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Print As a student in economics, I was fortunate to study the late Paul Heyne’s The Economic Way of Thinking (eighth edition). It was there that I encountered a distinction I hadn’t thought about before: people can have rights in practice that aren’t theirs in law, and they can also have rights in law that aren’t theirs in practice.
I’ve been thinking about that distinction a great deal lately, especially as President Joe Biden has taken to asserting powers that he openly acknowledges he doesn’t legally have.
Heyne presented the idea in just two paragraphs in his chapter on the distribution of income, after discussing property rights that are so affected by government regulation that they are effectively rights in name only for owners who cannot act as owners (e.g., rent controls preventing competitive price setting). After introducing that counterintuitive notion, Heyne wrote, “A useful distinction that can often help us agree on what we’re talking about is the distinction between actual, legal, and moral property rights.” He then added, “It is the people’s actual rights that govern their expectations and consequently determine how they will behave.”
People’s actual rights are what ultimately matter in social encounters. Legal rights matter — and converge with actual rights — insofar as they are enforceable and publicly accepted. Moral rights are normative declarations of what should be actual, legal rights. Ideally, of course, actual, legal, and moral rights would be the same rights.
Heyne gave a light-hearted example of a city park ordinance requiring dog owners to clean up after their pets. In the example, people have the legal right to go barefoot in the park without expecting an unpleasant squish. If dog owners resist and find city leaders unwilling or unable to enforce the ordinance, they discover an actual right to let their pets pollute. Dog owners and barefoot park goers likely both insist on a moral right to do as they prefer.
Heyne explained: Because rights are social facts, they depend on acceptance by others of the appropriate obligations. Until dog owners accept the obligation to monitor their pets’ behavior — either to avoid […]
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