A Positive Account of Rights

During the time men live without a common power to keep them all in awe, they are in that conditions called war; and such a war, as if of every man, against every man.

Thomas Hobbes

In the previous chapter I showed how it might be possible, in a toy society of two people, to bargain up out of a Hobbesian state of nature into an orderly and peaceful micro-society. In this chapter I apply the same approach to the world as it actually exists, a society in which large numbers of people interact, for the most part peacefully and cooperatively. In the process, I hope to provide answers to a number of different questions:

  1. What are rights, considered not as a moral or legal category but as a positive category, a description of how people act.
  2. How is it possible for civil order to exist—why are not all people, all of the time, in the Hobbesian state of nature, the war of each against all?
  3. What is government—what distinguishes it from other human institutions?

    And, as a free bonus,

  4. Why did the U.K. send a fleet most of the way to Antarctica and risk its only aircraft carrier in order to defend a cluster of barren islands with a few hundred people on them?

Part of the answer to question 3 appears in Chapter 28, written more than forty years ago, but I believe that I understand it better now than I did then.

The Puzzle

Thomas Hobbes described the state of nature as a war of each against all in which the life of man would be “solitary, poor, nasty, brutish, and short.” That does not sound like the world we live in. His solution was to establish an all powerful ruler. That comes a little closer to the real world, but not all that close—and it is not clear how it could be done or why it would work.

In the state of nature, each individual acts in his own interest. That sounds like a reasonably accurate description of our world. How is his improved version, the world with a ruler, different? The ruler is not superman; he too must sleep and can be killed while doing so. He may have a police force and an army, but police forces and armies are made up of men; what causes those men to act differently than they did in the state of nature? Where does the structure of an orderly, peaceful society come from? What is the magic ingredient that distinguishes civil order from the state of nature? It cannot simply be laws—laws are words on paper and only take effect to the extent that individuals act on them. Why should individuals act differently after laws are passed than before? It cannot be police in uniforms and judges in robes, in Hobbes’ day wigs as well. Uniforms, robes and wigs do not confer magic power on their wearers or compel their wearers to act differently than they would without them.

That is the central puzzle that this chapter attempts to answer.

Neighborly Extortion

Imagine that you live in a suburban neighborhood with a not terribly efficient or well organized law enforcement system. One day your neighbor calls you over to the fence for conversation. He explains that he finds taking his trash down to the town dump every week to be a nuisance and has decided that it would be less trouble to simply dump it over the fence onto your property.

When you recover your breath and start lecturing him on property rights, he offers you a simple cost/benefit analysis of your alternatives. Dealing with his trash will take about ten or twenty dollars worth of your time and effort every week. Persuading the city authorities that the trash is his and not yours, getting them to do anything, appearing for multiple court hearings, raising a fuss, will cost you the equivalent of considerably more than that.

But, he adds, he has an alternative proposal. For him to dump the trash and someone else to collect it is clearly inefficient. A better solution is for him to deal with his trash and you to pay for it. For a mere five dollars a week, half or less what your lowest cost solution to the problem would cost you, he will agree to refrain from dumping the trash over the fence.

I predict that you will turn down his generous offer, tell him to go to hell and, if he persists in dumping his trash on your property, spend the equivalent of considerably more than five dollars a week, or even ten or twenty, prodding the relevant authorities into doing something about the problem. Why?

The answer is a fancier version of the territorial behavior discussed in the previous chapter. You, like a territorial bird or fish, have adopted a commitment strategy, more complicated than theirs because what you are committed to defend is not a territory but a set of rights. There are things you consider yourself entitled to in your interaction with other people, and one of them is not having trash dumped on your property. In defense of those rights you, like the territorial animal, are willing to bear costs out of proportion to what is immediately at stake.

A different way of putting the point is that, if you give in to your neighbor’s attempt at small scale extortion, there is no obvious limit to how far it will go. There are, after all, quite a lot of other ways in which he, or other people, could impose costs on you or demand payment not to. By adopting a policy of resisting such demands even at considerable cost, you give other people an incentive not to make them. If they do not make them, you do not need to bear the cost of resisting them.

What prevents your neighbor, following the same logic, from committing himself to bear large costs if you do not give in to his extortion? The short answer is that you will not believe him. The long one is that you are defending a Schelling point created by your (and his!) perception of individual rights. Given the existence of only one such Schelling point, one settlement of your potential conflicts that appears unique to both of you, it makes sense for you to defend it just as it made sense for the bank robber in our earlier story not to accept any offer for less than half the loot.

The logic of the situation does not depend on the existence of either law or shared moral beliefs. All it requires is that both of you know what rights you claim and both of you know that the claim is unique, that you cannot believably insist that your rights consist of no trash plus his paying you a modest tribute any more than he can insist on the same terms the other way around.

A Little More on Schelling Points

A crucial point here is a feature of a Schelling point that I did not make explicit in my previous discussion, the fact that its existence is a subjective, not objective, feature of reality. It is a feature of how the interacting parties view the world.

To make the point clearer, imagine that two people are presented with the following list of numbers and offered a prize if they succeed, without communication, in both selecting the same one:

2, 5, 9, 25, 69, 73, 82, 100, 126, 150

Each of them, as per the previous discussion, is looking for a number that is unique. But which numbers are unique depends on how each of them thinks about numbers. To many ordinary people, 100 is a round number in a sense in which the others are not. To a mathematician, all that is special about 100 is that it is an exact square—and the list contains two others. It may, however, occur to the mathematician, assuming he is coordinating with another mathematician, that in the entire set of positive integers there exists only one even prime, making it the obvious choice. To someone who is illiterate and sees the numbers only as patterns, 69 will seem unique for its symmetry, conveniently letting him coordinate with someone whose interest is more prurient than mathematical.

