tag:blogger.com,1999:blog-17908317.post6201521575062543675..comments2024-03-28T03:15:14.875-07:00Comments on Unenumerated: Hohfeld without "the state"Nick Szabohttp://www.blogger.com/profile/16820399856274245684noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-17908317.post-18444263283630297312007-08-02T20:40:00.000-07:002007-08-02T20:40:00.000-07:00I appreciate your admission that your example "mig...I appreciate your admission that your example "might confuse". But perhaps you should have admitted even more.<BR/><BR/>You don't seem to distinguish between the Hohfeldian "no-right" concept (which is the lack of a specific right) and a more general, English language statement of "no rights" because he cannot sue.<BR/><BR/>You write "Hohfeld defined these ideas as relationships between persons." But then you hypothesize only one person, Crusoe, and claim he has "perfect freedom". Who does he have this relationship with, to have Hohfeldian freedom?<BR/><BR/>You write 'It's shameful for you to claim that I "seem to misunderstand" this': well, this example isn't merely an ambiguity, it's a first-class logical blunder about null sets of persons. You seem to have that overweening libertarian arrogance that your unorthodox interpretation makes you correct and everybody else fools, and it's shameful for us not to recognize your rightful superiority. Sorry, that provokes giggles.<BR/><BR/>And then you go on to an amazing rant, conglobulating and conflating rights, justice, revenge and who knows what else. You willy-nilly spew accusations that other people 'reflexively believe in and worship "the state"' because of the 'Romanist and now dominant mythology of "the state"', yet ignore the fact that it's easily documented that there have always been countervailing forces/interests besides the state, such as the Roman household.<BR/><BR/>You write "for accurate analysis of political and legal systems, it is "taking the law into your own hands"... that is the rational starting point." In other words, you're talking simple Hobbesian anarchy. I agree with that: it's a much better place to start than with Lockean or other mythology. "Taking the law into your own hands" has been abandoned for alternative methods of enforcement innumerable times in many societies for a wide variety of good reasons: not mere mythology. There's a fair-sized modern law and economics literature explaining why it is economically inefficient in many cases. And of course, Locke wrote about the problems of partiality. <BR/><BR/>The distinction between a rights claim and an enforced right is crucial to applying Hohfeld to situations without a state. Hohfeld's analysis is premised within a legal system with enforcement. When you put people on a desert island, it is comical to think the same premises hold. <BR/><BR/>For example, say Crusoe says "This is my palm tree." And Dalrymple also says "This is my palm tree." These are rights claims. They are free, and can conflict. But neither of them actually has a right unless there is enforcement.<BR/><BR/>Where there is a right, there is a remedy. - Broom's Legal Maxims<BR/><BR/>You are correct that revenge is one method of remedy for rights. But it's also a remedy for many things that we won't acknowledge as rights: things we consider mere emotional impulses. So we also need to consider the fact that rights arise not only out of individual interests, but also out of other emergent phenomena such as social norms. Desert island scenarios are insufficient to show these sorts of emergent phenomena.<BR/><BR/>I've been hunting for something coherent to understand rights for a long time. I've not yet found it spelled out in one place, and have had to roll my own. This is what I've come up with so far:<BR/><BR/>A "right" is of the form "RIGHTHOLDER claims a right to CONTROL a THING, receiving a BENEFIT; creating a reciprocal obligation (or duty) for OTHERS to permit this despite incurring INCONVENIENCES because of threatened HARMS produced at a PRICE by ENFORCERS". (It can get lots more complicated.)<BR/><BR/>BENEFIT (B), PRICE (P), HARMS (H) and INCONVENIENCES (I) are all values that are assumed to be fungible in some manner. That doesn't require the form of modern markets: indeed, tit-for-tat and other strategies that work with a simpler form of fungibility increasing or decreasing life, labor, time, pleasure, pain, or other subjectively valued things.<BR/><BR/>Rights will tend to be created when B > P, and H > I.<BR/><BR/>Modern ideas of "good" or "moral" rights also meet the constraint (B - P) > I.<BR/><BR/>For example, "Joe (R) claims a right to farm (C) on his property (T) for commercial sales (B), and neighbor Fred (O) has to tolerate the odors, noise, traffic, etc. (I) because if he interferes he will be fined (H) in a civil lawsuit (P) brought by Joe in court (E)."<BR/><BR/>For example, "Thomas (R) claims a right of chattel (C) over Dred (T) for slave labor (B), and Dred (O) has to tolerate the indignity (I) because if he attempts to escape or resists, he will be hunted down or punished (H) by privately hired (P) slave hunters or overseers (E)."<BR/><BR/>If you know of a similar or better description, I'd like to know.Mike Hubenhttps://www.blogger.com/profile/01371469964446567690noreply@blogger.comtag:blogger.com,1999:blog-17908317.post-14672804681494322952007-08-01T12:09:00.000-07:002007-08-01T12:09:00.000-07:00Indeed, I'd go so far as to say that revenge is th...Indeed, I'd go so far as to say that revenge is the origin and basis of justice. Crusoe taking revenge because he believes Dalrymple has breached their implicit or express understandings about rights and duties -- and vice versa -- rather than invoking a "wise giant" or "the state" is the proper starting point for the analysis of justice.