The Logical Impossibility of Absolute Rights

There is an important implication of my post from yesterday (or, perhaps more accurately, I should say this post as important implications that lead to yesterday’s post): universally absolute rights are logically impossible.

We tend to hear arguments by libertarians and anarcho-capitalists that certain rights, namely property rights, are absolute (for example, see Murray Rothbard’s article here).  No one can prevent us from doing what we want with our property (including our bodies) or enjoying our property as we see fit.  While on the surface, this seems reasonable, it is a logically impossible thing to enforce.

Let’s consider an example, similar to the one I gave yesterday.  Two neighbors have an abutting piece of land.  One neighbor, Joe, has a pool and a nice backyard he enjoys lounging in.  However, one thing he does not like is the smell of smoke and the sound of loud noises.  These things reduce the enjoyment of his property.  The other neighbor, Bob, has a backyard as well, but he likes to sometimes hold barbeques, bonfires, and parties.  When he does this, he generates noise and smoke that inevitably flow over to Joe’s yard.  In other words, Joe’s “stuff” is being messed with.

If both parties have absolute property rights, how can this situation be resolved?  If Joe cannot request, require, or negotiate some end to Bob’s activities, his ability to enjoy his property as he sees fit is diminished by Bob’s actions.  Likewise, if Joe’s ability to enjoy his property is maintained, then Bob’s enjoyment of his property must necessarily be reduced by reducing or eliminating his barbeques, bonfires, and parties.  Either way, someone‘s property right is not absolute.  Something has to give.

It is important to note there is no necessary need for state intervention here.  Joe and Bob can (and likely will, absent major costs) find some mutually beneficial arrangement.  But that arrangement must result is someone’s rights being attenuated.  If one of them has an absolute right, the other cannot.

The question should not be whether some rights are absolute or not.  Absolute rights are a logical impossibility.  Rather, the question should be how to resolve conflicts that inevitably arise when rights collide.  If libertarians cannot address these conflicts, then we necessarily secede the argument of conflict resolution to the statists.  By insisting on absolute rights, a logical impossibility, we state outright libertarianism has no place in the real world as it cannot resolve conflicts.  This has to end.

Coase, Smith, Justice, and Liberty

The Smithian and classically liberal conception of justice, as explained by Dr. Dan Klein, is, to put it succinctly: don’t mess with other people’s stuff.  The flipside of justice, liberty, is consequently other people not messing with your stuff.  On the surface, this seems like a rather simple ethical basis.  The rule is very clear: if you mess with other people’s stuff, you are committing an injustice and violating their liberty.  But an ethical rule is not valued in its simplicity, but rather its robustness to the real world.

While Smith does regard justice as a sacred virtue, he does carve out exceptions to its enforcement.  There may be times when the strict rules of justice may not or cannot be enforced without a detriment to overall liberty.  In these cases, someone’s stuff has to be messed with.  While this statement may be jarring to the classical liberal, let’s consider an example from modern law and economics.

Let’s consider Ronald Coase’s famous example of the farmer and the rancher.  The farmer raises crops on his land.  The rancher grazes cows nearby.  The rancher’s cows sometimes, accidentally, graze the farmer’s crops that are too close to the fence, either the crops hang over the fence for the cows to eat or the cows stick their heads through the fence (that is, the farmer’s “stuff” is being messed with).  However, if there are restrictions on where the cows can graze, then those restrictions are messing with the rancher’s “stuff” (they are limiting the rancher’s use of his cows).  So now we have a conflict: the use of each person’s “stuff” may conflict with each other, resulting in mutual messing with each other’s stuff.

Who is in the right?  Who is in the wrong?  A simple appeal to the rules of justice cannot solve this: the farmer’s crops are being messed with, yes, but so are the rancher’s cows.  Some rule would be required to address this matter.  That rule would, necessarily, violate the strict rules of justice.

Let’s take, for example, a rule that the farmer has the property right to his crops and any damage must be compensated to him by the rancher.  The rancher’s “stuff” is now being messed with.  He’d need to figure out some way to corral the cows, or limit their grazing, or negotiate some kind of bargain with the farmer…some solution would be acquired.  However, this bargain would constitute a “messing” with the rancher’s stuff since he now has to alter his behavior beyond what he ordinarily would have chosen to do.  Some use of his property is now beyond his control.  We can make a similar argument by giving the property right to the rancher, or even if we say “caveat emptor” and say any crops that spill over the fence can be eaten and any cow over the fence can be shooed away.

