Libertarianism Entitlement

Libertarianism, Entitlement, and Responsibility
Author(s): Stephen R. Perry

Source: Philosophy and Public Affairs, Vol. 26, No. 4 (Autumn, 1997), pp. 351-396
Published by: Blackwell Publishing
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STEPHENR. PERRY Libertarianism,Entitlement,
and Responsibility
Libertarianism is a moral and political theory about, among other

things, justice in holdings. One of its central theses is, very roughly,that
people are entitled to the fruits of their labor. Let me referto this as the
entitlement thesis. The entitlement thesis means that, for the libertar-
ian, forced redistributionby the state (or by anyone else) cannot in gen-
eral be justified; persons may only be required, at most, to contribute
an appropriateshare to the maintenance of a night-watchman state, the
sole function of which is to keep individuals from violating one an-
other'srights. The individual rights that libertariansrecognize are rights
to acquire property in specified ways, together with negative rights not
to be subject to certain kinds of interference by others; the paradigm
instance of such interference is deliberate aggression. But libertarian-
ism does not generally recognize positive rights to receive assistance
from other persons. I may voluntarilychoose to confer a benefit on you,
but no one- neither you nor any third party-can force me to do so.
Libertarianismis thus, in part, a theory about what individuals are
entitled to, and one of the things to which they are said to be entitled
is the fruits of their labor. But, as some libertariantheorists have recog-
nized, libertarianism is also a theory about individual responsibility.
More precisely, it is a theory about individual responsibility for the
harmful outcomes of one's actions. Let me refer to responsibilty thus
understood as outcome-responsibility., The conception of outcome-re-
An earlierversion of this article was presented, as part of a longer work, to the Collo-
quium in Law,Philosophy,and PoliticalTheoryat the School of Law,New YorkUniversity.
I would like to thank Ronald Dworkin,Thomas Nagel, and the other participantsin the
Colloquiumfor theirvery helpful comments. I have also greatlybenefitted from numerous
conversations with Jules Coleman and Arthur Ripstein, and from comments on earlier
drafts by Thomas Hurka and the editors of Philosophy & Public Affairs.
1. I borrow this term from Tony Honor6, "Responsibilityand Luck,"Law QuarterlyRe-
view 104 (1988): 530-53. My usage of the term differs substantially from Honore's, however.
352 Philosophy & Public Affairs
sponsibility that has been defended by libertarianlegal theorists focuses

on the notion of causation. In the case of harms that one causes to
others, the standardlibertarianview is that the harm-causerhas a moral
obligation to pay the victim compensation; in legal terms, he or she is
to be held absolutely liable to the injured party.2The correlativeright of
the victim to be compensated is not just a remedial incident of the neg-
ative rights that persons have not to be subject to interference, at least
not if we take the paradigm of such rights to be the right to be free from
deliberate aggression.The reason for this is that many instances of caus-
ing harm to others are not only unintentional but unforeseeable. Thus
there can be no meaningful injunction not to cause harm to others that
is analogous to the injunction not to engage in deliberate aggression
against others. Similarly,there can be no ex ante duty, except in the
most formal sense, not to cause harm to others, and accordingly no
corresponding right not to be harmed. The primary duty is an ex post
duty to pay compensation after harm has occurred, and the corre-
sponding right is a right to receive the compensation. The libertarian
conception of outcome-responsibility is, in the case of harm that has
been caused to another person, essentially co-extensive with this duty.
This article has three main objects. The first is to show that the liber-
tarian entitlement thesis, to the effect that persons are entitled to retain
the fruits of their labor, and the libertarian thesis about outcome-re-
sponsibility,to the effect that persons are responsible for the harms that
they cause, are two sides of the same coin. Whether or not libertarian-
ism is in the end a philosophically defensible theory, there is an under-
lying unity to these two strands in libertarianthought that is worth mak-
ing clear.The basis of this unity is the idea that people "own"the effects,
both good and bad, that causally flow from their actions. The second
object of the article is to demonstrate that the libertarian, causation-
based account of outcome-responsiblity is unsatisfactory, and hence
cannot serve to justify a standard of absolute liability in tort law. The
basic objection to the libertarian account is that, in general, harm that
results from an interaction between two persons cannot be said to have
been caused by the actions of just one of them. As we shall see, this
objection parallels certain criticisms of the entitlement thesis that have
been offered by other writers. The article'sthird object is to show that
2. See, e.g., Richard A. Epstein, "A Theory of Strict Liability," Journal of Legal Studies 2
(1973): 151-204.
353 Libertarianism, Entitlement,
and Responsibility
the critique of the libertarian conception of outcome-responsibility is

relevantto the general theory of rights.The upshot of that critique is that
there can be no comprehensive right not to be harmed by the actions
of another person.3 Ratherthere can only be rights not to be harmed in
specified ways (e.g., a right not to be harmed by the wrongful actions of
others). This conclusion applies as much to non-libertarian as to liber-
tarian moral theory.
The unity in libertarianthought to which I just alluded rests on two
key theses. The self-ownership thesis says that each person owns him-
self and his powers. The causation thesis says that, in general, a given
effect of human agency in the world can be uniquely traced back,
through the chain of cause and effect, to the action or actions of a single
individual. The libertarian then argues that together these two theses
entail that an agent owns, in some suitable sense of ownership, the out-
comes of his actions. We can call this conclusion the ownership thesis.
In the case of a beneficial outcome, i.e., an outcome involving the pro-
duction of a valuable asset, ownership means that the person who
brought about the outcome has full property rights in the asset. The
entitlement thesis, which says that persons are entitled to the fruits of
their labor, is thus just a special case of the ownership thesis. In the case
of a detrimental outcome, i.e., one involving harm, ownership takes the
form of outcome-responsibility. Where the harm is to someone other
than the agent, outcome-responsibility gives rise, as alreadynoted, to an
obligation to compensate based on a standard of absolute liability.
I. OUTCOME-RESPONSIBILITY
The libertarianaccount of outcome-responsibility is one of severalcom-

peting conceptions of the concept that might be developed and de-
fended. Before discussing the specifics of the libertarianview, it will be
helpful to say something about outcome-responsibility in general. Out-
come-responsibility can be contrasted with responsibility for one's ac-
tions as such; this latter concept we can label action-responsibility.As
in the case of outcome-responsibility, action-responsibility lends itself
to several more specific theoretical accounts. All such accounts agree,
however, that the relevant concern is with determining responsibility
3. I am speaking here not just of a right correspondingto an ex ante duty not to cause
harm, but also of a rightcorrespondingto an ex post duty to compensate for harm caused.
for wrongful or reprehensible actions. Theories of action-responsibility

generally set out rival accounts of when and why an action should be
regarded as blameworthy and/or deserving punishment. One possible
theory of outcome-responsibility would hold persons responsible only
for the expected consequences of their blameworthy actions. But this is
not a very plausible view: it is implicitly rejected not just by libertarian
legal theory, but also by commonly held intuitions and by the law. I
particularlyhave in mind here the law of torts, in both its past and pre-
sent manifestations.
This is not to deny that there are conceptual connections, and per-
haps normative ones as well, between action-responsibility and out-
come-responsibility. After all, theories of outcome-responsibility are
concerned not with outcomes considered just as states of the world, but
ratherwith outcomes brought about by human agency. In addition, we
can only refer to a specific action by means of a description, and the
descriptions of many actions referto an outcome of some kind. Thus an
act of killing includes, under that description, the outcome of some-
one's death. If, moreover, a particularact of killing was blameworthy,it
seems intuitively clear that the killer would also be outcome-responsi-
ble for the death. This suggests that we can expect to find an extensional
overlap, perhaps of considerable scope, between the two forms of re-
sponsibility.
But despite the connections that undoubtedly exist between out-
come-responsibility and action-responsibility,it seems unlikely that the
former will turn out to be normatively equivalent to, or just a special
case of, the latter. For one thing, the same action can generally be de-
scribed in differentways, some of which make no reference to a harmful
outcome. Thus the action of killing John can also be described as the
action of, say, firing a gun at John. The action is presumably still blame-
worthy under this latter description, even though no mention is made
of the outcome of death. More importantly,it seems intuitively plausi-
ble to think that a person can at least sometimes be held outcome-re-
sponsible for the consequences of a nonblameworthy action. A related
point is that action-responsibility appears to find its most appropriate
legal expression in criminal punishment, whereas the natural legal
home of outcome-responsibility would seem ratherto be the remedy of
compensatory damages. In other words, outcome-responsiblity is more
properly associated with the law of torts than it is with the criminal law.
and Responsibility
Thus on a responsibility-based, nonconsequentialist theory of tort law,

we should expect to find that outcome-responsibility is at least a neces-
sary condition-on the libertarian account, it is both necessary and
prima facie sufficient-for the imposition of liabilityin the central types
of tort action.
At least five, progressively more inclusive, theories of outcome-re-
sponsibility might be defended. The first is that an agent is responsible
only for outcomes that he brought about knowingly or intentionally,
and where in addition the precipitatingaction was blameworthy.It is on
this view that outcome-responsibility comes closest to coinciding with
action-responsibility.The second theory is that an agent is responsible
only for those outcomes that he brought about knowingly or intention-
ally, whether or not the action was blameworthy. This theory would
extend outcome-responsibility to necessity cases, as for example where
a person breaks into a cabin in the wilderness in order to save himself
from dying in a blizzard.4The action was not blameworthy, and may
even have been justified, but the actor must nonetheless compensate
the owner for any damage to the cabin he caused, and must pay for any
firewood he burned or food he consumed. The third theory is that an
agent is responsible only for those harmful outcomes of whose risk he
was aware when he acted. This theory extends outcome-responsibility
beyond outcomes that are substantially certain to occur to those that
bear only some risk of occurrence, but maintains the subjective stance
of the preceding theories: the agent must, at the time that he acted, have
been advertingto the relevantrisk.The fourth theory holds that an agent
is responsible only for those outcomes of whose risk of occurrence he
was or ought to have been aware at the time that he acted. In the lan-
guage of tort law, he is responsible for those outcomes that were reason-
ably foreseeable, whether or not he foresaw them in fact. This theory
differs from those preceding in that it holds actors to an objective rather
than to a subjective standard of foresight. The fifth and final theory is
4. The example is taken from Joel Feinberg,"VoluntaryEuthanasiaand the Inalienable
Right to Life,"Philosophy & Public Affairs 7, no. 2 (winter 1978): 93-123, at p. 102. The
classic necessity case in tort law is Vincent v. Lake Erie Transportation Co., log Minn. 456,
124 N.W 221 (1g9o). In that case the defendants knowinglylet their ship damage the plain-
tiff'sdock during a violent storm ratherthan put out to sea or allow the ship to drift.The
court said that the defendants had "exercisedgood judgment and prudent seamanship"
in holding the ship fast to the dock, but nonetheless held them liable for the damage to
the plaintiff'sproperty.
that an agent is responsible for any harmful outcome that he caused. On

this acount, it is irrelevantthat the agent neither foresaw nor could have
foreseen the outcome.
Action-responsibility and outcome-responsibility are conceptually
related at least in the sense that both flow from an exercise of agency.
Is there some normative connection as well? That depends on the par-
ticular substantive theory of outcome-responsibility that one defends.
For example, the first of the five theories sketched in the preceding par-
agraphwould presumably treat outcome-responsibility as just a special
case of action-responsibility. As already noted, however, that is not a
very credible view. Another type of normative connection is suggested
by the fact that the first four of those five theories are all plausibly re-
garded as presupposing the capacity to foresee and avoid the outcome
in question. This is reminiscent of H.L.A.Hart'sprinciple that "those
whom we punish should have had, when they acted, the normal capac-
ities, physical and mental, for doing what the law requires and abstain-
ing from what it forbids, and a fair opportunity to exercise those
capacities."5This principle is nowadays generally regarded as a side-
constraint on the justifiabilityof punishment within theories of action-
responsibility (more generally known as choice theories of responsibil-
ity).6 The present suggestion, then, is that the concept of a capacity to
act otherwise is a central normative feature of both action-responsibility
and outcome-responsibility. In the former case, the more specific con-
cern is with a capacity to abstain from an action in which one engaged
(or else to engage in an action from which one abstained); in the latter
case, the concern is with a capacity to avoid an outcome that one
brought about by one's action.
Libertarianismadopts the fifth and most stringent conception of out-
come-responsibility, which looks simply to the fact that a person's exer-
cise of agency caused a harmful outcome to occur. This account not
only denies that the action leading to the outcome must have been
blameworthy, it also denies that the agent must have possessed, at the
time that he or she acted, the capacity to foresee and avoid that out-
5. H.L.A.Hart,Punishmentand Responsibility(Oxford:OxfordUniversityPress, reved.,
1970), p. 152.
6. See Michael S. Moore, "Choice,Character,and Excuse,"Social Philosophyand Policy
7 (1990): 29-58, at pp. 32-33.
and Responsibility
come. This understanding of outcome-responsibility thus rejects the ex-

