"The right to marry does not entitle me to a spouse"

Damon W. Root | December 17, 2008

Economist Paul Moreno, author of the excellent Black Americans and Organized Labor, has a very good post at Liberty & Power explaining what's wrong with the idea of a "Second Bill of Rights," first proposed by Franklin Delano Roosevelt and recently championed by star law professor (and Barack Obama adviser) Cass Sunstein:

The second bill of rights idea derived from two famous speeches that Franklin Delano Roosevelt gave—one at the San Francisco Commonwealth Club during the 1932 campaign and his 1944 annual message to Congress. In the Commonwealth Club address, he spoke of the advent of "enlightened administration," which would redistribute resources in accordance with an "economic declaration of rights." In his 1944 message to Congress, Roosevelt said that "our rights to life and liberty"—the negative liberty to which Obama referred, had "proved inadequate to assure us equality in the pursuit of happiness." He claimed that "In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights." This bill of rights included the right to a job, the right to food and recreation, the right to adequate farm prices, the right to a decent home, the right to medical care, and the right to a good education.

Of course, these are not "rights" at all—not in the sense that the framers and ratifiers of the Declaration of Independence and Constitution used the term—but entitlements. From the founding until the twentieth century, the American regime assumed that government's purpose was to secure pre-existing natural rights—such as life, liberty, property, or association. Everyone can exercise such rights simultaneously; nobody's exercise of his own rights limits anyone else's similar exercise. Your right to life or to work or to vote does not take anything away from anyone else. We can all pursue happiness at once. Entitlements, on the other hand, require someone else to provide me with the substantive good that the exercise of rights pursues. The right to work, for example, is fundamentally different from the right (entitlement) to a job; the right to marry does not entitle me to a spouse; the right to free speech does not entitle me to an audience.

The New Deal is often described as a "constitutional revolution." In fact, it was much more than that. It involved a rejection not just of the structure and principles of the Constitution, but those of the theory of natural rights in the Declaration of Independence—that, as Jefferson put it, governments are instituted in order to secure our rights.

Whole thing here. For more on the problems with the New Deal, don't miss reason.tv's Obama's New New Deal: As bad as the old New Deal?

Comments

Paul|12.17.08 @ 4:54PM|#

The Bill of Rights has never been overwhelmingly popular with progressives because it's mostly a check on government power.

Other Matt|12.17.08 @ 5:03PM|#

The Bill of Rights has never been overwhelmingly popular with progressives because it's mostly a check on government power.

Well said.

|12.17.08 @ 5:06PM|#

Please don't speak for progressives. However, let me tell ya about those bible thumpin idjut conservatives!

Other Matt|12.17.08 @ 5:06PM|#

Hey, do we have a right to marry in the first place, though, speaking to the title of the post? Anyone who puts it under "pursuit of happiness" obviously hasn't actually been married.

|12.17.08 @ 5:12PM|#

Hey, do we have a right to marry in the first place, though, speaking to the title of the post?

Sure. Even if you're gay! But it has to be a member of the opposite sex, or so some people tell us.

Paul|12.17.08 @ 5:14PM|#

Please don't speak for progressives. However, let me tell ya about those bible thumpin idjut conservatives!

All my progressive friends do. Regularly. Ad nauseum.

|12.17.08 @ 5:16PM|#

"Sure. Even if you're gay! But it has to be a member of the opposite sex, or so some people tell us."

Exactly. You have a right to associate only in those ways expressly spelled out to the letter in the US Constitution. Everything else is forbidden. For freedom.

|12.17.08 @ 5:18PM|#

Give me back the Old Deal!

lunchstealer|12.17.08 @ 5:22PM|#

Right Epi,

Because, while the right to marry does not entitle me to a spouse, if we granted the right to GAY-marry, we would be required to get a same-sex-spouse. In fact, I think it would be an unfunded mandate. At least, that's what the prop-8 guys told me.

Bingo|12.17.08 @ 5:25PM|#

If the gays marry then soon people would be marrying their dog! Or their car!

Egosumabbas|12.17.08 @ 5:26PM|#

"Your right to life or to work or to vote does not take anything away from anyone else."

Uhhhhh... no actually the right to vote definitely can take other things away from people. Lots of totalitarian regimes were democratically elected.

Bingo|12.17.08 @ 5:26PM|#

I love lamp.

|12.17.08 @ 5:33PM|#

If the gays marry then soon people would be marrying their dog! Or their car!

Sex with animals?!? There's no time, man!

|12.17.08 @ 5:37PM|#

I do think one slippery slope argument is true. No way, no how gay marriage is okay and polygamy isn't. What's great about that is that we Americans can't do anything without taking it to extremes, so some doofus is going to marry a whole state, just to set a record.

Will our orangutan citizens be allowed to marry humans?

MAX HATS|12.17.08 @ 5:38PM|#

Yes, traditionally it has been progressives trying to limit the Bill of Rights. What?

|12.17.08 @ 5:42PM|#

But it has to be a member of the opposite sex...

See, that's the trouble.

Everyone knows mixed marriages never work.

The Angry Optimist|12.17.08 @ 5:42PM|#

Sex with animals?!? There's no time, man!

Hell no I'm not marrying this bag of bones!

Seriously?

Yes, seriously.

Publilius|12.17.08 @ 5:43PM|#

. . . the right to food and recreation, . . .

A right to recreation? Broadly construed, I believe that gives me a right to have sexual intercourse with a beautiful young woman on a regular basis.

|12.17.08 @ 5:44PM|#

Will our orangutan citizens be allowed to marry humans?

What about gay orangutan/human marriage?

|12.17.08 @ 5:48PM|#

PL,
Tell me your "slippery slope" argument is for snark. It will make me happier.

Neu Mejican|12.17.08 @ 5:50PM|#

The semantic distinction between negative rights and positive rights is not as clear as this article presents it, but, at least, the presentation clearly contrasts the important differences between entitlements and negative rights that many feel the need to highlight.

Everyone can exercise such rights simultaneously; nobody's exercise of his own rights limits anyone else's similar exercise. We can all pursue happiness at once.

If only. Everyone has the right to life. But sometimes my pursuit of that right DOES interfere with someone else's pursuit of their right to life. This is particularly true in cases where resources are scarce. Likewise my pursuit of happiness may involve activities that limit your ability to pursue your happiness (think indoor smoking bans here).

As clear cut as natural rights believers want things to be, in application things are messy.

I see, however, no need for a second bill of rights. It would not serve much purpose as we have already agreed to many of the principles. Particularly when we voted to support the International Declaration of Human Rights.

http://en.wikipedia.org/wiki/Human_rights_in_the_United_States#International_human_rights

Human rights treaties ratified

The U.S. has signed and ratified the following human rights treaties:

* International Covenant on Civil and Political Rights (ICCPR)
* Optional protocol on the involvement of children in armed conflict
* International Convention on the Elimination of All Forms of Racial Discrimination
* Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
* Protocol relating to the Status of Refugees[112]
* Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography[113]

Non-binding treaties voted for:

* Universal Declaration of Human Rights[114]

We have failed to ratify several other UN treaties related to the Declaration of Human Rights, however. Most centrally, the International Covenant on Economic, Social and Cultural Rights.

http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights

See also,
http://www1.umn.edu/humanrts/instree/b3ccpr.htm

http://www.cartercenter.org/news/documents/doc1369.html

|12.17.08 @ 5:51PM|#

I believe that gives me a right to have sexual intercourse with a beautiful young woman on a regular basis.

You mean you haven't applied for your vouchers for that yet? Get with it, it's you right.

</|12.17.08 @ 5:51PM|#

The post has nothing to do with Gay Marriage yet the comments immediately revert to it.If you cosmo nancys are so in love with gay marriage why don't you marry it?

|12.17.08 @ 5:52PM|#

...your right, dammit, your right.

|12.17.08 @ 5:53PM|#

Carl: Look, just don't cash that check immediately. I wanna make sure that both of us marryin' her is gonna be, you know, legal.

Master Shake: Of course it is! What are you kidding me? Santa Claus ain't legal and he's around.

Carl: Well, I guess that makes sense, you know.

james_joyce|12.17.08 @ 5:55PM|#

Uhhhhh... no actually the right to vote definitely can take other things away from people. Lots of totalitarian regimes were democratically elected.

Only if you assume that it's OK for an elected body to violate the rights of others.

So in other words, you have a right to vote, but that doesn't give the person you voted for any special power to violate my rights. I mean, me and my friends can get together at a bar and vote for who has to buy the next round, too, but if we vote for the person at the table across the room I don't think he's gonna pony up.

But then that makes the right to vote about equivalent to the right to buy a taco, which I guess it is.

|12.17.08 @ 5:57PM|#

Do lazy fucks who swill beer at breakfast have a right to

a job?
food?
recreation?
a decent home?
medical care?
a good education?

Don't get me started on "adequate farm prices". I might say something like "what makes the goddam farmers so fuckin' special?"

|12.17.08 @ 5:57PM|#

Kwix,

Not an argument, just an observation. I couldn't care less if people are foolish enough to marry en masse. Even to a harem of orangutans.

a name before submitting the f|12.17.08 @ 5:57PM|#

"The right to marry does not entitle me to a spouse"

This is pretty much the argument against the "right" to same-sex marriage.

|12.17.08 @ 6:01PM|#

"Please don't speak for progressives. However, let me tell ya about those bible thumpin idjut conservatives!"

"Yes, traditionally it has been progressives trying to limit the Bill of Rights. What?"

Boys, boys, let's not play dumb. Both left and right have their problems with the Bill of Rights, particularly the 1st Amendment. The left likes to censor "hate speech" and "political incorrectness" (that can mean anything from a racial slur to saying "Merry Christmas" to the wrong person) and the right likes to censor "immorality" (which can range from pornography to ...well anything they don't like).

Neu Mejican|12.17.08 @ 6:02PM|#

This is pretty much the argument against the "right" to same-sex marriage.

Except for the fact that those who want to marry have the spouse but do not have the right to call that person their spouse via a legally recognized marriage.

james_joyce|12.17.08 @ 6:03PM|#

If only. Everyone has the right to life. But sometimes my pursuit of that right DOES interfere with someone else's pursuit of their right to life. This is particularly true in cases where resources are scarce.
Someone who knows more about this correct me, but I don't think the right to life means that you have a right to live. They were using it in the context of the Lockean concept of natural rights, which means you have a right to your life, i.e. of self ownership. It doesn't imply that if you're dehydrating in the desert that you have the right to food and water.

