What Are Rights?
Rights are a far more complex subject than we usually think. Most people would be surprised at how much that their folk models of rights leave out. Libertarians rely on such simple models because they can lead to the right ideological conclusions. At least four fields consider rights: philosophy, law, economics, and anthropology. A good model would be compatible with all four fields.
Let's get Natural Rights out of the way first. Natural rights are exactly as knowable as invisible pink unicorns: anybody can fantasize them any way they want. During the Enlightenment, when liberalism was invented, liberal natural rights were a propaganda tool used to undermine the equally fictitious natural rights of kings. But even among liberals there was no agreement about whether slaveholding was a natural right or not, because natural rights are really just words. Bentham famously dismissed the idea of natural rights as "nonsense on stilts". Unfortunately, most libertarians (including Nozick) start with this philosophical abomination rather than more factual alternatives.
For more on natural rights, see:
Rights Are Socially Constructed
Both moral rights and enforced rights (see below for the distinction) are socially constructed through political, religious, or academic institutions that codify, promote, and sometimes enforce these ideas. They have no positive existence outside of human ideas and practices. This is why there is little uniformity in ideas of rights, except where pragmatic needs (such as competitiveness) lead to gross similarities. This is why there are no "true" rights: every society will construct its own based on the interests of its members. Philosophy of rights that doesn't start with the social construction of rights is making a basic category mistake.
For more, see:
Hohfeld's Classification Of Rights
Wesley Newcomb Hohfeld created the standard legal classification of right, duty, privilege (meaning liberty), no-right, power, liability, immunity and disability in a 1913 article that he expanded into a book. Libertarians (and lay people in general) are usually ignorant of these important definitions.
For the sake of simplicity, we are only going to consider right (also known as claim right) and duty. A right can be expressed as "R has a right against D to T". For example, Anne has a right against everybody to use her car. For every right, there is a correlative duty. A duty can be expressed as "D has a duty to R to T". For example, everybody has a duty to Anne to let her use her car. You cannot have a right without creating a duty.
Libertarians sometimes give lip service to Hohfeld, but the general pattern is to conveniently forget that rights create duties.Robert Nozick does not index "duty" in Anarchy, State, and Utopia, and indexes Hohfeld only to refer to a meaning of liberty. David Boaz does not index "duty" or Hohfeld in Libertarianism: A Primer. The Encyclopedia Of Libertarianism does not index "duty", but erroneously discusses Hohfeld and duty briefly (without a citation) under Natural Rights: Hohfeld wrote about legally created rights, not natural rights. Jan Narveson correctly uses rights and duties in The Libertarian Idea, but doesn't credit Hohfeld or anybody else in the legal tradition.
For more on Hohfeld's classification see:
Moral Rights And Enforced Rights
A moral right is a wish for a right with its correlative duty, but no enforcement. An enforced right is a rights claim whose correlative duty is enforced by threat and/or coercion. Legal rights are enforced rights. Moral rights can coexist in contradictory, conflicting multitudes because they are only words and not enforced. For example, both Anne and Bob can claim the same car. There is no actual protection with moral rights, and natural rights are an example. Enforced rights, on the other hand, can be resolved when they conflict. Anne and Bob can not enforce exclusive rights to the same car without conflict. That's why law is usually dominant and conflicting rights claims are brought to court to decide a winner. An enforced right can be expressed as "R has a right against D to T and R tells E to enforce D's duty to R. For example, Anne has a right against everybody to use her car and Anne tells the police to enforce everybody's duty to let her use her car.
Philosophical claims for moral rights generally suffer from the is–ought problem and other gross fallacies. The Humean solution is to simply admit that you desire the benefits of particular rights because reason is the slave of the passions. The appeal to consequences is the best you can do, and indeed is the basis of democratic decision making as well as the method of individual decision making libertarians mean by rationality.
From here on, I am only going to talk about enforced rights and duties. When people talk about moral rights, it is usually because they want them converted to enforced rights.
A Positive Model Of Rights
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.
(gray dashed arrows)
| Income (black arrows) or|
Costs (red arrows)
In English prose:
- 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)".
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.
For more explanation of this model and how it applies to economics, see:
Enforcement Is Necessary To Rights
Many people think that "social agreement" can create rights. Social agreement is an important factor in keeping the costs of right low because there is no need to enforce rights among those in agreement. But the problem is internal threats to rights (newcomers, defectors and schismatics) and external threats to rights (raids, wars, etc.) Those people may not agree, and there is no alternative to threats of violent coercion to deter them.
There is no culture where social agreement has been sufficient to create rights. Even extremely non-violent pacifist cultures such as the Mennonites are parasitic upon coercive governments to protect their rights.
Negative Duties Are Not Free
Every right creates negative duties for all other people, which are often characterized as requiring only "restraint" by the others. As Frederic Bastiat liked to point out in What Is Seen And Unseen, that overlooks an opportunity cost (for that "restraint"): those other people could benefit from ignoring the duty created by a right. Plenty of people have starved because of the opportunity cost of respecting property rights in land that they could have farmed themselves.
Single rights are frequently not very useful. For example, if you have a right to pick a tangerine then you might not have any recourse when somebody else picks the tangerine (unless you also have another right to exclude all others.) There are institutions creating several sets of bundles of rights that are commonly useful in society.
Property is a specific set of rights that are coercively enforced. See: What are the component rights of property?
Contracts too have bundles of rights such as:
- Rights to purchase a particular product or service
- Rights to resell a product or service
- Rights to be the only seller or buyer
- Rights to delivery and timely payment
- Rights to refunds or repairs
and many others. These rights can vary a great deal and can be explicit in the contract or implicit due to contract law. Enforcement is ultimately through the courts, even if arbitration is specified, because the parties may not abide by the arbitration.
Positive And Negative Rights?
Spheres Of Rights?
Inalienable rights (also known as unalienable or inherent rights) were originally used in a natural rights context, as in the US Declaration of Independence. As natural rights, they are imaginary. As Enforced Rights, government (the Enforcer) makes the Threat Claims without requiring an Enforcement Claim or Fees from the RightHolder.
Libertarians ignore a lot of reality to sometimes claim that rights (especially property) are always individual. That's nonsense, usually presented as "Government cannot own things because only individuals can own things": a quick way to "logically" define government as illegitimate. But of course that ignores corporations, partnerships, joint ownership, marriage, governments and much more. Collective rights are common in society and play important functions.
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"