regulations for a simple reason: None of them can be permissible
under libertarian legal theory. In libertarian theory, it is only
permissible to proceed coercively against someone if he is a proven
aggressor, and that aggression must be proven in court (or in
arbitration) beyond a reasonable doubt. Any statute or administrative
regulation necessarily makes actions illegal that are not overt
initiations of crimes or torts according to libertarian theory. Every
statute or administrative rule is therefore illegitimate and itself
invasive and a criminal interference with the property rights of
noncriminals.
Suppose, for example, that A builds a building, sells it to B, and it
promptly collapses. A should be liable for injuring B's person and
property and the liability should be proven in court, which can then
enforce the proper measures of restitution and punishment. But if the
legislature has imposed building codes and inspections in the name of
safety, innocent builders (that is, those whose buildings have not
collapsed) are subjected to unnecessary and often costly rules, with no
necessity by government to prove crime or damage. They have
committed no tort or crime, but are subject to rules, often only
distantly related to safety, in advance by tyrannical governmental
bodies. Yet, a builder who meets administrative inspection and safety
codes and then has a building of his collapse, is often let off the hook
by the courts. After all, has he not obeyed all the safety rules of the
government, and hasn't he thereby received the advance imprimatur
of the authorities?77
75
Jeffrey C. Bodie, The Irradiated Plaintiff: Tory Recovery Outside Price-
Anderson, Environmental Law 6 (Spring 1976): 868.
76
With respect to air pollution regulations, see Landau, Who Owns the Air? pp.
575-600.
77
For an excellent discussion of judicial as opposed to statutory or administrative
remedies for adulteration of products, see Wordsworth Donisthorpe, Law in a Free
Society (London: Macmillan, 1895), pp. 132-58.
160 Murray N. Rothbard
The only civil or criminal system consonant with libertarian legal
principles is to have judges (and/or juries and arbitrators) pursuing
charges of torts by plaintiffs made against defendants.
It should be underlined that in libertarian legal theory, only the
victim (or his heirs and assigns) can legitimately press suit against
alleged transgressors against his person or property. District attorneys
or other government officials should not be allowed to press charges
against the wishes of the victim, in the name of crimes against such
dubious or nonexistent entities as society or the state. If, for
example, the victim of an assault or theft is a pacifist and refuses to
press charges against the criminal, no one else should have the right
to do so against his wishes. For just as a creditor has the right to
forgive an unpaid debt voluntarily, so a victim, whether on pacifist
grounds or because the criminal has bought his way out of a suit78 or
any other reason, has the right to forgive the crime so that the crime
is thereby annulled.
Critics of automobile emissions will be disturbed by the absence
of government regulation, in view of the difficulties of proving harm
to victims from individual automobiles.7979 But, as we have stressed,
utilitarian considerations must always be subordinate to the
requirements of justice. Those worried about auto emissions are in
even worse shape in the tort law courts, because libertarian principle
also requires a return to the now much scorned nineteenth-century
rule of privity.
The privity rule, which applies largely to the field of products
liability, states that the buyer of a defective product can only sue the
person with whom he had a contract.80 If the consumer buys a watch
from a retailer, and the watch does not work, it should only be the
retailer whom he can sue, since it was the retailer who transferred
78
Criminals should have the right to buy off a suit or enforcement by the victim, just
as they should have the right to buy out an injunction from a victim after it has been
issued. For an excellent article on the latter question, see Thompson, Injunction
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