Difference between revisions of "A Positive Model Of Rights"

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<onlyinclude><noinclude>__TOC__
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== The Model ==</noinclude>
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[[Category:Mike Huben]]
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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.)
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[[Category:Rights|040]]
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[[Category:Positive Alternatives To Libertarian Ideas]]
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[[Category:Under Construction]]
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{{DES | des = 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.) | show=}}
  
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== The Model ==<onlyinclude>
 
An enforced right can be modeled as a social and economic relationship between three groups about a thing.   
 
An enforced right can be modeled as a social and economic relationship between three groups about a thing.   
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But this is much simpler to understand with a diagram and an explanatory table:
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Let's start with a simple story, a diagram and an explanatory table.
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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 to let Ronnie pick the tangerines because Ronnie has the right and I will pop anybody who does."
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* Ronnie is a '''RightHolder''' with the right to pick tangerines.
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* Eddie is an '''Enforcer''' who makes threats and follows up if Ronnie's right is violated.
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* The denizens of Dallas are '''DutyBearers''': a duty to let Ronnie pick the tangerines is forced on them by Eddie, otherwise by preventing Ronnie from picking, they could have more tangerines for themselves.
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* The tangerines are a '''Thing''' that is controlled by the right.
  
 
[[Image:Rights.jpg|500px]]
 
[[Image:Rights.jpg|500px]]
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* The claims are communications between the '''RightHolder''', '''Enforcer''' and  '''DutyBearers'''.
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* The costs, benefits, fees and penalties are all utilities.  If measured in some fungible units such as dollars, they permit useful modeling.
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* Ronnie receives the '''Benefits''' of the Thing: the tangerines.
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* Eddie receives the '''Fees''' for enforcement.  Fees could come from any of the '''RightHolder''', the '''Thing''' or the '''DutyBearers'''.
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* The denizens of Dallas have an '''Opportunity Cost''': if it wasn't for Eddie, they could have more tangerines.
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* If the denizens of Dallas don't obey Eddie, Eddie has an enforcement '''Cost'''.
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* If the denizens of Dallas don't obey Eddie, Eddie will give them a '''Penalty'''.
  
 
{| border="1"
 
{| border="1"
 
|-
 
|-
 
! Group<br><span style="color:blue">(blue circles)</span>
 
! Group<br><span style="color:blue">(blue circles)</span>
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! Claims<br><span style="color:gray">(gray arrows)</span>
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! Claims<br><span style="color:gray">(gray dashed arrows)</span>
 
! Income (black arrows) or<br>{{Red|Costs (red arrows)}}
 
! Income (black arrows) or<br>{{Red|Costs (red arrows)}}
 
|-
 
|-
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* '''Enforcement Claim''' to '''Enforcer'''
 
* '''Enforcement Claim''' to '''Enforcer'''
 
|  
 
|  
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* B<sub>R</sub>, '''Benefits''' from '''Thing'''
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* B, '''Benefits''' from '''Thing'''
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* F<sub>R</sub>, '''{{Red|Fees}}''' to '''Enforcer'''
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* F<sub>R</sub>, '''{{Red|Fees}}''' to '''Enforcer''' (negative for '''RightHolder''', positive for '''Enforcer''')
 
|-
 
|-
 
! Enforcer
 
! Enforcer
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* '''Threat Claim''' to '''DutyBearers'''
 
* '''Threat Claim''' to '''DutyBearers'''
 
|  
 
|  
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* F<sub>E</sub>=F<sub>R</sub>+F<sub>D</sub>+F<sub>T</sub>, <br>'''Fees''' from '''RightHolder''', '''DutyBearers''' and '''Thing'''
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* F=F<sub>R</sub>+F<sub>D</sub>+F<sub>T</sub>, '''Fees''' from '''RightHolder''', '''DutyBearers''' and '''Thing'''
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* C<sub>E</sub>, '''{{Red| Enforcement Costs}}''' paid from '''Fees'''
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* C, '''{{Red|Costs}}''' of enforcement from '''DutyBearers''' (negative for '''Enforcer)
 
