A Positive Model Of Rights

From Critiques Of Libertarianism
Jump to: navigation, search

A good model of rights should be consistent with observations from law, economics, and anthropology. If it is based on observation, we can call it a positive model, like other models in the sciences. (But not necessarily philosophy.)


The Model

An enforced right can be modeled as a social and economic relationship between three groups about a thing. Let's start with a simple story, a diagram and an explanatory table.

Ronnie claims the right to pick tangerines from a tree and pays Eddie to enforce that right against the denizens of Dallas. Eddie tells them "you have a duty not to pick the tangerines because Ronnie has the right and I will pop anybody who does."

  • Ronnie is a RightHolder with the right to pick tangerines.
  • Eddie is an Enforcer who makes threats and follows up if Ronnie's right is violated.
  • The denizens of Dallas are DutyBearers: a duty not to pick tangerines is forced on them by Eddie, otherwise they could pick the tangerines for themselves.
  • The tangerines are a Thing that is controlled by the right.


  • The claims are communications between the RightHolder, Enforcer and DutyBearers.
  • The costs, benefits, fees and penalties are all utilities. If measured in some fungible units such as dollars, they permit useful modeling.
  • Ronnie receives the Benefits of the Thing: the tangerines.
  • Eddie receives the Fees for enforcement. Fees could come from any of the RightHolder, the Thing or the DutyBearers.
  • The denizens of Dallas have an Opportunity Cost: if it wasn't for Eddie, they could have the tangerines.
  • If the denizens of Dallas don't obey Eddie, Eddie has an enforcement Cost.
  • If the denizens of Dallas don't obey Eddie, Eddie will give them a Penalty.
(blue circles)
(gray dashed arrows)
Income (black arrows) or
Costs (red arrows)
  • Right/Duty Claim to DutyBearers
  • Enforcement Claim to Enforcer
  • B, Benefits from Thing
  • FR, Fees to Enforcer (negative for RightHolder, positive for Enforcer)
  • Threat Claim to DutyBearers
  • F=FR+FD+FT, Fees from RightHolder, DutyBearers and Thing
  • C, Costs of enforcement from DutyBearers (negative for Enforcer)
  • no claims
  • P, Penalties from Enforcer (negative for DutyBearers)
  • FD, Fees to Enforcer (negative for DutyBearers, positive for Enforcer)
  • O, Opportunity Costs from Thing (negative for DutyBearers)

In English prose:

A "right" is of the form "RightHolder (R) claims a right to control a Thing (T), receiving Benefits (B); creating a reciprocal obligation (or duty) for DutyBearers (D) to permit this despite incurring Opportunity Costs (O) because of threatened Penalties (P) produced at a Cost (C) by an Enforcer (E) paid Fees (F)".

Benefits (B), Opportunity Costs (O), Penalties (P), Cost (C) and Fees (F) are all assumed to be values that are fungible in some manner. That doesn't require the form of modern markets: indeed, tit-for-tat and other strategies that work with a simpler form of fungibility can serve to exchange life, labor, time, or other values. These values will differ in the cases where DutyBearers cooperate versus where DutyBearers defect:

Values to DutyBearers Opportunity Costs Penalties Fees (FD)
Cooperate Oc, negative Pc, zero or even positive rewards Fc, negative
Defect Od, positive Pd, negative Fd, zero or negative

Arguably, the examples can be simpler than this model: for example when a RightHolder is his own Enforcer or the DutyBearer is also the Thing (as in the case of a slaveowner), but that may not make the model more explanatory and may make it more difficult to compare to alternative uses of this model. The fees in this model show possible sources of income for enforcement: some of them might be zero. This model might need more complexity or be used multiple times to handle heterogeneous DutyBearers, such as slaves and abolitionists.

Claimed Rights Versus Enforced Rights

Common usage of the term "rights" includes unenforced claims of rights. An unenforced claim of rights cannot be expected to provide any benefits, since nothing stops others from ignoring your claims. Unenforced claims of rights are worthless, because you could receive the same benefits (or none) without them. Unenforced claims of rights can multiply like angels on the head of a pin: nothing limits the scope of the claims. The claim for property in land can extend from the center of the earth to the heavens. Multiple claims of the same right (for example, territory of Antarctica) can coexist. Natural rights are claimed rights: they are unenforced.

Any unenforced claims of rights can be rhetorically challenged by an infinite number of conflicting claims. All that because claims are essentially costless. Thus, rights that are only claimed can be ignored because equal or conflicting rights can be claimed. For example, rights of kings were challenged by natural rights. It cost nothing to make either set of claims. Making enforced rights from those claims was costly, and is one of the major purposes of governments.

Jeremy Bentham said it very succinctly:

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense -- nonsense upon stilts. [...] Right, the substantive right, is the child of law; from real laws come real rights; from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters....
Jeremy Bentham, "Anarchical Fallacies"

When we talk about rights, we are talking about rights we want enforced. Unenforced rights are worthless.

