Rebirth of Reason

Favorite EditSanction this itemHuman Rights as Game Strategies* by Hardin / Sugden
Human Rights as Game Strategies*Morality within the Limits of Reason
Russell Hardin (Chicago 1988)

The Economics of Rights, Co-Operation and Welfare
Robert Sugden (Oxford 1986, Palgrave Macmillan 2005)

Russell Hardin and Robert Sugden have independently employed game theory to expand our understanding of human rights. The relevance of game theory to rights theory is straightforward if we begin by recalling Ayn Rand’s observation that a right is a moral principle defining and sanctioning an individual’s freedom of action in a social context. Rights are deeply entrenched in social relations. Game theory can inform rights theory precisely because, as Hardin has observed “to have a right is to be free to take some particular kind of action in the context of actions by others” (Hardin 1986, 69).

The theory of games is the theory of interdependent decision-making. Game theory abstracts the formal, logical properties of social situations in which outcomes depend on decisions of two or more agents. It clarifies the relationship between actions and outcomes in such interactions. When a certain formal game can be recognized in a social situation, all of the properties that game theorists and experimentalists have discovered for the game can be expected in that social situation. Formal games have been used to classify and analyze many types of social interaction. Examples are nuclear deterrence and arms races, processes of bargaining and pricing, and the problem of public goods.

In the general outline of games having two participants, or players, each with only two alternative actions, each player chooses between two alternatives with no way to be sure what the other player is choosing until later. The game is now over. There are four possible outcomes, each corresponding to a particular pair of choices. The payoffs to each player from the four possible outcomes could vary in desirability as follows: One player might prefer outcome A over B over C over D; the other player might prefer outcome B over C over A, with D being perceptibly neither better nor worse than C. Each such dual set of preferences specifies a distinct game.

Conventional Character of Rights

Rights are principles of justice, and they are principles of social coordination. Conventions are principles of social coordination. Game theory illuminates both rights and conventions.

Long before the advent of game theory, David Hume concluded that principles of justice are purely conventional rules. In Hume’s view, justice is a convention. Hume did not mean to suggest that principles of justice are arbitrary rules on account of their ultimate conventionality. Rules such as general abstinence from taking the possessions of others are, in Hume’s view, rationally commendable conventions because they are conducive to public utility and our own individual well-being.

Hardin and Sugden find aspects of Hume’s social ideas attractive. They have extended and more solidly grounded Hume’s ideas using game theory. They have each emphasized different elements of Hume’s thought in constructing their own social theories. Hardin and Sugden evidently do not know of one another’s work; neither ever mentions the other.

The theories of Hardin and Sugden regarding conventions build upon earlier discussions by David Lewis (1969) and Thomas Schelling (1960). Hardin and Sugden have each recognized the vitality of one of Schelling’s insights into the emergence of conventions: in order to become a convention, a rule must possess some psychological prominence, some salience, that people might independently select.

Lewis advanced understanding of conventions using Schelling’s coordination games. In these games, there is no immediate conflict of interests; whatever the choices made by the players, it is the case that if either would have been better off had she alone chosen differently than she did choose, the other player would also have been better off. Two motorists approaching each other on a road just wide enough for dual passage face this kind of coordination problem. A convention such as “always drive on the right” can coordinate actions with mutual benefit on such an occasion.

Hardin and Sugden have each followed Lewis’s lead, but have undertaken to show how conventions might emerge in situations containing some incentives to cooperate, but also some immediate conflicts of interest. Coordinated outcomes are possible not only in games of pure coordination, but in games of partial conflict. Hardin concentrates on embodiments of the game of partial conflict known as the Prisoner’s Dilemma (one player prefers outcome A over B over C over D, whereas the other player prefers D over B over C over A). Sugden focuses mostly on games of Chicken (one player prefers A over B over C over D, whereas the other player prefers C over B over A over D) or close relatives of Chicken.

To illustrate the emergence of conventions in a situation of partial conflict, Sugden analyzes the case of two drivers approaching a crossroads. If both drivers were to maintain speed, the consequences would be worse for both than if both were to slow down. It would be best for each driver if only the other were to slow down. The result to be expected most frequently, the natural outcome of the game (#68 in Rapoport, Guyer, and Gordon 1976), in the absence of any convention, is that both drivers will slow down. The game has two equilibriums; these are the two outcomes in which one driver maintains speed and the other slows down. Those are the choice combinations with respect to which either player would suffer if only he or she were to change strategy.

