Homes at the Frontiers: How Long Can Law Keep People Away?

By Nick Levinson

Fires burn homes at the edges of where we live. Floods turn basements into muddy pits deep enough to drown in. Governments are asked to pay thousands of taxpayers’ dollars to buy out homes or rebuild them. Building contractors fall weeks behind in reconstruction; some of their own families’ homes were damaged. Towns offer land, maybe muddy, maybe scorched, to prospective buyers so they can build sparkling new homes, refresh their tax bases, and pay for schools and police for families living there.

Government gets told by voters to lower premiums for future flood insurance, because it’s sold by the government at subsidized prices because private insurers can’t get away with charging the premiums needed to pay the claims that the insurance would have to pay. Government pays because voters believe it has lots of money in its general funds and can operate at a loss (it can’t really but many people think that anything important to living shouldn’t be measured in cold profit-and-loss terms, not only, say, life and death). People demand that government finance their risk-taking, so they can enjoy gorgeous valley views between tornadoes ripping roofs open. Government pays for more people to try out hard situations and encourage chances, some of them deadly.

You might think we should make it illegal to live in dangerous margins. Especially the presence of children and of those adults who are relatively helpless should make a compelling case for states to legislate against sales, at least to people who might sleep there unaware of a disaster brewing that could kill them in a few hours while they’re deep in dreamland. At least some of the states have enough interest to override local communities trying to enlarge tax revenues, and the states could issue the bans. Bans could be made more palatable by combining them with other objectives into the same legislation, such as preserving the natural beauty of landscapes, thus easier to enact. Maybe a landowner puts in a clause somewhere forbidding their land from being used residentially.

But no ban is irreversible. Any legislation can be reversed, almost at a whim. Constitutions can be amended. Courts can consider legal flaws. With a landowner’s restrictive clause on future owners, maybe a new property owner becomes bankrupt to force a bankruptcy court to order the land sold at the highest price and, to facilitate that, order the clause nullified. The clause will be void.

In the long run, any such ban is futile, and for fundamental reasons. The human population, worldwide and in our nation, has been growing for centuries. It’s still growing. No nation can do much to prevent other nations’ populations from growing. Each nation likely wants to maintain or grow its own political power within the community of nations and its population size is essential to its political power. With the world population growing, each nation faces the threat of losing power unless its own population grows, so it encourages or requires its own population to grow.

A growing population demands housing. We have far too many people now for all of us to live in trees and caves. We must die in lions’ jaws or get busy constructing housing. We have far too many people now even to house them only where it’s safe. We have people by the millions who are living in dangerous places because we have no realistic alternative; many are poor but at least they’re alive, and, as long as reproduction is prioritized over individual wealth, some of us will be poor and will live at the margins hardly anyone else dares occupy. And we have a few people spending months at a time in Antarctica and outer space, weeks at a time climbing Everest and sleeping on mountainsides, and, as individuals, rowing and sailing across the Atlantic. People have been paddling across the Pacific for centuries and living in tigers’ territories for millions of years. Leopards thought we were delicious, at least until we started killing them with ease and they started to hide and they mostly gave up their appetite for us. Bacteria still take humans as treats. People know the dangers and still live among bacteria and wolves and near slippery slopes covered with wet grass and drive at highway speeds through S-curves on oceanfront roads and under snowstorms dumping snow deep enough to freeze and hide a child forever.

Only a tiny percentage of people go to live at these margins. But one percent of one percent of one percent is still above 7,000 people, more than enough to make some margins tolerable for the next generation born in place and for new arrivals from afar. The latter just showing up is a measure of success. Oft, that success strengthens the larger society, which in turn grows the total population, which in turn pushes at the margins, and thus the cycle repeats. We can order all those first explorers to quit and live with the rest of us, which should be easy since we outnumber them, but if some of them comply others will take their places. They’ll ignore our orders. Besides, letting them live there gets them out from under our skins. In an interdependent world, independent types tend to be annoying, until they succeed in a faraway venture and then we applaud them. If they make themselves at home at a margin, we’ll become their successors, and add comforts and make the place more popular and less marginal. There’ll be a new edge to explore.

Setting up at the margins is conflicted. It means leaving behind people who want everyone to stay, who are afraid the departures will mean deprivation, even if the leavers are slaves or despised. Setting up at the margins may mean coping with people who are already there, like Indian tribes in the Wild West, who may object to the point of getting deadly. Setting up at the margins may mean either support from elsewhere before success is complete, such as a rescue, in which case the explorers may have to pay for the support or prematurely terminate their adventure, or no support from elsewhere until success is complete, not even a rescue, in which case the risks are unrelieved and perhaps overwhelm everyone there; either support situation presents a conflict. But people go anyway. One person or one group may decline one margin because of one potential conflict, but someone else goes and we expand where we live and thrive. A legal ban doesn’t prevent that. It probably slows it but only at some frontiers, not others.

Society is also somewhat conflicted about the costs of expansion. Costs to the larger society are probably low for the initial efforts by pioneers, but rise when things fail, and that rise is controversial. Whenever someone goes to outer space, some people argue that the billions spent should have been spent on Earth-bound needs, and they have a point. But society’s larger consensus is to keep trying, even when a teacher, who was not a career astronaut, died during space travel, slowing space exploration down for a few years but not ending it. Now people go up for months at a time and most of us don’t even know their names anymore. Even if only quietly implicit, societal support for trying is an endorsement that we should expand our frontiers, and thus our resources for supporting the human population. Adding resources becomes implicitly an endorsement for growing our population.

Law often comes after pioneers. Law addresses what everyone does and therefore it applies to pioneers, but sometimes pioneers ignore it because doing so is worth the legal risk, and sometimes other people agree. (In centuries past, someone could travel to somewhere where there was no domestic law and live there untouched by any nation, but there’s hardly any such place left that’s also fit for living. It’s doubtful anyone could be stateless and live in or on international water or in outer space without entering a nation sooner or later.) Law at the margins is hard to enforce from central places, because, for most law, it’s too expensive to try. Law at the margins tends to be simpler, so it can be understood and can acquire local political support and be locally enforced, so a threat to enforce the law is more meaningful. Eventually, as existing margins become easier to reach, law catches up and the larger community goes back to enforcing it as usual, but meanwhile, for better or worse, pioneers have advanced into the margins and advanced their nation’s growth.

For the larger society, law has no solution, not even much of a short-term answer. We’ll just have to accept that some among us will push the envelope and most of us will have to pay for it, with the trade-off that we or our descendants will likely relish the fruit of their risk-taking.