There is no objectively correct number. It depends on how the person you are coordinating with thinks.

For a somewhat more strained example of the same point, go back to our bank robbers, with one difference. Because they come from a society dominated by utilitarians they have been taught to measure value not in dollars but in utiles, units of happiness. Furthermore, everyone in their society believes that the marginal utility of income is inverse to wealth, that someone with twice as many dollars values each additional dollar at exactly half as much. To these philosophical robbers the obvious division is still fifty-fifty, an even split, but it is an even split of utility, not money. One of them happens to be twice as wealthy as the other, so an even split, one that gives him half the utility, must give him two thirds of the dollars.

What the two robbers agree on is not how much each one is morally entitled to; we can assume, as before, that each believes he did more than half the work and so deserves more than a half share. We could even assume that both agree which one of them did more than half the work. Provided that they do not agree about how much more, that agreement does not generate a Schelling point to coordinate on. A fifty-fifty split does.

I emphasize this point because one possible explanation of social order is morality, individuals refraining from murder, rape, and robbery because they believe such actions are wrong. That is a possible explanation, but not the one I am offering here. My claim is that even without moral agreement, even without any moral belief at all, a pattern of consistent commitment strategies makes coordination possible.

Escaping the State of Nature

I have now offered a solution to the puzzle I started with. What is added to a state of nature in order to turn it into civil order, to convert the war of each against all into peace, is a network of commitment strategies based on an elaborate set of mutually perceived Schelling points. It could be based on shared religious or ideological beliefs but need not be. What matters is that each person is committed to bearing substantial costs to maintain his commitment strategy, that people for the most part correctly perceive each others’ commitment strategies, and that those strategies are for the most part consistent, that I am not committed to getting from you something you are committed to not giving me.

The ways in which individuals enforce their commitments will vary with context. In the previous chapter it involved the actual use of force, whether against people or trees. In my tale of suburban extortion, the weapons were more likely to be lawyers than axes. But in both versions and many others, it is the pattern of commitment that gives order to the society and the existence of a commonly perceived network of Schelling points that makes possible that pattern of commitment.

Why Hobbes was Wrong

One implication of this way of viewing an orderly society is that Hobbes was wrong. A society may have no all powerful sovereign, even no sovereign at all, and still be a great deal more orderly than he imagined. The clearest real world examples would be primitive stateless societies such as the Commanche. They had nothing we would recognize as a government, but killing a man or seducing his wife had consequences due to the commitment strategies of other members of the society, consequences that made such actions much less common than they would be in Hobbes’ version of the state of nature.

And Why Hobbes was Right

The same view of human behavior shows why Hobbes’ solution, if not necessary, is at least possible. His version of an orderly society, rule by an all powerful sovereign, is supported by a different pattern of commitment strategies and Schelling points. It is a pattern in which individuals are committed to resist what they see as rights violations by most other individuals but not similar actions by the sovereign or his agents and in which the relations of the sovereign and his agents are structured into a hierarchy of authority by their own self-consistent network of commitment strategies.

For a simplified version, suggested to me long ago by the late Earl Thompson, imagine that the ruler can successfully commit himself to kill any of three subordinates if they defy his orders. He orders each of them to make a similar commitment to control three of their subordinates. Continue the cascade until there are enough people in it to believably threaten any of those outside the ruling clique—who, since they are not committed to defy such threats, will yield whenever yielding is less costly than resisting. Each individual, inside and outside government, is acting in his own rational self interest given what everyone else is doing, making it what game theorists describe as a Nash Equilibrium.

A Positive Account of Rights

This way of looking at behavior provides a way of understanding rights that depends on neither law nor morality, although it might be reinforced by either. The fact that I have a right not to be killed means neither that killing me is wicked nor that it is illegal, only that it will usually not be in other people’s interest to do it. That particular right is enforced by the commitment strategies of other people—in the Icelandic society described in Chapter 44, the commitment of my kin to use violent force against anyone who kills me and refuses to pay them the wergeld that the court awards. More generally, my rights are whatever I am successfully committed to defend, where success depends in part on other people recognizing my commitment and having no commitment of their own that directly clashes with it.

What is Government, What is Anarchy

This approach provides a clearer answer to that question than I was able to give in the first edition of this book. A government is an institution against which people have dropped the commitment strategies that defend what they view as their rights against other people. An anarchy is a society in which there is no such institution. An anarchist is someone who sees such a society as desirable. All of that was, I think, implicit in Chapter 28, where I defined a government as an agency of legitimized coercion. But I understand it more clearly now.

And What the British Navy Was Doing in the Falklands

This way of looking at individual behavior also explains some of the behavior of governments. Argentina’s invasion of the Falkland Islands triggered a British commitment strategy: Respond with force to anyone seizing British territory. Britain responded by sending a fleet most of the way to the South Pole to get the islands back. It made very little sense viewed in immediate cost/benefit terms; it would have been a great deal cheaper to transport all of the inhabitants to England and give each of them enough money to support him for the rest of his life. But it made a great deal of sense given that ‘defend our boundaries’ was a Schelling point and ‘defend our boundaries except when Argentina invades the Falklands’ was not.


In addition to Thomas Schelling, the ideas of this chapter owe most to the late Earl Thompson, possibly the most brilliant not-very-famous economist I have known; an economics Nobel of my acquaintance, not related to me, once described him as having the highest IQ of anyone he knew. It was Earl who first convinced me of the importance of commitment strategies in understanding human behavior and the structure of human societies. Credit also goes to Gordon Tullock for provoking me into thinking through the ideas, as described in the previous chapter.

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