I wish to discuss a problem I have encountered in prescriptively applying libertarian theory to real world situations. I believe that this difficulty is not idiosyncratic, and that other theorists have encountered the same issue, but I cannot find much discussion of it in the literature. I am referring to common situations, such as those covered by motorcycle helmet laws, where it is impossible (in practice) to realize the
libertarian ideal because our laws do not (and most probably never will)
require individuals to assume full responsibility for their free choices.
So, to use this particular example, under the principles of rights-based libertarianism motorcyclists have a clear moral right to ride without helmets, provided they accept the consequences. This implies that if helmetless riders have an accident, the incremental cost (the issue here) of medical care caused by their decision should not be borne (absent consent) by anyone other than the rider. And, if the rider cannot pay for it and does not receive it as a voluntary gift from others, it should not be provided. However, this will in all probability never be the case in our society.
Uninsured helmetless cyclists will not be left to die by the side of the road. They will receive treatment at the ER without regard to their ability to pay, and long-term care will be provided by Medicare or Medicaid on the same basis. It is at least in part the concern about such negative externalities that motivates our helmet laws. But these laws plainly violate the rights of
many if not most helmetless riders, i.e. those who have the ability to pay and those who never get into an accident involving an avoidable head injury. On this basis, helmet laws plainly seem to offend libertarian principles.
On the other hand, libertarians are equally committed to the view that it is wrong for the state to tax A for the benefit of B (except possibly to prevent a moral catastrophe). Since the rest of society is, in the absence of helmet laws, forced to subsidize helmetless riders who suffer avoidable head trauma, I believe this situation to be governed by the standard
“non-consensual taxation is on a par with forced labor” libertarian analysis.
Thus, helmet laws may be regarded as necessary to vindicate the property rights of those who object to paying taxes to finance the healthcare of crash-prone helmetless cyclists.
Accordingly, there seems to be no acceptable solution to helmetless motorcycle riding that is consistent with libertarianism. What to do? One possibility is abandon any attempt to move beyond ideal theory, and concede that we are powerless to make recommendations in messy real world situations such as the one described above. However, this seems highly counterintuitive, since the “theory of the second best” is a well-established approach in political philosophy generally, and there is no apparent reason why libertarianism should not also be able to employ it.
Another approach is to attempt to rank or prioritize the rights involved, but this definitely cuts against the libertarian grain, since as a general matter we emphatically reject the claim that some rights, e.g. economic ones, may be assigned an inferior status relative to others, e.g. political and social rights. Finally, there is the approach I tentatively endorse, which is the application of consequentialist analysis in cases of this sort. This would involve assigning a monetary value to the incremental pleasure experienced by motorcycle riders in going sans helmet and weighing this against the incremental non-reimbursed healthcare costs created by riders who do so.
The resort to this approach is arguably justified as an analog to Taurek number-type cases, where most deontologists accept the moral judgment that we should save the greatest number. Of course cases of that
sort turn on the fact that no rights claims apply, and thus we are free to use
utilitarian calculations. With respect to helmet laws, both sides make valid
rights claims, but both sets of examples involve situations in which it is
impossible to devise a non-arbitrary rights-based outcome. I would welcome any brilliant or even not-so-brilliant thoughts on this subject.