Tag Archives: Rights

Freedom Isn’t Free

The concept of a right to health has been enumerated in international agreements which include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities. … equitable dissemination of medical knowledge and its benefits; and government-provided social measures to ensure adequate health. …

Everyone has the right to … food, clothing, housing and medical care and necessary social services. … “responsibility [that] extends beyond the provision of essential health services to tackling the determinants of health such as, provision of adequate education, housing, food, and favourable working conditions” … right of everyone to the enjoyment of the highest attainable standard of physical and mental health … each individual holds an inherent right to the best feasible standard of health. (more)

We might want to say that people have a right to food. And in a place like the Soviet Union, where food was centrality produced and distributed, a right to food might be defined in terms of fixed numbers of particular items. So many loaves of bread, kilos of meat, and bottles of milk per week, for example. Such “rights” would be complex, vary by time and place, and result mostly from complex and changing tradeoffs, as well as politics.

While basic ethical principles might influence such rights, that influence may be hard to discern among so many other influences. If a right to food were enshrined in the text of a constitution, it would be hard for courts to have that text and a few abstract principles strongly determine if any given action is taken to violate that right or not. They might accumulate case law on how to make such decisions, but that would mostly be the court defining the right, not the constitution or abstract principles. The court might delegate many details to government agencies, in which case it would be those agencies deciding most details, not the constitution or abstract principles.

In contrast, in a market economy like ours, where individuals can more easily choose the particular foods that they want, it makes less sense to talk having about having rights to particular baskets of bread, meat, milk, etc. One could instead talk about a right to so many calories or grams of protein, but that might be hard to enforce. It could make more sense to talk about a right to a minimum food budget, and to having foods available to purchase at their real costs. (Such a budget might be set by market prices to get min calories, etc.) And it might be work even better to just focus on general redistribution systems expressed in terms of money, allowing each person to choose their own food priorities.

In a market-based economy where rights are implemented via food budgets or overall redistribution policies, outcomes would be influenced more by the constitution text and abstract principles, and by many individual choices, and less by the courts or government agencies.

Similarly, in a centrally-administered medical system, one could make a long list of the particular medical treatments to which each patient is entitled, if they were diagnosed with particular conditions. This long list of medical rights would be context-dependent and change frequently, and it wouldn’t have any clear relation to basic ethical principles or a constitutional text about a right to medicine. Such a list would mostly reflect many practical tradeoffs as well as politics. It seems quite hard to formally define and enforce any simple general “right to medicine” given all this complex variation and context dependence.

When medicine is allocated more by a competitive market, it can make more sense to try to ensure that people are free to buy medicine, medical insurance, and info on medical quality, all at prices that reflect the real costs of such things. One might try to define medical rights in terms of a minimum budget that each person has to buy medicine or medical insurance or info. Or one might focus on a more general system of redistribution expressed in terms of money, and let each person choose their medical priorities. In either of these last two scenarios, abstract principles and a constitutional text, together with individual choices, could have more influence on outcomes, relative to decisions by courts and government agencies.

In this last scenario, if you saw a case where you felt bad that someone who knew about a particular medical treatment didn’t buy that treatment, you might consider pushing to increase the priority of similar people in your more general system of redistribution. So that they could have more money to buy such treatments. If you gave such people more money, but they chose instead to spend that money on other things, you might accept that they have differing medical priorities from you, or you might try to push them to share your priorities. Either way, that dispute doesn’t really seem to be about a right to medicine.

If you are with me so far regarding food and medicine, then in the rest of this post I want to convince you to think similarly about many formal civil rights and liberties. At least regarding rights and liberties whose limits are set mainly by criminal law enforcement considerations. Today our constitutions and courts try to specify many complex related rights and liberties. I will argue that this complexity is to a large degree due to having a centralized government-run system of criminal law enforcement. This is analogous to the complexity we would have if the government ran the food system or the medical system, wherein rights to food or medicine would consist of long lists of the food you could get each week, or the medical treatments to which you were entitled.

I will suggest that we could instead switch to a much more private, open, and competitive system of criminal law enforcement. In such a system, individuals could buy the particular civil rights and liberties that they wanted. We could then work to ensure that people are free to buy these rights and liberties at prices that reflect their real costs, and that people have a minimum budget to purchase such things. Or we might just focus on a more general system of redistribution expressed in terms of money, and let each person use money to express their priorities for rights and liberties re criminal law enforcement. Let me explain.

Today, we have explicitly declared a great many rather specific rights and liberties on how we are to be treated by our systems of law enforcement. Of course your actual rights and liberties vary according to your exact legal jurisdiction, the legal text there, court interpretations in that jurisdiction, and how local law enforcement agencies actually implement court rulings in their actual policies.

