Coase v. Rand

MSK,

It looks like you're talking about moral/natural rights, not legal rights. Government creates and destroys legal rights all the time. Legal rights don't exist without government. For example, a few years ago, NYC bar patrons had the legal right to smoke in bars. Now they don't. Whether a legal right coincides or derives from a moral/natural right is another story.

I suspect people here back "first in time" because they accept that moral/natural rights are temporal. That is, if I get to some scarcity first, then I and I alone have a moral/natural right to it. The big question is whether I got there first. The next big question is whether a government should protect my moral/natural right by creating a congruent legal right. However, the more relevant antecedent question would be why does getting there first give me a moral/natural legal right to the scarcity?

Jordan

(Edited by Jordan on 10/01, 10:39am)

Post 41

Saturday, October 1, 2005 - 10:48am

Jordan
>As for the doctor and confectioner, it's not clear to me why the confectioner has the right to make noise that travels outside his kitchen.

It wasn't clear to Rand either. As I recall - perhaps incorrectly - she said the right to enjoy your property does not include being forced to enjoy smells, loud noises etc from your neighbours. I of course agree.

- Daniel

Post 42

Saturday, October 1, 2005 - 10:52am

Michael,

You are taking it on faith that it will always be clear who has what rights. It�s not clear to me at all whether the confectioner has the right to make some noise or the doctor has the right to silence. It�s not clear to me that industry hasn�t the right to kill a single fish. Objectivism posits that courts must exist to resolve these disputes about rights. Otherwise, if Rand had thought it is always clear, then she would have been against courts.

I don�t see how a court could resolve these disputes without making judgments about the relative importance of the respective activities and the relative imposition being made on the parties. In the confectioner case ruling for the doctor may well shut the confectioner down, a big imposition, whereas ruling for the confectioner means the doctor will have to put up with some noise or invest in some soundproofing, a much smaller imposition. In my rail example, *who* owns the land in question is at the heart of the dispute. The court will have to decide, with unclear evidence, who the actual owner is. As you have it, it�s always obvious. But it isn�t hard to think of cases where it is certainly is not obvious. And border disputes occur all the time, so this isn�t some wild idea I dreamed up.

Edit to add: By importance I mean important to the goals of the person involved. So making the noise is central to confectioning, it�s important. If the noise the confectioner was responsible for was the constant screaming at his wife and workers�that would be less important. For the doctor, silence seems to be pretty important, whereas if he was a hairdresser and had blowers on all the time anyway, we could more easily ignore his complaint.

Jon

(Edited by Jon Letendre
on 10/01, 11:35am)

Post 43

Saturday, October 1, 2005 - 11:46am

Legal 'rights' are nothing but government permissions - they, properly, are not rights - and the term of using as if so is just to obfuscate the concept, allowing statists to switch rights to being blessings of the state, not the inherants they are by the nature of being human...

Post 44

Saturday, October 1, 2005 - 1:05pm

Robert,

I agree that confusion arises using the term "rights." If you want to call the former legal rights "government permissions" -- or "protected government permissions," to be more accurate -- then okay. But I find it less confusing to instead call the moral/natural rights "liberties."

Jordan

Post 45

Saturday, October 1, 2005 - 1:08pm

Jordan,

I am talking about legal rights. The context of this discussion is an Objectivist web site. Under Objectivism, all governments are not equal - nor are all concepts of government. The Objectivist concept of government, as given by Ayn Rand in a specific essay on the matter, then expounded upon by Leonard Peikoff in The Ominous Parallels under her guidance, was drawn from analyses of the documents and acts of the Founding Fathers - identifying the essentials - and then projecting an ideal government based on protecting individual rights by bearing limited ones which are delegated by individuals.

Within that context, there are rights (individual and collective ones) which the American government now practices and enforces that are not aligned with this concept. They are legal now simply because the majority (in most cases) voted people into office who enacted laws to make them so and appointed other people to do more of the same. But if many such rights get seriously challenged on the basis of being unconstitutional, they will fall. Thus their legality is in question in the long run.