While one person’s individual liberty may be decreased (ie, someone is messing with his stuff), overall liberty may increase (ie, there is generally less messing with stuff).  Rules, laws, customs, etc are necessary because they create reliability.  If we reasonably believe a given rule will be enforced, then we can act in a given manner.  If I believe my ownership of my car will be enforced should someone steal it, I am more likely to buy a car.  If I do not believe the ownership would be enforced, I’d be less likely to purchase a car (and/or spend more resources to ensure it doesn’t get stolen).  Just as stable rules can grow the economic pie, stable rules can grow the liberty pie.  Rules that develop to make virtues like justice predictable by all and create stability that allows exchange, production, and general improvement to flourish.  Without predictable rules, the concept of justice may simply become ad hoc and something of a Hobbesian jungle may arise as the costs of production/protection rise and the costs of predation fall.

Some libertarians/anarcho-capitalists get nervous about the implications of Smith’s comments regarding sacrificing individual liberty for overall liberty.  The primary concern I hear is such an argument can be used for an expansion of the state into all manner of things.  While a naive interpretation of Smith could justify such an expansion, I think a closer reading of Smith, especially in the context of his overall writings, suggests that the “overall liberty” criteria are a conflict resolution tool rather than a “behavioral control” tool.

Law Written By Experts Is No Law

In a discussion on jurisprudence and hate speech legislation on Facebook, commentator David Benson wrote:

[The arbitrary nature of defining hate speech] why I didn’t trust a novice like myself to come up with the wording. I DO, however, think this issue has gotten to the point where some steps need to be taken.

To understand the difficulty with this statement, we must first understand what, exactly, law’s purpose is.

The purpose of law is to govern human behavior.  This purpose appears to me to be so self-evident and to hardly require evidence.  However, I will explain further.  Any form of law, whether it be issues of justice (ie “don’t mess with other people’s stuff,”) or matters of ethics, seeks to govern human behavior: how we act in given situations, how we interact with each other, how we resolve conflicts, etc.  For example, there is law regarding behavior at a funeral: it is proper to cry or be sad/somber.  To laugh or be merry is generally considered inappropriate.  This is an example of an ethical law governing human behavior.

If the purpose of law is to govern human behavior, it follows that law should be simple.  Complex or complicated law cannot govern as effectively as simple law.  With simple law, it is easy to determine when violations happen, and more importantly, it is easy to determine how to behave.  If law is complicated, then such determinations are far more difficult to make.  And this matter is doubly important for matters of jurisprudence and legislation, where breaking the rule leads to a loss of liberty.  This is why the rules of mere justice, the fundamental arena of jurisprudence and legislation, are the most simple.

Which brings us back to David’s comment I highlighted at the beginning.  If legislation defining hate speech cannot be defined by novices, then it is destined to be bad legislation.  If it cannot be defined by novices, it cannot be understood by novices, and thus it cannot be practiced by novices.  This would leave a wide area of grey between what is punishable and what is not, determined by experts but not by novices.  And, since the vast majority of people are novices in matters of legislation and jurisprudence, such complicated law would naturally harm the vast majority of people, even if it exists for nominally virtuous reasons.

 

Different Rules for Different Worlds

It’s Christmas Time.  That magical time of year where friends get together, families visit, and, for a little while, all seems well.

But, as sure as Christmas time comes around, we also get economic defenses of Scrooge and calls for cash to be given rather than gifts.  From a mainstream economic point of view, there’s nothing inherently wrong with these articles.  However, they miss a larger point, a point once known to economists, but have since been forgotten (or trivialized): moral rules matter.

Humans, as social creatures, live in two worlds at once (to paraphrase Hayek).  We live in our personal worlds, which have their rules, and we live in the commercial/interpersonal world, which has its own set of rules.  We must move in between these worlds constantly and manage the two rule regimes.  What is appropriate in one world may not be appropriate in the other.

By way of example, imagine if a friend asked you for a ride somewhere.  It’d be frowned upon if you asked him for money (outside gas money or maybe tolls). However, for a taxi to do the same thing, you’d expect to pay and there’d be no impropriety. No one would accuse the taxi driver of inappropriate behavior and no disapprobation levied on him. However, for a friend to make a profit, it’d be inappropriate and he would be saddled with disapprobation (considered a bad friend, etc).  Asking for money would violate the rules in the personal world but not the interpersonal world.  To try to apply the rules of one to the other would be problematic.

We expect people to behave in certain ways.  The cold indifference Scrooge shows toward Cratchit elicits feelings of disapprobation, especially during Christmas.  We expect this time of year to bring about beneficence and we expect employers to treat their employees a certain way.  When the interpersonal rules are applied in this situation, they appear wholly inappropriate, at least within a certain level of propriety.   Further, Scrooge’s transformation at the end of A Christmas Carol is itself praiseworthy.  He becomes benevolent, which is virturous.