You may have have rights to be silent, and to not talk to police, and exceptions to those rights, such as when you must identify yourself. You may have rights and obligations regarding when you may be detained or arrested, and who must give testimony regarding which kinds things about which kinds of associates, including themself. There are rules on when one must be allowed to consult a lawyer, and rules that require lawyers to be available free of charge. You may have have rights to keep some things private, to be safe from unreasonable searches and seizures, and there may be exceptions to these based on warrants and on which things are in “plain view” or result from “hot pursuit”. Other exceptions are based on extra powers given to police in certain situations.

You may have rights to assemble with others of your choice, and to travel freely, but these rights may have exceptions limiting where you can go where when, such as curfews and orders to stay away from some places or to stay close enough to other places. You may have a right to speedy trials. Regarding punishment, you may have rights to avoid disproportionate punishment, and cruel and unusual punishments. In prison, you may have rights to minimum qualities of food and medicine, to a lack of racial segregation, to accommodation of your disabilities, to a lack of crowding, and to some kinds of speech, contact with outsiders, and religious activities.

For all of these rights and liberties, you may have complex rights regarding who must monitor to check that they are actually being upheld, and who may sue whom claiming that they are not, and what they would win if they won. Many have claimed that in fact many important groups in our societies don’t actually have many of the rights and liberties that they are supposedly granted on paper. I’m inclined to believe many such claims, which is a big part of why I seek other approaches.

Much of this complexity results from the fact that, in order to enforce criminal law, officials sometimes need to detain, punish, and watch people, and they sometimes need to limit their travel, assemblies, and other activities. Officials sometimes need to collect info about some people from their things and from other people. These many complex rules about rights and liberties are often claimed to be designed to give everyone as many rights and liberties as feasible, while still allowing criminal law officials to do what needs doing to enforce criminal law in a reasonably cost-effective manner. Because the world is complex, these rules must be complex.

But imagine that we replaced our centralized government run system of criminal law enforcement with this:

Consider a fine-insured-bounty (FIB) crime law system. … All (but one) crime is punished officially by fines, everyone is fully insured to pay large fines, and bounty hunters detect and prosecute each crime. In a FIB system, we collectively decide the fine and bounty level for each crime, and manage a judicial system which decides individual cases.

If we set the fine level for each crime to be our best estimate of the social harm produced by one more crime event of that type (divided by the chance that it will be caught, plus enforcement costs), then the insurer-client pair would internalize that social harm, in which case we could leave that pair free to choose punishment types, costs, and levels, as well as (many aspects of) police and prosecutor monitoring and investigative powers. (more)

Within a FIB system, insurer-client pairs choose most details of punishment, including type, size, duration, etc. So within such a system, there’s little need to give people rights to avoid disproportionate, cruel, or unusual punishment. Anyone can choose to avoid any type of punishment, if they are willing to pay associated insurance premiums.

Similarly for monitoring to prevent crime. Insurers will want to promote and enable such monitoring, to avoid having to pay on behalf of clients. So insurers will offer lower premiums to clients who allow more monitoring. No need to guarantee any minimum or maximum monitoring; such levels are chosen by contract. For rights re how one interacts with police, it is possible to not give bounty hunters any more rights than ordinary people have. In which case we’d need no extra rights relative to police interactions.

Now it does seem plausible that the more rights that bounty hunters have to collect evidence, such as by searching places and compelling testimony, the higher the chance that any given crime could be caught, with the criminal’s insurer forced to pay a fine. But what if lowering this chance were the main external cost that resulted from letting a potential criminal choose to make it harder to collect evidence about them? In this case we could correct for this effect via fine amounts. The fine for each crime should depend on an estimate of the chance that crime would have been detected and successfully prosecuted. With decent (and perhaps conservative) estimates of how the chance of catching a crime depends on how open a criminal is to evidence collection, we could adjust fines for this effect, and thus allow insurer-client pairs to choose how open to be to bounty hunters seeking evidence. In which case we don’t need a right against “unreasonable” police searches.

So far I’ve argued that, in a FIB system, we don’t need formal rights and liberties regarding issues where we can just let insurer-client pairs choose, because they internalize the social harm of such choices. I’m not claiming that all civil rights and liberties are of this type, but many are. Creating a more private, open, competitive criminal law system could allow us to greatly simplify civil rights and liberties, and have the results depend a long more on constitutional text and general principles, and on individual choices, and depend less on courts and government agencies. Just as when we have private, open, competitive systems for food or medicine.