The major fight of Objectivism is to make issues clear so that the government can be cut back to its original purpose. So that unconstitutional laws can be overturned and the Constitution amended to get rid of a few internal contradictory cracks.

For example, the rights you talk about are easily seen as commands barked out with a gun pointed at you. That doesn't sound too good, but that is the essence. If your idea of rights is based on mysticism (like Locke's is, believe it or not) or is vague (like the present concept used by the American government), one little crack in definition is enough to sanction all kinds of governmental abuse, which is why all hell has broken loose in this area.

Objectivism needs to constantly engage in the kind of identification I mentioned above so that things are always clear. That way, what people like Mr. Coase say also becomes extremely clear. He wants someone with a gun pointed at people and barking out orders telling them who gets what by right - as he says it and because he says it. All the rest, all the fancy discourse, is window dressing to make it look better.

One word about an apparent false dichotomy creeping in. You make a difference between moral/natural rights and legal ones. Your premise is that all governments have equal moral validity, which is an issue that sort of gets pushed over to the side by not being mentioned. The reasoning is to discuss only what is on the law books, regardless of the government - the practical as opposed to the theoretical. There is an implication that "moral/natural rights" are OK to talk about but not really important or valid out in the real world.

Let's deal with essentials, then. All governments do not have equal moral validity, but they all have guns. So if "legality of rights" as applied to all governments is to be discussed (from bloody dictatorships to democracies), the common denominator on which such rights are based - guns - should also be an integral part of that particular concept.

Might makes right.

That is the premise on which the "legal only" concept of rights sets.

This is the foundation in reality of the reason to dismiss moral/natural rights in such an offhand manner - like our dear Mr. Coase apparently does. He wants the goodies from production, but he keeps the safety latch off on his pistol, also. That is very clear.

Jon,

The cases you bring up are interesting, but in both cases, the government will not allocate a "right" to an individual. It will decide which one has more of a basis for his claim based on existing rights and principles that define them. One of the principles inherent in property rights (and here we go again - ducking for cover) is that they are not eternal - they only exist so long as the government protecting them exists. Another is that they exist within a context of other people who also have property rights. The courts ideally do not exist to grant a right to one person or another, although many times they act as if they do that now. They exist to determine who actually has the right in a situation of contention. Some of these situations, like what you describe, are pretty tricky and complicated. This is more the reason why absolute precise definitions are needed.

Daniel,

What a pleasant surprise! Who would have thought that we have such common ground! I will get back to you. (Let 'em guess for now...)

//;-)

Michael

(Edited by Michael Stuart Kelly on 10/01, 3:12pm)

Post 46

Saturday, October 1, 2005 - 1:35pm

MSK,

I think we're talking past each other. I don't dispute that the government makes some nasty legal rights (or "legal permissions," as Robert would have us call them). I'm against that, of course. And I certainly don't think all governments are equally valid, nor have I implied as much. I just recognize that government is the sole source for legal rights, and what it says are our legal rights, are our legal rights, for better or worse. Now if we want to talk about how governments ought to allocate legal rights, then great. I think Objectivists hold that governments should only allocate legal rights that are congruent with pre-existing moral/natural rights, and for some reason, those who get to a scarcity first are said to have the moral/natural right.

And now it looks like you've misidentified Coase as well:

That way, what people like Mr. Coase say also becomes extremely clear. He wants someone with a gun pointed at people and barking out orders telling them who gets what by right - as he says it and because he says it.

Coase wants market forces to determine who has the right. He isn't advocating ruling by fiat anymore than someone who demands that legal rights get allocated by whomever was first in time. Why go by first in time rather than by market forces?

Jordan

Post 47

Saturday, October 1, 2005 - 1:57pm

Jordan,

How can there be market forces without a social organization?

We don' talk past each other. It is subtle, but our premises are different.

Once we get past the social organization thing, we can talk about who got where first.

Irrespective of this - as an aside - Brazil is a mess in this sense. There are huge tracts of land handed down from the Portuguese crown 4 centuries ago and earlier (called Capitancies back then) that are still in the same families today, but they sit on the land and don't do anything with it. They just own it by right of a long dead Portuguese King and inheritance laws that have been maintained throughout the different governments over the centuries.