|-
 
|-
 
! DutyBearers
 
! DutyBearers
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* no claims
 
* no claims
 
|  
 
|  
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* P<sub>D</sub>, '''{{Red|Penalties}}''' from '''Enforcer'''
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* P, '''{{Red|Penalties}}''' from '''Enforcer''' (negative for '''DutyBearers''')
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* F<sub>D</sub>, '''{{Red|Fees}}''' to '''Enforcer'''
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* F<sub>D</sub>, '''{{Red|Fees}}''' to '''Enforcer''' (negative for '''DutyBearers''', positive for '''Enforcer''')
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* O<sub>D</sub>, '''{{Red|Opportunity Costs}}''' from '''Thing'''
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* O, '''{{Red|Opportunity Costs}}''' from '''Thing''' (negative for '''DutyBearers''')
 
|}
 
|}
  
 
In English prose:
 
In English prose:
  
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:A "right" is of the form "'''RightHolder''' (R) claims a right to control a '''Thing''' (T), receiving '''Benefits''' (B<sub>R</sub>); creating a reciprocal obligation (or duty) for '''DutyBearers''' (D) to permit this despite incurring '''Opportunity Costs''' (O<sub>D</sub>) because of threatened '''Penalties''' (P<sub>D</sub>) produced at an '''Enforcement Cost''' (C<sub>E</sub>) by an '''Enforcer''' (E) paid '''Fees''' (F<sub>E</sub>)".
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:A "right" is of the form "'''RightHolder''' (R) claims a right to control a '''Thing''' (T), receiving '''Benefits''' (B); with a correlate 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)".
  
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For example,  
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'''Benefits''' (B), '''Opportunity Costs''' (O), '''Penalties''' (P), '''Cost''' (C) and '''Fees''' (F) are all assumed to be values
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:"Joe (R) claims a right to farm on his property (T) for commercial sales (B<sub>R</sub>), and neighbor Fred (D) has to tolerate the odors, noise, traffic, etc. (O<sub>D</sub>) because if he interferes he will be fined (P<sub>D</sub>) in a civil lawsuit (C<sub>E</sub>) brought by Joe in a court (E) paid for by taxes (F<sub>E</sub>)."
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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''':
  
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For example,
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{| border="1"
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:"Thomas (R) claims a right of chattel over Dred (T) for slave labor (B<sub>R</sub>), and Dred (B) has to tolerate the loss of his labor and freedom (O<sub>D</sub>) because if he attempts to escape or resists, he will be hunted down or punished (P<sub>D</sub>) by privately hired (F<sub>E</sub>) slave hunters or overseers (E) who expect to profit over their expenses (C<sub>E</sub>)."
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|-
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! Values to DutyBearers
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! Opportunity Costs
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! Penalties
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! Fees (F<sub>D</sub>)
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|-
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! Cooperate
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| O<sub>c</sub>, negative
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| P<sub>c</sub>, zero or even positive rewards
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| F<sub>c</sub>, negative
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|-
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! Defect
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| O<sub>d</sub>, positive
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| P<sub>d</sub>, negative
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| F<sub>d</sub>, zero or negative
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|}
  
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Sometimes the examples can be simpler than this model: for example when Dred is both the DutyBearer and the Thing or when a RightHolder is his own Enforcer.<includeonly>
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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.  [https://plato.stanford.edu/entries/rights/#2.1 In addition, this is the atomic form of a right: rights usually come in molecular groupings to form complex rights.]<includeonly>
  
 
For more explanation of this model and how it applies to economics, see:
 
For more explanation of this model and how it applies to economics, see:
 
* [[A Positive Model Of Rights]]</includeonly></onlyinclude>
 
* [[A Positive Model Of Rights]]</includeonly></onlyinclude>
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== Claimed Rights Versus Enforced Rights ==
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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.
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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.
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Jeremy Bentham said it very succinctly:
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{{QuoteOne|Anarchical Fallacies/Nonsense on stilts}}
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When we talk about rights, we are talking about rights we want enforced.  Unenforced rights are worthless.
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== The Model's Economics ==
 