Likewise my pursuit of happiness may involve activities that limit your ability to pursue your happiness (think indoor smoking bans here).
You have a right to the pursuit of happiness, not to be happy. If the only thing that'll make you happy is to drink beer in a bar where no one's smoking, and every bar in town is full of smokers, that's not a violation of your right to the pursuit of happiness, you just failed in that pursuit.

But really the right to the pursuit of happiness is just an extension of the right to your life, so it's kind of redundant anyway.

Neu Mejican|12.17.08 @ 6:07PM|#

James Joyce,

No.
On the right to life thin:
Your right to life is not the right to "self-ownership" that is your right to liberty. Your right to life is your right to live.

As for the pursuit of happiness thing, you are correct that there is a difference between the right to try and be happy and the right to be happy. However, the article acts like my right to pursue happiness will not interfere with your right to pursue happiness. If your happiness depends upon activities that make others unhappy, you do not have the right to pursue those activities because they interfere with others pursuit of happiness.

james_joyce|12.17.08 @ 6:07PM|#

Except for the fact that those who want to marry have the spouse but do not have the right to call that person their spouse via a legally recognized marriage.

The whole question of a right to marriage is a red herring anyway, in my opinion. The only reason this is an issue is because the government claims the power to limit mutually voluntary contracts. Really, it shouldn't even say the word, "marriage," as that's a fundamentally religious institution. I should have the right to establish a voluntary agreement with anyone I like, though. The state muddles it by preventing me from doing that under certain circumstances that it deems to be "marriage."

Neu Mejican|12.17.08 @ 6:12PM|#

It doesn't imply that if you're dehydrating in the desert that you have the right to food and water.

But you do. You don't, however, have the right to violate anyone else's rights to get that food and water.

A right always has to be considered in the context of a particular claim. If I took some of your food or water to preserve my life, you could claim I violated your property rights. I would claim that I was justified in my taking due to my right to life. An arbiter would decide the case based on the conflicting claims. In my view, if my taking did not put your life in danger, I would have the right to that taking. That right, however, might obligate me to provide you with restitution at some later time.

The Angry Optimist|12.17.08 @ 6:13PM|#

Your right to life is your right to live.

More accurately, your right to life is to not have your life deprived by others, except where you have forfeit it yourself (i.e. self-defense); you do not have the right to live at the expense of others when the others have not put you in that situation in the first place.

However, the article acts like my right to pursue happiness will not interfere with your right to pursue happiness.

Your right to pursue happiness will not interfere with someone else's right to pursue it. The pursuits may conflict, but the rights to the pursuit do not conflict.

If your happiness depends upon activities that make others unhappy, you do not have the right to pursue those activities because they interfere with others pursuit of happiness.

Not correct. If your pursuit interferes with another's pursuit, then that would not be allowed. If what you pursue makes others unhappy, too bad for them. They aren't entitled to limit you for their own emotional state.

The Angry Optimist|12.17.08 @ 6:15PM|#

That right, however, might obligate me to provide you with restitution at some later time.

If the exercise of something requires restitution later on, then the exercise of that thing never was a right in the first place.

I advocate that, if you are absolutely starving and will die soon, you should take what you need so you do not die. That does not mean you had a right> to take it, and we demonstrate that by making you give restitution to those from whom you took the food and water (or drugs or whatever).

Neu Mejican|12.17.08 @ 6:17PM|#

TAO,

If your pursuit interferes with another's pursuit, then that would not be allowed. If what you pursue makes others unhappy, too bad for them. They aren't entitled to limit you for their own emotional state.

Nope. Think of the right to be free from violence. If I pursue my happiness by injurying you, your claim that I am violating your rights is directly related to how my actions change your emotional state. Your violence has limited my pursuit of happiness by inducing a state inconsistent with happiness.

Neu Mejican|12.17.08 @ 6:18PM|#

If the exercise of something requires restitution later on, then the exercise of that thing never was a right in the first place.

A fundamental disagreement on the meaning of terms, it seems.

Rights always imply obligations, imho.

Neu Mejican|12.17.08 @ 6:19PM|#

f you are absolutely starving and will die soon, you should take what you need so you do not die.

The word "should" implies that the correct, or right, choice is to take so that you can live. If it is the proper action, you have the right to that action.

The Angry Optimist|12.17.08 @ 6:19PM|#

Your violence has limited my pursuit of happiness by inducing a state inconsistent with happiness.

So, if I start a strip club and that offends you, you're claiming that my pursuit of happiness in having a strip club is somehow subordinate to your level of unhappiness with the existence thereof?

If I pursue my happiness by injurying you, your claim that I am violating your rights is directly related to how my actions change your emotional state.

No, actually, the right to be free from violence is related to the right to life, which can be read as "the right to bodily integrity".

MNG|12.17.08 @ 6:20PM|#

The problem with the "negative rights/positive rights" thing is more of a problem with rights in general.

As Bentham famously said "natural law is nonsense, and natural rights is nonsense on stilts".

"you do not have the right to live at the expense of others when the others have not put you in that situation in the first place."

Why? There are two people, one hungry, one not. And there is some food. Why wouldn't the hungry person have the "right" to the food?

The Angry Optimist|12.17.08 @ 6:21PM|#

The word "should" implies that the correct, or right, choice is to take so that you can live. If it is the proper action, you have the right to that action.

Not necessarily. Why would we impose restitution if the person had a right to that food?

The Angry Optimist|12.17.08 @ 6:22PM|#

Why? There are two people, one hungry, one not. And there is some food. Why wouldn't the hungry person have the "right" to the food?

Because it isn't his?

Neu Mejican|12.17.08 @ 6:22PM|#

No, actually, the right to be free from violence is related to the right to life, which can be read as "the right to bodily integrity".

So I have the right to slap you in the face as that will not injury you, just hurt your feelings?

The right to freedom from violence is clearly not an extension of the right to life. It is a separate thing as most acts of violence do not threaten life.

MNG|12.17.08 @ 6:24PM|#

I'm driving down the road and a tornado appears heading towards me. I jump out of my car and there is a yard in front of me that says "No Tresspassing" in front of it. The yard has a brick building with an open front. I run to the building while you, the owner, stand on the porch ordering me not to. I cower in the house while the tornado hits and it saves my life (let's just say all experts agree it was the only thing that saved my life).

There was no damage to your property. You charge me with tresspassing (civil or criminal). Did I have the "right" to do what I did?

|12.17.08 @ 6:24PM|#

MNG-

Bentham? Bah Humbug!

Neu Mejican|12.17.08 @ 6:25PM|#

Not necessarily. Why would we impose restitution if the person had a right to that food?

You are the one that said I "should" take the food.

If I should take it, I have the right to take it. But I also "should" provide restitution when I can. In other words, you might have the right to restitution. My right to life comes with an obligation that I treat your property with respect. That means that if I take your property to preserve my life (which I have a right to do) it obligates me to pay you for the property at some later date.

|12.17.08 @ 6:25PM|#

On the question of rights, while I agree that no one has the right to a job, the right to medical care, etc. Those "rights" all relate to economic issues and require others to sacrifice their rights in order to grant you yours.

However, this has been bothering me for a long time regarding libertarianism and capitalism. The question remains, what do you do about...

1) children born to people who don't care for them?
2) disabled people who cannot work?
3) people with no medical coverage and no money who need medical care?
4) starving people during bad economic times? (no money for food, no jobs to get money, etc.)
5) elderly people who didn't save enough money for retirement, but can no longer work?

Family and charity can solve some of the above (and in many undeveloped countries, that's all they have), but certainly not all.

It seems to me, no matter how much we bitch about it, there always needs to be at least some welfare state (i.e., safety net) in a modern society. The trick is keeping it as small as possible.

The Angry Optimist|12.17.08 @ 6:26PM|#

So I have the right to slap you in the face as that will not injury you, just hurt your feelings?

If you have the right to do it once, that means you have the right to do it as much as you want, which would cause me injury.

I'm not entirely sure what your broader point is with this line of argumentation...that anything that upsets somebody emotionally has to be limited because we are entitled to happiness? Or that something that makes someone unhappy somehow limits their pursuit of happiness?

MNG|12.17.08 @ 6:26PM|#

Ah, but TAO, deciding what a person has a right to would maybe also decide what is "his."

Before we get into it TAO, I guess you know that attempts to construct a satisfactory defense of the concept of property rights apart from the social utility of it usually fall pretty short (Nozick famously made this point making fun of Locke's goofy idea of how one "acquired" property)?

</|12.17.08 @ 6:28PM|#

Come the libertarian revolution I propose Bentham's corpse be put on display as a warning to any remaining utilitarians.

Neu Mejican|12.17.08 @ 6:29PM|#

So, if I start a strip club and that offends you, you're claiming that my pursuit of happiness in having a strip club is somehow subordinate to your level of unhappiness with the existence thereof?

Conflicting claims will exist in this case. There will not be an absolute resolution. Your claims will limit my rights, my claims will limit yours. There will be a proper balancing of the conflicting claims that diminishes our rights fairly.

The idea that exercise of rights will never result in the limiting of another's rights falls flat in the real world.

So, again, ihmo, rights only exist in the context of specific claims made in specific contexts.

The Angry Optimist|12.17.08 @ 6:30PM|#

If I should take it, I have the right to take it.

No. I meant should as in "I think that, if your life is absolutely on the line, you do what you have to do, understanding that later, there will be restitution to be made."

This actually is not a novel concept. In tort law, even in cases of absolute private necessity, you are expected to provide restitution.

That means that if I take your property to preserve my life (which I have a right to do) it obligates me to pay you for the property at some later date.

If you have a right to do a thing, why on earth would have you to provide restitution later? Either you had a right to that property (meaning no restitution) or you did not.

You charge me with tresspassing (civil or criminal). Did I have the "right" to do what I did?

No, you did not have the right to do it, but given that there was no damage to the property, the court would only award nominal damages, so the case would not even be worth pursuing.

|12.17.08 @ 6:31PM|#

The marriage issue isn't, I think, actually a natural rights issue within the libertarian self-ownership-based scheme of natural rights. It's more like the inevitable conflict of "rights" that arises when the government owns something- in this case, the legal monopoly definition of marriage. Take the roads for example. I have the "right" to protest on the roads because they are gov't owned- I would have no such inherent right on a privately owned road. Yet you also have the "right" to travel freely on the road, again because it is gov't-owned and again you would have no such right on a private road. Obviously, the owner of the road has to make a decision between allowing the road to be used for transit or allowing it to be used for a protest march. For a private owner, this wouldn't be an issue, but with the government there will inevitably be an aggrieved party whose "right" to access and use the gov't-provided resource is denied in favor of another person's right.