Sugden is an economist with the feathers of Mandeville and Smith. He delights in showing how conventions can arise from the choices of individuals pursuing their own interests with no concern for resulting social patterns. Unfortunately he misses the pertinence of the fact that many individuals are so concerned. Those concerns can provide the salience required for a convention. Wagoners who must cross single-lane bridges might very well be attracted to the rule “yield to an opposing wagon that has already entered the bridge” out of concern for elementary social utility.

The same sort of flaw appears in Sugden’s account of property rights as conventions. His account is stunning nonetheless. He has demonstrated that property conventions would tend to arise that favor one of the equilibrium outcomes in each of recurrent game situations people would face under social anomie, or “the state of nature.” From social conditions in which each would simply take whatever he could lay his hands on, rules for property appropriation would emerge spontaneously that favor either precedent possessors or challengers of precedent possessors.

Why, then, does common law favor precedent possessors? What gives possession the psychological prominence required to be selected as the conventional rule? Sugden suggests several possibilities: There is the saliency for humans of the number one among all counting numbers and of firstness more generally. On average, possessors may attach a higher value to disputed resources and so may be expected to fight harder, or possession may, on average, confer some advantage in a fight.

Sugden recognizes that the expenditure of labor on objects is also commonly perceived as conferring ownership, but he supposes that the saliency of labor expenditure arises derivatively from the saliency of possession. Expenditure of labor is a way of registering a claim of possession, a way of establishing association between person and object that may be seen as a possessory relation. Possibly so, but surely labor could acquire saliency in addition from considerations of simple social utility and feelings of empathy. Social utility should also be admitted as a plausible reason for convergence upon property rules that favor possessors rather than challengers of possessors.

Moral Aspect of Rights

David Hume surmised that the moral quality we attach to principles of justice is due to a generalization of the sympathy we feel for victims of injustice. We sympathize, to limited degree, with the interests of the general public. Because justice secures the public interest, we count principles of justice as moral principles.

Here Sugden parts company with Hume. Sugden attempts to show how people, pursuing not some general public interest, but their own parochial interests, could come to feel that conventional rules, such as rules of property, morally ought to be respected. He argues, for example, that once there is established a convention that one retains, by force if necessary, possession of those things one has possessed in the past, it is in one’s interest to follow the rule “thou shalt not steal” provided almost everyone else does and provided one possesses something. “Thou shalt not steal” becomes the norm; people come to believe that everyone ought to follow it because violators are a threat to people who do follow it. “At least some of what we take to be our rights are grounded in nothing more than convention” (Sugden 1986, 177).

This view of the role of convention in morality is an exaggeration. It is not at all plausible that property rights are grounded in nothing more than convention. It would hardly be more ludicrous to argue that moral injunctions against homicide are grounded in nothing more than customary laws that emerge to set limitations on blood feuds between families in primitive societies (Fuller 1981). Why would those peoples attempt to prevent wars to the death between families, through conventions such as “one life for one life,” if they did not already apprehend that being killed is generally undesirable? Is it plausible that the prevalence of moral strictures against homicide today is the result only of our cultural ascent from families that evolved limitations on blood revenge?

Sugden does not imagine that his reduction of moral precepts to convention applies to all moral precepts. For the important precepts to which he does apply the reduction, the reduction must fail to be total; the precepts are not social conventions through and through. Sugden errs in making the common assumption that as children we get all of our social standards from adults.

Two-year-olds are capable of inferring that the pains they suffer in various circumstances are also suffered by others in those circumstances; the child acquires the capacity for empathy and spontaneously regards restraint of aggression as good. By the third birthday, the child has developed a sense of self, a self that can acquire objects and maintain control over them. Jerome Kagan suggests that the inhibition of aggressive behavior in young children is not based solely on fear of adult punishment, but is supported by endogenous standards (1984).

Young children’s standards that are not picked up from adults are not conventional. Their formation evidently attends development of the central nervous system and specific cognitive competences. We come to our culture with values deeper than culture, with values that are then reinforced or developed further by social interaction.

Unlike Sugden, Hardin does not shun Hume’s utilitarian basis for the moral rightness of justice and property. Hardin warmly embraces the broad strain of utilitarianism developed by Hume, Bentham, Austin, Mill, and Sidgwick.