istence of a normative connection, of the kind considered in the preced-
ing paragraph,between outcome-responsibility and action-responsibil-
ity. These are, according to the libertarian, essentially unrelated moral
concepts. As already noted, in the case of harm to another person the
libertarian treats outcome-responsibility as essentially equivalent to a
moral obligation to compensate. Such an obligation is said to arise, at
least as a prima facie matter,whenever voluntary action leads to harm.7
It bears mention, however, that the positive law of torts does not recog-
nize such a strong obligation; thus the libertarian conception of out-
come-responsibility cannot plausibly be thought to be immanent in
contemporary law.
To the extent that tort law is properly regarded as an expression of
outcome-responsibility and not simply as an instrument for forwarding
such social goals as loss-spreading and the deterrence of economically
inefficient behavior-a debate that I will not be addressing in this arti-
cle-it is the fourth, foreseeability-based conception of outcome-re-
sponsiblity, among the five possible conceptions enumerated earlier,
that seems most pertinent. The basic standardof liabilityin modern tort
law for unintentional physical harm is the negligence standard, which
conditions liability on (i) the reasonable foreseeabilityof the type of loss
the victim suffered, and (ii) failureto comply with an objectively defined
standard of care ("fault").However,in the case of certain activities-for
example, those that can be characterized as abnormally dangerous,
such as blasting-the law adopts instead a standard of strict liability.
Strict liability requires that harm have been reasonably foreseeable to
the defendant, but does not require that the defendant have behaved
faultily in bringing harm about.8 In the case of the negligence standard,
outcome-responsibility, understood in terms of reasonable foreseeabil-
7. The obligation is prima facie only because of the possibility of a defense, such as
plaintiff'sassumption of the risk.See RichardA. Epstein, "Defensesand SubsequentPleas
in a System of Strict Liability," Journal of Legal Studies 3 (1974): 165-215.
8."Strictliability"is an ambiguous term in tort law and tort theory.Generallyit is used,
as I am using it here, to refer to a standard of liability that requiresforeseeabiltybut not
fault. Sometimes, however,it is used to referto a causation-based standard;it is used, in
other words, as a synonym for absolute liability.Epstein,who is the most prominent advo-
cate of a standardof causation-based liability,refersto this standardas strict ratherthan
absolute.
ity, is a necessary condition of liability.In the case of strict liability,the

same conception of outcome-responsibility is, leaving aside qualifica-
tions that are not at present relevant, both a necessary and a sufficient
condition. In advocating a causation-based standard of absolute liabil-
ity for tort law, libertariansmust thus be regarded as reformers.
II. ENTITLEMENT
In this section I discuss the justification of the entitlement thesis within
libertarian theory. The entitlement thesis, it will be recalled, says that
people ate entitled to the fruits of their labor. One of the main argu-
ments Robert Nozick advances in defense of this thesis-strictly speak-
ing, he offers the argument as a response to Rawls'sposition on distrib-
utive justice-runs as follows:
i. People are entitled to their natural assets.
2. If people are entitled to something, they are entitled to whatever
flows from it (via specified types of of processes).
3. People's holdings flow from their natural assets.
Therefore,
4. People are entitled to their holdings.
5. If people are entitled to something, then they ought to have it (and
this overrides any presumption of equality there may be about
holdings).9
Let me refer to this as the transmissibilityargument, since it claims that
entitlement is transmitted from natural assets to other kinds of assets.
As Nozick's general discussion in Anarchy, State, and Utopia makes
clear, the entitlement at issue in conclusions 4 and 5 of the argument is
a property right in the full liberal sense. The entitlement thesis, and
hence the ownership thesis, is thus reflected in these conclusions. It is
not entirely clear whether the property right arises at step 4 or 5, but for
present purposes it does not matter.
The premises of the transmissibilityargument require some clarifica-
tion. Consider, to begin, the meaning of the term "naturalassets" in
premise i. Sometimes this expression is taken to referto talents, such as
9. RobertNozick, Anarchy,State,and Utopia (New York:Basic Books, 1974),pp. 225-26.

and Responsibility
the ability to paint beautiful pictures. But if the argument is valid when
"natural assets" is understood as referring to talents, surely it is also
valid if the term is taken to refer to the exercise of whatever powers one
possesses, whether or not these are properly characterizableas talents.
If, without any artistic ability whatsoever, I happen through hard work
or great luck to paint a beautiful picture, it is highly implausible to say
that I have a lesser entitlement to that picture than I would have had if
I had produced it by means of a great talent. It should make no differ-
ence even if I paint my picture accidentally,in the course of trying to do
something else altogether.The term "naturalassets" is thus best under-
stood as referring to one's person, one's powers, and one's utilization
of those powers through agency. The relevant exercise of agency need
not be in any sense meritorious in order to trigger the transmissibility
argument. This point is implicit in Nozick'sobservation that a person is
entitled to, but does not necessarily deserve, what flows from his natural
assets.
Why should we accept premise i, which says that people are entitled
to their natural assets? As G. A. Cohen has persuasively argued, the
strongest justification that Nozick can and implicitly does offer for the
entitlements he says people have in their own persons and in their pow-
ers resides in the thesis of self-ownership: "each person enjoys, over
herself and her powers, full and exclusive rights of control and use, and
therefore owes no service or product to anyone else that she has not
contracted to supply."l A corollary of the self-ownership thesis is that
"each is free (morally speaking) to use [his] powers as he wishes, pro-
vided that he does not deploy them aggressively against others."11Self-
ownership can plausibly be understood as grounding both a right to
utilize one's person and powers as one wishes, and a right to be free
from (certain forms of) interference by others.
The next question we must ask is, what is the sense of the expression
"flowfrom"in premises 2 and 3?In employing this phrase, Nozick seems
in the first instance to have in mind something like this. I make use of
my natural assets by exercising my agency. This causes the world to
change in certain ways. For example, I paint a beautiful picture, or I
create a display of basketball skills. Prior to my acting, neither the pic-
lo. G.A.Cohen, Self-Ownership,Freedom,and Equality(Cambridge:CambridgeUniver-
sity Press, 1995), p. 12.
11. Ibid. at p. 67.
ture nor the display existed; both can be said to have flowed from my
natural assets, where the notion of "flowing"must be understood in a
causal sense. By acting in the world, I produce another good or asset of
some sort. Even where we cannot point to a physical object like the
painting, or referto a specific state of affairslike the display of basketball
skills, still, we can appropriatelyspeak of my labor as an asset.12 Nozick
seems clearly to be assuming that when we trace the causal flow back
from the new good, we will find that it leads to the natural assets of one
and only one person. At least for those cases of "flowingfrom"which,
like those so far discussed, involve causal processes, it follows that
premise 3 just is the causation thesis.
In a moment I will discuss a possible noncausal interpretationof the
notion of "flowingfrom."But for now I wish to continue examining the
"causal"cases, i.e., the cases in which a good of some sort flows causally
from my actions. Premise i is grounded in my self-ownership. Premise
3, the causation thesis, says that the relevant good was uniquely pro-
duced by my having acted in the world. Premise2 is expressed in general
form, but Nozick neither requires the generalized version nor offers
much argument for it. Let me therefore focus on a narrowerversion of
premise 2, which is sufficient for the formal validity of the argument:"If
people are entitled to their naturalassets, then they are entitled to what-
ever holdings flow from their natural assets." Call this premise 2A.
Nozick argues for premise 2A along the following lines. If I were to be
denied an entitlement amounting to a property right in the holdings
that flow from my actions, that would amount to a repudiation of my
self-ownership; it would be equivalent, Nozick says, to forced labor.13
Since a denial of my self-ownership is a denial that I am entitled to my
natural assets, it follows that premise 2A is true.
There must, of course, be background limitations on the scope of
premise 2A. (Presumably this is why Nozick includes the reference to
"specified types of processes.") For example, it may not apply, or it may
not always apply, to situations where my asset-producing actions inter-
12. Perhapsthis is a limiting case in which it becomes slightly artificialto speak of cau-
sation, since action and asset coincide.
13. See Nozick, Anarchy,State, and Utopia, at p. 172: "Seizingthe results of someone's
labor is equivalentto seizing hours from him and directinghim to carryon various activ-
ities.... This process whereby they take this decision [concerning what you are to do]
from you makes them a part-ownerof you; it gives them a propertyright in you."
and Responsibility
fere with someone else's self-ownership by, say, violating her right not
to be harmed in certain ways. It also seems implausible to say that I am
entitled to an item I produce if the raw material upon which I work was
stolen from another person. Building on this latter point, it is tempting
to say that premise 2A will only apply if I have a legitimate entitlement
to, or at least a contractual right to make use of, not just my natural
assets but all the resources that I use to produce something. But such
a background condition might well be too strong.14
It bears emphasis that premise 3, the causation thesis, must be inter-
preted as saying not just that my naturalassets were causally implicated
in the production of a given good, but that they were uniquely causally
implicated; the existence of the good can be attributedto me and to no
one else. This is not to deny, however, that there is a sense in which
someone else's agency may have been involved. Suppose that I am
building a house on land that I own, and that I hire another person to
help with the work. The libertarianview of this situation is that, by buy-
ing that person'slabor for a specified period and purpose, I gain a right
to it; his labor is not to be viewed as an independent exercise of agency,
but rather as one resource among others that I am entitled to utilize in
14.There are a number of reasons why the suggested backgroundcondition might be

too strong. One concerns the issue (a trickyone for a libertarian)of what to say about the
utilization of public goods. Another reason is that it is not implausible to think that the
transmissibilityargument,understood in the causal sense we have so far been consider-
ing, covers appropriationsof unowned material resources as well as the transformation
of resources alreadysubject to an entitlement. As Cohen points out, it is difficultto criti-
cize the appropriationof a resource as illegitimateif no one else is made worse off by the
appropriation.The argumentCohen attributesto the libertarianis that so long as I do not
violate another person's self-ownership by harming him, then my own self-ownership
leaves me free to do what I want with the world'smaterialresources;nonharming appro-
priationis simply a case of the naturallibertythat inheres in my ownership of myself. The
claim is, in effect, that premise 2A applies to the appropriationof unowned resources. If
that is correct,then the propertyright that libertarianssay arises from a legitimate appro-
priationfrom the commons is just a special case of the entitlement thesis. As Cohen makes
clear,the argumenthe describes can be understood as justifyingthe right to appropriate
unowned resources by reference to Nozick'sversion of the Lockean proviso, which says
that the appropriation of an unowned object must not worsen the situation of
others, rather than by reference to Locke'sown theory of appropriation,which looks to
the mixing of one's labor with the thing to be appropriated.Cohen argues persuasively
that Nozick relies on an unacceptable understandingof what it means to worsen the situ-
ation of someone else, and that if an acceptable understandingis employed then most
appropriationscan be seen to leave others worse off. Cohen, Self-Ownership,Freedom,
and Equality,at pp. 69-89, 112-14.
building my house. I do not, of course, wish to deny that this character-

ization of the employment relation can be questioned. My present point
is simply that premise 3 must assume that causal attributions of prod-
ucts to persons-determinations of what "flows"from whom-are typ-
ically unique.15
I have so far been considering an interpretationof the transmissibility
argument which assigns to the expression "flow from" an exclusively
causal meaning. But it is possible that Nozick regardsthe argument as
also applying to the sale of goods in market transactions. (Suppose, for
example, that I sell the beautiful painting that I make.) The claim would
be that the transmissibility argument demonstrates that I am legiti-
mately entitled to the full proceeds of such a sale. If, however, market
transactions fall within the scope of the transmissibilityargument, then
"flowfrom"cannot be understood in a purely causal sense. In this con-
text "flow from" would have to take on a more normative character;it
would mean that the transferof money or other consideration in accor-
dance with a contract of sale conformed with the principle that Nozick
calls justice in transfer. Since the characterization and justification of
appropriate norms of transfer is a complex topic in its own right,16the
transmissibilty argument would in effect consist of two distinct argu-
ments that had been conflated. For purposes of clarity,if nothing else,
it therefore seems best to limit the transmissibility argument to the
causal interpretation.
Limiting the transmissibility argument to the causal intepretation
also seems appropriate for independent reasons. The core of the liber-
15.This is not to deny the possibilityof partnerships,joint ventures,and so on. But these
are consensual relationships in which two or more persons make a mutual decision to
share benefits and risks.They decide, in effect, to act as one person, where the normative
consequences of "acting as one person" are given by the entitlement thesis and, more
generally,the ownership thesis.
16. The libertarianmight want to say that the right to contract with others is a natural
incident of the concept of property,or he might want to say that it requiresan independ-
ent justification.The resolution of this question is not important for present purposes. It
is worth pointing out, however, that contractual rights and duties, as ordinarilyunder,
stood, cannot readily be thought to be grounded in nothing more than self-ownership.
The most obvious route from self-ownershipto contractwould look to the conjunction of
the liberty to alienate one's entitlements as one wishes and the duty not to harm others
by inducing them to rely on you. This does not seem to work,however,because contract
protects an expectation interest and not just a reliance interest. See furtherPeterBenson,
"AbstractRightand the Possibilityof a NondistributiveConception of Contract:Hegel and
Contemporary Contract Theory," Cardozo Law Review 10 (1989): 1077-1198.
and Responsibility
tarian position on entitlements, and the chief source of its controversy,

