A Coasean critique of rights-talk, part 2

In response to Professor Finnis’s analysis of rights in Chapter VIII of his book on “Natural Law and Natural Rights,” we began to present a general critique of rights-talk in our previous post. Specifically, we surveyed Ronald Coase’s economic analysis of the problem of harmful effects, using his classic example of cattle trespass. In this post, I will now explain the connection between Coase’s economic analysis of harms and the logic of rights. Simply put, the connection is this:

to say someone has a right to x is to necessarily harm some other party, whoever is now under an obligation created by the right. Whether we visualize the logic of rights as “a three-term relation between one person, one act-description, and one other person” (p. 199) or as a “two-term relation[] between [two] persons and one subject-matter” (p. 201), the assertion of a legal or moral right always poses a “reciprocal problem” between the potential beneficiaries of the right being asserted and the potential obligors under this same right, i.e. the person or persons who will now be under some kind of legal or moral obligation, as the case may be, to the beneficiaries of the right. Returning to Coase’s bucolic rancher and farmer example, both parties no doubt have property rights to engage in their respective ranching and farming activities, but whose right should we value more? The rancher’s right to raise cattle or the farmer’s right to grow crops? Either way, framing this problem (or any social problem) in terms of rights is spectacularly unhelpful.

I am not simply making a practical point about trade-offs, where we must weigh and compare (a) the cost to the farmer caused by the rancher’s decision to raise cattle instead and (b) the cost to the rancher caused by the farmer’s decision to grow non-cattle-resistant crops. In addition to making these trade-offs explicit, Coase’s analysis of reciprocal harms also generates a deeper philosophical point: neither party has an a priori moral or legal right to engage in their respective activities or to be free from harmful effects. For however we frame this right in the cattle trespass case–whether as the right to graze (pro-rancher) or the right to grow crops (pro-farmer)–the problem is going to be a reciprocal one. This reciprocal logic of rights is why rights-talk is generally just noise: when there is a conflict between competing rights, one side of the rights-duty equation is going to suffer harmful effects, depending on how we frame the right.

As a result of this reciprocal logic, an appeal to legal or moral concepts–fault or culpability; the common good or practical reasonableness–is totally unhelpful in solving this concrete problem of cattle trespass. Why? Because when we get down to deciding which party’s right to privilege (e.g. the rancher’s right to graze or the farmer’s right to grow crops in the cattle trespass case), the concepts of justice, practical reasonableness, the common good, etc. (take your pick) are simply too broad or indeterminate to be of any practical help. Furthermore, framing this problem in terms of “rights” is to simply pre-judge the merits of their moral or legal claims ahead of time.

Finnis, however, is right about one big thing. Disputes about rights are, at bottom, just examples of co-ordination problems. Why? Because such disputes are going to generate a need for some kind of dispute-resolution power. To borrow Finnis’s terminology, we are going to need someone with the “authority” or coercive power to reconcile these rights with each other. This (authority) just so happens to be the subject of the next chapter, Chapter IX, so stay tuned …

Image credit: Frances Woolley

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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1 Response to A Coasean critique of rights-talk, part 2

  1. Pingback: Critique of rights-talk: three key points | prior probability

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