For Hardin goodness is goodness of the outcomes of our actions. Goodness should be judged by the degrees to which outcomes secure benefits to all concerned. Rightness of action is imputed from goodness of outcome. Human rights should be respected because of the human welfare they facilitate.

Exactly what human welfare consists of, Hardin deliberately leaves fairly open. Why human welfare is the good, he admittedly does not attempt to answer. The same sort of stance is taken, though less candidly, by Jan Narveson with regard to the value of human liberty. If liberty is only instrumentally valuable, as Narveson claims, then to justify liberty one must do what Narveson does not attempt: Justify the non-instrumental value of as least some of the results made possible by liberty (1988).

The circumstance that the value of human liberty or human welfare is largely merely presumed by Narveson or Hardin does not mean that these philosophers have nothing to teach us about those subjects. As Robert Nozick once remarked, there are words on subjects worth saying besides last words.

Utility of Rights

Russell Hardin (1986) sees rights as strategic protections of people against people. Rights shepherd the interests of individuals not by directly securing outcomes, but by securing or denying individuals certain choices or actions.

Rights of ownership and rights of voluntary exchange are strategic protections: one person having a car and another having money, each preferring to have possession of the other yet preferring even more to have both car and money, are players in a game of Prisoner’s Dilemma. The right of ownership is protected by blocking the outcomes in which one takes the possession of the other while yielding nothing in return. The right of voluntary exchange is protected by blocking interference with the move from the outcome in which each keeps his prior possession to the outcome in which each yields his prior possession.

Ownership rights and voluntary exchange rights are commendable on utilitarian grounds because voluntariness of possession and exchange can be reasonably taken to indicate preferences and thus, presumptively, enhanced welfare. It is reasonable to suppose that individuals are generally the best judges of their own interests. In addition, securing such rights gives incentive to anyone capable of doing so to enhance the well-being of all or many of us by creating new wealth.

Should one then conclude that a social system in which full liberal property rights are instituted is the best arrangement for overall welfare? Both Hardin and Sugden are dubious of that conclusion.

Remember that for Sugden (1986) property rights are conventional rules that originally evolved spontaneously out of social conflicts. According to Sugden, a convention that emerges spontaneously for some recurrent situation serves the interests of the participants, but it is not necessarily the rule that would best serve those interests. Since his demonstration of this latter clause proceeds only in terms of abstract hypothetical rankings of outcomes for the players, it really only demonstrates an abstract possibility. A concrete historical example would carry more weight.

Although we cannot say for sure whether spontaneously emergent conventional rules are always the best possible for the people who originally generate them, we can be reasonably sure that such conventions are not always the best for people who later get stuck with them. They are essentially “stuck with them” because changing an established conventional rule is always costly.

Nevertheless, a change of convention may sometimes be worth the cost. It was apparently worth it for the Swedes when they switched to driving on the right side of the road, back in 1967, to reduce accidents with increasing numbers of foreign drivers.

The coordination rule “drive left” that had emerged virtually spontaneously more than 200 years earlier could not in 1967 have been reformed spontaneously without mayhem. Recoordination was directed by the government, an institution which is itself something of a convention (Nozick 1974). Hardin, the utilitarian, would sanction interventions of modern governments to resolve new problems of coordination.

Hardin (1988) takes such activities to be peripheral to the state’s primary coordination functions of regulating situations of inherent conflict, situations exemplified by Prisoner’s Dilemma. Only coordination rules for these situations are addressed in the idiom of rights.

In addition to simple individual rights, Hardin speaks also of “collective rights” and “group rights.” Collective rights protect members of a class, on average, against individual members of that class. Group rights specially protect a class or group against members of another class. Collective and group rights are individual rights in the sense that they are possessed by individuals. They are distinguished by the fact that they are justified mainly from consideration of collective or group welfare.

The task of assessing the degrees to which various rights protections, various strategic limitations of choice, would secure benefits to all concerned is exceedingly difficult. Hardin is sharply aware of the difficulties and their sources.

We are limited in our knowledge of current conditions and causal relations, including strategic interactions; future generations and individual preferences are uncertain. We are limited in time for calculation; the search for solutions must eventually be halted. Such limitations also encumber the pursuit of one’s rational self-interest.