I think there's a similar issue at play with marriage. As stupid as I think it is, the social conservatives do have a legitimate objection that allowing gay marriage imposes something on them- gov't decreed equality between their marriage and what they feel to be an immoral lifestyle- that they would not be subject to under a system where such familial status arrangements were individually tailored with no government involvement. For example, a Christian conservative couple could get their marriage officiated by a (of course private) church that only sanctioned traditional hetero-monogamous marriages and thus get what they want- a unique arrangement that isn't available to gays- without any unjust imposition on gays. The marriage would then be what it *should* be now- a private contract which has no legal recognition beyond any other private contract dealing with shared property.

Don't get me wrong, I think gay marriage would an improvement over the status quo. The burden placed on loving couples having to deal with a legally-imposed definition of marriage in society that excludes them far outweighs the complaint of conservatives that issuing an identical marriage license to gays somehow cheapens their own state-issued license. But the true answer from a libertarian perspective is not "legalizing" gay marriage per se, but rather to get the government out of imposing a one-size-fits-all definition altogether. And if you want to talk about equality under the law, then how about having the government stop treating married people any differently from the rest of us, thus eliminating the need for the government to have a definition of who is or isn't married?

The Angry Optimist|12.17.08 @ 6:32PM|#

Ah, but TAO, deciding what a person has a right to would maybe also decide what is "his."

You're being circular. You either believe in private ownership of things, or you do not. Emergencies do not suddenly entitle people to the fruits of the labors of others just because they are emergencies.

Also, what is more irritating is that people generally take true-blue, honest-to-goodness emergencies and try to extrapolate the morality of emergencies to a large plan for the redistribution of wealth.

Neu Mejican|12.17.08 @ 6:33PM|#

If you have the right to do it once, that means you have the right to do it as much as you want, which would cause me injury.

Feh. An infinite number of slaps can be managed by your body as long as they are not too forceful.

The point is that claims are made based on the emotional effect that actions have on others. You do not have the right to inflict emotional harm on others. They have a right to have their emotional reactions considered in their claim. But like all things, this right is not absolute. The right to pursue happiness is about the right to have your emotional well being considered in as a factor in a claim.

MNG|12.17.08 @ 6:33PM|#

TAO
So in the tresspass you did not have a right to do what you did? It was the "right" thing to do, but not his "right?"

So I guess I'm where NM is, what is the difference between a right and a moral claim?

"This actually is not a novel concept. In tort law, even in cases of absolute private necessity, you are expected to provide restitution."

Which is why I picked a hypo with no damages :)

</|12.17.08 @ 6:34PM|#

1) children born to people who don't care for them?
2) disabled people who cannot work?
3) people with no medical coverage and no money who need medical care?
4) starving people during bad economic times? (no money for food, no jobs to get money, etc.)
5) elderly people who didn't save enough money for retirement, but can no longer work?

1) There are a lot of childless couples who want children.That is why they import foreign babies and engage in morally questionable "fertility" procedures.
2) Begging,charity,families
3)Charity, Hippocratic oath-taking physicians
4)Charity,begging,gleaning,dumpster-diving
5)see most of the above.....

MNG|12.17.08 @ 6:36PM|#

"You're being circular."

I don't think so.

"You either believe in private ownership of things, or you do not."

What if, like Hume, I think there is no inherent or natural "right" to property, but that the idea and law of property rights are good in that they promote social utility. So in cases where they clearly do not we would not take them so seriously (which we do not in the law of choice of evils).

The Angry Optimist|12.17.08 @ 6:38PM|#

Conflicting claims will exist in this case. There will not be an absolute resolution. Your claims will limit my rights, my claims will limit yours. There will be a proper balancing of the conflicting claims that diminishes our rights fairly.

NM, I'm sorry, but I find this absolutely unintelligible. You only have the right to pursue happiness; you do not have the right to be happy. Any pursuit that forcefully interferes with another's pursuit is rightfully limited, but you're honest-to-goodness saying that I am entitled to have my surroundings please me 100%? That, because the houses down the street are eyesores and that's upsetting that somehow limits my pursuit of happiness?

That really does not make sense.

It was the "right" thing to do, but not his "right?"

Morally, yes, it was the right thing to do...it would turn into the wrong thing to have done if you then get indignant about it ex post and refuse to provide restitution.

Neu Mejican|12.17.08 @ 6:39PM|#

TAO,

Again, you're working with a particular definition of "right" that is not universally accepted. At the most basic semantic level, rights are about the things you "should be allowed." If you should take the food to live, then you have the right to the food. But all things being interrelated, your "should be allowed's" will always come with obligations.

So, you are allowed to pursue happiness as long as it doesn't interfere with others' pursuit, life, liberty, etc...

You are allowed to take someone else's food to live as long as it doesn't interfere with their life, liberty, pursuit of happiness. If it does, your "should be allowed" will have a "as long as you pay it back" attached to it.

The Angry Optimist|12.17.08 @ 6:39PM|#

the idea and law of property rights are good in that they promote social utility

That really would not make them rights, then, would it? If your rights are simply morally subject to the whims of the masses, I wouldn't go around calling those rights. I'd call them licenses.

MNG|12.17.08 @ 6:40PM|#

As I said above this is going to boil down to what in the world "property rights" are grounded on.

How does "I happen to have physical or legal possession over this" trump "I need this for me and my children to live?"

"what is more irritating is that people generally take true-blue, honest-to-goodness emergencies and try to extrapolate the morality of emergencies to a large plan for the redistribution of wealth."

Look, I use a lot of hypo's because we are exploring the general propositions that are thrown around. Like Hume I think I would feel that for the most part rigorous application of property law concepts is in the end conducive to social utility.

Neu Mejican|12.17.08 @ 6:41PM|#

but you're honest-to-goodness saying that I am entitled to have my surroundings please me 100%?

Obviously not since I went to the trouble to say that no right was absolute.

But "pursuit of happiness" is meaningless as you have framed it.

As you have framed it it is redundant to "liberty."

|12.17.08 @ 6:41PM|#

#-

I think you're missing an important point, which is why that standard libertarian answer leaves people with a bad taste in their mouthes. In a libertarian society, mutual aid organizations of the sort forced out of business by the welfare state would be much more prevalent. For example, instead of social security you could join a mutual aid society that would basically work like a non-profit insurance company. Such societies- often but not exclusively associated with a voluntary trade/labor union- used to be much more common then they are now that the government has monopolized this function in society. They would provide an important piece of the puzzle as to how those incapable of caring for themselves would be taken care of, in addition to altruistic charity.

The Angry Optimist|12.17.08 @ 6:41PM|#

You are allowed to take someone else's food to live as long as it doesn't interfere with their life, liberty, pursuit of happiness.

If you take that to its logical conclusion, that means I am entitled to 25 cents from everybody in America. After all, it's just a quarter, how could a quarter possibly interfere with life, liberty and the pursuit of happiness? And I am resolutely unhappy with my lack of 72 million dollars.

MNG|12.17.08 @ 6:42PM|#

TAO
You are misunderstanding utilitarianism perhaps. Saying that the rightness of something is judged on its promotion of social utility hardly translates to saying it is "subject to the whims of the masses." The masses could go around believing to high heaven that practice x is morally wrong, but if it promotes social utility overall then they are wrong.

But yes, utilitarians probably view "rights" a bit differently than you might. What do you think a right is?

The Angry Optimist|12.17.08 @ 6:43PM|#

How does "I happen to have physical or legal possession over this" trump "I need this for me and my children to live?"

Because your claim of need was not caused by the person you're attempting to take it from.

If property rights are subject to the needs of people who, for whatever reason, are in dire straits, we might as well pack up the whole of American wealth and ship it to Africa. After all, they need it to live, right? We don't have any rights to anything if people need things.

MNG|12.17.08 @ 6:45PM|#

"Morally, yes, it was the right thing to do"

This is going to be a crux as well. I imagine NM and I are going to have trouble distinguishing between what is "morally right" and what is a (natural?) "right." Though I apologize if I have spoken wrongly for NM.

TAO
Have you read much Mill or Bentham (I'm not being snarky here)?

|12.17.08 @ 6:46PM|#

MNG-6:24


Legally, IMO, the property owner would have no cognizable claim against you. Morally, your right to life trumps the property owner's right to exclude you-under the facts and circumstances of the hypothetical.

james_joyce|12.17.08 @ 6:46PM|#

As you have framed it it is redundant to "liberty."

Not to put words in anyone's mouth, but yeah, I think it is.

MNG|12.17.08 @ 6:47PM|#

"Because your claim of need was not caused by the person you're attempting to take it from."

That would speak to the issue of "responsibility for one's plight" but I'm not sure that is the same as "who deserves x" or "who is entitled to x." You can see these are two points, right?

You did this back in our debate over economic coercion and the man who ran out of gas. You kept saying "well the gas station owner was not responsible for his plight" as if that answered the question as to whether the transaction was voluntary or not. Those are two different questions.

Neu Mejican|12.17.08 @ 6:47PM|#

If you take that to its logical conclusion, that means I am entitled to 25 cents from everybody in America. After all, it's just a quarter, how could a quarter possibly interfere with life, liberty and the pursuit of happiness? And I am resolutely unhappy with my lack of 72 million dollars.

As I see you are unwilling to avoid disingenuous distortions of my points, I think I will disengage.

Having a right to one thing does not lead to a right to all things. The trap you are in results from thinking about rights as something that exist independent of specific claims made in specific contexts.

MNG|12.17.08 @ 6:49PM|#

"Legally, IMO, the property owner would have no cognizable claim against you. Morally, your right to life trumps the property owner's right to exclude you-under the facts and circumstances of the hypothetical."

libertymike
I agree on both points. In realizing this though, I think it points to the possibility of "property rights" being over-riden by more important "rights."

I'm not trying to put the word rights in "" to be some snot, I just honestly can never figure out what that is supposed to mean apart from a morally correct claim...

Charles|12.17.08 @ 6:49PM|#

Black Americans and Organized Labor was not that good. The assumption that employers almost always wanted to hire blacks or unions almost always wanted to keep them out (at least, before federal power forced unions to accept blacks)is way too simplistic.

|12.17.08 @ 6:56PM|#

"our rights to life and liberty"-the negative liberty to which Obama referred, had "proved inadequate to assure us equality in the pursuit of happiness."