What if you felt bad when you saw someone choose fewer civil rights and liberties than you thought right or wise? You might try to persuade them to change their priorities, or you might try to increase the priority that you give to such people in your redistribution system that ensures minimum budgets to buy rights and liberties, or within your more general redistribution system. So that they could more easily afford to buy more rights and liberties if they wanted them. I think this would work better than trying to centrally legislate who exactly should have which particular rights and liberties, as that wouldn’t well take into account individual tastes, costs, and context.

Added 1June: Here’s a way to estimate “how the chance of catching a crime depends on how open a criminal is to evidence collection”. Have the statute of limitations be no shorter than N (=10?) years, and require everyone to keep good private electronic records of their activities for at least that long. Allow L (=4?) different privacy levels that everyone can choose among. Divide the polity into M (=1000?) regions, and every N years force one random region to have the lowest privacy level regarding its last N years of crimes. For each region and privacy level combination, have a prediction market estimating its crime rate (number of crimes weighted by fine level, divided by average-over-period fraction of residents at privacy level) conditional both on being randomly picked, and on not being so picked. That’s 2*L*M/N prices per year. The fine increase factor for each region and privacy level combination is given by a smoothed ratio of the estimated crime rates between the two conditions. Smoothing can take the whole set of prices and find a simpler model that fits them.

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Umpires Shouldn’t Be On Teams

There are many complex issues to consider when choosing between public vs private provision of a good or service. But one issue seems to me to clearly favor the private option: rights. If you want to make rights-enforcing rules that are actually followed, you are better off having courts or regulators enforcing rules on a competitive private industry.

Consider this excellent 2015 AJPS paper:

Many regulatory policies—especially health, safety, and environmental regulations—apply to government agencies as well as private firms. … Unlike profit‐maximizing firms, government agencies face contested, ambiguous missions and are politically constrained from raising revenue to meet regulatory requirements. At the same time, agencies do not face direct competition from other firms, rarely face elimination, and may have sympathetic political allies. Consequently, the regulator’s usual array of enforcement instruments (e.g., fines, fees, and licensure) may be potent enough to alter behavior when the target is a private firm, but less effective when the regulated entity is a government agency. …

The ultimate effect of regulatory policy turns not on the regulator’s carrots and sticks, but rather on the regulated agency’s political costs of compliance with or appeal against the regulator, and the regulator’s political costs of penalizing another government. One implication of this theory is that public agencies are less likely than similarly situated private firms to comply with regulations. Another implication is that regulators are likely to enforce regulations less vigorously against public agencies than against private firms because such enforcement is both less effective and more costly to the regulator. …

We find that public agencies are more likely than private firms to violate the regulatory requirements of the [US] Clean Air Act and the Safe Drinking Water Act. Moreover, we find that regulators are less likely to impose severe punishment for noncompliance on public agencies than on private firms. (more)

See also:

There is evidence … that [public entities] are [better] able to delay or avoid paying fines when penalties are assessed. (more)

Public sector employees experienced a higher incidence rate of work-related injuries and illnesses than their private industry counterparts. (more)

I’ve tried but failed to find stats on public vs private relative rates of abuse, harassment, bribery, embezzlement, nepotism, and test cheating. (Can you find more?) But I’d bet they’d also show government agencies violating such rules at higher rates.

This perspective seems very relevant to criminal justice reform. Our status quo criminal justice system embodies enormous inefficiencies and injustices, but when I propose changes that involve larger roles for private actors, I keep hearing “yes that might be more efficient, but won’t private actors create more rights violations?” But the above analysis suggests that this gets the comparison exactly wrong!

Yes of course, if you compare a public org that has a rule with a private actor to whom no such rules applies, you may get more rule “violations” with the latter. And yes, enforcement of central rules can be expensive and limiting, so sometimes it makes sense to use private competition as a substitute for central rules, and so impose fewer rules on private actors. But once we allow ourselves to choose which rules to impose, private orgs seem just overall better for enforcing rules.

Note that when a government agency directly contracts with a specific private organization, using complex flexible terms and monitoring, as in military procurement, the above theory predicts that this contractor will look much more like an extension of the government agency for the purpose of rule enforcement. Rule enforcement gains come instead from private orgs that compete to be chosen by the public, or that compete to win simple public prizes where public orgs do not have so much discretion over terms that they can pick winners, but get blamed for rights violations of losers.

It is these independent private actors that I seek to recruit to reform criminal justice. We will get more, not less, enforcement of rules that protect rights, when the umpires who enforce rights are less affiliated with the teams who can violate them.

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