The Limit to the Pursuit of Happiness

I don't know if this is a particularly original thought but in my torts class today we were discussing the issue of the cost-balance test involved in the negligence standard for liability. The economists' idea is that you want a rule under which activities whose benefits (to any and all affected parties) outweigh their costs will proceed, and activities whose costs outweigh the benefits will not. The negligence standard as applied often acts as a proxy for that intuition. Negligence analysis often acts as a proxy for this kind of analysis, saying that if there would have been a way to avoid the damage the cost of which would be less than that of the damage, there was negligence. But a strict liability standard, wherein the causer of the harm is liable whether they were negligent or not, also results in the same kind of calculus being performed, so long as damages are compensatory only and not punitive. In that case, the potential tortfeasor (that is apparently the word, don't blame me) will balance their own potential benefits against the potential losses that they might cause to others, because those losses will turn into liabilities. If the benefits outweigh the losses, you'll do the thing anyway and pay the damages, and that's a win compared to not doing the thing in the first place.

At some point it came up that this is very different from how the criminal law handles things, and also that the law & economics people haven't always accepted the fact that the criminal law does it very differently. If you commit a crime, let's go with theft for now because it's nice and easy to monetize, and you're found guilty, you don't just pay compensatory damages and walk out of court. Now, you might be supposed to make restitution or something (although that's about removing your own benefit rather than making whole the person you wronged), but mainly you just go to jail for several years. The point of the criminal law is not to get people to weigh the harms to others against their own benefits from committing crimes. The point is to get them not to commit crimes. "But I got so much benefit for it, this expensive jewelry is doing so much more good for me after I stole it than it was for the old rich lady who owned it" is not a defense. And people don't normatively accept it if someone says, well yes this is a crime but I'll just do it anyway and pay the price. Well, most people don't, anyway.

On Individual Rights

In this post I am going to describe my own personal opinion of the structure of individual rights. This is, to be clear, not a positivist opinion. I'm not describing the structure of individual rights in, say, the American Constitution as written, though I might argue later that it's reasonable to read my notion of individual rights into the Constitution. Rather I'm making what you might call a "natural law" argument, except that I wouldn't phrase it in terms of natural law as that has various religious or top-down implications. But I am definitely talking about how I think one ought to approach the question of individual rights. Here's my basic thesis: the only individual right is the right to the pursuit of happiness, and any specific individual right may be derived from that right.