In other words the founders didn't do enough, that's FDR's point, so there's no need to criticize him for not adhering to the founders' alleged master plan. I don't see anywhere in the constitution that prohibits government action to achieve more equitable distribution. Nor do I see any requirement for a laissez-faire system. If we can avoid straw men that paint any progressive economic policy whatsoever as the same thing as Cold War-era totalitarian economies, we begin to see that FDR had a point. It's not just that progressive taxation and social safety nets are morally imperative in order to secure a newfound right. It's that they have proven to engender a stronger economy that buoys everyone. But of course you'd have to have paid attention to the last 60 years of reality, instead of radical and rigid philosophies, to see that.

MNG|12.17.08 @ 7:00PM|#

"Have you read much Mill or Bentham (I'm not being snarky here)?"

I'm not trying to be a dick here. It's just that your arguments seem to be founded on an unfamiliarity of their hugely influential (though not necessarily correct) school of ethical philosophy. (I don't mean this insultingly, there is an assload of things I'm sure you are familiar with that I am not, and maybe I'm wrong about this one)

The first time I read them, as an undergraduate, I was so mad, I was like "oh, by that reasoning we should send half our money to Africa for starving people." I wanted so badly to find wholes in their arguments. Now decades later I think there are some, but they had a lot of sense too...

|12.17.08 @ 7:01PM|#

Will our orangutan citizens be allowed to marry humans?

Are jailhouse weddings ever truly successful?

Neu Mejican|12.17.08 @ 7:01PM|#

MNG,

If there are "natural rights" then they are also "natural duties."

If both natural rights and natural duties exist, they are equivalent to "morally right."

A claim is made that action X was morally correct. The way this claim is made is to say "I had a right to do x."

Another may claim that what you did was morally incorrect. This claim will be stated "you did not have the right to do x."

If you stick with absolutes, then one claim is correct and the other incorrect.

In the real world, however, the claims will be balanced with the potential for both claimants to be partially correct. Restitution is one way that the conflicting claims may be resolved.

</|12.17.08 @ 7:03PM|#

Andrew Craig,

You are correct.Mutual aid should be distinguished from charity.I should have included it.

Neu Mejican|12.17.08 @ 7:05PM|#

Alternate wording.

"I had a right to do x."

Other claimant.

"Your action X came with the duty to do Y as well because of its impact on me."

Moral obligations or natural duties may or may not be encoded into the law, just as there is no enumeration of natural rights.

|12.17.08 @ 7:08PM|#

MNG-

Please note that I made sure to include the caveat "under the facts and circumstances of the hypothetical." Your right to life is a property right. Given the facts of the hypothetical, there is a conflict of rights as the property owner has the right to determine who will be permitted to enter his home. However, in the narrow circumstances presented, IMO, your property right is superior to the property right of the homeowner.

IMO, the homeowner's right to decide who gets to be on his land is almost absolute. Not quite. Your hypothetical is an exception. Thus, IMO, the problem can be addressed and resolved by property rights.

The Angry Optimist|12.17.08 @ 7:09PM|#

NM - It's not disingenous. I am dead serious about that; you have claimed that the unhappiness of A creates a claim of blocking the pursuit of happiness on B, if B is the person who has made the thing that makes one unhappy.

Going back to the strip club example, please correct me if I am wrong, but you are saying that if the existence of B's strip club makes A unhappy, then there is a claim against B for blocking A's pursuit of happiness, and I just do not see how that is so.

Have you read much Mill or Bentham (I'm not being snarky here)

Yes, quite a bit, actually. Given that each had wildly different ideas of utilitarianism, I am not sure what your point is. You do seem to be expounding a direct form of Mill's concept of rights, wherein he is generally a Rule Utilitarian who advocated breaking the rules in dire situations.

I've read them both; I don't agree with either of them because the logical extension of breaking the rules leads to a complete disregard for those rules, and I think it is incoherent to talk about rights that are subject to violation under a doctrine of necessity.

The Angry Optimist|12.17.08 @ 7:12PM|#

I was like "oh, by that reasoning we should send half our money to Africa for starving people."

That really does not address whether what I said is the logical extension of what you are advocating. Look, this is what you said:

There are two people, one hungry, one not. And there is some food. Why wouldn't the hungry person have the "right" to the food?

By that logic, hunger overrides the right to ownership. Therefore, the existence of one hungry person in the entire world would override the right to property throughout the entire world.

People are not entitled to "stuff" merely because they exist.

The Angry Optimist|12.17.08 @ 7:13PM|#

However, in the narrow circumstances presented, IMO, your property right is superior to the property right of the homeowner.

It's a trap, libertymike. By that logic, people with cancer are entitled to life-saving drugs for free.

|12.17.08 @ 7:18PM|#

TAO and MNG-

There is a big differnece between the tornado and the two people, one is hungry hypotheticals. Big difference.

The Angry Optimist|12.17.08 @ 7:21PM|#

libertymike - would you care to explain how and why? If the hunger is an immediate threat to the furtherance of your life, your logic on the tornado hypothetical would dictate that your right to life overrides the right to property of food.

MNG|12.17.08 @ 7:27PM|#

"Yes, quite a bit, actually."

OK, then you are quite familiar that there is this well thought of school of thought, probably dominant in American philosophy departments by far btw, which would find anyone talking of absolute rights to property or what have you as "nonsense on stilts." I'm not saying this view is right or anything, but it struck me from some of what you were saying that this was a strange concept to you.

"By that logic, hunger overrides the right to ownership"

Don't beg the question, please.

"It's a trap, libertymike. By that logic, people with cancer are entitled to life-saving drugs for free."

Why, yes.

|12.17.08 @ 7:28PM|#

TAO-

No, they are not. The tornado hypothetical differs from both MNG's two people and one is hungry and your cancer patient hypotheticals in its temporal scope. There is an undoubted, immediate threat to MNG's life in the tornado hypothetical. That is missing from the other two propositions.

Moreover, MNG has done nothing wrong in the tornado case. In seeking the temporary refuge within the home of another, MNG has not been the beneficiary of some gvt. welfare program administered by an army of parasitic bureaucrats the payment for whom constitutes the majority of the budget for the welfare program which is financed by the SYSTEMATIC forcible confiscation of everybody's property.

You would agree that this is a real difference?

MNG|12.17.08 @ 7:29PM|#

TAO
Do you disagree with libertymike that the right to life of the shelter seeking man in my hypo "overrides" the "right to property" of the yard owner? You seemed to imply that it would be "justified." So is it not his "right" to duck into that property?

nyu law libertarian|12.17.08 @ 7:33PM|#

Cass Sunstein is a fucking Communist idiot.

The Angry Optimist|12.17.08 @ 7:34PM|#

Don't beg the question, please.

I'm not; I am asking you about the practical implications of what you are implicitly advocating:

1. Hunger threatens the right to life
2. The right to life is superior to the right to property
3. Therefore, the existence of hunger overrides the right to property, because hungry people have a right not to be hungry.

Am I wrong here?

There is an undoubted, immediate threat to MNG's life in the tornado hypothetical.

And untreated cancer is somehow not an undoubted, immediate threat to life?

Do you disagree with libertymike that the right to life of the shelter seeking man in my hypo "overrides" the "right to property" of the yard owner?

Yes. I think one is morally justified to enter the property with the understanding that restitution for the trespass is in order. And again, without real damages, only nominal damages will apply in a civil case, meaning that it probably isn't even in the owner's interest to pursue the case.

Tacos mmm...|12.17.08 @ 7:36PM|#

1) There are a lot of childless couples who want children.That is why they import foreign babies and engage in morally questionable "fertility" procedures.
2) Begging,charity,families
3)Charity, Hippocratic oath-taking physicians
4)Charity,begging,gleaning,dumpster-diving
5)see most of the above.....

And people say libertarians aren't assholes...

nyu law libertarian|12.17.08 @ 7:36PM|#

Wait a second ... I just decided to actually read the whole post, and I put my foot in my mouth. Please ignore me.

MNG|12.17.08 @ 7:43PM|#

If I find a "right" to something (property) is based more on need than on current possession then that is what is up for debate, for you to say "hunger overrides the right to ownership" assumes the "right to ownership" on grounds I'm disputing. Hence my charge of begging the question.

"Yes. I think one is morally justified to enter the property with the understanding that restitution for the trespass is in order. And again, without real damages, only nominal damages will apply in a civil case, meaning that it probably isn't even in the owner's interest to pursue the case."

But TAO, nominal damages also decide who was in the "right" in a dispute (absent damages). And let's suppose a persniketky owner (they are in the casebooks alas) who just wants to decide this.

Paul|12.17.08 @ 7:45PM|#

Yes, traditionally it has been progressives trying to limit the Bill of Rights. What?

No one suggested that. What's suggested is that the Bill of Rights is a mere side-show to what is really desired from progressives: A complex doctrine outlining a dizzying array of "positive rights". It's no secret that Roosevelt felt that Constitution was an impediment to his agenda.. google "court packing scheme" some time.

Absent any explicit document that says you have the "right to healthcare" or "positive economic outcomes", the Bill of Rights is just a frustrating exercise telling the government what it can't do. And really, what fun is that?

For instance, this is how Rexford Tugwell (I laughed, too) saw a 'new constitution'. For those of you who don't know, Rexford Tugwell "served in FDR's administration for four years and was one of the chief intellectual contributors to his New Deal."

Apparently displeased with the lack of Executive Power (oh the irony), he was instrumental in drafting a 'new constitution'.

Summary:
o 20 or less "republics" instead of 50 states.
o a stronger Presidency and federal powers, instead of individual sovereign states.
o 6 branches instead of 3.
- the regulatory branch would share its authority with private industry, could join multi-company groups to set standards. [hmm, Italy cooked up a new political system for this.. but the name doesn't spring to mind. -P]
o No more Supreme Court, weaker judicial powers. [Take that Old Constitution!!! -P]
o President serves 1 nine year term only.
Senators
- not elected but chosen by other branches of government. They would consist of former Presidents and other former high officials. [Oooh, what a slowly concentrated ideological old-boys club we could have? -P]
o 2 Vice Presidents instead of 1. [What's better than one Dick Cheney? -P]
- 1 for general affairs.
- 1 for internal affairs.
o No more Bill of Rights, but many of the same fundamental safeguards.
- no right to a trial by jury. [?!!]
- no right to bear arms. [Hooray! -P]
o Instead of 2/3 vote of Congress to amend the Constitution, amendments would be proposed by a council of judges approved by the President and Senate, and ratified by a majority in a national election.
o After 5 presidential terms the entire Constitution may be rewritten and submitted and ratified by a majority in a national election.

