Metodología de los objetivos particulares 2 y 3

Future historians of moral and political philosophy may well label our period the Age of  Rights. In moral philosophy it is now widely assumed that the two most plausible types of  normative theories are utilitarianism and Kantian theories and that the contest between them must be decided in the end by seeing whether Utilitarianism can accommodate a prominent role for rights in morality. In political philosophy even the most bitter opponents in the perennial debate over conflicts between liberty and equality often share a common assumption that the issue of liberty versus equality can only be resolved (or dissolved) by determining which is the correct theory of rights. Some contend that equal respect for persons requires enforcement of moral rights to goods and services required for the pursuit of one's own conception of the good, while others protest that an enforced system of positive rights violates the right to liberty whose recognition is the essence of equal respect for persons. The dominant views in contemporary moral and political philosophy combine an almost unbounded enthusiasm for the concept of rights with seemingly incessant disagreement about what our rights are and which rights are most basic. Unfortunately, that which enjoys our greatest enthusiasm is often that about which we are least critical.

My aim in this essay is to take a step backward in order to examine the assumption that frames the most important debates in contemporary moral and political philosophy the assumption that the concept of right has certain unique features which make rights so especially valuable as to be virtually indispensable element of any acceptable social order. In philosophy, whose main business is criticism a step backward need not be a loss of ground.

There are, it seems onl y two archetypal strategies for challenging the t heses that rights are uniquely valuable. The first is to argue that rights are valuable only under certain defective- and temporary-social conditions. According to this position the conflicts that make rights valuable can and ought to be abolished. Thus even if rights are very valuable in a society fraught with conflict, they are not valuable in all forms of human society. Our efforts should not be directed towards developing and faithfully implementing more adequate theories of  rights; we should strive to establish a social order which is so harmonious as to make rights otiose.

Variants of this view provide different accounts of the source of the conflicts that make rights valuable and alternative recommendati ons for how to eliminat e them. Marx, I have argued elsewhere believed that the sorts of interpersonal conflicts that make rights valuable are rooted in class-conflict gives rise, under conditions of scarcit y. Marx also predicted that class-divided society would eventually be replaced by a system of democratic control over production that would eliminate class-division and so reduce egoism and scarcit y, and hence interpersonal conflict, that reliance upon rights would become largely, if not totally, unnecessary.

If it turns out there are valuable functions that cannot be achieved without the distinctive features of rights, we shall know what is so special about rights. In particular, we shall know

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whether the reconciliation of liberty and equality, if it is possible at all, will rely upon a theory of rights. Further, in attempting to see whether rights are replaceable and hence dispensable, we will get clearer about what rights are. Whether or not our current enthusiasm for rights will be enhanced or diminished, it will at least be rationally supported, rather than dogmatic, and we will have a better idea of what we have been, or should be, so enthusiastic about.

We can begin by listing, in summary fashion, the features that are said by various writers to make rights uniquely valuable. (1) Because valid claims of right trump appeals to what would maximize social utility, rights provide the strongest protections for individuals and minorities. (2) A moral (or legal) s ystem that included no provision for compensation to those whose interests have been invaded would be a very defective system; but compensation is appropriate only where a right has been infringed. (3) Rights enable us to distinguish between those moral principle that can justly be enforced and those that control. (4) The concept of a right expresses the idea that something is owed to t he individual that a certain performance or certain forms of non-interference are his due or that he is entitled to them. Consequently, in a moral (or legal) system that lacked the concept of a right, individuals could only make requests, or beg, or ask favours; they could not demand certain treatment, but would be at the mercy of the generosity of personal whims of others. (5) Respect for persons simply is, or includes, recognition of the individuals status as a holder of rights. In a system in which such recognition is lacking, respect for oneself and others as persons is impossible, and to fail to respect persons as such is a grave moral defect. (6) A unique feature of rights is that the right holder may either invoke or not invoke or waive his right. For several reasons, this special feature makes rights principles more valuable then principles that merely state obligations or other moral (or legal) requirements. Each of these six features must now be examined in detail.

I

Three of the most prominent contemporary rights theorists, John Rawls, Ronald Dworkin, and Robert Nozick, place great emphasis on the idea that valid claims of right at least in the case of basic rights, take precedence over, or as Dworkins puts it "trump" appeals to what would maximize social utility. It is easy to see that having some interest-protecting principles that take precedence over appeals to social utility maximization is extremely valuable. It is more difficult to see, however, why the attractiveness of the utility-trumping feature itself  shows that rights are indispensable. For there is certainly nothing conceptually incoherent or even impractical about interest-protecting principles that have the utility-trumping feature but that include none of the other features said to be distinctive of rights. In particular, there seems to be a no conceptual or pragmatic connection between the trumping feature and the idea that something is owed to the individual, or that the individual may or may not invoke his right or waive it. After all, to say that the requirements laid down by a principle possesses the trumping feature is to make an external relation statement, a statement about the weighting or priority relation between that principle and other principles, in particular, the principle or utility. It is not to say anything at all about the distinctive content of the principle in question.

