The metaphysics of rights

Background
For the purposes of this discussion, I'm going to be talking about legal rights rather than moral ones. A legal right, of course, is a right which is protected or guaranteed¹ by law; it is distinguishable from a moral right in that it has no normative element. That is, strictly speaking, a discussion of whether or not you have a legal right to X cannot involve questions of whether or not you should have such a right. The existence of  legal rights raises questions of "should" only to the extent necessary to balance competing rights and interests (e.g., my right to swing my fist versus yours to not get punched in the nose), but without access to some sort of objective morality or ethics.

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Because legal rights are not revealed to us from on high, they must be grounded in some legal text or doctrine. In the US, this generally comes down to the Constitution. Some rights are created directly in the Constitution itself (e.g., copyright and patent rights); however, most of the rights that interest us are contained in the aptly named Bill of Rights, comprised of the first 10 amendments. Most of the Bill of Rights consists of express statements of rights including the right to freedom of speech/religion/assembly, the right to be free of unreasonable searches and seizures, and the like.

There is no question in US jurisprudence as to the existence of rights expressly created by the Constitution. The scope of these rights has also largely been settled, though the Internet age is bringing about a resurgence of freedom-of-speech litigation. The really interesting stuff is happening in the "penumbra" and of the 9th Amendment, which basically says that the Bill of Rights isn't meant to contain an exhaustive list of protected rights (i.e., that rights not enumerated in the Bill of Rights can still be Constitutionally protected).

Now, when you bring a lawsuit alleging that your Constitutional rights have been violated, the court will engage in what is essentially a two-step inquiry:

1. Does the right you're claiming actually exist? That is, is it a legal right, granted/created under the proper authority?
2. If so, is your attempted exercise of that right a valid exercise?²

For rights enumerated in the Bill of Rights, the answer to the first question is simple. The second question is the one that raises the need to balance competing rights and interests. Because this part of the inquiry calls for a consideration of a variety of policy arguments, it becomes very easy for the court to sneak its normative judgments into its decisions.

The value of parsimony

Most of us are familiar with Rube Goldberg machines. In general, we find them duly impressive. But why? Because at every juncture – every time the falling domino frees the marble that bumps the needle that pops the balloon – there is a risk of something going wrong. We're impressed by the fact that they work, despite so many opportunities for failure. The more complex a system – the more entities it is comprised of – the greater the potential for error.

In many ways, "the law" is a Rube Goldberg machine, with myriad entities of various sizes and types – everything from judges to Congressmen to statutes to regulatory agencies to beat cops – rebounding off each other and setting each other in motion. Heisenberg would have a field day. So how is it that the mind-boggling complexity of our legal system doesn't yield catastrophic failure? It works (or seems to work, anyway) for three primary reasons:

1. Huge margins of error. The system is so large, so complex, that it can essentially absorb a lot of individual failures (the marble missing the needle) without yielding system failure. I'm not convinced that this is an asset in what we like to think of as a system of justice.
2. Layers upon layers of redundancy. If a cop drops the ball, the judge will catch it; if a judge drops the ball, the higher courts will catch it; if the judiciary drops the ball, the legislature will catch it; if the legislature drops the ball, the voting public will catch it (by replacing the elected officials, that is). 
3. Too big to fail. Because the system is so large, and because it has grown organically over the centuries rather than being planned, it is riddled with internal entanglements that would give Otto von Bismarck pause. And because we've invested so much time and effort in our legal system, not to mention so much of our cultural identity and self-conception, everyone who might be qualified to change things has too much invested in the status quo.

While I don't think we'd have much luck dismantling the entire system and starting from scratch, even assuming that that would be a good idea, I believe that we could improve its functioning by keeping an eye out for unnecessary complexity and, where possible, reducing it. I'm going to use this blog as a venue to discuss some of the places in our legal system where we could benefit from some tightening of belts, so to speak.

Here's to simplicity.

Because legal rights are not revealed to us from on high, they must be grounded in some legal text or doctrine. In the US, this generally comes down to the Constitution. Some rights are created directly in the Constitution itself (e.g., copyright and patent rights); however, most of the rights that interest us are contained in the aptly named Bill of Rights, comprised of the first 10 amendments. Most of the Bill of Rights consists of express statements of rights including the right to freedom of speech/religion/assembly, the right to be free of unreasonable searches and seizures, and the like.