Among other examples of poor word usage, double-counting is one of the most common ways the language of politics is deformed. Before turning to one particularly audacious example of this, we must commence by clearing the ground of one or two side issues.
"Right" is inseparable from the matching obligation whose fulfillment is the necessary condition for the right to be exercised. The obligation must be at least implicitly present in the description of the right and the identity of the obligor must be clear. Without an obligor to service it, the right is meaningless, an intentional sham, or a thoughtless negligence.
Freedom is what ever is left of a feasible set after the rule of justice has blocked out parts of it as illicit. Questions about freedom are really questions about the rule of justice and the view we might take about the normative validity of the various types of rules, notably about spontaneous conventions and laws. In reasoning about freedom it is almost a knee-jerk reaction to start talking about "freedom to" and "freedom from" or in due dialectical spirit, of " positive" and " negative" freedoms. This is a regrettable red herring that has misled many a well-meaning theory. The positive freedom to travel is none other than the negative freedom from frontier control, visas etc. that prevent selected persons from travelling freely. The negative freedom of habeas corpus is the positive freedom to defend oneself against abusive authority. The concept of freedom does gain in clarity by roughly dividing it into classes, but they are not matters of poorly understood dialectics.
Do We Need Rights To Freedoms?
In ordinary speech, a freedom is almost invariably and deplorably called "a right". This usage occurs in three classes of freedom.
1a. "I have a right to drive on the toll-free highway". If the highway is free, the right to drive on it adds nothing to the freedom. It simply double-counts it. Adding it is not an innocent mistake. It also conjures up a source that has the right to confer the right—a Pandora's box.
1b. "I have a right to choose the red or the green". If the choice is free between a red and a green object it is redundant to assert that you can exercise this freedom.
2. "I have a right to drive to my office in my own car" " I have a right to mow my front lawn, or leave it to be over grown by weeds". Though called "rights" these freedoms are typically challenged because of the externalities they generate. By taking the car instead of public transport, I create traffic congestion. By not mowing the lawn I spoil the pretty picture of our street and damage property values. However, until and unless the question of externalities is decided by conventions or by the courts in favour of the plaintiffs, the presumption of my freedom remains and there is no place for "rights" in it. Adding them is double-counting. Confirming the freedom by topping it with a right does nothing more than assert the claim that a negative externality must be recognised.
3. "I have a right peacefully to pursue happiness". "I have a right to bodily and mental integrity." These are freedoms vulnerable to violations of the rule of justice. My pursuit of happiness may be obstructed by violence or usurpation, my right arm may be hacked off and my mind driven crazy by long hours of heavy metal rock or endless and threatening nagging. You still have these freedoms, but their defence is not any better assured by calling them "rights" or adding rights to the freedom. Corrupting a child, defrauding a pensioner of his savings, or blowing up the synagogue are wrongs. They provide incentives for rules to emerge that interdict and seek to suppress them. Potential victims benefit from these rules. They do so without needing to be given rights to the benefit. Such rights would be double-counting. The idea of a right of a person not to be wronged belongs to a foolish and topsy-turvy image of how the world works. A wrong is not wrong because we have a right to be protected against it, any more than an act is free because we have been given a right to carry it out.
Much of the double-counting that has been initiated in the last two centuries is spelt out in such declarations as the Bill of Rights. They somehow imply that the freedoms they list become stronger if they are described as rights. This paper contains that they are made weaker for two reasons. One is that the freedoms listed in a bill of rights look stronger than the countless others that are not so listed. The other, graver and more dangerous is that such lists of spurious rights presuppose a rights-giver, the collectivity, the people, or the state. Such a presupposition may be deemed harmless, and indeed a correct description of reality. The present paper denies both.
Rights Above Rights
For more on Julian Simon, see the EconTalk podcast episode Paul Sabin on Ehrlich, Simon and the Bet. Feb. 10, 2014.
The economist Julian Simon was a rich source of ideas, all of them original, many of them plausible but some hard to swallow. An idea of the latter kind was his claim that our generation has not earned what it has produced. It follows that it should not be paid the price at which this production is being sold, but only some much lower amount. How to assess the price it ought to get?
Simon's argument was that if the total production of our generation is being sold at 100 only about 10 rightfully belongs to its producers. The remaining 90 should be ascribed to the many generations that have lived through all human history that connect us to the primitive man who has only just descended from the tree. Simon has taken the productivity of this primitive man as being 10, about the same as the productivity of present-day natives on some very remote Polynesian island. Every generation since primitive man has achieved some little improvement in its methods, in its tools, in experience, and in the art of cooperating with others. It is only thanks to these improvements handed down and added to from generation to generation and to the capital inherited by each generation of sons from their fathers, that the productivity of modern man has risen to 100. Only 10 really belongs to him and can be spent or saved as he wishes. Yet it is neither feasible nor just for some authority to assign parts of the remaining 90 to particular persons who have lived in the past and made particular contributions to the rising productivity. What ought to be done instead is to declare that 90% of current production belongs to society as a whole and should be distributed to the present population in some manner to be decided by the political process—in effect, by the government.
The long and short of it is that because only 10 out of your pre-tax income of 100 is due to your own inheritance and effort and rightfully belongs to you, 90 should be taken away in taxation and handed back by the state to individuals according to some collectively decided pattern.
It is a colossal act of double-counting to require our generation to give up all but a fraction of the ownership of its production and hand it over to society, considering that in producing its output it has paid a full price to all the suppliers of the inputs that it needed for producing it. In buying these inputs, it has in effect paid for every useful thing handed down to it from the previous owners. The generation before ours, namely the suppliers of the inputs we used, have likewise paid for the inputs furnished to them by the generation before their own, and so on and on throughout the generations that have passed between ours and that of primitive man. Since all production has been paid for in some direct or indirect way throughout this chain, it is plainly double-counting to say that it must be paid for a second time by handing it, or most of it, over to society which will distribute it as it sees fit.
It is largely due to this audacious trick of double-counting that public opinion so meekly and indeed approvingly accepts the idea that while every body has a "right" to what he owns and what he earns, society or its representative, the government, has a kind of super-right which trumps the rights of individuals. Had the fraudulent double-counting not been implanted in public consciousness, some other idea would no doubt have come along to fill in any gap and make the supremacy of the collective will look legitimate. But none could outdo double-counting in subtle mendacity.
* Anthony de Jasay is an Anglo-Hungarian economist living in France. He is the author, a.o., of The State (Oxford, 1985), Social Contract, Free Ride (Oxford 1989), Against Politics (London, 1997), and Justice and Its Surroundings (Indianapolis, 2002). His most recent publications include Political Philosophy, Clearly (Indianapolis, 2010) and Political Economy, Concisely (Indianapolis, 2010). His next volume, Economic Sense and Nonsense: Reflections from Europe, 2007-?2012 (a volume in The Collected Papers of Anthony de Jasay), edited and with an introduction by Hartmut Kliemt, is forthcoming from Liberty Fund.
The State is also available online on this website.
For more articles by Anthony de Jasay, see the Archive.