Inalienist Versus Alienist Institutions

Ellerman’s originals (also see):

Long’s original:

David Ellerman, and Roderick T. Long have produced a plethora of good writing and thinking, including the items above, but I tweaked, merged, and expanded their graphics and ideas, including those of Gary Chartier and Charles Johnson based partly on this expanded black version from Ellerman’s green and blue (upper table):

Ellerman (upper table) pointed to the Forest (green) and the Trees (blue) as the current classical liberal framing. The framing can be expanded or reframed/refined with Hohfeld to consider the black, or perhaps the oxygen of the forest. more on “rights” .

Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays; Yale Law Journal, 23(1):16–59, Nov. 1913. Wesley Newcomb Hohfeld

  • “A right is one’s affirmative claim against another” [p55] (responsibilities, duties, obligations)
  • “privilege is one’s freedom from the right or claim of another” [p55]
  • “power is one’s affirmative ‘control’ over a given legal relation as against another” [p55]
  • “immunity is one’s freedom from the legal power or ‘control’ of another as regards some legal relation” [p55]
  • “A duty or a legal obligation is that which one ought or ought not to do. ‘Duty’ and ‘right’ are correlative terms. When a right is invaded, a duty is violated… a duty having a content or tenor precisely opposite to that of the privilege in question.” [p32]
  • Full privilege/liberty rights, and no claim rights, would mean everything was permitted
  • Full claim rights, and no privilege/liberty rights, would mean everything was prohibited or compulsory
  • “Rights are an ought border; liberty is a borderless is.” EMN
  • A claim right to privilege/liberty means people are indebted to respect others’ privilege/liberty
  • Privileges and powers are not negative rights (entitled to non-interference)
  • Privileges, powers, and immunities are not positive rights (entitled to provision of good/service, via duty of others)
  • Negative rights are respected by refraining from interfering with others
  • Fulfilling everyone’s positive rights may be difficult or impossible  
  • rights in rem: real rights: negative/against the world at large to be left alone, proprietary (Hohfeld used “multital”)
  • rights in personam: personal rights: positive, contracts (Hohfeld used “paucital”- right duty limited circumstance and people); privileges, some immunities
  • jus ad rem: right/s transfer

What is permitted, required or forbidden? Freedom and/or rights vs license/permission

Natural law proponents must answer why laws, if natural and universal, are often a dilemma of self-interest vs. the interest of others, including that of the rule makers?

Why focus on “rights talk” as it shifts the focus to right holders, not those stuck with the obligations or oughts/responsibilities? As Marx pointed out, the rights holder is an “isolated monad…withdrawn behind his private interests and whims and separated from the community.” (Marx 1844, 146) Sad as it is, we have a system where rights are needed unless simplified to “stay out of my business” (and by default the business of others), but we are often in other’s business as we are not me, or me’s must interact unless totally cut off from we, or society for that matter. Regretfully, most of the freedoms we have were fought for, not handed to us, because the State is not much different than feudalism and bureaucratic nobility protecting their interests. Rights can create confrontations by inhibiting dialogue or negotiation because rights can become a trump card (or series of trump cards) to stop discussion that might lead to consensus, accommodation, common ground, and liberty for that matter. The communitarian view is that rights should not be trump cards, but cards for playing and building with other selves and recognizing that other selves have needs and rights claims that vary in cultural contexts. This isn’t to stay communitarianism is the answer, but it’s not as though most people can’t agree with this view. We are stuck with politics in the end, which seems to be a system of rigging trump cards to favor the ruling class. Is anarchism anti-politics and the “chaos” of many paths, with one vision that accepts there are many paths?

Paths, or paths to resources (or more than one vision), can sometimes lead to conflict or rivalry as there is no coordination/cooperation. (elaboration and game theory problems forthcoming…)


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