is not the right to contract but ratherthe nature of the entitlements that
can be transferred by contract. For example, Nozick claims that Wilt
Chamberlainis entitled to the full market value of his basketball skills,
including their scarcity value. Chamberlain is entitled, in other words,
to the economic rent that he can command in a market because his
skills are scarce. This is a controversialclaim, but, as BarbaraFried has
convincingly argued, it is not a claim about the content of the norms of
transfer; rather it is a claim about Chamberlain'sproperty right in his
skills.'7It is a claim about what he owns, and hence is entitled to sell. The
proposition that property rights include scarcityvalue must be justified
by the transmissibilityargument, where that argument is understood in
the causal sense. I will briefly return to this issue in Section VII. The
point to be emphasized here, however, is that the entitlement thesis, as
derived from the causal interpretationof the transmissibilityargument,
lies at the heart of the libertarianview of justice in holdings. Premise 1
is the self-ownership thesis, and intuitions about self-ownership also
underlie premise 2A. Premise 3 is the causation thesis. We can therefore
say, speaking only slightly loosely, that the entitlement thesis follows, on
the libertarianview, from the conjunction of the self-ownership and the
causation theses.18
ANDRESPONSIBILITY
III. ENTITLEMENT
I now turn to a discussion of the relationship between the entitlement
thesis and the claim of libertarianlegal theory that persons should be
held absolutely liable for the harm they cause to others. Nozick'sargu-
ment in support of the entitlement thesis has been criticized on many
different grounds, but for the moment I do not wish to question either
its validity or its soundness. RatherI wish to assume that the transmissi-
bility argument is correct in its application of the self-ownership and
causation theses to outcomes that give rise to assets for the actor, and
17. BarbaraFried, "WiltChamberlainRevisited:NozicK's'Justice in Transfer'and the
Problem of Market-BasedDistribution,"Philosophy & Public Affairs24, no. 3 (summer
1995): 226-45.
18.An issue I will not address concerns the appropriatelibertarianapproachto positive
externalities,that is, benefits to A that are causally produced by the actions of B. Does B
have a restitutionaryclaim againstA?On this issue compare Nozick'sdiscussions in Anar-
chy, State, and Utopia at pp. 93-95 and 280-81.
then ask what the appropriate libertarian approach should be in the

case of harmful outcomes. Under what circumstances, if any, should
libertarianismrecognize an obligation to compensate for harm caused?
One possible view that might initially seem to have some merit is that
there is no special libertarian thesis about responsibility for harmful
outcomes. Rather the obligation to compensate is simply an ancillary
aspect of the basic libertarianproperty rights that one has in one's per-
son and in legitimately acquired material resources. These entitlements
are absolute, according to the view in question, so that if A interferes
with one of B's entitlements A comes under an absolute obligation to
undo the damage, i.e., to pay B compensation.
The view just sketched of the obligation to compensate is readily sug-
gested by the metaphor of the "boundary"or "border"that libertarians
routinely employ to describe the basic entitlements.'9Consider the ex-
ample of a privately-owned piece of land. One of the characteristics of
a tract of land is that it is surrounded by a physical border,or at any rate
by a border that can be physically traced out on the ground. Suppose
that Emily owns a piece of land and uses it as a working farm. On the
libertarianview she has absolute property rights in her own person, her
powers, the land itself, and any other material property that she uses to
work the land. Given that she is also morally entitled to any goods or
services which she has contracted with others to supply and which she
uses in her farming, she is, according to the libertarian,entitled to keep
whatever gains she manages to produce within the confines of her bor-
ders. At the same time, she is entitled, within those same borders, to be
free from interference by others. Suppose that Jules operates a factory
on his adjoining plot of land and that, without any knowledge or care-
lessness on his part, toxic effluent flows onto Emily'sland and damages
her crops. On the libertarianview this is Jules'sproblem, not Emily's.He
has crossed her boundary and thereby violated her entitlement; the
mess is his, and it is for him to clean it up. To the extent that Emily's
property or person has been harmed, Jules has an obligation to correct
the situation. The final step in the argument is the claim that this analy-
sis of property rights in land can be extended to other entitlements,
including in particularthe property right an individual is said to have in
his or her own person. The conclusion is that there is a general obliga-
19.As Nozick has put it, "[a]line (or hyper-plane)circumscribesan area in moral space
around an individual."Nozick, Anarchy,State, and Utopia,p. 57.
365 Libertarianism,Entitlement,
and Responsibility
tion of absolute liability to compensate for the harm one causes to the
person or property of another.
In the preceding paragraph the obligation to compensate for harm
caused was presented as derivable from the absolute entitlements that
the libertarian says we have in our person, powers, and material prop-
erty.Now it is certainly true that libertariansoften suggest that absolute
liablity is entailed by the nature of private property as such,20but that
is a suspect claim. Often it seems to be supported by nothing more than
the metaphor of a boundary-crossing.The border or boundary to which
Nozick refers is supposed to circumscribe an area in moral space, but
it is very easy to make the assumption that this metaphorical boundary
will coincide with a line in physical space, or at least with the physical
concept of causation. The idea is, presumably, that I own myself in
much the same way that I own land. If you cross an appropriatelyde-
fined physical boundary around my person, where the notion of such
a boundary is either to be taken literally or else spelled out in terms of
a non-normative conception of causation, then you have committed a
trespass against me; so long as you acted voluntarily,it is irrelevantthat
you did not act wrongfully,or even that you could not foresee the con-
sequences of your actions.
I will discuss the general libertarian concept of the boundary more
fully in subsequent sections. For now it will suffice to ask the following
question: why must we regard the moral boundary around an entitle-
ment as absolute in nature, rather than as having been set by, say, a
prohibition on wrongful conduct? (Wrongfulconduct would include, at
a minimum, intentional wrongdoing, but might also extend to negli-
gence.) It is worth recalling in this regardthat Nozick initially character-
izes the basic libertarian side constraint as one that "prohibitsaggres-
sion against another."'2' As was noted at the beginning of this article,
20. RichardA. Epstein, Takings:Private Propertyand the Power of Eminent Domain
(Cambridge,Mass.:HarvardUniversityPress, 1985), pp. 97-98. For criticism see Stephen
R. Perry,"TheImpossibilityof GeneralStrictLiability,"CanadianJournal of Law and Ju-
risprudence 1 (1988): 147-71, at pp. 151-52.
21. Nozick, Anarchy,State, and Utopia, at p. 33. The more general characterizationof a
side constraint also incorporatesthis idea of a prohibition:"Theside-constraintview for-
bidsyou to violate ... moral constraints [set by the rights of others] in the pursuit of your
goals." Ibid. at p. 29 (emphasis added). Given this initial characterizationof side con-
straints,it is perhaps problematicthat Nozick should in his subsequent discussion of the
justificationof the state feel free to pose the following question: "Areothers forbidden to
perform actions that transgressthe boundary or encroach upon the circumscribedarea,
there cannot be a general prohibition against causing harm, if only be-

cause some harms are unforeseeable; there can be no meaningful ante-
cedent injunction not to bring about something that cannot be fore-
seen. According to the view now being suggested, then, property rights
are not absolute but protected only against wrongful interferences
(however that notion is to be defined). There is nothing contradictory
in the idea of less-than-absolute property rights-for example, entitle-
ments protected in tort law by a fault rule ratherthan by one of absolute
liability-and we have been given no reason to think that the libertarian
argument from self-ownership can by itself justify the conclusion that
property rights in oneself and in external resources must be secured by
an absolute standard. On this view, some losses that I cause you are
appropriatelyleft to lie where they fall;you have no claim against me to
be compensated for what has happened to you.
To the extent that the libertarian wishes to defend an obligation of
compensation grounded in a standardof absolute liability,she therefore
has reason to try to justify that obligation by reference to something
other than the supposedly absolute character of the basic libertarian
entitlements. The underlying point here is, in fact, a more general one.
No theory, libertarian or otherwise, can reasonably expect to ground a
moral obligation to compensate in nothing more than the general con-
cept of an entitlement, and this is so whether the appropriatestandard
of liablity is taken to be absolute, strict, or fault-based. This is because
the concept of an entitlement does not, by itself, determine that the
entitlement must be protected by a remedy of compensation, as op-
posed to a pure moral prohibition, a prohibition backed by a private
right of punishment, or a prohibition enforced by public sanctions.
Thus it is not just the libertarianwho has reason to look beyond entitle-
ments in order to justify a moral obligation to compensate.
Libertarianlegal theorists do, in fact, make arguments for absolute
liability that do not simply rest on the supposedly absolute nature of
certain fundamental entitlements.22The most important such argument
or are they permitted to perform such actions providedthat they compensate the person
whose boundary has been crossed?"Ibid. at p. 57. On this point, see further Eric Mack,
"Nozickon Unproductivity:The Unintended Consequences,"in JeffreyPaul, ed., Reading
Nozick:Essayson Anarchy,State, and Utopia (Oxford:Basil Blackwell,1982), pp. 169-9o.
22. See Perry,"TheImpossibilityof StrictLiability,"at pp. 148-59.
and Responsibility
takes the entitlement thesis as its starting point and then claims that if
I am the one who stands to benefit from my actions, it is only appropri-
ate that I also be the one to bear those actions' costs. RichardEpstein
has advanced a number of versions of this argument, including this one:
If the defendant ... took the risk of injury to his own person or prop-
erty, he would bear all the costs and enjoy all the benefits of that
decision whether or not it was corrrect.That same result should apply
where a person "only"takes riskswith the person or property of other
individuals. There is no need to look at the antecedent risk once the
harm has come to pass; no need to decide, without guide or reference,
which risks are "undue"and which are not. If the defendant harms the
plaintiff, then he should pay even if the risk he took was reasonable,
just as he should pay in cases of certain harm [i.e., harm certain to
occur] where the decision to injure was reasonable.23
Epstein'smost succinct statement of the argument takes the following
form: "Once a defendant is allowed to excuse himself on the grounds
that he acted with due regard for the plaintiff, it follows that he will be
able to keep the benefits of his own actions even as he imposes their
costs upon a stranger."24 Epstein'sconclusion is that tort law should, as
a general matter, adopt a standard of absolute liability in cases of harm
to person and tangible property.
An argument very similar to Epstein'swas advanced in the last cen-
tury by Baron Bramwell, an English judge well known for his laissez-
faire views, in the case of Bamford v. Turnley:
It is for the public benefit that trains should run, but not unless they
pay their expences. If one of those expences is the burning down of
a wood of such value that the railwayowners would not run the train
and burn down the wood if it were their own, neither is it for the
public benefit they should if the wood is not their own. If, though the
wood were their own, they would still find it compensated them to
23. Epstein, "A Theory of Strict Liability,"p. 160. In speaking of cases in which it is
reasonable to act even when one knows to a certainty that harm to another person will
result, Epstein has in mind necessity cases like Vincent v. Lake Erie TransportationCo.,
supra note 4.
24. Richard A. Epstein, "Intentional Harms," Journal of Legal Studies 4 (1975): 391-442,
at p. 398.
run trains at the cost of burning the wood, then they obviously ought
to compensate the owner of such wood, not being themselves, if they
burn it down in making their gains.25
Despite the reference to the public benefit, this is not a utilitarianargu-
ment.26Nor is Bramwellmaking an argument of unjust enrichment: he
is not saying that the train owners must compensate the owner of the
wood if, and only to the extent that, the former have enriched them-
selves at the expense of the latter.27There is no reason to think that
Bramwellwould deny that the railway owners should compensate the
owner of the wood even if the railwaywere a losing proposition. Bram-
well is, rather, making the same general argument that Epstein ad-
vanced a century later.While that argument is not economic in charac-
ter, it can be stated in economic terms:just as actors are entitled to keep
the profits of their activities, so they also have an obligation to internal-
ize those activities' costs.28Let me label this proposed rationale for ab-
solute liability the internalization argument.
The internalization argument, as so far stated, can be understood in
at least two different ways. According to one interpretation, the argu-
ment is primarily concerned with fairness. Given that people are enti-
tled to the fruits of their labor,this understanding of the argument runs,
it is only fair to impose on them, as a kind of quid pro quo, an obligation
to compensate for the harms they cause others; if people were not in
25. 122 Eng. Rep. 27 (Ex. Ch. 1862), at p. 33.