This is one of those cases that will be interesting in terms of who got where first, since it looks like it will not stay that way forever.

Michael

Post 48

Saturday, October 1, 2005 - 2:13pm

MSK,

How can there be market forces without a social organization?

Generally, market forces exist whenever there's demand for a scarcity. If you want to call such demand for a scarcity "social organization," that's fine, but I'm not sure why you'd want to do that. I must've missed your point.

Brazil's situation does sound like a mess. Inheritance is one tricky subject.

Jordan

Post 49

Saturday, October 1, 2005 - 2:40pm

Jordan,

I must've missed your point.

You certainly have. Rights exist in a social context only. They do not exist outside of a social context.

Social organization comes before rights - both historically and in philosophy. Prehistoric tribes and all that for history and ethics-to-politics connection for rights.

You are going from scarcity only.

With scarcity of absolute survival resources like water, mankind will resolve the question by might if a person tries to deny access to it while others die of thirst. They will simply knock him over the head and drink. (Oasis in the desert, for instance.)

The kind of scarcity you are talking about, though, involves produced goods, even if they are farm goods. That implies some kind of social organization - which is completely left out of your premises.

Michael

Post 50

Saturday, October 1, 2005 - 3:15pm

MSK,

Rights exist in a social context only. They do not exist outside of a social context.

In terms of legal rights, I agree. In terms of natural/moral rights, I disagree. (And don't worry, I've read Man's Rights and the rest of Rand's related writings on the subject.) I talked about this at length on OWL and on the Objectivist forum called killdevilhill. Maybe I'll dig that up for you and start a new thread.

The kind of scarcity you are talking about, though, involves produced goods, even if they are farm goods. That implies some kind of social organization - which is completely left out of your premises.

The scarcities I'm talking about are the ones Coase is talking about. In the meat/crop example, the scarcity is land. In the doc/confectioner, air or volume control, if you will. Again, market forces exist whenever there's demand for a scarcity. These scarcities are in demand; ergo...

Jordan

Post 51

Saturday, October 1, 2005 - 4:19pm

Jordan,

And don't worry, I've read Man's Rights and the rest of Rand's related writings on the subject.

Well, I guess that settled it, then.

//;-)

Michael

btw - You're still sidestepping social organization.

Post 52

Saturday, October 1, 2005 - 4:42pm

MSK,

I don't mean to side-step social organization. I just don't understand what your point is. If I had to guess, I'd say you're trying to move from the idea that moral/natural rights can't exist without social organization, to the conclusion that first in time and not harm minimization is the proper rule for determining who has what legal right. But that's a guess.

Need input,
Jordan

(Edited by Jordan on 10/01, 4:43pm)

Post 53

Saturday, October 1, 2005 - 5:32pm

Jordan,

Close, but still no cigar.

Without a constituting body, rights do not exist in practice. A group of people first get together and form a group. They do not have scarcity of produced goods or raw materials first. There is a herding component in the human psyche (in most of us, anyway) - at least this has been borne out by anthropology.

Once goods start being produced through conceptually designed means instead of hunted and plundered, the interaction of mutual benefit through specialization becomes manifest and the reality of the individual as an end in himself becomes a conscious value.

Based on the nature of how that group is formed, the how and why a person can own the physical resources at hand will be defined. Not the contrary (scarcity and who got there first).

Someone can get there first and stake out his claim - but then be bonked over the head and wasted by the rest of the tribe. What right does he have then?

That is why ignoring social organization is a fundamental error in talking about scarcity and first time access if the nature of rights is the issue.

Michael

Post 54

Saturday, October 1, 2005 - 5:51pm

Hey MSK,

Dude, still not following. I'm trying though.

Without a constituting body, rights do not exist in practice.

What do you mean by "constituting body," and do you mean legal rights or moral/natural rights?

They do not have scarcity of produced goods or raw materials first.

Eh? Scarcities don't necessarily have to be produced to be scarce. Caves, for example, were scarcities for cavemen. Scarcities just need to be limited and in demand.