The Angry Optimist|12.17.08 @ 7:49PM|#

for you to say "hunger overrides the right to ownership" assumes the "right to ownership" on grounds I'm disputing. Hence my charge of begging the question.

So, of these two statements:

1. Hunger vitiates the right to ownership
2. The existence of hunger means the right to ownership does not exist

Which is closer to your POV? And if neither, could you summarize your view in one sentence? Because I'm stuck.

But TAO, nominal damages also decide who was in the "right" in a dispute

Not who was in the right; who has rights. Put it another way: I do not think that you are in the right if you discriminate against X race, but you should have the right to do it.

The Angry Optimist|12.17.08 @ 7:51PM|#

And let's suppose a persniketky owner (they are in the casebooks alas) who just wants to decide this.

Note how you called him the owner? That generally means he has the right to withhold or dispense with his property as he sees fit, limited only so that he does not actively violate the rights of others.

|12.17.08 @ 7:56PM|#

TAO-

What about the balance of my 7:28 post? Don't you see the differneces? Temporally, the cancer patient is not in the same position as MNG in the tornado. In the latter, MNG has to act right now or he dies. That is not the case with the cancer patient.

Furthermore, the resolution of the tornado hypothetical does not contemplate the creation of a welfare state.

|12.17.08 @ 7:59PM|#

TAO-

I just don't buy the premise that one will die this minute if one does not get the life saving cancer drugs or that one will die this minute if one does not get to take the food of another.

Naga Sadow|12.17.08 @ 8:08PM|#

TAO,

Ah. You speak of the mythical "good man" who is a victim of circumstance? Sorry but I don't buy the argument that hunger cancels rights.

Naga Sadow|12.17.08 @ 8:09PM|#

Oh. Well what libertymike said. It was better said anyway.

The Angry Optimist|12.17.08 @ 8:11PM|#

libertymike - your attempt at balance is a good one, but I think you have a slippery slope problem.

What if, instead of the next minute, it's going to be the next ten minutes? Hypo for that: the dam is going to break "any minute now"; should I be allowed to steal a car?

And so on. I sense that, for your trouble, MNG will bust out the "gas station hypo", wherein your wife and child are cooking in a car in the desert while you hunt for gas and water. Do those circumstances permit the taking of the gas and water from say, a farmhouse?

MNG|12.17.08 @ 8:11PM|#

TAO
I'm not trying to be picky, but in common law cases if I win nominal damages against you it does, on record, show I was in the "right" in that dispute, correct? It's just there were no compensable damages.

"Which is closer to your POV? And if neither, could you summarize your view in one sentence?"

I hope you won't think I'm being evasive if I answer with a post of mine from above. If so, please specify what's wrong and I will try to explain.

"I think there is no inherent or natural "right" to property, but that the idea and law of property rights are good in that they promote social utility."

"Note how you called him the owner?"

Well, we are both part of this culture that assumes the correctness of property claims legally supported. But as I pointed out above, even Nozick recognizes that this is on shaky, if conventionally accepted, ground.

The Angry Optimist|12.17.08 @ 8:11PM|#

Ah. You speak of the mythical "good man" who is a victim of circumstance? Sorry but I don't buy the argument that hunger cancels rights.

Uh, neither do I.

The Angry Optimist|12.17.08 @ 8:13PM|#

"I think there is no inherent or natural "right" to property, but that the idea and law of property rights are good in that they promote social utility."

So the existence of hunger does vitiate the right to property, because the right to property exists only insofar as it promotes social utility, but there is greater social utility in combating hunger?

Is that a correct read?

Naga Sadow|12.17.08 @ 8:14PM|#

Did I miss some parts of the argument? Hang on.

MNG|12.17.08 @ 8:15PM|#

But hey, why I should be on the defensive all night? Can someone supply me with the basis for property rights, which I've asked for since the beginning?

The Angry Optimist|12.17.08 @ 8:16PM|#

I'm not trying to be picky, but in common law cases if I win nominal damages against you it does, on record, show I was in the "right" in that dispute, correct?

It shows that your rights were violated.

The mere fact that you have the right to dispense with your property as you wish (so long as it yadda yadda) does not imply that I morally approve of the way you have dispensed with the property.

Personally, I think any guy who sees a tornado coming and does not provide shelter is a world-class asshole, but it's his right to be a world-class asshole.

|12.17.08 @ 8:17PM|#

Naga-

MNG in the tornado hypothetical is not the same moral actor as the hungry person. Sure, the hungry person may have had some bad breaks and some tough luck, but, to some extent, (a very large extent in most instances, I would argue) he is hungry due to his choices.

MNG|12.17.08 @ 8:17PM|#

TAO

We are getting stuck on what I thought we would upthread.

"rights"

NM said (I think) he can't imagine rights not " in a context." I can go further, I can't understand what in the world you seem to be talking about when you talk about "rights." I know what it would be "right" to do in certain circumstances. Is that the same thing for you?

Naga Sadow|12.17.08 @ 8:18PM|#

Oh shit. My bad TAO. That should have been aimed at MNG. My apologies.

The Angry Optimist|12.17.08 @ 8:19PM|#

Can someone supply me with the basis for property rights, which I've asked for since the beginning?

For my money, the basis on property rights is the right to life. The right to your life necessarily implies that you have the right to the fruits of your mind and body. If you have the right to life, you have the right to self-ownership and the endeavors in which you employ your talents and thereby gain property (or money, or whatever) are therefore merely extensions of you as a person.

Naga Sadow|12.17.08 @ 8:20PM|#

In agreement libertymike. I just wasn't paying enough attention to posters names. My fuck up.

MNG|12.17.08 @ 8:21PM|#

"he is hungry due to his choices"

This is the question: "who is responsible for what."

I'm not sure this answers the question: "who is entitled to what."

They seem conceptually distinct to me.

I have often, in a jerk-like fashion I will admit, suggested that libertarians should be renamed "responsibiltarians" because their main thrust is to see those "responsible" for their situations pay their debts. This kind of thing makes me think I am right.

The Angry Optimist|12.17.08 @ 8:21PM|#

I know what it would be "right" to do in certain circumstances. Is that the same thing for you?

No! "Doing the right thing" (if I may crib from Spike Lee for a minute) is not necessarily anywhere near having a "right to do a thing".

I pretty much have the right to say terrible things to people for no good reason; that does not mean it would be right, in the moral sense, for me to do so.

MNG|12.17.08 @ 8:22PM|#

"the right to the fruits of your mind and body"

HERE is what Nozick was getting at. What in the world could that possibly mean?

The Angry Optimist|12.17.08 @ 8:23PM|#

I'm not sure this answers the question: "who is entitled to what."

To a certain extent, it does. Consider this, MNG: you are looking solely at "Hungry person v. not hungry person" without any regard for the context of how each of those people attained that status. If the non-hungry person attained that status via force over the hungry person, then it is, in fact, the hungry person's right to take back his property.

The Angry Optimist|12.17.08 @ 8:25PM|#

What in the world could that possibly mean?

I thought it was pretty self-explanatory, so I do not understand what you have to quibble with respect to that term.

If you and I (as free, rational adults) come to a bargain, wherein I will work for you and you will pay me money, and I do that work, I now have a right to your money because I used myself to earn it. That would be a fruit of my labor, and your failure to pay would be akin to enslaving me.

Naga Sadow|12.17.08 @ 8:25PM|#

MNG,

I think you have a fundamental misunderstanding of responsibility and freedom my friend.

MNG|12.17.08 @ 8:28PM|#

TAO
So how do we divorce what is "right" to do morally from what we have a "right" to do?

Naga Sadow|12.17.08 @ 8:30PM|#

*Throws shoes at MNG over comment at 8:28*

|12.17.08 @ 8:31PM|#

TAO-

You are right-there could be a slippery slope problem. But, please acknowledge that, in my conception of dealing with these hypos, that there is a black and white, absolute wall differentiating between private solutions and welfare state solutions.

Thus, no welfare state is needed to address the tornado problem. Ditto for taking the car or the gasoline. Even if I were to conclude that it would be okay for the person to take the car of another in order to save his life, it would not require a government program with its accompanying confiscatory taxation and swarms of bureaucrats.

BTW, I would only permit the theft of the car if the thief did not thereby endanger the victim or put the victim's life in peril (leaving him without a means to escape the dam break) and the threat to the thief's life was immediate, with no other means of escape and, of course, the thief promptly returned the car.

The Angry Optimist|12.17.08 @ 8:31PM|#

So how do we divorce what is "right" to do morally from what we have a "right" to do?

I suppose part of it is that you have to determine your values, understand what your goals are and make sure that the values you choose will facilitate those goals.

For what it's worth, I think that senses of justice, honesty, rationality, human empathy coupled with a no-bullshit attitude are the best ways to facilitate an individual's happiness.

I also highly recommend treating adults as adults, for all that entails. Sometimes it means not deferring to people's more childish senses (I struggle, in real life, in doing this because I assume that arguing with people is generally fruitless).

Naga Sadow|12.17.08 @ 8:32PM|#

MNG,

Seriously though, I suspect that a hypothetical will be necessary.

Naga Sadow|12.17.08 @ 8:32PM|#

Also, I'm gonna need those shoes back. Times are tough or haven't you heard.

MNG|12.17.08 @ 8:32PM|#

"I thought it was pretty self-explanatory'

It is not to me.

'If you and I (as free, rational adults) come to a bargain, wherein I will work for you and you will pay me money, and I do that work, I now have a right to your money because I used myself to earn it."

Let's skip the "labor as property" example for now (I'm suprised you would go for that one first, but part of me, not so much), how about physical property? Why do I own X? Or you Y?

MNG|12.17.08 @ 8:34PM|#

"because I assume that arguing with people is generally fruitless"

True dat!

MNG|12.17.08 @ 8:36PM|#

Sorry Naga, you'll have to go barefoot like my favorite strippers ;)

The Angry Optimist|12.17.08 @ 8:38PM|#

"because I assume that arguing with people is generally fruitless"

Yeah, but it also assumes a breathtaking amount of misanthropy to assume that engaging other people and their viewpoints is not a worthwhile activity. A lot of the problem (as we've seen) in real life is that many people have sort of a mish-mash of beliefs and what terms means, so you don't even start on common ground.