26. Bramwellwas responding to a defendant'sclaim that he should not be held liable
in tort for the harm the defendant'sbrick kiln was causing others because it was for the
public benefit that the kiln should operate. Bramwellturns this claim against the defen-
dant by arguingthat something is only for the public benefit when gainersgain more than
losers lose, so that "whenevera thing is for the public benefit, properlyunderstood, . . .
the loss to the individualsof the public who lose will bear compensation out of the gains
of those who gain."In other words, if the defendant was correctthat his brickkiln was for
the public benefit, then he was in a position to compensate those who had been harmed.
But Bramwellwas not saying that the justification for requiringcompensation was that
this would somehow be for the public benefit. Ratherthe justificationwas the independ-
ent moral imperativethat one ought to internalizethe costs of one's activities.
27. Heidi Hurdsuggests that Epstein'ssimilar argumentmight be understood in terms
of unjust enrichment. See Heidi M. Hurd,"TheDeontology of Negligence,"Boston Univer-
sity Law Review 76 (1996): 249-72, at pp. 257-59.
28. The argumentis not economic in nature, but, as we shall see in Section VII,it has
an economic analogue that similarlycalls for the internalizationof an activity'scosts.
and Responsibility
effect charged a price for the right of being allowed to keep what they
produce, they would unfairly be getting something for nothing.
This fairness-based interpretation of the internalization argument is
entirely unconvincing. The entitlements to which the entitlement thesis
gives rise are, on the libertarianview, morally fundamental in character;
they are not discretionarilyconferred privileges that can appropriately
be subjected to a collective pricing mechanism. It is true that fairness at
least sometimes requires one to pay (in some appropriate sense) for an
entitlement that has been given to one, but that is irrelevantin the case
of an entitlement that has not been conferred but rather is a matter of
fundamental moral right. That would be like demanding, in the name
of fairness, that I pay for something I alreadyown. Moreoverthe entitle-
ment thesis applies to all persons, not just to a specially advantaged
group: everyone is entitled to keep the fruits of their labor. The entitle-
ment thesis, in other words, does not seem to involve any form of differ-
ential treatment among persons that would give the notion of fairness
any direct moral purchase here. Since there is nothing obviously unfair
about getting something for nothing if everyone is getting something for
nothing, there appears to be no fairness-based objection to conjoining
legal and political recognition of the general entitlement thesis with,
say, an equally general no-liability rule (i.e., a rule that says all losses
should simply be left to lie where they fall).
The internalization argument can, however, be understood in a dif-
ferent way. According to this second intepretation, we again begin with
the premise that people are entitled to keep the fruits of their labor. But
instead of supposing that the argument uses a notion of fairness to
move directly from that premise to the conclusion that a certain kind of
legal obligation ought to be imposed, it should now be understood as
pointing to the existence of an underlying moral responsibility. Con-
strued in this way, it is essentially an argument from analogy. The enti-
tlement thesis rests on the self-ownership thesis and the causation the-
sis. The libertarianjustification of the entitlement thesis is, in brief, that
a person owns those benefits that flow from-that causally can uniquely
be traced to-her actions, since in acting she is simply making use of
what already belongs to her (her person and her powers). Ownership,
in this context, takes the form of a morally fundamental property right.
It is at this point that the internalizationargumenttakes hold and asserts
that if a person owns the good outcomes that causally flow from her
actions, surely she also owns, in a similarlyfundamental sense, the bad
outcomes, including not only those that fall initially on herself but also
those that fall on others. This is not an argument that we should, as a
matter of fairness, assign the costs of bad outcomes to the person who
brought them about. It is an argument that in a moral sense those costs
are already hers.
This understanding of the internalization argument claims, in effect,
that the entitlement thesis can be generalized: self-ownership and the
causation thesis together entail that outcomes generally,both good and
bad, belong to the person whose actions brought them about. EarlierI
labeled this claim the ownership thesis. In the case of a good outcome,
i.e., one giving rise to an asset, ownership takes the form of an entitle-
ment to the asset; more particularly,it takes the form of a robust prop-
erty right in the full liberal sense. In the case of a bad outcome, i.e., one
giving rise to a harm, it does not seem appropriate to speak of either
"property"or "entitlement."But the term "responsibility"seems appo-
site, especially since what appears to be at stake is a conception of the
concept I have called outcome-responsibility. Entitlement to the fruits
of one's labor and responsibility for the harms one causes others are, for
the libertarian, linked notions; they are species of a broader genus, to
which I have attached the label "ownership."29The common feature
underlying these two forms of ownership is causation, or, more pre-
cisely, the unique causal attribution of an effect in the world to one
person's exercise of agency. As Epstein has written of harmful out-
comes, "the difficult question is often ... whether there are in fact any
means to distinguish between causation and responsibility, so close is
the connection between what a man does and what he is answerable
for.")30
29. Jules Coleman and ArthurRipstein have, quite appropriatelyI think, characterized
the libertarianview of tort liabilityin terms of the "ownership"of costs that one's actions
have caused to others. See Coleman and Ripstein, "Mischiefand Misfortune,"McGillLaw
Journal 41 (1995): 91-130, at pp 101-3. Although Coleman and Ripstein do not connect this
account of liability with the entitlement thesis, they make the related observation that
such an account goes hand in hand with an antiredistributivepolitical theory.As they put
the point, "thelibertarianview is that only the consequences of agency can be the objects
of justice; mere misfortunes-the upshots of chance-are not the proper object of jus-
tice." I thus have no obligation, on the libertarianview, to assist those who are suffering
or in need due to misfortune not of my doing.
30. Epstein, "ATheory of StrictLiability,"p. 169.
and Responsibility
Of course we have not fully characterized the libertarianconception

of outcome-responsibility simply by saying that it arises when an agent
causes harm. It is also necessary to say something about the normative
content of a judgment of outcome-responsibility. If, in the case of an
entitlement to a benefit, ownership takes the form of a full property
right, what form does it take in the case of responsibility for a harm?
When the harm is to another person, at least, the answer seems obvious:
responsibility for the harm is equivalent to an obligation to compensate,
where compensation means putting the person who suffered the harm
in the position that he or she would have been in had the harm-causing
action not occurred. Responsibility takes this form because the harm
creates a cost to the victim, and payment of compensation is the only
way to transfer that cost, to the extent that it can be transferredat all,
to the person to whom it really belongs.
The idea that the internalization argument is best interpreted as say-
ing that there exists a certain fundamental form of responsibility that
the law ought to recognize, rather than as saying that there are reasons
of fairness for imposing a legal obligation to compensate on those who
harm others, receives support from what Epstein has to say about the
harmful outcomes that persons bring on themselves. Epstein argues as
follows: "If in the course of activity conducted for his own gain, the
defendant had harmed himself or damaged his own property,he would
be requiredto bear that loss himself.. ., and there is no reason why that
result should not be sought by the legal system as well when the initial
harm is to the person or property of another."3'This strand of the inter-
nalization argument is most sensibly interpreted as asserting that there
is a general form of responsibility for all harmful outcomes that one
brings about, and that this is so whether the harm falls initially on one-
self or on someone else. The underlying claim is that an agent owns the
31.Epstein, "IntentionalHarms,"p. 398. It bears mention that Epstein has sometimes

formulatedthis argumentin a way that invites the following construction:if A and B were
the same person, and that person caused harm to himself, then A would have to bear the
loss; the same result, that A bears the loss, should likewise follow where A and B are not
the same person, andA causes harm to B. See, for example,Epstein'sdiscussion of Vincent
v. LakeErie TransportationCo.in "ATheory of StrictLiabilityW" p. 158.Understood in that
way,the argumentis vulnerableto the criticismsthat (1)it is indeterminate,since we could
just as readilyconclude that the loss-bearer should be B, and (2) by conflatingA and B it
commits the libertariansin of failingto take seriously the differencebetween persons. See
Perry,"TheImpossibilityof GeneralStrictLiability,"pp. 152-54.
outcomes, whether good or bad, that flow causally (within appropriate

backgroundconstraints) from the exercise of his or her agency. Presum-
ably on the assumption that responsibility for harmful outcomes is
clearer in the case of a harm one causes to oneself, Epstein would ap-
pear to be arguing, again by analogy, from that case to the case where
one causes harm to another person.
It is, of course, only in the case of harm to someone else that out-
come-responsibility takes the form of an obligation to compensate. In
fact, on the general libertarian view of justice in holdings, outcome-
responsibility for a harm one causes to oneself does not affect anyone's
rights and duties. I have no claim against others for assistance when I
harm myself, but I equally have no claim against others when, through
no action of my own, I contract a debilitating illness. The strand of the
internalization argument discussed in the preceding paragraph must
therefore depend on an intuitive sense that an agent is responsible for
the harmful outcomes that he brings on himself through his own ac-
tions, even where those outcomes are unforeseeable, in a way that is not
true of harmful events that simply happen to him.32This makes sense
on the libertarianview, because, as I discuss more fully in the following
section, agency is a central concept in libertariantheory.
The libertarianconception of outcome-responsibility is, in one sense,
a fairlystrong variety of moral responsibility,so far as outcomes involv-
ing harms to others are concerned. This is because it not only claims to
affect what an injurer has reason to do, it does so in a quite specific,
rather onerous way, namely, by giving rise to an obligation to compen-
sate. Of course in another sense this form of responsibility could be
characterized as relatively weak, since it does not attract the oppro-
brium of a judgment of action-responsibility, to the effect that one's
action was blameworthy.There is no claim, on the libertarianaccount,
that the agent necessarily deserves to be blamed or punished. The basic
argument is, rather, that somebody must bear the losses that activity
causes, and the appropriate candidate is the person who in a moral
32. Ronald Dworkin draws a roughly similar but not equivalent distinction between
option luck, which concems the outcomes of calculated gambles in life, and brute luck,
which concems misfortunes that one is bom with or that simply befall one. On Dworkinrs
liberal egalitarianview of distributivejustice, this distinction has practical significance.
Generallyspeaking,a person has to live with his option luck, but in the case of brute luck
redistributionmay be in order. See Ronald Dworkin, "WhatIs Equality?Part 2: Equality
of Resources,"Philosophy & PublicAffairslo, no. 4 (fall 1981):283-345.
and Responsibility
sense owns those losses, whether or not he can be said in some larger
sense to deserve that fate. Compare the libertariantreatment of benefi-
cial outcomes. In these cases, the libertarianconception of entitlement
is again in one sense quite strong: an actor obtains full property rights
in whatever assets he manages to produce for himself (within the appro-
priate background constraints set by preexisting property rights and
contract). But, as before, there is a sense in which the libertarian con-
ception of being entitled to the fruits of one's labor is relatively weak.
Nozick, for example, does not insist that the gains that one might make
from one's activities are necessarily deserved. The idea seems to be,
rather,that even if I do not in any strong sense deserve the naturalassets
that I utilize to produce my gains, no one else has a better claim to either
the assets or the gains: "Some of the things [a person] uses [to produce
other things] he just may have, not illegitimately."33People are in this
sense entitled to their natural assets, and to what flows from the choice
to utilize them.34They own the assets, and therefore they own what
flows from their use; this is so whether the outcome brings a benefit to
the actor or a harm to someone else.
ATOMISM
IV. MORAL
Agency plays a central role in the general libertarian understanding of

both entitlement and responsibility. The ownership thesis does not
apply to all outcomes that flow causally from my existence, but only to
those that flow from my actions. For example, if I walk across the
boundary of Emily'sland, then I have violated her rights, and that is true
even if I neither know nor have reason to know that I am now on her
property; simply by virtue of acting, I own that outcome. If, however,
someone throws me across Emily'sboundary, then I have not violated
her rights, even though the end-state (me on her land) is the same as
before.
The significance of agency within the general libertarianschema fol-
lows from the premise that I own myself. For the libertarian, the ulti-
mate source of most-perhaps all-rights and duties is self-ownership.
As a self-owning being, I own my physical person and my powers. Own-
33. Nozick, Anarchy,State, and Utopia,p. 225 (emphasis in original).
34. Ibid. at p. 226: "Whetheror not people's natural assets are arbitraryfrom a moral
point of view, they are entitled to them, and to what flows from them."
ership of my person gives me the right to be free from deliberate aggres-

sion and, perhaps, certain other forms of physical interference; other
persons thus have a standing duty not to intefere with me in the prohib-
ited ways. Ownership of my powers entails, at the most abstract level,
ownership of my capacity for agency. The fact that I own my capacity
for agency means that no one else but me can, within the constraints
imposed by the rights of others, direct the exercise of that capacity.If no
one can force or require me to act, then no one can force me to assist
another person. This suggests, although it does not entail, that I am not
responsible for harmful outcomes that did not flow from my actions.
This suggests in turn that I should not be held liable in tort for harm to
another person that I could have prevented, perhaps at little or no cost
to myself, but did not. In legal terms, there can be no liabilityfor nonfea-
sance.35
The causation and ownership theses are brought into play if and only
if I choose to act in the world. If, in acting, I bring about a good outcome,
then I have a strong property right in the associated benefits. This is in
fact the only way I can become entitled to wealth or a material re-
source,36apart from the choice of others to transfer property to me by
contract, gift or bequest; I can have no claim of right against another
person, grounded in my needs or welfare, that resources belonging to
her be transferredto me. If in acting I bring about a bad outcome, then
I own the associated costs, whether they fall on others or on myself; if
the costs fall on others, I have an obligation to compensate them. In the
case of both good and bad outcomes, the subsequent normative conse-
quences are triggered by my decision to act in the world. In each case
I own the outcomes that I have brought about, whether or not I could
foresee them and whether they were good for me or bad. All that matters
is that I chose to act.
The general libertarian schema that has just been sketched helps to
give some content to the often-expressed idea that libertarianismis an
"atomistic"moral and political philosophy. The form of atomism with
which we are here concerned is not the claim that human beings are
35. The most important modem defense of the traditionalcommon law position that
there should be no liabilityfor nonfeasance is Epstein'slibertarianargumentin "ATheory
of Strict Liability," at pp. 189-204.
36. This assumes that the right to appropriateunowned propertyis just a special appli-
cation of the entitlement thesis. See supra note 14.
and Responsibility
self-sufficient, where self-sufficiency is taken to mean that humans do

