Wednesday, October 24, 2007
There is no right that I see for the homeowner to build, as the building contract is between the owner and the construction company, and to a lesser extent between the owner and the zoning authority. Whether or not someone is free to build a McMansion is, however, a matter where civility does play a role. Suppose St. Cloud did not have a noise ordinance, and you were to play Iron Maiden very, very loud at 3am. You may claim you have a right to do so because the government has not enjoined you from it, and courts might declare your behavior not to be a nuisance (I hear you could get a good ruling about Iron Maiden from Justice Foot) but you do not have the freedom to do so without consequences. It is, among the non-Iron Maiden-loving crowd, uncivil.
A freedom is a relation between one person and a set of acts. The person is presumed to be free to perform any act in the set that does not breach the rules against torts (offences against person and property) and (a less stringent requirement) the rules of civility. A substantial obstruction of freedom (e.g., gagging or threatening to hit a person to stop him from speaking freely) is a tort or an incivility. As such, it is wrong. To say that a person has a "right to a freedom" is tantamount to saying that he has a right not to be wronged�a redundant and silly proposition. It also implies that he would not have this freedom if he had not somehow obtained a right to it�an implication that is at the source of much false theorizing. You do not need a right to move if your moves stay within the rules�this indeed is what it means to have rules.In contrast to a freedom, a right is a relation between two persons, the right-holder and the obligor, and an act the obligor must perform at the rightholder's bidding. A right may be created by contract in which the obligor, in exchange for a consideration, surrenders his freedom to perform (or forbear from performing) some set of acts as he pleases, and agrees to perform (or forbear from performing) it as required by the rightholder. Here, both parties enter voluntarily into the right/obligation relation. However, a right may also be created by some authority, such as the government acting on behalf of "society", conferring it upon rightholders and imposing the corresponding obligation on obligors of its own choosing.
I agree with Phil that it's troubling that positional goods are a call for government action which turns the question of freedom into a set of rights (as de Jasay's last sentence discusses.) P.J. O'Rourke's idea of the rules of governance as "keep your hands to yourself, and mind your own business" appeal to me, but a government by the people means the people have to accept those rules first. In the town of Edina, it appears they do not.