I hasten to point out that nothing Scrooge does, either before or after his transformation, is unjust.  Scrooge, at no time, violates any rules of justice: he does no harm to anyone.  But simply because an act is just does not mean it is praiseworthy.  As Adam Smith says, the rules of justice can be obeyed by sitting still and doing nothing; but that behavior is hardly grounds for any approbation.  Justice is a negative virtue; it only affects other people when ignored.  Benevolence and the other virtues are positive, and they can do real good through acting.  While Scrooge was surely just, he was hardly praiseworthy.

Another example of the difference between these two worlds is from cash as a Christmas gift.  Again, from a purely economic point of view, there is hardly anything to object to.  But we are not in the interpersonal world of economics, but rather the personal world, where different rules exist.  One of those rules is: you give gifts to those you love.  Money is unacceptable according to these rules.  Loved ones are expected to exchange thoughtful gifts, not cash.  Violations of those expectations lead to hurt feelings and disapprobation.

One of the things these economic models of gift-giving do not take into account is the moral currency from obeying the rules.  This is likely why an institution that is so inefficient on its face (gift-giving) has remained a tradition for centuries.

Humans are social creatures and we live in multiple worlds at once.  Using a set of behavior from one world as a role-model for the other is a poor choice.  We must consider what makes a person good and just.  And that is the role of moral philosophy.

The Hayek Memorial Pathway

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The picture above is what I like to call the Hayek Memorial Pathway located on GMU’s Fairfax campus.  This pathway is the result of thousands of students deciding to go the shortest path rather than the long paved path.  In other words, this path is a spontaneous order; the result of human action but no one person planned such a path.

Today’s Quote of the Day…

…is from page 155 of the Liberty Fund’s edition of Adam Smith’s 1759 book The Theory of Moral Sentiments (emphasis added):

In war and negotiation, therefore, the laws of justice are very seldom observed. Truth and fair dealing are almost totally disregarded. Treaties are violated; and the violation, if some advantage is gained by it, sheds scarce any dishonour upon the violator. The ambassador who dupes the minister of a foreign nation, is admired and applauded. The just man who disdains either to take or to give any advantage, but who would think it less dishonourable to give than to take one; the man who, in all private transactions, would be the most beloved and the most esteemed; in those public transactions is regarded as a fool and an idiot, who does not understand his business; and he incurs always the contempt, and sometimes even the detestation of his fellow-citizens. In war, not only what are called the laws of nations, are frequently violated, without bringing (among his own fellow-citizens, whose judgments he only regards) any considerable dishonour upon the violator; but those laws themselves are, the greater part of them, laid down with very little regard to the plainest and most obvious rules of justice. That the innocent, though they may have some connexion or dependency upon the guilty (which, perhaps, they themselves cannot help), should not, upon that account, suffer or be punished for the guilty, is one of the plainest and most obvious rules of justice. In the most unjust war, however, it is commonly the sovereign or the rulers only who are guilty. The subjects are almost always perfectly innocent. Whenever it suits the conveniency of a public enemy, however, the goods of the peaceable citizens are seized both at land and at sea; their lands are laid waste, their houses are burnt, and they themselves, if they presume to make any resistance, are murdered or led into captivity; and all this in the most perfect conformity to what are called the laws of nations.

 

Today’s Quote of the Day…

…is from Page 10 of Ludwig von Mises’ 1949 treatise Human Action (emphasis added):

It is true that economics is a theoretical science and as such abstains from any judgement of value.  It is not its task to tell people what ends they should aim at.  It is a science of the means to be applied for the attainment of ends chosen, not, to be sure, a science of the choosing of ends.  Ultimate decisions, the valuations and the choosing of ends, are beyond the scope of any science.  Science never tells a man how he should act; it merely shows how a man must act if he wants to attain definite ends.

Far too many economists, both in Mises’ day and today, make the very mistake Mises warns against: treating economics as a science of the choosing of ends.  They consider themselves enlightened for building models that can maximize this or minimize that, and then call for said models to influence policy.  But building models like such, as Jim Buchanan said in his 1964 paper What Should Economist Do?, is the purview not of economics, but of applied mathematics.  Indeed, anyone with even an elementary level of calculus would find such a task trivially easy.

But economics is not this; it is not merely optimizing some constrained function with some universally desired “social goal.”  Economics is the study of exchange; Of competing interests for scarce resources and the institutions that arise to deal with these issues.  In short, the study of human action.