not depend on social processes to become mature and rational moral
agents.37This latter claim, which we can call social atomism, does not
on its face entail, nor is it entailed by, moral atomism. Moral atomism
can be thought of as the conjunction of the self-ownership and causa-
tion theses. One aspect of moral atomism consists in the claim that indi-
viduals have negative rights protecting their persons and property from
(certainkinds of) interference by others.Another aspect is the claim that
individuals do not have positive duties to assist other people. These two
claims, both of which follow from (or at least are suggested by) the self-
ownership thesis, give us the general image of a "moralspace" around
a person. Her negative rights protect her from incursions into this space,
and her general lack of positive duties mean that she is never required
to leave that space in order to come to the assistance of others. Notice
that, up to this point, no mention has been made of agency. It is per-
fectly consistent with everythingthat has been said so far about an indi-
vidual'smoral space that the individual never acts, and indeed does not
even possess the capacity to act.
As soon as we bring agency into the picture, the causation thesis be-
comes a crucial element in completing the picture of moral atomism.
The causation thesis says that the outcomes of actions can be uniquely
attributedto the agency of particularpersons. On the libertarianview it
entails, together with the self-ownership thesis, that the agent who
brings about a given outcome also owns it. In the case of outcomes
involving the creation of a valuable asset, ownership means that, within
the background constraints set by preexisting rights, the agent acquires
a full property right in the asset. In the case of outcomes involving
harms, ownership means responsibility for the harm; if the harm is to
another person, this translates into an obligation to compensate. The
causation thesis in effect extends a person's moral space to include the
effects of her actions. The entitlements she acquires to new or trans-
formed resources are protected by negative rights in the same way as
37. See Charles Taylor,"Atomism,"in his Philosophy and the Human Sciences:Phi-
losophical Papers 2 (Cambridge:Cambridge University Press, 1985),pp. 187-210, at pp.
190-91. Since Nozick acknowledges in Anarchy,State, and Utopia at p. 95 that we are all
"socialproducts,"he clearlydoes not subscribe to social atomism. But Taylorarguesthat
the libertarian-in Taylor'sterminology,the defender of the "primacyof rights"-is com-
mitted to social atomism whether he likes it or not. I shall not comment on that argument
here.
her person. And just as a person must live with the bad outcomes, like
disease, that just happen to her (because she has no positive rights that
entitle her to call on others for assistance), so she must live with the bad
outcomes that she brings about by her actions. This is as true of the bad
outcomes that she causes to others as it is of those that she causes to
herself. On the libertarianview, if I cause harm to another person, that
outcome falls within my moral space, not his. Morally speaking, the
harm already belongs to me.
In modern times Epstein has been the only prominent defender of a
causation-based account of outcome-responsibility,and recently he has
retreatedsomewhat from that position.38Nozick says little about the ob-
ligation to compensate for harmfuloutcomes, and while most of what he
does say seems to point to the causation-basedaccount,39not all of it does.
The foregoingcharacterizationof moral atomism suggests, however,that
there is a deep and satisfyingunity to libertarianthoughtthat should make
the causation-based view of responsibility attractiveto anyone who ac-
cepts the argumentfor the entitlement thesis. The key unifying featureis
the idea that persons are self-owningbeings with the capacity to act. Ac-
tion causes effects in the world, and the ownership of self should be un-
derstood as extending to those effects. Denial of an agent'sentitlement to
a beneficial outcome amounts, on the libertarianview, to repudiationof
her self-ownership.By parity of reasoning, the failure to pay compensa-
tion for a harmfuloutcome that one has caused anotherperson should be
regardedas a refusal to acknowledgeone's self-ownership.
V CAUSATION
It should be clear from the discussion in preceding sections that, in the
general libertarian picture, the causation thesis is doing an enormous
amount of work in the determination of who owns which outcomes.
38. Epsteinstill holds the same substantiveposition, callingfor causation-basedliability
in tort law, but he now claims to defend that position on utilitiarianratherthan on "for-
mal" grounds. See RichardA. Epstein, "Causation-In Context:An Afterword,"Chicago-
Kent Law Review 63 (1987): 653-80.
39. For example, Nozick writes that while it might not be a good idea to penalize all
unconsented-to boundary-crossings,including accidental ones and those done uninten-
tionally, this argument cannot be extended from punishment to compensation, "since
these costs must fall somewhere."Nozick, Anarchy,State, and Utopia, at pp. 71,339 n. 12.
The clear implication seems to be that there should be absolute liabilityfor causing harm
to another person.
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Actually this is truer of the determination of responsibility for harms

than it is of the determination of entitlement to benefits, since in the
latter case the involvement of other persons tends largely to be regu-
lated by background rights in property and contract. (I paint a beautiful
picture using materials that I already owned, perhaps as result of pur-
chasing them from X, and then make a tidy profit for myself through a
sale of the painting to Y) But harmful interactions tend not to be regu-
lated by contract, and backgroundproperty rights play little role in con-
straining the application of the causation thesis. (It does not matter, so
far as my responsibility for your death is concerned, that I stabbed you
with your own or a third party's knife, rather than using a knife that
belonged to me. By contrast, in determining entitlement to a painting,
it does matter whether the canvas on which I painted it is yours or
mine.) On the libertarianview, then, the causation thesis plays a crucial
role in sorting out who is responsible for which harms in the world. For
that reason I intend to focus, in this and the following section, on the
proper understanding of causation in the determination of responsibil-
ity for harmful outcomes.
The libertarian thesis concerning outcome-responsibility is, as we
have seen, that I have a moral obligation to compensate for the harms
I cause others. In legal terms, this means that, in tort law, I am to be held
to a standard of absolute liability.The idea of a moral space around an
individual, and the associated idea of a border,give rise to a natural and
apparently straightforwardimage of what absolute liablity consists in:
I am liable if I cross your boundary and enter your space. In considering
this image, however, it is crucial to remember two points. First, as we
saw in Section III, the idea of absolute liability-the idea, to use the
boundary-crossing image, that I am liable simply for entering your
space, regardless of fault or foreseeability-cannot be derived from the
concept of an entitlement alone. Within libertarian theory, the conclu-
sion that entitlements should be protected by a rule of absolute liability,
as opposed to a rule of fault liability or foreseeability-basedstrict liabil-
ity, depends not just on the concept of an entitlement but also on the
libertarian conception of outcome-responsibility. This understanding
of outcome-responsibility rests, in turn, on the self-ownership and cau-
sation theses. Forpresent purposes, it is the causation thesis that is cru-
cial. In order to explicate the concept of absolute liability,we must ana-
lyze the notion of causation. The image of a boundary-crossing is, after
all, just a metaphor, and we should be careful to avoid relying on that

metaphor to tell us what it means to cause harm. We require,rather,an
analysis of causation in order to understand the metaphor.
The second point to be borne in mind is that the metaphor of crossing
a boundary is a particularlyseductive one which, if we do rely on it to
tell us what it means to cause harm, is likelyto mislead us in subtle ways.
This is because the metaphor involves a generalization of the legal pro-
tection that is afforded to an actual type of entitlement, namely, prop-
erty rights in land. The difficulty is that land, considered as an entitle-
ment, is in several respects a special case. First,it is possible to trace an
actual physical boundary around land, the crossing of which can coher-
ently be treated as a necessary and sufficient condition for the occur-
rence of a rights-violation;and second, land tends not to move around
in the manner of, say, persons. It is, however,very easy to ignore the fact
that not all entitlements possess these particularfeatures, and then to
generalize from the case of land to entitlements in general. It is easy, in
other words, to suppose that the idea of a boundary does after all make
literal sense for all entitlements. Thus in Anarchy, State, and Utopia
Nozick speaks of the notion of a boundary-crossing as though it were a
perfectly clear concept that needs no further analysis (at least in cases
involving physical harm, as opposed to those involving the creation of
a risk of harm). In order to show that that is not so, it will be helpful to
focus on the fundamental entitlement that libertarians say we all have
in our own persons.
When two persons interact, how would we determine that one has
literallycrossed the boundary of the other?It is clearlynot enough to say
that the physical perimeter around a person-the surface of his skin,
presumably-was penetrated or at least touched. For when my person
comes in contact with your person, we would have to say, if crossing or
impinging on a physical surface was the criterion of a boundary-cross-
ing, that we each had crossed the other'sboundary; neither of us could
be identified, by that criterion alone, as the person who is uniquely re-
sponsible for whatever harm either of us might have suffered. Nor can
we rely in general on the criterion of an active person imposing himself
on a passive one, in the manner of an active trespasser crossing the
boundary of an inert piece of land, because, again, persons move about
in ways that land does not; very possibly we were both moving at the
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time the contact occurred.40Nor can we employ overtlynormative crite-

ria, such as the fact that one of us acted wrongfullyin bringing about the
contact. Apart from anything else, this would involve abandoning the
idea of a literal boundary altogether. More generally,it is clear that, in
the libertarianmoral schema, the determination of both entitlement (to
the fruits of one's labor) and responsibility (for the harmful outcomes
of one's actions) is supposed to depend on a normatively neutral con-
ception of causation that involves no more than a description of what
happens in the world when a person acts. If the libertarianwere to allow
normative criteriato figure centrallyin the determination of responsib-
lity for harms, that would seem to open the possibility of doing the same
in the case of entitlement to benefits. It opens the possibility, that is, of
normative constraints on the principle that people are entitled to the
fruits of their labor.
What the libertarian requires, then, is an account of the notion of
causing harm that does not depend, either explicitly or implicitly,on the
image of a boundary-crossing. Modern libertarian tort theory, as evi-
denced particularlyin the earlywork of RichardEpstein, has taken as its
starting-point in the analysis of causation another image that has been
historicallyimportant within tort law itself. This is the image of a person
who has chosen to act and in consequence applies force, possibly acci-
dentally and nonnegligently, to the person or property of another. The
notion of a dominant party applying force to a subordinate one was a
central element in the old tort action of trespass, where it took the form
of a requirementof direct harm. For several centuries, until it was finally
displaced by the emerging new tort of negligence in the nineteenth cen-
tury,trespass was supposed to have imposed a form of causation-based
strict liability upon injurers.41Nineteenth-century libertarianswho re-
sisted the historical transition to negligence seized upon the image of
one person exerting force upon another and generalized it into a notion
of one person acting upon, or causing harm to, the other person. The
idea, apparently,was that the actor or harm-causer was properly re-
40. For reasons I shall examine later, the active/passive distinction will not help even
when one party happened not to be moving at the particularmoment of contact. As we
shall see in Section VI, we are touching here on a deep problem with libertarianism.
41. The historical accuracy of this supposition has been questioned. See, e.g., P H.
Winfield,"TheMyth of Absolute Liability,"Law QuarterlyReview42 (1926): 37-51.
garded as the sole originating source of the harm suffered by the vic-
tim.42This way of conceptualizing harmful interactions leads by a natu-
ral route to the conclusion that the harm is an externalized cost-in
nineteenth-century terms, an "expense"43-of the dominant party'sac-
tivity.
In arguing on libertarian grounds for a general standard of absolute
liability in tort law, Epstein offers a modern version of the generalizing
process just described. Epstein begins with a paradigm of causing harm
by means of force, "Ahit B," that is very close to the old action of tres-
pass, and then argues that the case for absolute liability carries over to
other methods of causing harm, which are captured by three further
paradigms: "Afrightened B," "Acreated a dangerous condition that re-
sulted in B's harm," and "Acompelled C to hit B."44All of these para-
digms, Epstein argued, "reveala domination of A, the author of the ac-
tion, over B, its object, that prima facie calls for redress by the law of
torts."45It should be noted that the libertarian requires an account of
causation that will not only permit a unique and normatively neutral
attribution of costs to particularactors, but that will also limit the costs
that are attributed to any one actor on any one occasion. Intuitively,
there must be some restriction on the set of subsequent events for
which the actor may be held responsible; otherwise, liablity could
stretch indeterminately into the indefinite future. Epstein's theory of
42. Sometimes the person who sufferedthe harm might be regardedas the dominant
party, in which case his activity would be perceived as the sole cause of the harm in
question;he was the author of his own misfortune. See, for example, the judgment of the
libertarianjudge BaronBramwellin the nineteenth-centuryEnglishnuisance case of Bry-
ant v.Lefever,4 C.PD.172 (Eng.C.A.1878-79).In that case the plaintiff'schimney smoked
whenever he lit it because the defendant had stacked timbers on his roof that kept the air
from circulatingfreely,In deciding for the defendant Bramwellwrote: "No doubt there is
a nuisance, but it is not of the defendant'scausing.... Their house and their timber are
harmless enough. It is the plaintiff who causes the nuisance by lighting a coal fire in a
place the chimney of which is placed so near the defendant'swall, that the smoke does
not escape, but comes into the house. Let the plaintiffcease to light his fire,let him move
his chimney, let him carry it higher, and there would be no nuisance." The case also
illustratesthe generalizingtendency discussed in the text, since nuisance cases of this type
involve indirect harm rather than the application of force, and hence would have been
dealt with under the old common law by the writ of case ratherthan by the writ of tres-
pass. Even in such cases of indirect harm, Bramwellclearlythought that one party or the
other must be distinguishableas the cause of the harm.
43. See the quote from Bamfordv. Turnley,supra note 25.
44. Epstein, "ATheory of StrictLiability,"p. 165-89.
45. Epstein, "Defenses and Subsequent Pleas in a System of StrictLiability,"at p. 168.
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causation, based on the four enumerated paradigms, is supposed to

