The thesis of this paper is that when property rights are clearly and fully specified, it is impossible for rights to clash. If they appear to do so, then one or perhaps both of these “rights” is improper. For example, when so-called “positive rights” are relied upon. However, there is an exception to this general rule: when criminal behavior occurs.
Key words: Rights; private property; contract; liberty
JEL Category: P48
(Versión en español aquí).
Ordinarily, rights cannot clash. If they appear to do so, it is because at least one of them, maybe both, are mis-specified, invalid, or improper. Typically, such seeming incompatibilities between rights can be reconciled by adherence to private property rights. Or, to put the matter obversely, lack of fully specified private property rights are the cause of a seeming endless numbers of supposed rights clashes.
A nazis parade in Skokie
Let us consider a few examples. Should the Nazis be allowed to march in a parade in Skokie, IL? This is the home of thousands of Jews, many of them still sporting numbers tattooed on the back of their wrists, courtesy of the time they spent in concentration camps. But all people, including Nazis, have the right to enter onto the public streets; given that it is improper for the government to discriminate against people on the basis of their viewpoints (these Nazis are guilty of no crimes, let us posit, arguendo), and that others are allowed to parade from time to time, it is difficult to see why they, out of all the others who want to march, should be forbidden from doing so.
The cause of the problem, of course, is that there are public streets. If they were all private, that would spell the end of the problem: the owner would decide, and then his profits and losses would depend upon those who he pleased or insulted. There are no such rights clashes in private meeting rooms in hotels. The owners decide upon who shall rent their premises, and that is the end of the matter.
The right not to be discriminated against
Here is a possible push back against the foregoing: This proposed solution is too simple and thus overlooks a lot. For example, consider the claim that «there are no such rights clashes in private meeting rooms in hotels» — but of course they do occur. For example, hotelier A’s private property right is obliterated by customer B’s right not to be discriminated against. If you argue that Hotelier A commits a crime by discriminating, then your submission is begging the question as to what’s criminal — not just easy things like murder, but also minute things such as choosing your clientele. Or do you want to repeal the Civil Rights Act of 1964? That’s a tough hill to die on.
Customer B has a right not to be discriminated against? This violates the libertarian insight of free association. No one should be compelled to associate with anyone else against the will of either. All associations should be voluntary.
Homosexuals discriminate against half the human race in terms of love interests, sexual partnerships, etc. Heterosexuals, too, are equally guilty of discriminating against half the human race in terms of love interests, sexual partnerships. The only people not guilty of such discrimination are bisexuals. The Civil Rights Act of 1964, if taken to its logical conclusion would compel all of us to become bisexuals.
An expensive taste for discrimination
The obvious response to this devastating critique of this evil 1964 enactment is that proper law only prohibits discrimination in the commercial, not the personal arena. So, we can discriminate against anyone we want to in terms of friendships, love interests, etc. We are only prohibiting from doing so in the realm of business. But that is more than passing curious. Rape, murder, theft are against the law in both realms. Why should matters be any different when it comes to discrimination? If it is a rights violation, it should be a rights violation holus bolus, with no gigantic exceptions such as offered in this case.
Another argument, a weaker one, philosophically, against the free association position in which no one has a right not to be discriminated against, is the utilitarian one: people who are the victims of discrimination will be hurt, economically, thereby. This is an empirical claim, and a demonstrably false one.
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Why is it that discrimination is impotent to really hurt the targets of this practice? This is because every time it succeeds, it creates ammunition for its own demise. For example, consider the case in which some hoteliers discriminate against red headed people. This means that the supply curve of hotel space available to them has shifted to the left. This implies that they will have to pay more than otherwise would have been the case for such accommodation. If so, profits will rise for those establishments willing to cater to them. This means that those without this “taste for discrimination” will prosper and be able to drive out of business the discriminators.
A community of owners
Or, suppose that many employers decide that left-handed employees are less productive than they really are. The demand for the services shifts to the left as a result. Their wages fall. But their productivity has not changed by one iota. Thus, more profits than would otherwise be the case can be garnered by hiring such workers. As a result, firms that exhibit this “taste for discrimination” will lose out in the competitive struggle.
Here is yet another example. The front lawn fornicator engages in this sexual act right near the sidewalk, but entirely within his property. The local children are appalled, the horses are scared, and the neighboring homeowners are horrified. Do not the latter have the right to insist that this type of activity be banned? But what then of the rights of these outdoor lotharios? The answer, again, is private property rights supported via contract. Set up a homeowners’ association, a gated community or a condominium or cooperative development of several hundred homes.
Their democratically elected representatives can enact rules concerning not only activities of this sort, but any they wish: colors of the outside paint, what types of fences are to be allowed, prohibited, even the type of draperies or venetian blinds to be employed. Then, people will sort themselves out according to their tastes, and no more clashes will occur. In the libertine area, such behavior might even be required — on a weekly basis.
Similarly, in education, should school uniforms be allowed, required? What about Pledges of Allegiance and the singing of the Star Spangled Banner? How to deal with whether or not critical race theory should be on the curriculum? These conflicts can all be banished with the privatization of these institutes of learning. Then, again, customers will patronize entrepreneurs whose offerings are closest to theirs, and profits will be garnered by those firms which best reflect and promote consumer satisfaction.
If A has a right, then B has an obligation. In the case of negative rights, all is well. A has a right not to be murdered, raped, kidnapped, stolen from, etc. Thus, B has an obligation to refrain from these crimes. In sharp contrast, so-called positive rights are a cornucopia for incompatibilities. If C has a right to food, clothing, shelter, companionship, etc., then D has an obligation to provide these things for C. But what about C’s rights to be left alone, to be not stolen from, not coerced into associating with people he detests? Rights clash, here we come. The solution of course is to ban all so-called positive rights. Or, at the very least, to recognize that this source of clashing rights are these so-called positive rights.
When rights collide
There is another area where rights really do clash: criminality. E kidnaps F’s child, and demands ransom money from the latter. If F pays off E, then E will have more money with which to perpetrate his evil deeds in the future. On the other hand, if F refuses to fork over the gelt, his child dies. Should the government prohibit ransom payments? This would, presumably, reduce the future number of kidnappings. However, what of F’s right to the return of his child?
Ditto when G the mugger holds up H and demands money from him at the local ATM. If H agrees, he empowers the criminal G. If H refuses, his right not to be murdered is abrogated.
It would be unjust to label as criminal people who pay kidnappers or hold-up men. They act under duress. It would be supererogatory, over and above the requirements of duty to resist. But the law should not require us to be heroes.
Thus, there really are clashes in rights, but only when something untoward is going on: for example, positive rights and criminal behavior.
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Further articles on the same topic
Normas, propiedad y contratos. (Francisco Capella).
Derechos y prohibiciones. (Alberto Illán Oviedo).