The argument of this post is as follows: In many areas of the law the left is constantly asking government to save their butt—save the seals, protect their wages, don’t discriminate—while the right can’t help but express the importance of judicial restraint, institutional competence and the pernicious effects of micro-management. In Hohfeldian terms, one can think of these conflicts as the left asking for a “right” while the right requesting a “privilege”. There are cases where these roles are inverted such as the family, where the left yearns to be left alone while the right wants government to come in and do something.
My argument is that the left should focus on getting more privileges instead of more rights. Here I want to use a law and economics argument. In most cases, privileges cost courts less to enforce than rights. In other words, it is easier for courts to say that A is allowed to injure B (a privilege) than to say that B has a right which the court will enforce to prevent A from injuring him. The reason why in most cases privileges are cheaper is because they only require the court to validate action that parties are already taking—A is hitting B. In the case of rights, the court has to use some of the government’s volition to prevent A from hitting B. In both cases the court acted: in one it allowed behavior; in the other it prohibited it. But the prohibition requires its active involvement, while the privilege allows it to step back and let them fight it out.
If privileges are less costly than rights, my conclusion is that the wealth that the left may be able to extract through privileges may be greater than through rights.
More to come! (First example will juxtapose the seals case with the recent Animal Planet show Whale Wars).