<BR/><BR/>Of course, you like me have probably been trained since kindergarten to stand aghast at such statements -- how dare I suggest that "taking the law into your own hands" is a more original and general form of justice than trusting your parents, your teachers, or "the state" to mete out justice? It goes against everything these authorities have drilled into our heads. All our lives we have been trained to reflexively believe that revenge is criminal and to defer it (in the rarified form of "justice") to some higher authority. To take the law into your own hands is considered by believers in "the state" to be always itself a criminal act. <BR/> <BR/>And indeed, I do not deny that such authorities (which are in fact far more multifarious than "the state") are often more efficacious than revenge. But more importantly, it is a world in which there were no standards regarding rights and duties, and the associated remedies, that would be a very awful place. But in fact in our real legal system, which has to at least some extent defer to reality, there are many situations where taking the law into your own hands is perfectly legal and proper. There are many more situations where it is proper and it would be quite useful to make it legal -- but we don't because most legislators and judges like practically all moderns reflexively believe in and worship "the state". Even most libertarians reflexively believe in "the state", and tilt at it like a vast windmill. What should rather be attacked is the ideology that constructs and assumes this great fiction -- include libertarians who fulminate at "the state", and consider that if it magically disappeared the world would be a utopia. But in fact it already does not exist, and never existed, and the world is not and never has been a utopia.<BR/><BR/>More basically and relevant to this thread, for accurate analysis of political and legal systems, it is "taking the law into your own hands", and not the Romanist and now dominant mythology of "the state", that is the rational starting point.<BR/><BR/>Given this far more accurate starting point, it is far easier to see the various alternatives -- political property rights, choice of law and choice of forum being supreme among these -- to the Romanist mythology of "the" monolithic state.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-80266285870123500182007-08-01T11:35:00.000-07:002007-08-01T11:35:00.000-07:00It's shameful for you to claim that I "seem to mis...It's shameful for you to claim that I "seem to misunderstand" this -- I don't -- but you are correct insofar as my example of Crusoe by himself may confuse, as there are two different no-rights going on here. Crusoe has full freedom and nobody has any rights against him (because there is nobody to have such rights). That's the Hohfeldian correlative. (Because Hohfeldian terms are based on relations between persons, here we have to invoke a "nobody", a null person, to define the correlative). Crusoe also has no-rights. You're correct that Crusoe's own no-rights are not the the correlative to his own freedom.<BR/><BR/>The Crusoe/Dalrymple example of lawlessness -- where there is still full freedom and no rights between two people -- serves to clarify where the correlative lies.<BR/>Crusoe's no-rights are Dalrymple's freedom and vice versa.<BR/><BR/>MH: "Your analysis also suffers from avoiding the distinction between a rights claim (I say this is my right) and an enforced right (and I'm credibly threatening you about it.)"<BR/><BR/>The claim is either frivolous (in the broad sense of being unenforceable, whether due to its lack of plausibility or for lack of enforcement mechanism) or a threat of some degree (plausible, credible, or near certain). While those are important distinctions they are not necessary to understand the basics of Hohfeld, nor to clarifying Locke's theory.<BR/><BR/>MH -- "The degenerate case of Dalrymple and Crusoe doesn't fit the model of rights well because the enforcement is questionable. The better the enforcement, the closer the right works as a description."<BR/><BR/>That enforcement is questionable doesn't stop it from being well-defined logically as a right. Furthermore, there are a variety of scenarios where Crusoe can enforce his rights against Dalrymple and vice versa. Revenge may be primitive (and oh so unpopular in a world where we are trained from birth to trust "the state" for any such thing), but it is hardly nothing.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-41590212727891472472007-07-31T17:36:00.000-07:002007-07-31T17:36:00.000-07:00You seem to misunderstand Hohfeld in your Crusoe e...You seem to misunderstand Hohfeld in your Crusoe example. "Freedom" and "no-right" are correlatives because if you have freedom, others have no rights claims against you. In your example, you say Crusoe has no rights because there are no other people he could have rights against. In a simple case, you could have freedom to walk anywhere, and others would have no-rights (lack of rights to hinder your walking.) Yet despite your freedom, you could have rights against those others for any other thing.<BR/><BR/>Your analysis also suffers from avoiding the distinction between a rights claim (I say this is my right) and an enforced right (and I'm credibly threatening you about it.)<BR/><BR/>Rights claims are free, and can multiply like angels on a pinhead because unenforced claims do not physically conflict. Enforced rights are costly because they are physically enforced, and exclusive because they would otherwise physically conflict. Because normal ideas of rights are exclusive, they fit the definition of enforced rights.<BR/><BR/>Dalrymple and Crusoe start with rights claims, perhaps mutually agreed to. Some people say acknowledgement is what transforms a claim into a right, but that is merely a mechanism of enforcement in societies where word is considered<BR/>bond, and people who break their word are penalized. If they have penalties in mind, they are attempting to create rights.<BR/><BR/>But created rights are descriptive fictions: how well the world is compelled to fit the model is the question. The degenerate case of Dalrymple and Crusoe doesn't fit the model of rights well because the enforcement is questionable. The better the enforcement, the closer the right works as a description.<BR/><BR/>Rights patently don't require states: all they require is enforcement. They can be enforced by any societal mechanism, including traditions, shunning, you name it. Enforcing rights through states is an economic proposition, not a necessity.Mike Hubenhttps://www.blogger.com/profile/01371469964446567690noreply@blogger.comtag:blogger.com,1999:blog-17908317.post-84326656492105100012007-07-31T14:30:00.000-07:002007-07-31T14:30:00.000-07:00Indeed, thanks.Indeed, thanks.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-30123637058966169692007-07-30T22:10:00.000-07:002007-07-30T22:10:00.000-07:00Typo in the Giganticus/Gargantua paragraph, third ...Typo in the Giganticus/Gargantua paragraph, third to last, you probably meant:<BR/><BR/>Alternatively, if Giganticus is strong and Gargantua is wise, they might agree that Gargantua should decide the cases regarding any subject matter (i.e. act as a judiciary) and <B>Giganticus</B> should enforce them (i.e. act as an executive).Anonymousnoreply@blogger.com