== The Model's Economics ==
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varying the assumptions of how costs and benefits are borne to  
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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'''):
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== Anthropology Of The Model ==
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: <big>'''B > F<sub>R</sub>'''</big> (Benefit to RightHolder is greater than Fees paid by RightHolder '''averaged''' over DutyBearer's '''cooperation''' and '''defection''')
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An Enforcer would be willing to assess Penalties when Fees are greater than Costs:
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: <big>'''F<sub>E</sub> > C'''</big> (Fees to Enforcer are greater than Costs of enforcement '''averaged''' over DutyBearer's '''cooperation''' and '''defection''')
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Costs are presumed to include detection of defectors and administration of penalties.
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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:
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: <big>''' P<sub>c</sub> + O<sub>c</sub> + F<sub>c</sub> < P<sub>d</sub> + O<sub>d</sub> + F<sub>Dd</sub>'''</big> (Penalties + Opportunity Costs to DutyBearers are less when cooperating than defecting)
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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.
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Some modern ideas of "good" or "moral" or "economically efficient" rights also meet the constraint:
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: <big>'''B - F > O + P'''</big> (Benefit to RightHolder minus Fees to Enforcer is greater than Opportunity Costs plus Penalties to DutyBearers summed for DutyBearer who '''cooperate''' and '''defect''')
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== Examples That Could Be Explained By This Model ==
 
== Examples That Could Be Explained By This Model ==
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=== Ordinary Land ===
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"Joe (R) claims a right to farm on his property (T) for commercial sales (B<sub>R</sub>), and neighbor Fred (D) has to tolerate the odors, noise, traffic, etc. (O<sub>D</sub>) because if he interferes he will be fined (P<sub>D</sub>) in a civil lawsuit (C<sub>E</sub>) brought by Joe in a court (E) paid for by taxes (F<sub>E</sub>)."
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=== Slavery ===
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"Thomas (R) claims a right of chattel (T) for slave labor (B<sub>R</sub>) from Dred (D) who has to tolerate the loss of his labor (O<sub>D</sub>) because if he attempts to escape or resists, he will be hunted down or punished (P<sub>D</sub>) by privately hired (F<sub>E</sub>) slave hunters or overseers (E) who expect to profit over their expenses (C<sub>E</sub>)."
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=== Group Rights ===
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There is nothing in this model which excludes group rights.  The term RightHolder can just as well apply to collectives and the institutions that support them.  Governments, corporations, partnerships, etc.  This is contrary to unfounded assertions that only individuals have rights.  This is why law has the concept of [https://en.wikipedia.org/wiki/Legal_person legal or juridical persons].
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=== Commons Without Scarcity ===
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=== Role Of The State ===
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=== Differences In Rights Between Jurisdictions ===
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== Rights Versus Liberties ==
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A Right in this model includes a liberty (a Hohfeldian no-right to enjoy Benefits) that is protected from interference by enforced Duty.  All Duty removes liberty (in this case by created Opportunity Costs and Penalties) from DutyBearers.
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== Competition Between Alternative Rights Claims ==
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== Philosophical implications Of The Model ==
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All rights are coercive according to the standards of Robert Nozick.  According to the [http://plato.stanford.edu/entries/coercion/ Stanford Library of Philosophy article on Coercion]:
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: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:
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# P aims to keep Q from choosing to perform action A;
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# P communicates a claim to Q;
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# 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;
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# P's claim is credible to Q;
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# Q does not do A;
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# Part of Q's reason for not doing A is to lessen the likelihood that P will bring about the consequence announced in (3)
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:(Nozick 1969, 441–445).[5]
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This model fulfills all of Nozick's stringent requirements for coercion, and of course meets older, weaker definitions of coercion as well.
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== Anthropology Of The Model ==
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== Extensions Of The Model ==
 
== Extensions Of The Model ==
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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.  Investment in the Thing to increase benefits (a major feature of property and some other rights) is also included in Benefits.
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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.
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All the economic benefits and costs could 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.
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== Adaptations Of The Model ==
 
== Adaptations Of The Model ==
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==Related Articles==
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* [[What Are Rights?]]
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* [[What Is Property?]]
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{{Quotations|title=A Positive Model Of Rights|quotes=true}}

Latest revision as of 13:52, 23 October 2019

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