Consequently, even if the utility trumping feature were necessary for a principle to be a rights principle, it hardly seems sufficient. Thus, although it maybe true that any system that lacked this feature would leave individuals or minority interests vulnerable, it does not follow that a system that l acked rights would be intolerable. To put the point differently, to adhere to utility trumping, interest-protecting principles is to recognize that certain interests (e.g., in food or shelter or in freedom from bodily invasion) are to be protected even at the cost of  losses in social utility. But this seems to fall short of recognizing that individuals have rights.

II

If a system that awards compensation for invasions of interests has significant advantages over one which does not, and if compensation presupposes infringement of a right. Then rights are distinctively valuable, at least for this reason. Assuming for a moment that rights alone provide a basis for compensation, why is a system that includes compensation better than one that does not? The most obvious reply is that compensation is an intuitively attractive response to an infraction of an interest-protecting principle. After all, if the infraction made A worse off, then it seems fitting to try to restore A's interests to the condition they were in before they were set back by the infraction.

A more subtle and less appreciated advantage of a system of compensation is that the prospect of compensation provides an incentive for reporting infringements and, hence, facilitates effective enforcement of the law. In many cases a rational victim will conclude that the cost to him of reporting an infringement (and of testifying, etc.) will exceed the benefits he would receive from doing so, unless he can expect compensation. This may well be the case if (a) the probability is low that one will be a victim of this sort of infraction again in the future, or if (b) the probability is low that punishment will achieve a significant deterrent effect.

However, when the prospect of compensation enters the picture; I have an incentive to report the infraction, even when conditions (a) and (b) are present. Thus, compensation is attractive in part because it promotes reporting of infractions and, hence, facilitates enforcement of interest protecting principles.

It does not follow, however, that only compensation can do this job. A simple reward system would also provide the needed incentive. If C can expect a reward for reporting an infraction of a principle that occurs when B's interests are invaded by A, then all C need be concerned about is whether his expected gain from the reward surpasses the expected cost to him of reporting the infraction. So it seems that compensation is not an indispensable aid to reporting infractions and, hence, to enforcement of interest-protecting principles.

III

The thesis that compensation presupposes infringement of a right is ambiguous. It may be understood either as a claim about the meaning of compensation or as claim about the necessary conditions for justified compensation. On the first interpretation, the thesis can be dismissed rather easily. There is nothing incoherent or meaningless about the idea of a principle of compensation which requires A to be compensated whenever certain of his interests are invaded, but which does not imply that A has any rights against the invasions in question. All that is needed is the principle of compensation itself and some way of picking

out which invasions of interest are to be compensated. The difficulty lies in determining which interests count for purposes of compensation. But precisely the same is true for a theory of rights-not just any interest will count as the basis for a right. It seems, then, that the burden of proof is on those who claim that no system could provide an adequate moral  justification for compensation in the absence of infringement of rights.

Finally, although those who have assumed that compensation requires infringement of a right have somehow failed to notice it, our own legal system, in the law of torts dealing with fault liability, provides instances in which a successful case for compensation does not depend upon establishing that a right was infringed. Rather, one need only show that a right was infringed. Rather, one need only show that a legitimate interest was invaded and that the one who invaded it was at fault i.e. that his action was unjustified in that if failed to measure up to the action was unjustified in that if failed to measure up to the standard of care exercised by the reasonable persons. Thus, although establishing that a right was infringed provides one basis for compensation. This does not tell us what is distinctively valuable about rights, even in our own system at the present time.

Granted our earlier point that compensation promotes efficiency in reporting and, hence, in enforcing interest-protecting principles, it should come as no surprise that justification for a principle of compensation need not appeal to rights. A utilitarian system, or indeed any system that values efficiency, would find compensation attractive, even if such a system had no use for rights.

The thesis that rights play an indispensable role in distinguishing those moral principles that can justly be enforced from those that cannot is ambiguous, lending itself to four quite different interpretations. (1) A valid claim of right is sufficient justification for enforcement (if enforcement is not only sufficient but necessary to avoid violations of the right). (2) A valid claim of right constitutes a prima facie case for enforcement is not only sufficient but necessary to avoid violations of the right. And thus shifts the burden of proof to those who would deny that enforcement is justified. (3) A valid claim of right is necessary for justified enforcement (i.e., only rights principles can justly be enforced). (4) Enforcement of a principle is justified only if that principle is a rights principle or if it is a non-rights principle whose enforcement would violate no rights.