The Model's Economics

A would-be RightHolder has no disincentives from making endless rights claims that can conflict with everybody else's claims until he has to pay Fees to an Enforcer. The RightHolder would be willing to pay Fees to Enforcers as long as they are less than his Benefit on average (or perhaps on the margin):

B > FR (Benefit to RightHolder is greater than Fees paid by RightHolder averaged over DutyBearer's cooperation and defection)

An Enforcer would be willing to assess Penalties when Fees are greater than Costs:

FE > C (Fees to Enforcer are greater than Costs of enforcement averaged over DutyBearer's cooperation and defection)

Costs are presumed to include detection of defectors and administration of penalties.

A DutyBearer has a choice of cooperating or defecting. If he cooperates, he bears Opportunity Costs (because he cannot use the Thing) and perhaps Fees assessed by the Enforcer. If he defects, the Opportunity Costs may change sign (to become benefits because he can use the Thing), but he bears Penalties and perhaps Fees assessed by the Enforcer. For a right to work in this model, the DutyBearer would be coerced to cooperate with a rights claim when:

Pc + Oc + Fc < Pd + Od + FDd (Penalties + Opportunity Costs to DutyBearers are less when cooperating than defecting)

Rights can be sustained when these three inequalities hold. If the RightHolder inequality does not hold, the RightHolder will not want to enforce the claim. If the Enforcer inequality does not hold, the Enforcer will not want to enforce the claim. And if the DutyBearer inequality does not hold, the DutyBearer will be better off ignoring the claim: the enforcement will be ineffective.

Some modern ideas of "good" or "moral" or "economically efficient" rights also meet the constraint:

B - F > O + P (Benefit to RightHolder minus Fees to Enforcer is greater than Opportunity Costs plus Penalties to DutyBearers summed for DutyBearer who cooperate and defect)

Examples That Could Be Explained By This Model

Ordinary Land

"Joe (R) claims a right to farm on his property (T) for commercial sales (BR), and neighbor Fred (D) has to tolerate the odors, noise, traffic, etc. (OD) because if he interferes he will be fined (PD) in a civil lawsuit (CE) brought by Joe in a court (E) paid for by taxes (FE)."


"Thomas (R) claims a right of chattel (T) for slave labor (BR) from Dred (D) who has to tolerate the loss of his labor (OD) because if he attempts to escape or resists, he will be hunted down or punished (PD) by privately hired (FE) slave hunters or overseers (E) who expect to profit over their expenses (CE)."

Commons Without Scarcity

Role Of The State

Differences In Rights Between Jurisdictions

Competition Between Alternative Rights Claims

Philosophical implications Of The Model

All rights are coercive according to the standards of Robert Nozick. According to the Stanford Library of Philosophy article on Coercion:

Nozick analyzed coercion by offering a list of necessary and sufficient conditions for judging the truth of the claim that P coerces Q. Somewhat simplified, he argued that P coerces Q if and only if:
  1. P aims to keep Q from choosing to perform action A;
  2. P communicates a claim to Q;
  3. P's claim indicates that if Q performs A, then P will bring about some consequence that would make Q's A-ing less desirable to Q than Q's not A-ing;
  4. P's claim is credible to Q;
  5. Q does not do A;
  6. Part of Q's reason for not doing A is to lessen the likelihood that P will bring about the consequence announced in (3)
(Nozick 1969, 441–445).[5]

This model fulfills all of Nozick's stringent requirements for coercion, and of course meets older, weaker definitions of coercion as well.

Anthropology Of The Model

Extensions Of The Model

For now, to keep the model simple, a number of costs are not made explicit. The cost of extracting benefits to the RightHolder is presumed to reduce Benefits, and is included therein. The cost of extracting benefits for the DutyBearer when defecting is presumed to reduce the negated Opportunity Costs, and is included therein. The cost of making the various Claims are considered negligable and thus omitted.

A useful extension would be to divide the DutyBearers into four groups, the combinations of cooperating/defecting and known/unknown to enforcer. Defecting groups would be receiving benefits from the thing. Known cooperators could have little or no penalties or fees, and could even have rewards for cooperation (though this might be unlikely because it could be expensive to reward many cooperators.) This has the minor drawback of making the diagram of the model more complex.

All the economic benefits and costs can be considered marginal. Adding marginality can help model the extent of the right claims. For example, diminishing marginal benefit might explain why it is impractical to enforce claims perfectly. Alternatively, some claims might have increasing marginal benefit due to network externalities, as in phone systems. In territorial property, average enforcement costs would decrease as territory expands to natural boundaries such as coasts, rivers, mountains, deserts, etc.

Adaptations Of The Model

Related Articles


Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense -- nonsense upon stilts. [...] Right, the substantive right, is the child of law; from real laws come real rights; from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters....
Jeremy Bentham, "Anarchical Fallacies"