perform both tasks (i.e., provision of a normatively neutral conception
of unilateral cost-attribution, and limitation of responsibility to certain
costs only).
I have argued at length elsewhere that Epstein's paradigms do not
provide the independent, normativelyneutral account of causation that
libertarianism requires to underwrite its very broad conception of re-
sponsibility for harmful outcomes.46The analysis of causation Epstein
offers is in fact a disguised normative theory that makes responsibility
for harmful outcomes turn at least sometimes on the fact that one per-
son's activity has imposed a certain level of unacceptable risk on an-
other person (and, of course, has caused the latterharm within the risk).
It incorporates, that is, either a foreseeability-based conception of strict
liability,a conception of fault, or both. (Epstein'scharacterizationof the
implicit standard of liability is not always consistent.) I will not here
repeat the full analysis that supports these conclusions, but simply illus-
trate the sort of difficulties to which the theory is subject by means of
an example.
Suppose I drive into your parked car, which is damaged as a result.
This is a clear instance of the central paradigm of force. But we cannot
without more say that I am responsible for the outcome, because you
might have parked your car in a spot where I could not see it in time.
Let'ssay you left it in the middle of the road, out of sight around a sharp
curve. At this point Epstein must call in aid the paradigm of dangerous
conditions, which says that persons are responsible for the dangerous
conditions they create. This paradigm clearly incorporates either a con-
ception of fault, or at the very least a conception of foreseeability-based
strict liability,which is grounded in the idea that the actor has created
an unacceptably high level of foreseeable risk. Moreoverthe particular
subtype of the paradigm that figures in the example possesses a further
normative dimension, since Epstein would characterizeit as blocking a
right-of-way. In the example, the paradigm of dangerous conditions
would provide me, the driver,with a "causal"defense, since this para-
digm takes "causalpriority"over the paradigm of force. But this assess-
46. See Perry,"TheImpossibilityof General Strict Liability,"at pp. 159-68;Stephen R.
Perry,"Risk,Harm,and Responsibility,"in David G. Owen, ed., PhilosophicalFoundations
of TortLaw (Oxford:ClarendonPress, 1995),pp. 321-46, at pp. 339-45. See also Coleman
and Ripstein, "Mischiefand Misfortune,"at pp. 101-8.
ment of priorityis clearlyjust a normativejudgment of the parties' rela-

tive degrees of responsibility, based on an implicit assessment of fault
or foreseeability. Such normative judgments are, however, employed
inconsistently. If normative criteria must be brought to bear to deter-
mine whether the consequence of an act constitutes a "dangerous"or
just a "mere"condition, why should such criterianot be brought to bear
to determine whether an action that directly harms someone-for ex-
ample, an act of running down or hitting-gives rise to responsiblity for
the resulting harm?
The difficulties that beset Epstein's theory are merely illustrative of
the dilemma that faces any attempt to show that a normatively neutral
conception of causation can be used to make unique attributions of
costs to particular agents. To see this, it should first be noted that the
most plausible general accounts of causation are based on the idea that
a cause is a necessary condition for the occurrence of an event. These
accounts are, to be sure, normatively neutral in the appropriate sense,
since they do not involve a normative assessment of either of the inter-
acting parties' actions. However, for reasons to be explained shortly,
such theories are, from the libertarianpoint of view, indeterminate;they
are incapable of picking out one or the other of the parties as the unilat-
eral cost-imposer. A theorist might well feel that he has reason to reject
the necessity-based accounts of causation, as Epstein does,47but then
he must offer an alternative analysis. My conjecture is that any such
analysis, if it is to avoid indeterminacy and pick out a unique cost-im-
poser, will inevitably smuggle in strong normative considerations of the
kind that surface in Epstein'saccount. It is of course difficult to prove
such a conjecture definitively, but no theory meeting the libertarians'
desiderata has yet been produced.48Note that Epstein'sgeneral notion
of one party "dominating"the other will not help, because domination
is just a metaphor that must be cashed out. To cash it out in terms of
fault or foreseeabilty will for obvious reasons not assist the libertarian
cause. The only other obvious way to cash it out, by reference to a dis-
tinction between activity and passivity,will not assist either, for reasons
to be explained in Section VI.
47. Epstein'sargumentsfor rejectingthe but-for test and other necessity-based concep-
tions of causation are bad ones. See Perry,"TheImpossibilityof GeneralStrictLiability,"
at pp. 161-62.
48. This is true, for example, of Hartand Honores "common sense" account of causa-
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Why will a necessity-based account of causation result in indetermi-

nacy? Why, that is, will it fail to pick out one party as the unique cause
of the harm? The predominant approach in the contemporary phi-
losophical and legal literature analyzes causation in terms either of
strong or weak necessity. A version of the strong-necessity theory,which
is essentially the venerable but-for test in tort law, has been defended
by John Mackie.49According to this view, A is a cause of B if A is a
necessary condition for B's occurrence. (But for A, B would not have
happened.) RichardWrighthas argued vigorously in favor of the weak-
necessity approach, in the form of the so-called NESS test (necessary
element in a sufficient set).50A is a NESScause of B if A is required to
complete a set of conditions that together are minimally sufficient for
the occurrence of B. The differences between these two approaches are
not relevantfor present purposes. The point to be emphasized is that on
neither theory can the nonvictinmsconduct be regarded as the sole
cause of the victinmsharm, because there are always other conditions
that are necessary for the occurrence of that harm and these constitute
causes as well. Among these conditions will be various facts about the
victim. For example, consider once again our collision case. You made
a choice to park your car wherever you did, just as I made a choice to
drive whereverI did. Even though one action took place earlierthan the
other, on a necessity-based approach both must be regardedas causes
of the harm that eventuated. Except in very unusual circumstances that
we can at present ignore, this will be true of all harmful interactions:
actions of both parties were causes of the harm.
The dilemma that faces the libertarianis therefore this. Standardac-
counts of causation, while suitable for the libertarian'spurpose insofar
as they are general and normatively neutral, do not pick out a single
person as the cause of a given harm. But nonstandard accounts of cau-
tion, although the details of their theory cannot be discussed here. H.L.A.Hart and Tony
Honor6, Causation in the Law (Oxford:ClarendonPress, 1985,2nd ed.), chaps. 2, 3. The
account is criticizedfor importing elements of a normative characterin J. L. Mackie, The
Cementof the Universe:A Studyof Causation(Oxford:ClarendonPress,1980, rev.ed.), pp.
127-29, and in RichardW. Wright, "Causationin Tort Law,"California Law Review 73
(1985): 1735-1828, at pp. 1745-50.
49. Mackie, The Cementof the Universe,chaps. 2, 3.
50. Wright,"Causationin TortLaw,"pp. 1788-1803.As Wrightacknowledges,the NESS
test was first formulatedby Hartand Honor6,who were themselves drawingon the work
of John StuartMill. See Hart and Honor6, Causationin the Law, pp. 17,111-17.
sation, such as Epstein's own, that do generate unique attributions of

harm appear inevitably to give up normative neutrality.
VI. AGENCY AND SECOND-ORDER CHOICE
The problems with the libertarianconception of outcome-responsibility

run deeper than the dilemma described at the end of the preceding sec-
tion. The more fundamental concern is with the central role of agency
in the libertarian account of both entitlement and responsibility.More
specifically, the concern is with the particularconception of agency to
which libertarianism is committed. The libertarian says, in effect, that
ifI choose to exercise my capacities and act in the world, then I am both
entitled to the benefits and responsible for the harms that flow from that
choice. But this offers a compelling picture of responsibility only on the
assumption that I have a choice about whether to exercise my capaci-
ties, i.e., a second-order choice about whether I will choose to act in the
world at all. For if I have no such second-order choice, then it does not
seem appropriate to make responsibility for outcomes turn on some-
thing that I had no choice but to do, namely, to act. At some level re-
sponsibility must surely involve a notion of control, and that is precisely
what would be lacking on the libertarian conception if there were no
second-order choice to be made. If, however,persons do have a second-
order choice, then at any given time some people will choose to be ac-
tive and some will choose not to be; the latter will be, as it were, life's
passive by-standers. Active and passive persons will of course interact
with one another, and this immediately presents us with the image of
an active person applying force to or otherwise directly impinging on a
passive one. It is this image that underlies the old action of trespass and
its modern counterpart, Epstein'sparadigm of force. Thus the distinc-
tion between activity and passivity lies at the core of the libertarianac-
count of outcome-responsibility; in a differentway, it may be central to
the libertarianaccount of entitlement as well.5'
Epstein'sterm "paradigm"is appropriatehere, since the image of one
person, A, choosing to act and in the course of acting applying direct
51.The idea would be the laissez-fairenotion that my fate rests in my own hands, to the
extent that it rests in anybody's.If I choose to act in the world, I am entitled to keep the
fruits of my labor. If I choose not to act, that is my problem and no one else's;the world
does not owe me a living.
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force to a passive by-stander,B, is the libertarianparadigm of noncon-

sensual human interaction. It does not matter whether A intentionally
attacked B, or otherwise behaved faultily.Even if A'saction was entirely
innocent, he is still responsible for the outcome and must compensate
B for any harm the latter may have suffered. It was of course realized
early on in the history of the action of trespass that both parties might
have been active at the point of interaction,52as well as that a preexisting
dangerous condition might sometimes be more appropriatelyregarded
as the cause of harm than the immediately triggeringactivity.53Epstein's
theory of paradigmswas intended to deal with such cases by analogizing
them to the central case in which A applies force to B. Consequently,the
image of an active person impinging on a passive one has remained at
the heart of the libertarianconception of outcome-responsibility54
The fundamental difficultywith this view of human interaction is that
52. In the well-known case of Weaverv. Ward,Hob. 134, 80 Eng. Rep. 284 (K.B.i6i6),
which involved a shooting incident (i.e., the direct application of force by means of a
firearm),the court said that the defense of inevitableaccident would have applied "ifhere
the defendant had said, that the plaintiffran across his piece when it was discharging...."
In the nineteenth century,in his lower-courtdissent in support of strict liabilityin Rylands
v. Fletcher,the libertarianjudge Baron Bramwellacknowledged that "[wiheretwo car-
riages come in collision, if there is no negligence in either it is as much the act of the one
driveras of the other that they meet." Fletcherv. Rylands,3 H. & C. 774,790 (Ex.1865);the
majoritydecision was reversedin L.R.1 Ex. 265 (Ex. Ch. 1866), aff'd sub nom. Rylands v.
Fletcher,L.R.3 H.L.330 (1868). Epsteinemploys a varietyof improbabletechniques to deal
with automobile collisions. These are analyzed in Perry,"The Impossibility of General
StrictLiability,"pp. 166-68.
53. In such instances of "indirect"harm the action would lie not in trespassbut in case,
a variantof trespass that requiredproof of fault.A standardillustrationof the distinction
ran as follows. IfA threw a log at B then B's action lay in trespass,whereas if A left the log
in the highway where B subsequendlytripped over it, B would have to sue in case. See
Reynolds v. Clarke, 92 Eng. Rep. 410 (1726).
54. Consider,for example, the following passage from RichardA. Epstein, "Automobile
No-FaultPlans:A Second Lookat FirstPrinciples,"CreightonLaw Review3 (1980):769-93,
at p. 775:"Once,moreover,assumption of risk is confined to narrowergrounds, then it is
difficult to argue that the plaintiff upon the highway is neverentitled to the prima facie
protection that strict liabilityprovidesto the landowner.Thus the plaintiffwho is injured
while sitting in a parkedcar, or while waiting for the light to change, or while proceeding
through an intersection under the protection of a green light, surely has done nothing
'wrong'if struckby some other driver.If the plaintiffowning land is entidledto protection
on strict liability principles where (as is almost always the case) his conduct is purely
passive, then the same principles should apply as well to passive plaintiffsin the highway
case." Note that passivity has been equated here, not with doing nothing, but with doing
nothing wrong,normativecriteriahave apparentlybeen slipped into the ostensibly neu-
tral determinationof who has caused harm to whom.
there is, in fact, no meaningful second-order choice about choice. The