The first interpretation may be eliminated, for at least two reasons. First, when rights conflict, not all of them can be enforced. Second, even those celebrants of rights who emphasize the idea that rights trump appeals to what would maximize utility admit that in some (presumably rare) cases valid claims of right must give way in order to avoid enormous disutility.

The second interpretation certainly seems to capture at least part of the connection between rights and enforcement. Indeed, some theorists, including Mill, tend to define rights as something that society ought to guarantee for the individual. A presumption of  enforceability seems natural enough, granted the trumping feature. If rights are such important items that protecting them requires foregoing gains in social utility, then it is not surprising that we believe they should be protected, by force if necessary, absent some substantial reason for not doing so.

The more interesting question is this: what kinds of considerations defeat the presumption that rights may be enforced in cases where enforcement is necessary to avoid violations of  rights? One plausible place to begin is with the suggestion that the presumption is not defeated by the mere fact that non-enforcement would maximize social utility. My purpose here, however, is not to develop a theory of the justified enforcement of rights but rather to see whether the connections between rights and justified enforcement is so close that t he need for justified enforcement makes right uniquely valuable. The mere fact that the existence of a right constitutes a prima facie case for enforcement does not go very far towards showing that rights are indispensable. It would do so only if there were no serviceable non-rights-bases arguments for enforcing moral principles.

The third interpretation, though more plausible than the first, is nonetheless insupportable, or at least not adequately supported by those who assume or assert it. There is indirect evidence that claim (3) is widely held. Almost without exception, those who argue that legal entitlements to goods or services are morally justified do so by arguing that there are moral rights to the goods and services in question. Their opponents, again almost without exception, attack the claim that legal entitlements to "welfare" are morally justified by arguing that there is no moral right to the goods and services in question.

A plausible explanation of this behaviour is that both sides assume that a legal right to X can only be adequately justified by showing that there is a moral right to X; in other words, that only (moral) rights principles are enforceable. A case in point is t he debate over whether there is a sound moral justification for a legal right to a "decent minimum" of health care. The implicit assumption in this dispute seems to be that an enforced "decent minimum" policy, if  it is morally justified, must rest upon a moral right to health care, either as a basic moral right or as a derivative moral right based on something more fundamental such as a moral right to equal opportunity.

The assumption that only rights principles are enforceable, however, a seems to be an unsupported dogma. There is at least one rather widely recognized type of argument for enforcement that provides a serious challenge to the assumption that only rights principles may be enforce: principles requiring contribution to certain important "public goods" in the technical sense. It is characteristics of public goods (such as energy conservation, pollution control, and national defense) that if the goods is supplied it will be impossible or infeasible to exclude non-contributors from partaking of it. Hence each individual has an incentive to withhold his contribution to the achievement of the good, even though the net result will be the that the goods is not achieved. Enforcement of a principle requiring everyone to contribute may be necessary to overcome the individuals incentive to refrain from contributing by imposing a penalty for this own failure to contribute.

In some instance, enforcement is needed not only to overcome the individuals incentive not to contribute to some good, but also to ensure that contributions are appropriately coordinated. To take one familiar example enforcement of the "rule of the road" ("drive only on the right") is needed not only to ensure that all will contribute to the goal of safe driving but also to coordinate individuals efforts so as to make attainment of that goal possible. Or, more accurately, in cases of this sort, a certain kind of coordinate collective behaviour just is the public good in question. To argue that enforcement of principles of contribution is

sometimes justified when necessary for the provision of important public goods, it is not necessary to assume that anyone has a moral (or legal) right to the good, whether it be safe- driving conditions, energy conservation, freedom from toxic wastes, or adequate national defense. If one believes, as I do, that there are at least some cases in which public goods arguments justify enforced contribution principles, in the absence of a right to the good in question, then one must reject the sweeping thesis that only right principles can justly be enforced?

To admit that some enforced principles requiring contributions to public goods are morally justifiable (in the absence of a right to the good) is not, however, to say that whenever a public good problem exists, enforcement is justified. First of all, since enforcement, even if  not always an evil, is never a good thing, public goods problems generate enforceable principles only if the good cannot be attained by other, less undesirable means (e.g., moral exhortation, leading others to contribute by one's example, etc.). Second, and perhaps even more obviously, enforcement is not justified if the cost of enforcement is not surpassed by the benefit of attaining the good in question. Third, even when the preceding two conditions are satisfied, a further limitation may be needed to restrict the scope of public goods arguments for enforcement, simply because the class of things which can qualify as public goods is so extremely large that overuse of this type of argument for enforcement may result.

As this point, the attractiveness of the fourth interpretation of the thesis that rights are necessary for making a distinction between those principles that can rightly be enforced and