Based on the nature of how that group is formed, the how and why a person can own the physical resources at hand will be defined. Not the contrary (scarcity and who got there first).

So how do we determine, based on the group formed, who gets what rights? I should expect an answer in your pending article?

Someone can get there first and stake out his claim - but then be bonked over the head and wasted by the rest of the tribe. What right does he have then?

I believe Objectivists would say his right was violated, so he no longer has that right, and unjustly so because Objectivists go for first in time.

I really don't mean to be difficult. Please elab or rephrase. If other people see what MSK is getting at, please feel free to assist.

Jordan

Post 55

Saturday, October 1, 2005 - 6:10pm

Jordan,

Now we are talking past each other (even going zebra - blech!).

I thought I was clear that the dichotomy between legal rights and moral/natural rights was a false one (for the reasons I gave). So discussing this issue based on this premise with me is useless. You can agree or disagree, but my definition of rights does not entail that kind of difference. Sort of like giving yellow and Wednesday as alternatives because the sun usually shines on Wednesday.

There are only two ways to determine or define rights - either by force of the strongest, or by the mutual consent of those who constitute the group's governing system based on ethics or religion.

Hmmmmm...

I thought I already said all of that...

btw - A cave for only one caveman is only a scarcity if it cannot be found. Without other cavemen and cavewomen (and cavekids and cavebabies), there is no dispute.

(ahem...) Social organization, even on that scale, is needed to define these things. Once you define what kind of social organization you have (and if by mutual consent, what ethics or religion is the standard), then scarcity and first time access can become a rights issue. Like I said, not the contrary. Your argument (or is it Coase's?) is missing an essential component on the premise level.

Michael

Post 56

Saturday, October 1, 2005 - 7:21pm

MSK,

For traditional natural rights theorists (which I thought Objectivists mostly were), distinguishing moral/natural rights and legal rights shouldn't be so controversial. As an example, US slaves in the 1800s didn't have the legal right to be free, but they had the moral/natural right to be free. If you reject this, I have a strong suspicion that you reject natural rights theory. And I suspect you do because you wrote:

There are only two ways to determine or define rights - either by force of the strongest, or by the mutual consent of those who constitute the group's governing system based on ethics or religion.

Natural rights theorists would disagree with you, arguing that rights are not determined by force, nor by government of mutual consent, but by nature, and it's up to us to discover and recognize those rights.

btw - A cave for only one caveman is only a scarcity if it cannot be found. Without other cavemen and cavewomen (and cavekids and cavebabies), there is no dispute.

Totally lost me. Probably not important though. I'm using "scarcity" as economists do. If there's enough of something to go around --like caves, for example -- then it's not limited, and therefore not a scarcity. A thing becomes a scarcity (or more of a scarcity) when there's not enough of it to go around, which happens either when supply decreases -- i.e., the thing becomes limited -- or demand increases.

In any case, I see that our disagreement rests with distinguishing moral/natural rights from legal rights. However, I'm not sure your view clashes with Coase's. To figure that out, it'd help if I knew how you thought rights should be determined. You can tell me you want rights to be determined by "mutual consent of...the group's governing system based on ethics....," but that doesn't tell me what you think those folks should consent to nor why.

Jordan

Post 57

Saturday, October 1, 2005 - 8:24pm

Jordan,

Starting to unveil too many goodies here. I am reserving some things for my article.

You still do not acknowledge that you need at least two people for rights to exist. But you do. They do not exist for a man stranded on a desert island. Right to life? He has no right. Just an overwhelming need to do stuff in order to survive.

In my single caveman example, how many caves are needed to "go around" for one person? For him, scarcity entails merely finding a cave and using it once he does. Any right to it based on scarcity has no meaning.

Slavery is a perfect example of contradictory rights being enforced by force, then the more illegitimate one being overturned legally by the superceding one. The one that was the most consistently legal and moral won out. Note: not the legal right as opposed to the moral right.

What they needed to do back then was define a black man as a man, then the rest legally followed - all men being created equal and so on. Getting to that definition entailed a war, which is the principal way of reconstituting a governing body.