human condition is such that we have no option but to be active beings
in the world. Even standing still, which nobody can do for very long
anyway, is a certain kind of choice. At the very least, it is a choice to
stand here as opposed to there, and, as the example of the automobile
hitting the parked car illustrated, that is a matter of significance in the
moral assessment of human interaction. The lesson of that example was
not just that attributes of both parties to a harmful interaction are caus-
ally implicated in the occurrence of the harm, but that, in general, ac-
tions of both are causally implicated. The libertarianattempt to focus on
who was active and who passive just at the moment of impact is, frogi
a moral point of view, arbitrary.This is made abundantly clear by Ep-
stein's own claim that the paradigm of dangerous conditions is "caus-
ally prior"to the paradigmof force, since we can only ascertainwhether
there is such priority by scrutinizing the earlier action that brought
about the existence of the dangerous condition.55It is thus not possible
to distinguish in a morally meaningful way between temporary, alter-
nating periods of activity and passivity. Even if I could sensibly be said
to be doing absolutely nothing right now, it is morallyrelevantthat I am
wherever I am. However, except in odd cases involving scenarios like
kidnapping, I am wherever I am only as a result of some choice to act
that I made in the past. The moral signficance of an action extends well
beyond the point in time at which the action is completed. In a moral
sense, all autonomous persons must normally be regardedas active be-
ings at all times.
It might be suggested that the libertarianconception of outcome-re-
sponsibility can be rescued if we suppose that there is a moral asymme-
try between the ways that present activity and past activity give rise to
outcome-responsibility. Consider the following thesis. If in the course
of acting an agent injureda by-standerwho was at that moment passive,
the active party would be outcome-responsible for the harm unless it
could be shown that, at some time in the past, the passive party had
foreseeably or faultily created a condition that was dangerous for him-
self and that had causally contributed to his injury.Similarly,if it was the
active party who was injured by the collision, he would be outcome-
55. Epstein has nonetheless claimed that tort law need not look beyond the moment in
time at which the impact took place. See RichardA. Epstein, "TheTemporalDimension
in TortLaw,"University of Chicago Law Review 53 (1986): 1175-1218,at p. 19go.
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responsible for that consequence unless, at some time in the past, the
passive party had foreseeably or faultily created a condition that was
dangerous for others. Outcome-responsibility would be, in effect, con-
ditional in character:of two actions that causally contributed to harm
and that at the time of action resembled one another in all morally rel-
evant respects, one might give rise to outcome-responsibility and one
might not, depending on the moral history of the passive party. If the
passive party could be said to have faultily or foreseeably created a dan-
gerous condition that causally contributed to the injury that one or the
other of them had suffered, the passive ratherthan the active one would
be outcome-responsible for it; otherwise, the active partywould be out-
come-responsible.56
This proposal in effect offers a rationalization of Epstein'sclaim that
the paradigm of dangerous conditions has priorityover the paradigmof
force, except that it expressly takes that priorityto be moral ratherthan
causal in nature. It appeals to an intuition that one person who runs into
another is, even without any fault on the part of the former,responsible
for any injury that either of the two might suffer, at least so long as the
passive party is also without fault. That intuition seems to me to be
wrong. But even if the intuition were sound, the proposal could not
rescue the libertarianconception of outcome-responsibility.That is be-
cause it simply abandons the claim that outcome-responsibility is to be
explicated in terms of a normatively neutral account of causation, and
explicitly appeals instead to moral considerations (or at least to consid-
erations alleged to be moral). Beyond that, the proposal has the conse-
quence that someone whose action immediately contributed to injury
would be judged by a conditional standard of absolute liability,while
someone whose action took time to cause injury would be judged by a
foresight- or fault-based standard. This distinction appears to be mor-
ally arbitraryand unmotivated.
Perhaps most importantly, the proposal is not consonant with the
basic libertarianunderstanding of responsibility for outcomes. The lib-
ertarian position envisages a relatively tight connection between re-
sponsibility and causation: if you act and cause harm you are the author
of that harm, and hence responsible for it;your authorship is unaffected
by the moral quality of your own action. But the connection between
56. This possibility was suggested to me by RonaldDworkin.

responsibility and causation becomes quite slack if we suppose that re-

sponsibility can be affected by the moral quality of some past action on
the part of someone else. If moral theory were to take this odd half-step
toward a foresight- or fault-based account of responsibility, surely it
would be a more defensible position to take the full step and look to
whether the active agent him or herself had acted faultily or could have
foreseen the harm. But that would be to abandon the libertarianunder-
standing of outcome-responsibility altogether.
One way to understand the libertarian "boundary"metaphor is as
expressing the distinction between activity and passivity (active party
entering upon passive land). Perhaps influenced by that metaphor,
many philosophers besides libertarians appear to have accepted the
idea that individual rights can be defined, without more, in terms of one
person's voluntary action impinging on a specified interest of someone
else, where the latter person is effectively treated as passive. But, as we
have just seen, the active/passive distinction cannot be drawn in a mor-
ally meaningful way. To put the underlying point in terms of a slogan,
harm arises not from action but from interaction. This means, among
other things, that it is not in general possible to define interpersonal
rights and duties simply by reference to the entitlement of the right-
holder, together with an admonition that those who owe the duty must
not infringe the entitlement through their voluntary action.57The in-
57. As was noted in Section M entitlements in land are a special case, since it is at least
possibleto treat the physical crossing of a boundary as a necessary and sufficient condi-
tion for the occurrence of a (primafacie) infringementof the entitlement. While this is in
fact the route that libertarianstend to take in cases involving land, it is quite suspect on
moral grounds.Consider,for example,the famous case of Rylandsv.Fletcher,in which the
House of Lords in England held the defendants liable when water escaped from their
reservoir,without any negligence or fault on their part, and flooded the plaintiff'sneigh-
boring mine. Rylandsv. Fletcher,L.R.3 H.L.330 (1868).The court imposed foreseeability-
based strict liability,in part on the ground that storing large quantities of water poses a
foreseeable danger to one's neighbors. The libertarianjudge Baron Bramwellwrote an
opinion in one of the lower courts in which he, too, called for strict liability,but of a much
more stringent,causation-based character;he called, in other words, for absoluteliability.
Bramwellwould have imposed such liabilitysimply because the defendant had caused a
physical invasion of the plaintiff'sland: "I think, therefore,on the plain ground that the
defendants have caused water to flow into the plaintiff'smines, which but for their ... act
would not have gone there, this action is maintainable."Fletcherv. Rylands,3 H. & C. 774
(Ex.1865),at p. 790. (Recallthe similarlibertariananalysis of the Julesand Emilyhypothet-
ical in Section III.) But this physical invasion test appears to be unjustifiablyharsh to
defendants. The House of Lords' foreseeability-basedcriterion of liability,which is the
approachthe law still takes in such cases, is generallyregardedas the preferablerule from
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fringing activity must be defined more precisely, by reference to faulty

conduct, the foreseeabilty of harm, or some other normatively nonneu-
tral aspect of the relationship between the parties.58Thus there can be
no general right not to be harmed. There can only be a right not to be
harmed in specified ways, for example by conduct that is wrongful or
that gives rise to a forseeable risk of harm. As for the metaphor of the
boundary, it is a pernicious and misleading addition to moral and polit-
ical philosophy, and we would do best to dispense with it.
It should be noted that the conclusion that causation is incapable on
its own of grounding moral responsibility for outcomes cannnot be cir-
cumvented by arguing that responsibility should be apportionedon the
basis of appropriatecausal criteria.This is because, in the firstinstance,
the most plausible understanding of causation, which is a necessity-
based account, does not permit us to measure degrees of causal contri-
bution, except in very unusual circumstances; each cause is just a
necessary condition of the occurrence of the outcome, and hence con-
tributes to the occurrence in an all-or-nothing way.59Secondly, the lib-
ertarian conception of outcome-responsibility itself does not allow for
apportionment, since the paradigm case of such responsibility involves
one, active party who is dominating another, passive party.Domination
the perspectiveof both fairness and public policy.Those who disagreewith the rule would
impose a negligence standard,not absolute liability.In this century,RichardEpstein has
advocateda physical invasion test similarto Bramwell'sfor determiningprima facie liabil-
ity in nuisance, a tort that protects the use and enjoyment of land against offensive odors,
loud noises, and similar interferences: "The term 'invasion' is not used as a disguised
synonym for the legal conclusion that the defendant'sactivities are of the sort to which
tortiousliabilityshould attach.... Instead,the term 'invasion'is a description of a natural
state of affairswhich in itself serves as a justification for imposing legal responsibility."
RichardA. Epstein, "Nuisance Law: CorrectiveJustice and its Utilitarian Constraints,"
Journalof LegalStudies8 (1979):49-102, at p. 53 (emphasis omitted). On this basis, Epstein
maintains that shining a light on someone's land can be a nuisance, but casting a shadow
or blocking a view cannot. Whateverthe merits of these substantive claims might be on
other grounds, the criterionof a physical invasion seems in and of itself to be quite arbi-
trary.
58. Cf.Thomas Nagel, "Libertarianismwithout Foundations,"in JeffreyPaul, ed., Read-
ing Nozick: Essays on Anarchy, State, and Utopia (Oxford;Basil Blackwell,1982), pp. 191-
205, at p. 198.
59. The unusual circumstancesare essentially limited to cases of concurrentcausation
involvingcumulativecausal processes:for example,source A contributes1o dust particles,
and source B contributes 3o; all particles act cumulativelyto produce a lung disease, but
8 particles alone would have been sufficient to produce the result. It is in cases like this
that the NESStest comes into its own.
is, so to speak, a one-way street; it does not make sense to speak of the
relative degree to which two parties dominate one another.
VII.FURTHER CONSIDERATIONS
The objections that I offered in Section V to the libertarian account of

outcome-responsiblity do not carry over directly to the thesis that per-
sons are entitled to the fruits of their labor, because questions of joint
causation are generallyless acute in this context. If an actor requiresthe
cooperation of other persons to produce a certain benefit for himself,
and if he is complying with all relevantmoral norms, then by hypothesis
he has either purchased or been given the other party'sservice or good.
That service or good therefore has, through contract or gift, become his
own, so that in employing it to produce a benefit the actor is merely
making use of what already belongs to him; the benefit is being pro-
duced solely within his own moral sphere. It is worth noting, however,
that some theorists have responded to the libertariantreatment of enti-
tlement in a way that is broadly reminiscent of my argument in Section
vj
Recall that, on Nozick'sview, an individual who produces an asset is
entitled to the full market value of that asset. To take even a portion of
that value, say by means of a tax, would amount, the argument runs, to
a repudiation of individual self-ownership. To this claim BarbaraFried
has replied that any part of the value of an asset which constitutes eco-
nomic rent, or scarcityvalue, flows not from anything the individual did
but ratherfrom certain facts about society. To return to the Wilt Cham-
berlain example, Chamberlain can extract a high economic rent for
playing basketballbecause society "suppliedthe peculiar tastes and ma-
terial conditions that made his scarce talents valuable and exploita-
ble."60This should be understood, I believe, as a causal claim. The full
market value of Chamberlain'sskills cannot be causally attributed to
him alone, but is due in part to general facts about society. At least a
portion of that value, in other words, is a product of joint causation.
Fried goes on to say that it is at least arguable that society, rather than
Chamberlain, has the stronger claim to the surplus value. This would
amount, in effect, to adopting a variant of the causation thesis which
60. Fried, "Wilt Chamberlain Revisited," at p. 242.

