“Where do rights come from?” Philosophers have debated that for centuries.

But as a practical matter the better question is: “What must rights do?” (More)

Rights, Privileges, and Thickets, Part II – Wrongs and Remedies

This week Morning Feature considers the thorny topic of rights and privileges. Yesterday we examined the dangers of mistaking ideas for things. Today we contrast that with a legal perspective on rights and privileges. Tomorrow we’ll conclude with Fred Whispering points for moral, progressive policies.

“Give it back!”

The first step in the lawsuit happens in the other room, just as you open that book comparing the jurisprudential theories of Locke and Rawls. (You’re clearly an optimist.) The bookmark is at page 53. The author is done with the introductory material (what a slog!) and getting to the really good stuff about rights and justice. You sip your iced tea and shift on the sofa. Ahh, perfect….

“No.”

“But it’s mine!”

“You put it down.”

“I wasn’t finished with it.”

“Yes you were.”

“Was not.”

“Were too.”

“I said give it back!”

“Make me!”

“I’m gonna tell Mom!”

So much for theories of rights and justice. First you have to settle this….

“What’s going on?”

Oyez, oyez, oyez! The Superior Court is now in session,” you announce in a clarion voice. “Draw near and ye shall be heard. The Honorable Judge Mom, presiding.”

Okay, so you don’t. Instead, you ask “What’s going on?”

“I was drawing a picture of the cat and” “No you weren’t drawing you were playing with her” “I was too drawing but she went away and”

You hold up a hand and clear your voice. “One at a time. What happened?”

Your daughter Plaintiff (what an odd name!) explains that she was drawing a picture of the cat, who had been sitting on the table. Plaintiff had finished the cat’s shoulder patch, using Crayola Macaroni and Cheese because that’s exactly the right color and it’s the only right color and she can prove it here look at Plaintiff’s Exhibits #1 (crayon) and #2 (Mrrowww). Plaintiff then intended to color the cat’s hip patch but first needed to be sure it was the same color but the cat had wandered off so she had to go look again and she petted the cat and yes Macaroni and Cheese was the right color so she came back and found her brother had taken that crayon and wouldn’t give it back and he’s mean and

You’ve discovered Plaintiff’s side of the story, and discovered that Plaintiff has a lung capacity equal to the entire cast at the Metropolitan Opera. Time to hear the other side.

Your son Defendant (what were you thinking?) will stipulate that Plaintiff had been drawing, but claims she went off to pet the cat. She had been gone forever and when he looked she was playing with the cat and the fluffy ball on the string. He decided she was done and Crayola Macaroni and Cheese is also exactly the right color and the only right color for his picture of his army guys. He offers Defendant’s Exhibits #1 (with bazooka) and #2 (with binoculars). Then the brat (Objection! Sustained!) came back and wanted Macaroni and Cheese back. He wasn’t done with it, so he refused.

Plaintiff admits that she was playing with the fluffy ball on the string because the cat likes that and maybe then the cat would come back and sit on the table so Plaintiff could finish maybe but none of that matters because the crayons are hers anyway she got them for her birthday remember and she only lets him use them sometimes but they’re still hers.

Defendant cites the Sharing Doctrine enunciated by this very court in the landmark case of Brat vs. Entirely Reasonable (Objection! Sustained!) and which this court has always upheld. Plaintiff then argues the Still In Use Exception to the Sharing Doctrine, announced by this court in the case of Sweet and Innocent vs. Big Bully (Objection! Sustained!).

“Order in the court!”

You rap your gavel and remember you should have put the bookmark back in it first. (Page 53, wasn’t it?) Regardless, you’ve heard enough and you’re ready to make your decision.

The governing law is, in fact, the Sharing Doctrine and the Still In Use Exception, first set down by the Venerable Justice Grandma of the Supreme Court many years ago in the case of Your Mom vs. Your Uncle Bob. That case involved drawings of flowers, green army guys, and the pretty clouds that distracted Your Mom when she went out to check the color of flower stems. Justice Grandma decided Your Uncle Bob reasonably thought Your Mom was done coloring so he could use Your Mom’s crayons, including the color in dispute, Crayola Fern. Justice Grandma directed Your Uncle Bob to finish his drawing and then return Crayola Fern to Your Mom. As that decision worked well, the Superior Court of Mom directs Defendant to do likewise. So ordered.

Plaintiff and Defendant nod and walk away. You sip your tea, pick up your book (yes, it was page 53) and go back to reading about theories of justice and where rights come from. Very important stuff.

“Stop doing that!”

Mommmmm!

God save this honorable court….

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Happy Friday!