Why do I own X? Or you Y?

We bought it? I'm flummoxed here. I own this computer because someone else made it, offered me a price, and, through money I earned, decided that the computer was worth more than the money I had in my bank account.

</|12.17.08 @ 8:38PM|#

Tacos mmm... | December 17, 2008, 7:36pm | #

1) There are a lot of childless couples who want children.That is why they import foreign babies and engage in morally questionable "fertility" procedures.
2) Begging,charity,families
3)Charity, Hippocratic oath-taking physicians
4)Charity,begging,gleaning,dumpster-diving
5)see most of the above.....

And people say libertarians aren't assholes...

voluntary = asshole?
taking by force = cool?

The Angry Optimist|12.17.08 @ 8:38PM|#

Sorry Naga, you'll have to go barefoot like my favorite strippers ;)

you bastard! You have to tip them more! :D

|12.17.08 @ 8:43PM|#

MNG-8:21

Yes. Sometimes libertarians do not get the responsibility part when it comes to negligence cases and the duties that tort law imposes on actors.

A good example would be the recent Massachusetts case that held that a jury would get to decide if a limo company and one of its drivers violated their duty of care in dropping off an intoxicated customer at his girlfriend's car. Most of the posters here did not read the facts of the case and proceeded to proclaim that the court made some kind of revolutionary, earth shattering decision. It did not.

What a lot of libertarians don't get is that responsibility means being accountable for your stupid, fucking negligence and that if another is injured as a direct and proximate result of your stupid, fucking negligence, you should pay. If you get paid to drive folks around, assist them in getting drunk and know that they are intoxicated, you should have the foresight to know that if you drop off one of the inebriated at a car at 2 or 3 in the morning, that there is a probability that the drunk will get in the car and drive it.

Naga Sadow|12.17.08 @ 8:46PM|#

MNG,

What? No hooker boots or six inch heels? I gotta admit I've lost a little respect for ya.

MNG|12.17.08 @ 8:48PM|#

TAO
So you "own" it because you have it after a voluntary exchange? That is no good even by our accounts I would imagine: if I stole x and sold it to you, would you have rights over it over the actual "owner" z?

Why do you "own" anything you have? Let's trace the roots of "ownership." (I'll not ask again, have you read Nozicks very intersting exploration of the property rights question?).

MNG|12.17.08 @ 8:49PM|#

libertymike
Agreed.

Naga Sadow|12.17.08 @ 8:54PM|#

MNG,

As to your post at 8:48. Yeah, possession being 9/10's of the law and what not. Once upon a time when I fenced items it was understood any problems would be coming my way not the buyers way.

MNG|12.17.08 @ 9:03PM|#

The "right" to property, I find, is pretty tenous. It is a "right" that only exists in sofar as it promotes social utility. When it does not, it does not (exist).

Gotta go folks, more later.

james_joyce|12.17.08 @ 9:12PM|#

It is a "right" that only exists in sofar as it promotes social utility

Who determines whether or not it promotes social utility? Or is there a theoretical framework for social utility that I'm not aware of?

Kolohe|12.17.08 @ 9:31PM|#

The "right" to property, I find, is pretty tenous. It is a "right" that only exists in sofar as it promotes social utility. When it does not, it does not (exist).

I'm very utilitarian in my half-assed libertarianism, but the right to property is a necessary condition for both life and liberty If you don't have an exclusive right to space or stuff, it becomes imposible to sustain any kind of life or liberty (think 'hydraulic despotism').

|12.17.08 @ 9:56PM|#

I'm going to refrain from commenting on the "food lying around" hypothetical for now.

IMO the problem with "positive" rights, in the redistributionist sense, is that they are inconsistent with "negative" rights, and internally contradictory.

If I have a right to be provided with food, shelter, health care, etc., then someone must be obliged to provide that food, shelter, and health care. Which violates that person's negative right not to be forced to take an action against his/her will. If wealth is being redistributed from you to me, I'm basically forcing you to work to support me. Plus, if there is a scarcity of said goods, say a famine, then everyone's rights conflict.

IMO, the only way to resolve this is to decide that there's no such thing as a positive right to food, water, shelter, etc. You're right to life can't mean a right to live, or it would lead to unresolvable conflicts between individuals.

|12.17.08 @ 10:01PM|#

MNG - back at 8:28 you were conflating individual morality (doing what is right) with what I consider public morality (not violating others rights).

Individual morality is more about religion, tradition, upbringing, that sort of thing. How you should live your life to bring you the fullest satisfaction and all that jazz. That's really internal to each of us.

What we have a right to do, on the other hand, is pretty easy. I think the non-agression principle pretty succinctly describes it. (Does the LP still subscribe to that or is it obsolete?)

Naga Sadow|12.17.08 @ 10:02PM|#

Hazel Meade,

Sorry but MNG is a master of Jack Bauer logic. To defend his hypotheticals, he employs more hypotheticals. Good luck though.

Also, props to Kolohe for coining the term "hydaulic despotism".

|12.17.08 @ 11:23PM|#

I advocate that, if you are absolutely starving and will die soon, you should take what you need so you do not die. That does not mean you had a right> to take it, and we demonstrate that by making you give restitution to those from whom you took the food and water (or drugs or whatever).

What if you took that food from someone else also starving? How are you going to make restitution?

These lifeboat scenarios are the problem with any Non-Initiation of Force principle -- the exceptions can be slowly and marginally broadened until you get to absolute despotism and statism.

Kolohe|12.17.08 @ 11:37PM|#

coining the term "hydaulic despotism".

Alas, I got it from Frank Herbert, who might have got it from someone else.

|12.17.08 @ 11:50PM|#

coining the term "hydaulic despotism".

Alas, I got it from Frank Herbert, who might have got it from someone else.

Per Wikipedia:

"A developed "hydraulic civilization" maintains control over its population by means of controlling the supply of water. The term was coined by the German American historian Karl August Wittfogel (1896 - 1988), in Oriental Despotism (1957). Wittfogel asserted that such "hydraulic civilizations" - although they were neither all located in the Orient nor characteristic of all Oriental societies - were essentially different from those of the Western world.

Most of the first civilizations in history, such as Ancient Egypt, Sri Lanka, Mesopotamia, China and pre-Columbian Mexico and Peru, are believed to have been hydraulic empires. The Indus Valley civilization is often considered a hydraulic empire despite a lack of evidence of irrigation (as this evidence may have been lost in time due to flood damage). Most hydraulic empires existed in desert regions, but imperial China also had some such characteristics, due to the exacting needs of rice cultivation."

Formerly Jennifer|12.18.08 @ 12:02AM|#

TAO,
" 'If your happiness depends upon activities that make others unhappy, you do not have the right to pursue those activities because they interfere with others pursuit of happiness.'

Not correct. If your pursuit interferes with another's pursuit, then that would not be allowed. If what you pursue makes others unhappy, too bad for them. They aren't entitled to limit you for their own emotional state."

So there's really no justification for banning gay marriage and allowing pharmacists to refuse to dispense contraception, then.

Question:
At what point does one person's right to freedom of religion and freedom of conscience trump another person's right to freedom of religion, freedom of conscience, freedom of bodily integrity (the right to put something in one's body necessarily includes the right to try to keep things OUT of one's body, IMO) and freedom of association?

Disclaimer:
I am not a Christian. My faith says that homosexuality is not a sin, and that the autonomy of actual women is more important than the potential life of a potential fetus. My libertarianism is heavily informed by the writings of Robert Heinlein and Peter McWilliams (author of . I voted for Barr, and Badnarik before him.

My reading of history indicates that the reason for marrying has changed (in the West, from ensuring property rights and heirs for the ancestral line (legalistic) to wanting to spend one's life with one specific person and ensure care of the nuclear family thus created (emotional).

domoarrigato and MNG,

Sorry for ruining your pleasant discussion on the earlier thread. :(

Formerly Jennifer|12.18.08 @ 12:12AM|#

Darn html tags!

Peter McWilliams was the author of Ain't Nobody's Business If You Do.

He was also a victim of the War on (Some) Drugs)

http://en.wikipedia.org/wiki/Peter_McWilliams

The Angry Optimist|12.18.08 @ 12:13AM|#

So there's really no justification for ...allowing pharmacists to refuse to dispense contraception, then.

Actually, I meant forcefully, through the use of the state or private force, limit the pursuit of happiness of others.

Under my reading, the pharmacy company is entirely entitled to allow its individual pharmacists discretion. If that is the company policy, your unhappiness with it does entitle you to use state action to force the sale of something that would make you happy.

You are free to pursue happiness at another store.

"allowing" pharmacies to set policies is not getting the government involved because a certain company does not want to offer a certain product.

Do you think you should be able to force Wal*Mart to sell the uncensored versions of CDs and DVDs?

Kolohe|12.18.08 @ 12:21AM|#

x-Jen-
Bringing a few things some this evening together, I'd say the line is somewhere between sodium fluoride and colloidal silver.

The Angry Optimist|12.18.08 @ 12:28AM|#

At what point does one person's right to freedom of religion and freedom of conscience trump another person's right to freedom of religion, freedom of conscience, freedom of bodily integrity

I don't see why one ever needs to trump another. If there is any failure to protect rights, it's because of the failure to define property rights.

LibertyMark|12.18.08 @ 12:46AM|#

When I read the views of those (MNG, NM) who don't get how property rights flow from self-ownership and can't distinguish between private morality and natural rights, I just get all chilly inside. It makes me realize the gaping maw that exists between libertarians and the rest of society (the majority, oh the humanity!)

The best way I can think of to distinguish between the "right thing to do" and a "right" is civil rights law. Most of the civil rights act of 1964 is an abomination. It totally tramples property rights. Now, the "right thing to do" is to let people of all races into your establishment. In fact, if you exclude someone because of race, I will consider you a total fuck and will not associate with you. However, you have a total, inherent "right" to exclude black people from your establishment. People have the right to be fucks, and we have the right not to associate with them.

The Angry Optimist|12.18.08 @ 12:55AM|#

If that is the company policy, your unhappiness with it does entitle you to use state action to force the sale of something that would make you happy.

Should read "does not entitle..."