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gives up uniqueness; this version of libertarianismwould not insist that

all aspects of an asset-in particular,its market value-be causally at-
tributableto a single individual.61The precise propertyright to which an
individual could then lay claim on libertarian grounds would vary in
proportion with his causal contribution. (Therewould be immense diffi-
culties in making this apportionment, but that is not our present con-
cern.)
Fried'sapproach is consistent with a modified version of libertarian-
ism, but others have pushed a similar line of thought further.Consider,
for example, the following argument offered by JeremyWaldron:
There is no sense to the idea that talents can simply be exercisedby
those who own them apart from any social frameworkwhatsoever.
And there is no sense to the idea that there is a natural phenomenon
called "reaping the benefits of one's talents" which is understood
apart from the social arrangements and institutions that define one's
relationships to other people. ... [I]t is certainly false that "reaping
the benefits" is a naturalincident of self-ownership, if the benefits are
supposed to flow from, or be gained at the expense of, other people.62
I take Waldronto be arguing, in effect, that society causally contributes
not just to surplus value but to the entirety of the benefits that the liber-
tarian would say flow from a person's use of her powers. There is no
naturalbaseline of entitlement because there is no sense to the idea that
people can produce benefits in isolation from social arrangementsand
institutions. I am not here concerned to assess this argument, but only
to point out that it depends on a complete repudiation of the causation
thesis. Perhaps the point (or a related point) might be put by saying that
general facts about society contribute not just to an asset's scarcity
61.This was pointed out to me by Thomas Hurka.It is possible that Nozick'sconclusion
that entitlements include full market value rests on his implicit acceptance of a strong
version of the causation thesis, according to which the producer of a product is causally
responsible for the product's every aspect, including its value in the market. Thus ex-
pressed, the thesis is highly implausible.
62. JeremyWaldron,TheRight to PrivateProperty(Oxford:ClarendonPress,1988), p. 404.
See also John Stick,"TurningRawlsinto Nozick and BackAgain,"NorthwesternUniversity
Law Review 81 (1987): 363-416, at pp. 382-86. There is a suggestion of an argumentalong
similarlines in JohnRawls,"TheBasic Structureas Subject,"AmericanPhilosophicalQuar-
terly14 (1977):159-65, reprintedin substantiallyrevised and expandedform in Rawls,Polit-
ical Liberalism(New York:Columbia UniversityPress, 1993), pp. 257-88. Waldron'sargu-
ment is rejectedby Cohen in Self-Ownership, Freedom, and Equality, pp. 220-21.
value, but to the fact that it has any value at all. Waldron goes on to
argue that, since there is no baseline of entitlement that exists inde-
pendently of the social structure,no one can claim on the basis of such
a baseline that that structureought not to incorporate general redistrib-
utive mechanisms. Further,to say that a person is not entitled to a par-
ticular social frameworkwithin which to exercise his talents is not to
deny that he owns either those talents or himself.
The similarity of Waldron'sargument to the argument concerning
harmful outcomes that was presented in section V consists in the fact
that, just as harms arising out of interactions among two (or more) per-
sons must generally be regarded as having been caused by actions of
both (or all) of them, so gains that accrue to particularindividuals are
generally attributable not just to facts about the individual but also to
facts about society as a whole; in neither case can a single individual
plausibly be said to be the sole source of the relevant harm or gain.63
Let me returnto the case of harmfulinteractions,which is the primary
concern of this article. In 1881,nineteen years after Baron Bramwell
wrote his judgment in Bamford v. Turnley,OliverWendell Holmes ar-
gued in The Common Law that tort law should not adopt a standard of
absolute liability. His argument took the form of an attack on what is
recognizably a version of the libertarian argument for that standard.
Holmes's formulation of the argument goes straight to the heart of the
libertarian position, which is the distinction between activity and pas-
sivity:
Everyman, it is said, has an absolute right to his person, and so forth,
free from detriment at the hands of his neighbors. In the cases put, the
63. In many instances the argumentabout harmfuloutcomes can be extended in a man-
ner that parallelsthe argumentabout beneficial outcomes. Thus it is often not just actions
of the immediatelyinvolved parties that can be said to be causes of a given accident, but
also more pervasivesocial arrangements.Forexample,accidentsbetween automobiledriv-
ers and pedestrians occur the way they do because of a socially established pattern of
interactionthat dictates, among other things, that pedestrianswalk on sidewalksadajcent
to roadways,and that they occasionallyhave to cross those roadways.It is easy to envisage
other arrangements,involving,say,walkwayssuspended above the streetsor tunnels exca-
vatedbeneath them, which would completelyalterthe mannerof interactionbetween driv-
ers and pedestrians. I have argued elsewhere that such socially established patterns of
interactionplay a significantrole in defining the standardof care in negligence law, and
also in determiningwhen foreseeability-basedstrict liabilityshould be utilized in tort law
instead of negligence. See Stephen Perry,"Responsibilityfor Outcomes,Risk,and the Law
of Torts," University of Pennsylvania Law Review 146 (forthcoming).
and Responsibility
plaintiff has done nothing; the defendant, on the other hand, has cho-
sen to act. As between the two, the partywhose voluntaryconduct has
caused the damage should suffer, rather than one who has had no
share in producing it.64
Holmes rejected this argument, not just on grounds of policy-policy
meaning, for Holmes, utilitarian considerations-but also because it
"offended the sense of justice."65He maintained, first, that the reason
for making the performance of an act a requirement of liability in tort
is to ensure that "the defendant should have made a choice."66Here he
is on common ground with the libertarians. But Holmes continued:
"[T]he only possible purpose of introducing this moral element is to
make the power of avoiding the evil complained of a condition of liabil-
ity. There is no such power where the evil cannot be foreseen." At this
point Holmes is clearly introducing a different understanding of out-
come-responsibility. It is not choice as such that has moral significance,
but ratherchoice accompanied by the power to avoid the outcome. The
capacity to avoid the harmful result, ratherthan the mere fact of having
voluntarily chosen to act, is the basis of moral responsibility for harm
caused.
But why should we accept Holmes's claim that it is avoidabilityof the
outcome, ratherthan the choice to act as such, that gives rise to moral
responsibility for causing harm? Holmes has little to say on this issue,
but the following observation, made almost in passing, seems pertinent:
"Aman need not, it is true, do this or that act,-the term act implies a
choice-but he must act somehow.... As action cannot be avoided, and
tends to the public good, there is obviously no policy in throwing the
hazard of what is at once desirable and inevitable upon the actor."67 This
passage is significant because Holmes is clearly rejecting a key (albeit
usually hidden) premise of the libertarianconception of agency, which
is the thesis that human beings have a true choice about whether to be
active or passive beings. Holmes suggests, very plausibly, that the
human condition is such that everyone must act in some way or other.
Given that everyone must be active, action alone cannot ground moral
64. OliverWendellHolmes, TheCommonLaw, MarkDeWolfeHowe, ed. (Boston:Little,
Brown, 1963), p. 68.
65. Ibid. at p. 78.
66. Ibid. at p. 77.
67. Ibid.
responsiblity for outcomes. It is not the bare choice to act that matters,
since this is inevitable, but rather something else about the choice over
which an actor can have control. That something else is, according to
Holmes, the actor'scapacity,at the time the choice is made, to avoid the
harm in question. But there can be no such capacity unless the agent is
capable of foreseeing the outcome. As Holmes famously put it, bringing
together the key ideas of choice and foreseeability, "[a] choice which
entails a concealed consequence is as to that consequence no choice."68
In defending this view Holmes was, in effect, advocating the foreseeabil-
ity-based conception of outcome-responsibility that is, as was noted in
Section I, implicit in modern tort law.69
I would like to make one final observation about the libertarian ap-
proach to harmful outcomes. There is a striking similaritybetween the
libertarianconception of outcome-responsibility and A. C. Pigou's the-
sis in welfare economics, famously criticized by Ronald Coase, that the
economically appropriateway to deal with an externalityis to place the
cost, through absolute liability or some other form of governmental ac-
tion such as a tax, on the party who caused it.70The understanding of
causation implicit in the Pigouvian thesis is very similar to the libertar-
ian understanding; the image presented is that of an injurer acting
upon, and thereby causing harm to, a passive victim. Moreover the
Pigouvian approach offers an economic analogue to the libertarianar-
gument for internalizing costs. The libertarianargues that costs should
be placed on the actor who caused them because this is what justice
requires. The Pigouvian welfare economist argues that costs should be
placed on the actor or activity that caused them because otherwise
forced subsidies will distort the market:the prices of products will not
reflect their true costs.7'
68. Ibid. at 76.

69. I discuss and defend this conception of outcome-responsibilityin Perry,"Responsi-
bility for Outcomes, Risk,and the Law of Torts."
70. RonaldCoase, "TheProblemof Social Cost,"Journal of Law and Economics 3 (1960):
1-44.
71. Guido Calabresiat one time maintained, on the basis of a Pigouvian approach to
externalities,that tort law should apply a causation-based standard of strict liability to
commercial enterprises.See Guido Calabresi,"SomeThoughts on RiskDistribution and
the Lawof Torts,"YaleLawJournal70 (1961): 499-601, at p. 514: "Notchargingan enterprise
with a cost which arises from it leads to an understatementof the true cost of producing
its goods; the result is that people purchase more of those goods than they would if their
true cost were reflected in their price." The appropriateconclusion is that "'tort'costs
should be borne by the activitywhich causes them." Ibid. at p. 533.
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Coase argued not only that private market transactions can, under
certain conditions, achieve allocative efficiency without governmental
intervention, but also that the Pigouvian conception of an externalityis
itself fundamentally flawed. The concept of causation cannot, by itself,
be used to determine that a cost belongs to one or the other of two
conflicting activities: "Ifwe are to discuss the problem in terms of cau-
sation, both parties cause the damage."72Coase concluded that we must
see the relevant harm as having been caused by the interaction of the
activities of the two parties. The important economic concern is then
with maximizing the productivity of both activities considered together
(or, in tort terms, with minimizing their total costs). This approach has
won complete acceptance within the economic analysis of law. The old
Pigouvian approach, which, like the libertarian argument, calls for the
internalization of costs on the basis of causal criteria, is for all intents
and purposes a dead letter.
The same cannot be said, however, for the libertarian conception of
outcome-responsibility in tort law, or for an analogous, Nozickian ap-
proach to defining individual rights that surfaces from time to time in
moral philosophy. Richard Epstein's writings advocating a libertarian
approach to tort law have been very influential among legal theorists.
Moreoever it is not uncommon for lawyers and judges to appeal to the
so-called "twoinnocents" maxim, which says that where a loss must fall
on one of two innocent parties, it is better that it fall on the one who
caused the loss rather than on the one who suffered it.73Similarly,the
proposition that individual rights can be defined simply by reference to
the idea of causing harm is one that many moral philosophers find at-
tractive.74The libertarian conception of outcome-responsibility that is
implicit in both the legal maxim and the philosophical proposition is,
however, defective. This truth was recognized by Holmes in the last cen-
72. Coase, "TheProblem of Social Costs,"at p. 13.
73. See the referencescited in AnitaL.Allen and MariaH. Morales,"Hobbes,Formalism,
and CorrectiveJustice,"Iowa Law Review77 (1992): 713-39,at p. 738.
74. See, e.g., David McCarthy,"Rights,Explanation,and Risks,"Ethics107(1997):205-25,
at p. 205: "l[Alnyplausible theory of rights will ascribe to us something at least very much
like the right that others not harm us, at least when harm is construed fairlynarrowlyto
cover, largely,death and physical injury."McCarthyultimately rejects the claim that we
have exactlythis right,but not because it is not a well-defined notion. He accepts instead
the related idea that we have the right that other people not impose risks of harm on us.
This right is just as indeterminateas the right that others not harm us, and for much the
same reasons; it is also problematic in other respects. See further Perry,"Responsibility
for Outcomes, Risk,and the Law of Torts."
tury and by Coase in this one, and its implications have for some time
been absorbed by those who advocate an economic analysis of tort law.
It is time that moral philosophers, and legal theorists who analyze tort
law in responsibility-based terms, followed suit.

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Libertarianism, Entitlement, and Responsibility

Author(s): Stephen R. Perry

Libertarianism is a moral and political theory about, among other

sponsibility that has been defended by libertarianlegal theorists focuses

the critique of the libertarian conception of outcome-responsibility is

The libertarianaccount of outcome-responsibility is one of severalcom-

for wrongful or reprehensible actions. Theories of action-responsibility

Thus on a responsibility-based, nonconsequentialist theory of tort law,

that an agent is responsible for any harmful outcome that he caused. On

come. This understanding of outcome-responsibility thus rejects the ex-

ity, is a necessary condition of liability.In the case of strict liability,the

9. RobertNozick, Anarchy,State,and Utopia (New York:Basic Books, 1974),pp. 225-26.

14.There are a number of reasons why the suggested backgroundcondition might be

building my house. I do not, of course, wish to deny that this character-

tarian position on entitlements, and the chief source of its controversy,

then ask what the appropriate libertarian approach should be in the

there cannot be a general prohibition against causing harm, if only be-

25. 122 Eng. Rep. 27 (Ex. Ch. 1862), at p. 33.

Of course we have not fully characterized the libertarianconception

31.Epstein, "IntentionalHarms,"p. 398. It bears mention that Epstein has sometimes

outcomes, whether good or bad, that flow causally (within appropriate

Agency plays a central role in the general libertarian understanding of

ership of my person gives me the right to be free from deliberate aggres-

self-sufficient, where self-sufficiency is taken to mean that humans do

Actually this is truer of the determination of responsibility for harms

all, just a metaphor, and we should be careful to avoid relying on that

time the contact occurred.40Nor can we employ overtlynormative crite-

causation, based on the four enumerated paradigms, is supposed to

ment of priorityis clearlyjust a normativejudgment of the parties' rela-

Why will a necessity-based account of causation result in indetermi-

sation, such as Epstein's own, that do generate unique attributions of

VI. AGENCY AND SECOND-ORDER CHOICE

The problems with the libertarianconception of outcome-responsibility

force to a passive by-stander,B, is the libertarianparadigm of noncon-

there is, in fact, no meaningful second-order choice about choice. The

56. This possibility was suggested to me by RonaldDworkin.

responsibility and causation becomes quite slack if we suppose that re-

fringing activity must be defined more precisely, by reference to faulty

The objections that I offered in Section V to the libertarian account of

60. Fried, "Wilt Chamberlain Revisited," at p. 242.

gives up uniqueness; this version of libertarianismwould not insist that

68. Ibid. at 76.

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