Talk:Claim rights and liberty rights

Merger

Seeing as how no article on liberty rights yet exists, and the concepts of claim rights and liberty rights are best explained in contrast to one another, I'd like to suggest that this article be turned into one on "Liberty and claim rights", similar to the article on Negative and positive rights. Unfortunately I'm a wiki noob and don't quite know how to go about this... help? -Forrest

Hmm apparently a liberty right article does exist, it was just capitalized oddly. I've noted a suggestion to merge on its discussion page too. Pfhorrest (talk) 02:26, 20 February 2008 (UTC)[reply]

Active and passive, first and second order

After some further reading (e.g. [1]) it occurs to me that there are two distinctions within the Hohfeldian analysis of rights as liberties, claims, powers, and immunities: "active" rights (liberties and powers) vs "passive" rights (claims and immunities), which it seems is really the subject of this article, and first-order rights (liberties and claims) vs second-order rights (powers and immunities).

Given that, I'm considering renaming this article to use Lyons' terminology of Active and passive rights, and perhaps creating a second article on First-order and second-order rights, though I don't know if there is really enough material for the latter. Thoughts? --Pfhorrest (talk) 00:37, 12 January 2010 (UTC)[reply]

Hello. The Stanford Encyclopedia of Philosophy mentions Hart as the author of the "first" and "second order" rights' distinction. I think this is important to say in the article. In SEP, "second order" rights are defined as those having the capacity to modify "first order" ones. Probably this is one of the reasons Hart makes the distinction. --YavorH (talk) 17:30, 30 December 2015 (UTC)[reply]

Non-sense

Unfortunately, some of this article is logically invalid and shallow. The least adequate paragraph attempts to illustrate a "world with only liberty rights, without any claim rights" by stating erroneously that in this world "everything was permitted" - This is false. Everything would not be permitted, for two reasons:

1 First, we don't have liberty rights for "everything" - there is no such thing as a liberty right for an individual to rape or torture or kill an innocent child (only actions protected by liberty rights would be 'strictly' permitted). There would be actions that individuals could see as 'wrong', actions that individuals would be free to try to prevent and prohibit, but what is true that 'wronged' individual would not be able to claim support or protection from the state (because police, courts, and government would not exist - unless people voluntarily assembled without laying claim on each other's time or efforts). Thus I distinguish between strict permission ("Grandpa Abraham gave me permission to take an apple a day from his tree") and non-strict permission ("I will take an apple today because the police can't stop me" - you might find that Grandpa Abraham and his sons can stop you - i.e. they will not permit you to steal from them).
2 Second, in practice in this hypothetical world, I would not permit you attack my sister. What is true is that I would not have a claim right to ask the state to punish you for (attempted) assault, and the police and courts would not even exist (unless a police force or courts had been assembled voluntarily).

I think real life examples are better than hypothetical examples - if our aim is to be clear and accurate. — Preceding unsigned comment added by TranscendTranslation (talk • contribs) 16:39, 10 April 2011 (UTC)[reply]

The point of that paragraph is to illustrate what it means to say that "Liberty rights and claim rights are the inverse of one another [...] because the deontic concepts of obligation and permission are De Morgan dual". What that means is that if you are not permitted to do something, then you are prohibited from doing it; and if you are not prohibited from doing something, then you are permitted to do it; that's just how the logic of permission and prohibition work. Claims prohibit others from doing (or not-doing) certain things; liberties permit you to do (or not do) certain things; so if nobody has a claim to anything, then nothing is prohibited, and therefore everything is permitted, and everybody has liberty to do anything. That is what is meant by "a world with only liberty rights, without any claim rights". You're right that we in fact do not in fact have liberty rights to rape or torture or kill an innocent child; but the paragraph is saying that in a world where that innocent child had no claims against us doing so, we would, as a logical consequence, have such liberty rights.