Formerly Jennifer|12.18.08 @ 1:00AM|#

TAO,

The issue was not the right of the pharmacy to to set its own policy, but the "right" of the employee to violate the policy set by the pharmacy. The governmant was trying to step in to deny the pharmacy the right to fire those pharmacists (de facto state agents) who violated the company's policy.

http://www.reason.com/blog/show/130138.html

In this case, the government would be stepping in to ensure that one (mainly religious, IMO) view is upheld in contradiction to both the patient's right to her own view and the pharmacy's right to set its own policies. How is that NOT a failure to protect rights?

I don't see why one ever needs to trump another. If there is any failure to protect rights, it's because of the failure to define property rights.

Time for "Top Chef", talk to you later.

The Angry Optimist|12.18.08 @ 1:07AM|#

Formerly Jennifer -

I remember now. I am against enshrining any thing of that sort in the law. Employers should be allowed to be as capricious and ridiculous as they want. I do have to quibble with one point of yours, though:

pharmacists (de facto state agents)

Pharmacists are not, in any way, state agents. At all. They work for private companies. The extent to which the state is involved with pharmacists is for licensing purposes. That would mean that cosmetologists would be state agents.

In this case, the government would be stepping in to ensure that one (mainly religious, IMO) view is upheld in contradiction to both the patient's right to her own view and the pharmacy's right to set its own policies

I don't understand why you mention the "patient's rights", because she really does not (or should not) have any in this instance other than the right to go to another pharmacy. Past that, I agree with you.

This is a case of "government policies biting the other side in the ass". The Left has been forcing businesses to serve and hire certain minority groups, against the will of the business. Now the Lefties whine when it's used against them to attack abortion.

Hoisted by their own petard. But I'm still agin' it.

Neu Mejican|12.18.08 @ 1:08AM|#

TAO, MNG,

Re: The relationship between "what is right" and "I have a right."

It seems to me...

If you view a right as some sort of quality of an individual like weight, or hair color, then you end up being able to make the distinction between a moral right and a natural right: the moral right is what you should do, the natural right is what you are allowed to do. You carry the natural right around with you. (I do find it odd that those who think this way about rights do not see a similar natural duty as an inherent quality in a social species).

If, on the other hand, you view rights as something that adheres to specific actions, then the two concepts are conflated. You do not possess a right; rather your actions was one that you can claim as justified and appropriate (i.e., morally correct). In this case to "have a right" is to say that you have a just claim or that you can justify your actions. In the real world this seems to be how rights operate, so it seems the more useful conceptualization to me. It also, imho, nicely packages the duality of rights and responsibilities. Your actions in the past may be justified and still carry an obligation for future actions. There is no conflict between my just claim for my past action, and another just claim for restitution for the aspects of my action that somehow harmed them.

TAO,

Sorry, maybe not disingenuous, but your propensity to jump down the slipper slope was so consistent that I began to doubt whether you believe in the concept of "reasonable" differences between cases. Your line of argument is a, what do they call it...fallacy of the beard. You assume an incremental continuum between two distinct states erases the distinction between those states. Stop doing it. It is an invalid argument and makes you look like you are intentionally trying to miss the point...like you are pretending not to understand.

Neu Mejican|12.18.08 @ 1:18AM|#

Libertymark,

When I read the views of those (MNG, NM) who don't get how property rights flow from self-ownership and can't distinguish between private morality and natural rights, I just get all chilly inside.

Don't get is not accurate.
Don't agree with your opinion on the subject would be more accurate.

A question...do you view all rights as equal or is their an inherent hierarchy to rights in your view?

How does this hierarchy rank property rights versus the right to life, liberty, the pursuit of happiness?

Are property rights a mechanism used to protect the more basic rights? Or are property rights on par with life, liberty, and the pursuit of happiness (or do you prefer the life, liberty, pursuit of property formulation)?

What gives me chills are discussions with people who think that they have a simple formula that correctly answers the complex questions that arise in this sphere. The world of gray does not lend itself to black and white answers.

The Angry Optimist|12.18.08 @ 1:19AM|#

In this case to "have a right" is to say that you have a just claim or that you can justify your actions.

This is a bizarre notion to me; it essential sets rights as things to always be conflicting. Under this construction, would a black person be entitled to service at a 1950s white lunch counter? In my mind, there certainly is no moral justification for racism, and sitting at a lunch counter is morally neutral. Would this mean that the black person "wins", using the way you're using rights?

You are correct, though, in your evaluation. I think that rights are something inviolate that adhere to the person by virtue of him being a person, which is why libertarians struggle with questions about abortion, end-of-life-decisions, the insane, the elderly and children's issues.

The Angry Optimist|12.18.08 @ 1:20AM|#

I began to doubt whether you believe in the concept of "reasonable" differences between cases.

Honestly, the way that you say things lend themselves to certain absurd scenarios. To me, what it sounded like you said was that violation of property was okey-dokey unless it affected someone else's life, liberty etc...meaning that we would rapidly travel down what it means to "affect" someone's inherent right to those three things.

Paul|12.18.08 @ 1:22AM|#

If I have a right to be provided with food, shelter, health care, etc., then someone must be obliged to provide that food, shelter, and health care

Doin' right ain't got no end.

How much food? What quality? What breakdown? Type? Nutritional level? Cooked, uncooked? Provided by whom? Until when?

We have the right to pursue food.

Neu Mejican|12.18.08 @ 1:26AM|#

Regarding civil rights law trampling property rights.

I think it is important to make a distinction between a "right" (a just moral claim) and a "legal right" (a claim that your action was within the bounds of law, i.e., not prohibited).

Legal prohibitions on using property in certain ways are a tool for facilitating decisions between claimants that come up over and over again. They are, perhaps, based on moral rights, but are not the same as moral rights.

The civil rights act, it seems, recognized the moral principle that along with rights come responsibilities.

alec|12.18.08 @ 1:30AM|#

I just wanted to point out:

He says the idea of entitlements as rights was not accepted by the framers of the Constitution. But the Constitution does guarantee people the right to a trial by jury--which is, in fact, an entitlement. So that argument kind of falls apart.

In fact, this entire semantic argument about rights that defines them in a way that isn't accepted by the rest of the world is getting pretty stupid. To the outside world, it's just avoidance; it seems like you're getting hung up on arguing that there is no such "right to a job" so that you don't have to actually make the argument for why people shouldn't be guaranteed employment (which I agree, they shouldn't).

You're gonna have to try something else.

Neu Mejican|12.18.08 @ 1:31AM|#

Under this construction, would a black person be entitled to service at a 1950s white lunch counter? In my mind, there certainly is no moral justification for racism, and sitting at a lunch counter is morally neutral. Would this mean that the black person "wins", using the way you're using rights?

Well, given that this exact set of claims was looked at and the society's decision was that, yes indeed, the black person had the just claim and the owner of the lunch counter didn't, then I guess we could say that is how it would apply.

But it is important to note that that doesn't mean that the owner of the lunch counter loses all control of her lunch counter. It just limits her ability to claim that she is justified in using race as a reason to exclude someone from her business. Change the circumstances just slightly and she may have a claim. A clear distinction is made, for example, between the degree to which you can exclude based on race in your home versus a place of public accommodation.

Neu Mejican|12.18.08 @ 1:34AM|#

TAO,

This is a bizarre notion to me; it essential sets rights as things to always be conflicting.

More precisely, it sets up rights as principles that are used to resolve conflicts between claims. In the absence of a claim, the right would be meaningless.

Neu Mejican|12.18.08 @ 1:39AM|#

So, to the "right to a job" thing.

Meaningless without a particular claim.

I have a right to a job is meaningless without a context.

If I claim "I have a right to this job in this set of circumstances" the principle that people, in general, have a right to work can be used to help decide the particular claim. But the general principle does not mean that I will win the case. Likewise, your right to life is generally assumed, but it I take your life, I may use a claim of my right to life to justify my action (self-defense). The general principle that you have a right to life does not guarantee anything outside of a particular claim in a particular context.

The Angry Optimist|12.18.08 @ 1:41AM|#

I'm sorry, NM, but those do not sound much like "rights" to me. It sounds as if you're basically making them "conditional on popular assent", which is the kind of thinking that leads to book burning.

And, no, I'm not being disingenuous or going down the slippery slope; I could certainly see, say, a pro-9/11 writer in America having his right to free speech revoked because it made people "unhappy".

Change the circumstances just slightly and she may have a claim.

You are being circular. The reason that she has a right to discriminate in her home, as opposed to at her business, is because she has that right, whereas in the other instance she does not.

You have to tell me why it is proper, and how it is consistent with rights-as-generally-inviolate-things, to limit them in a certain way, not just that the limitation exists.

But it is important to note that that doesn't mean that the owner of the lunch counter loses all control of her lunch counter.

But, under your construction, that is only because society has not seen fit to impose further restrictions on her. If it did, those restrictions would be valid and she would still somehow have "rights-". At some point, it becomes tyranny.

The Angry Optimist|12.18.08 @ 1:44AM|#

If I claim "I have a right to this job in this set of circumstances" the principle that people, in general, have a right to work can be used to help decide the particular claim

When we say "right to work", we mean "the right to pursue work", not that you have an a priori claim on a job that is to be applied when you are not hired at a particular place.

If I claim "I have a right to this job in this set of circumstances"

That is an invalid claim; there are no circumstances under which you are entitled to be hired, unless there is an offer that is to be accepted by performance, which is a contract issue.

The Angry Optimist|12.18.08 @ 1:45AM|#

The general principle that you have a right to life does not guarantee anything outside of a particular claim in a particular context.

So, basically, you have a right to X...until you don't.

Neu Mejican|12.18.08 @ 2:03AM|#

TAO,

At some point, it becomes tyranny.

At some point sure. But we are not talking about that point. The general principles create inviolate domains where no reasonable person would see certain claims as just. Those domains have fuzzy boundaries, however, and as a result we rely on systematic approaches to decide claims based on the specifics of the circumstances. At the boundaries, tough calls get made, but that doesn't result in instability in the moral centers of gravity.

It sounds as if you're basically making them "conditional on popular assent", which is the kind of thinking that leads to book burning.

Well, I don't think that there is a perfect arbiter, if that is what you mean.

To take an analogy from linguistics, words don't have inherent meanings, even though we can define them. They take on their meaning in the context of a particular communication between individuals. Meaning only exists in the context of communication. Likewise, rights only exist in the context of competing claims.

We can create dictionary definitions of words, and we can enumerate rights, but that doesn't make them have context free meaning.