One stringent limitation on our ability to assess overall social welfare is our severely limited ability to make interpersonal comparisons of utility. That is, we usually cannot say whether the degree to which I prefer outcome A over B is greater or less than the degree to which you prefer B over A. Indeed many distinguished economists have held that all such statements are meaningless.

On the other hand, the obstacles to a coherent theory of how to make interpersonal comparisons of utility must also be surmounted in any complete theory of how individuals make comparisons of their own utilities over time (March 1978; Nozick 1977). Nozick has noted also that we need a theory of interpersonal utility comparisons to construct a sound scheme of retributive criminal penalties. He has crafted a theory of how to make interpersonal measure-comparisons of utility (Nozick 1985).

Nozick, Hardin, and Sugden have all noticed that at the level of common sense we do seem to be able to make interpersonal comparisons of utility in very simple cases. “Who needs a bowl of rice more, you or a starving peasant in Ethiopia?” (Sugden 1986, 100). There are contexts in which it would be obviously true, to take another example, “that my mosquito bite is less harmful to my welfare than your broken hip is to yours. Presumably you would not disagree . . .” (Hardin 1988, xix).

Collective rights protect interests that are subject to problems of collective action. Hardin treats as collective rights cases in which one party to a possible voluntary exchange or contract for exchange is a member of a larger class of people who seem to have a common interest in not being able to enter into such exchanges. Hardin thinks that workers constitute such a class. Through the option to bargain individually with employers, workers are pitted against each other in an n-player Prisoner’s Dilemma. We might coordinate our n-fold individual negotiations, but roughly speaking, the larger is n, the more difficult will be coordination. We end up worse off than we would be were we denied the option of bargaining individually (Hardin 1988; 1982).

Here Hardin stumbles on the particulars of the case. By his own standards, it is very doubtful that the overall bargaining position of workers is improved when all possible workers are considered. It is possible that any apparent gains by workers are actually offset by shifts in capital structure. Even if the position of workers were improved, at the expense of resource owners and entrepreneurs, by collective bargaining rights, it is not at all clear that the overall welfare of the population would be enhanced.

Other collective rights upheld by Hardin on utilitarian supports are those secured by barring entry into voluntary slavery contracts and into duels to save one’s “honor.” It seems that the utilitarian case for these collective protections is valid, at least if one is willing to restrict just a little what may pass for human welfare.

A good example of a “group right,” a right that protects members of one class against those in another, would be the right of a certain population to self-government. Unfortunately, Hardin exhausts his attentions on subsistence rights, whose characterization as group rights is highly contrived.

To bolster the utilitarian case for rights to subsistence, effected by governmental transfers of wealth, Hardin switches our focus from consumption preferences (as revealed in voluntary transactions) to interests. He observes correctly that we trade off our consumptions with our interests. He then supposes that we use the notion of interests as a proxy for alternative consumptions, possibly not yet determined nor even considered; interests stand to consumptions as money stands to goods. When estimating the welfare of people in large groups, we can speak sensibly at least of their interests and resources, of their possibilities for consumptions (Hardin 1988).

Could we enhance overall welfare by siphoning a trickle from rich to poor? Hardin would like to think so, but considering the offsets, we reach no clear answer (ibid., 96–99, 123–37).

Our interests, at any rate, are not entirely reducible to consumptions, actual or potential. There are things that can and should matter to us besides our consumptions or experiences. Nozick invites us to enter his magical Experience Machine, the machine that can henceforth give us every experience we might want, and asks why we hesitate. Because we want to be authentically connected to the world (Nozick 1974).

One circumstance weighing against a thoroughly utilitarian value theory and rationale for rights has not been broached by Hardin. We know well enough what kinds of entities there are above the level of organisms in the biological hierarchy of nature. There are real organic entities, real working systems, at the population level, at the ecosystem level, and at the biogeographical level (Salthe 1985). But aggregations of organismic utilities are not manifestly valuable to entities at those higher levels. Where is the entity for which transpersonal aggregations of utility are valuable? Perhaps such aggregations have value only to us individual organisms. Perhaps they are only elaborations of our most general affections for human kind and life. Those affections could have rational, adaptive value. Utilitarian assessments could have a part in, yet not be the whole of, rational morality.

* This review article of mine was written in 1988 and published in 1994 in Nomos: Studies in Spontaneous Order. I would like to thank the editor Carol B. Low for improvements of expression.


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