The main problem with Libertarian type thinking is that rights and liberty are raised to metaphysical absolutes (based on "nature," which to Locke, was created by God anyway).

But rights do not exist like bunny rabbits and mountains do. They exist only in relation to human society and relationships - they are principles adopted and enforced to define what people can do and have freely. For Objectivists, they are based on ethics, which are based on the nature of man as a volitional and conceptual being.

That is the derivation of rights. Believe it or not, this is implicit in what the Founding Fathers laid down.

The ethics of Coase are more based on survival of species or something like that. Not mankind as Objectivism understands it - and principally not on any definition of individual, other than something vague like "single person."

You are right, however, about one thing. We need to talk about the rights that are on the law books in different societies as they exist. Where you and I have differed so far is that I think we need to examine their moral implications - meaning that they are based on some kind of morality - in light of how the law is morally set up and you think that a moral right is another kind of animal altogether from a legal right.

Objectivists in general deny that rights (which are both legal and moral) exist except for individual rights as defined by natural law. They deny, for example, that rights exist in an Islamic country. However in a country like that, the grounds will be the Koran, not Objectivist type ethics. What's on the books are still rights, though. Just not rights based on ethics derived from the nature of man and reality, but on the word of Allah instead.

That is one of the things I am highlighting in my article. When Objectivists and Libertarians go on like that, the rest of the world simply stops listening because people see rights being defended in courts the world over in all societies. Then they hear one of our side state that even though people use the word "rights" in that society, what they are in court over is really something else because rights do not exist there. So remote control time happens. Click. Change channel.

Michael

Post 58

Saturday, October 1, 2005 - 8:47pm

Jon wrote, "Yes, I do understand the nature of principles. And now I understand your understanding of them: You take them for absolutes that apply always, no-matter-what. So you would force an enterprise to shut down, or force them to change their techniques, even if it meant making it uncompetitive and bankrupting them�over one dead fish per month in a stream containing 50,000 fish."

I would force them either to close down or to work out a mutually satisfactory solution with you and your fishery, such as compensating you for the lost fish. If providing you compensation for the small amount of fish that it is destroying makes them uncompetitive, then on what grounds can they claim a right to stay in business? Does a company have a right to remain competitive if doing so means destroying the property of another company? I don't think so. Let's assume that providing you compensation did not render it uncompetitive. If the alternative for the offending business (let us call it a Paper Mill) were either to close down or to offer you a mutually agreeable form of compensation for the lost fish, I'm sure it would consider the latter the more satisfactory alternative, since the amount that it would presumably have to pay in compensation would almost certainly be very small, since the number of lost fish that you are suffering is also very small.

Let's say, in accordance with the Coase Theorem, that you would be better off allowing the Paper Mill to continue in operation than forcing it to close down, if it were willing to pay you something ~more~ than the value of the fish that you lost from its pollution. Then it would be in both your interests for the Paper Mill to continue in business. You would benefit, because you would now be making more profit by its continued operation than you would if it were to close down, and the Paper Mill would benefit, because it would be permitted to continue its operation, despite the fact that it is killing some of your fish.

Remember, the Coase Theorem is consistent with at least one of the parties having a property right against the other. The party with the property right (in this case the fishery) can then make the other party an offer that is mutually satisfactory. That is the beauty of it, as it provides a way for both parties to resolve their conflict without either of them being forced to close down. In this respect, the Coase Theorem is eminently sound and indeed quite ingenious.

Where I part company with Coase is that he didn't subscribe to a Lockean theory of property rights, nor did he consider property rights to be inviolable. His position was that it doesn't matter in whom the property right resides. True, it doesn't matter in order for his bargaining scheme to work, but it ~does~ matter if individual rights are to be upheld and people are not to be at the mercy of leviathan. When property rights are not absolute, it is the power of the State that ~is~, because the government then has an absolute authority to dictate what is to be done with your life and possessions. You exist not by right but by permission, a permission that can be revoked at the State's arbitrary discretion.

- Bill

Post 59

Saturday, October 1, 2005 - 9:30pm