I see several points of confusion in your post:

One is that in the sentence "only actions protected by liberty rights would be 'strictly' permitted", you seem to be confusing liberty rights with immunities instead. For example, in the United States, we (ostensibly) have a legal immunity protecting our freedom of speech; that means that, not only are there no laws restricting our speech, but that there laws against there being laws restricting our speech. Contrast that to, say, our freedom to eat hamburgers; we have a liberty right to do so, inasmuch as there is no law against doing so, but (ignoring the 9th and 10th Amendments as everyone does these days) there's no law saying that there couldn't be a law prohibiting us from eating hamburgers, so we do not have an immunity protecting that liberty.
The next is that in sentences like "There would be actions that individuals could see as 'wrong', actions that individuals would be free to try to prevent and prohibit, but what is true that 'wronged' individual would not be able to claim support or protection from the state" seems to confuse liberties vs claims with positive vs negative rights. A liberty right doesn't say "everybody must let you do this"; that would be a negative claim right, prohibiting others from stopping you. A liberty right just says that "you may do this, if you can; we will not sanction you for it". If others also have a liberty to try to stop you (because you have no claims against it), then it's just a matter of who wins, but nobody is any more right about it. Conversely, a claim right doesn't say "you are entitled to defense of your ability to do this"; that would be specifically a positive claim right to police services etc. A claim right just says "others must not stop you from doing this; we may sanction them for doing so". (That's distinctly different from "we must sanction them for doing so and you are entitled to such").
Lastly you seem to mix different levels of deontic authority in your talk about Grandpa Abraham and such. There is no contradiction in different authorities laying different sets of claims and liberties. It's perfectly possible that Grandpa Abraham says you can take an apple a day from his tree, but the state says you can't, but some greater ethical system says you really can. In that case, you would have a moral liberty to do so; you would be legally prohibited, and Grandpa Abraham would have a legal claim right against you; but you would have personal liberty from Grandpa Abraham to do so anyway. Or conversely, the state might say you're perfectly permitted to rape and torture anyone you want, in which case you have a legal liberty to do so, but of course the people you rape and torture would deny you that liberty and assert a claim against such actions, and any sane understanding of ethics would grant them that claim and say you really have no such liberty. So different sources can disagree about what claims and liberties you have, but that doesn't make the logic of claims and liberties themselves confused. In reference to any particular source or authority, if nobody has a claim against it then you have a liberty to it, and vice versa. So if (according to whatever source or authority) nobody has any claims, then everything is permitted, and nothing is against the law of that authority; and if (according to some particular source of authority) nobody has any liberties, then everything is either obligatory or prohibited, and everything except one specific pattern of behavior is against the law of that authority.

If you can think of a clearer way of explaining this in the article, please let us know.

--Pfhorrest (talk) 21:31, 10 April 2011 (UTC)[reply]

Thank you for your thoughtful reply. It appears the article has already been improved, which I feel is a good thing. The problems here were abstraction and definition. I think important points can be missed if we limit the article or our thoughts to abstract & subjective statements like "liberty rights and claim rights are the inverse of one another". I want to focus on one crucial point: the importance of a source or authority when discussing 'rights'. I'd like to distinguish between a simple 'liberty' and a 'liberty right'. Having a liberty to do 'x' (e.g. eat a hamburger) can be a statement of fact - it simply needs to be clear that you have the power to do 'x', free from restriction. A liberty 'right', I feel, is subjective in that it always implies a source or authority that issues that right - whether that source is the state, an ethical framework, a deity, natural justice, or our helpful Grandpa Abraham. I think my perspective was more concrete and focused on the state's/society's role in relation to rights, while your perspective is more abstract and perhaps appeals to a personal ethical framework. It is helpful to recognize that we have different perspectives through which we see the world and we would all do well to be cognisant of the perspectives of others.TranscendTranslation (talk) 09:55, 23 July 2011 (UTC)[reply]

Stalinesque overtones

This is because the deontic concepts of obligation and permission are De Morgan dual; a person is permitted to do all and only the things he is not obliged to refrain from, and obliged to do all and only the things he is not permitted to refrain from.

To a non-philosopher, it's hard to read this without Stalinesque overtones on "permitted"[by whom?] creeping into mind. My impulse here is s/permission/license/. "License being a word which, for me—as a non-specialist—has fewer overtones (and, in the view of an armchair linguist, impels less reflection about the unstated Soviet). — MaxEnt 01:39, 12 May 2017 (UTC)[reply]