Neu Mejican|12.18.08 @ 2:14AM|#

When we say "right to work", we mean "the right to pursue work", not that you have an a priori claim on a job that is to be applied when you are not hired at a particular place.

Define for me the difference between the right to "pursue X" and the a general principle of liberty (i.e., self ownership).

It seems to me, if the "right to a work" is not a statement about the right to use your labor to secure necessities, then it is a meaningless phrase, even as a general principle. It is saying that other do not have the right to prevent you from using your labor to get what you need. It is not saying they have an obligation to give you those necessities.

Neu Mejican|12.18.08 @ 2:20AM|#

You are being circular. The reason that she has a right to discriminate in her home, as opposed to at her business, is because she has that right, whereas in the other instance she does not.

No, I am avoiding the vagueness inherent in your conceptualization of rights.

The right does not exist without a claim made in a particular context.

It does not adhere to the person, but to the action, or perhaps more accurately to the interaction between individuals in conflict.

the |12.18.08 @ 2:27AM|#

Likewise, rights only exist in the context of competing claims.

Not all claims are valid ones, though. I mean, going back to my "everybody gives TAO a quarter" example, can you give me a reason why my claim should be valid, or why it should not?

It does not adhere to the person, but to the action, or perhaps more accurately to the interaction between individuals in conflict.

I am really trying to figure out how that does not just lead to the majority determining what is and what is not a right.

If you want to say that rights are dependent on popular assent, that is fine. But that would not really make them rights.

Let's put it in a hypothetical: I walk into a drugstore and want a quantity of drug X. B is the clerk and B says "we don't sell that drug in that amount".

Now, I have a claim here: I want drug quantity X, and the business has a claim: they do not want to sell the drug in quantity X.

Are you saying that the business has to justify to society why it won't sell the drug in that quantity? Are you saying that I have to justify to society why I want the drug in that quantity? And then it will be up to society to decide whether I have a "right" to purchase Drug X in a certain quantity or not?

The Angry Optimist|12.18.08 @ 2:56AM|#

As if needed to be said, the above was me.

MJ|12.18.08 @ 7:57AM|#

"There are two people, one hungry, one not. And there is some food. Why wouldn't the hungry person have the "right" to the food?"

Whose food is it? If the food belongs to the second person you are saying he has no right to prevent the hungry person from taking his food and probably a legal obligation to give it to the hungry person. What if the owner of the food was saving it up for a lean time and being made to give his stores to the hungry person caused him to starve?

Property rights exist in part because no one is in an objective position to judge the needs of the person who owns the property do not outweigh the needs of whatever other people who want to use it.

|12.18.08 @ 10:20AM|#

I think this whole concept goes off the rails (or is at least deeply dishonest) right here:

"our rights to life and liberty"-the negative liberty to which Obama referred, had "proved inadequate to assure us equality in the pursuit of happiness."

Actually, negative liberties have not proven the least bit inadequate in assuring equality in the pursuit of happiness. Now, negative liberties don't assure the achievement of happiness, but there's all the difference in the world between equality of opportunity and equality of result.

Of course, being honest about this would expose what I believe is the real agenda here: class envy/hatred, state control of redistribution of wealth, the whole socialist/progressive panoply that, when honestly described, is rejected by large majorities of Americans, still.

idiotface|12.18.08 @ 11:09AM|#

R C Dean is thread winnah!

kthnx,
mgmt

Neu Mejican|12.18.08 @ 11:17AM|#

I am really trying to figure out how that does not just lead to the majority determining what is and what is not a right.

Flip that around and try and answer it.

If rights are not based upon the historical experience of large groups on individuals applying principles in specific cases, then how are they defined?

If you go with the default, given by God, explanation you are still left with the problem of how imperfect mortals are to determine God's intent. In application a combination of historical experience with past disputes has led to the general principles that will help resolve a current conflict.

That doesn't make rights subject to the whim of the moment. Particularly because those general principles include underlying assumptions...such as that you have a right to liberty, to control yourself and make your own decisions as long as your actions do not create an undue burden on others.

LibertyMark|12.18.08 @ 11:17AM|#

I think the thread is probably dead, but I wanted to address a couple things Neu Mejican said. (I wish I had more time to devote to these discussions!)

Ya'll were having an amazingly civil discussion, and I came in late with the "don't get" comment. Yes, I agree that "don't agree" is much more accurate and civil. I only have so many functioning neurons at midnight after the kids are in bed and the chores are done.

However, I perceive the disagreement to be so fundamental, about such an important issue, that it gives me chills. There really is a gaping maw between us.

NM asked a series of questions about "rights", in terms of ranking and relationship with other rights. I believe that the rights mentioned (life, liberty, pursuit of happiness, property) are very near to being synonyms. They all have different connotations, but are ways of expressing the concept of self-ownership. I do sometimes call property rights the "zeroth" right because the right to self-ownership is axiomatic.

What gives me chills are discussions with people who think that they have a simple formula that correctly answers the complex questions that arise in this sphere. The world of gray does not lend itself to black and white answers.

I don't believe that a set of principles can answer every possible question. I will allow for some slight infringement of natural rights, but only for the most extreme cases as in the hypos in this thread. (I won't disparage a guy for trespassing to get away from a tornado.) However, the set of principle has to come first. That is, start out with a black and white world and go from there.

I perceive Neu Mejican's world view as an amorphous mass of grey goo. Not even an attempt to have a deterministic foundation to build on. Just give up on principles, and let the current whims of the hour determine what to do. Talk about a simplistic outlook: NM seems to think that when a law is passed, "society" has spoken, and that determines what is right and wrong (the context he mentions).

That world view is the breeding ground of tyranny. And that is not some spurious "slippery slope" argument. Look what occurred in the 20th century with government power as a result of that world view.

Neu Mejican|12.18.08 @ 11:24AM|#

To clarify that last point.

The general principles that societies have defined through a history of conflict resolution help to define a process for resolving conflicts. To be just that process must take into account the particulars of the case in front of it, but it will be most efficient at getting to a just resolution if it also learns from past cases. The utility of declaring that some principles apply generally to situations focuses the process so that it can concentrate on whether or not the current conflict is sufficiently similar to past cases for the principle to be applied directly. Since real conflicts will always involve competing claims based on these general principles, the process will have to weigh the degree to which a particular claim that an action was/was not justified based on those principles. We call those general principles "rights."

Neu Mejican|12.18.08 @ 11:31AM|#

Talk about a simplistic outlook: NM seems to think that when a law is passed, "society" has spoken, and that determines what is right and wrong (the context he mentions).

Actually, that is almost the opposite of what I have said. It is those that hold onto the "natural rights" view that feel the last word has been spoken. Laws, like rights, are applied in the specific context of a specific dispute and, as a result, do not have a algorithmic solution to any particular situation. The concept of due process recognizes that there is not a perfect algorithm for determining justice. Justices depends upon the good faith judgment of individuals applying general principles and rules that have been developed over thousands of years. Society's word on right and wrong is not a finished product.

The words "pursuit" and "achievement" have been bandied about quite a bit on this thread.

Societies are in pursuit of justice and rights and laws help them in this pursuit, but they do not guarantee that justice will be achieved.

The fallacy is believing that if only we adhered to an algorithmic application of "Natural Rights" law we would achieve justice.

LibertyMark|12.18.08 @ 11:39AM|#

I have never said or believed this:

The fallacy is believing that if only we adhered to an algorithmic application of "Natural Rights" law we would achieve justice.

Due process is necessary because of imperfect human knowledge and morality, not because the definition of "rights" is slippery. In fact, I believe our due process idea confirms the idea of natural rights. If you violate my natural rights by force or fraud, there has to be a process to determine, to the best that can be determined by imperfect human beings, the particulars of the case.

The problem with "rights" being whatever the law says they are, is that "due process" becomes the government seeking out people to persecute based on arbitrary whims without any real victims.

LibertyMark|12.18.08 @ 11:44AM|#

BTW, "justice" is not possible. We can only hope for an approximation of it.

Neu Mejican|12.18.08 @ 11:46AM|#

Are you saying that the business has to justify to society why it won't sell the drug in that quantity? Are you saying that I have to justify to society why I want the drug in that quantity? And then it will be up to society to decide whether I have a "right" to purchase Drug X in a certain quantity or not?

No. I am saying that the resolution to a conflict between X & Y THAT THEY CAN'T RESOLVE ON THEIR OWN will involve an outside arbitration by a system that society has set up to resolve conflicts. That process will determine who has a just claim and whether or not the other person "should" take any actions to satisfy that claim. In essence, society will help the parties justify their claims to each other.

In the case you bring up, I don't see how you can miss the idea that the rights don't matter until the conflict occurs. I still feel like the analogy to word meaning is the best. Rights, like words, don't have a context free meaning, rather they have a specific meaning only in direct application to specific claims in a specific context.

Neu Mejican|12.18.08 @ 11:49AM|#

The problem with "rights" being whatever the law says they are, is that "due process" becomes the government seeking out people to persecute based on arbitrary whims without any real victims.

Sure. There is certainly a difference between rights and laws. I would never claim that rights are "whatever the law says they are."

Neu Mejican|12.18.08 @ 11:51AM|#

definition of "rights" is slippery

Fuzzy would be a better description.

Or, perhaps, underdetermined.

Neu Mejican|12.18.08 @ 11:57AM|#

I do sometimes call property rights the "zeroth" right because the right to self-ownership is axiomatic.

I must admit I find this argument odd whenever I hear it.

It elevates property rights as a justification for the rights to life and liberty. This seems ass-backwards to me.

Your right to life and your right to liberty are the axiomatic principles. The right to property is derived from those axioms (quite easily).

I don't see how you derive a right to life or liberty from an axiom that you have a right to control property without a whole lot of mental gymnastics.

LibertyMark|12.18.08 @ 12:01PM|#

I don't see how you derive a right to life or liberty from an axiom that you have a right to control property without a whole lot of mental gymnastics.

Well, we have a different way of looking at it. I don't derive in the way you mention. I see those rights as all the same, synonyms with different connotations. My axiom is not the right to own property, it is the right to self-ownership.

Neu Mejican|12.18.08 @ 12:10PM|#

Libertymark,

To me, self-ownership is a convoluted way to say "liberty." (Property right simply extend the right of liberty to objects outside yourself...so ownership is an extension of liberty, not liberty an extension of ownership, imho).

So, we agree that liberty and self-ownership are synonymous. I do see the right to life as a distinct concept from right to liberty...not simply a different way to construe the same concept. Likewise with the pursuit of happiness.