S IMULACIÓN E IMPLEMENTACIÓN DEL MÉTODO DE FILTRADO UTILIZANDO LA

In order to achieve the first task for its main argument, the fair right thesis can appeal to the idea that cooperators have a right not to be disadvantaged by the non-compliance of beneficiaries. This idea is the main part of the interest theory of right, according to which when and if cooperators are disadvantaged by the non-compliance of beneficiaries, the former acquire a right to the compliance of the latter.

but the choice theory of right.

The right holder may waive or extinguish the duty or leave it in existence… he may waive or extinguish the obligation to pay compensation to which the breach [of a duty] gives rise (Hart 1982: 184).

It is true that Hart argues for the choice theory of right against the interest theory of right. When cooperators have a right to the compliance of beneficiaries in such circumstances, the former is in the position to choose between waiving and commanding the obligation of the latter to follow relevant rules; the former‟s choice of commanding is the source of the obligation of the latter.

That is, the choice theory of right is clear about the contents of the right in question. However, with regard to the fair right thesis as a moral justification of the fairness obligation, I do not take a stand on whether the content of the right of the cooperators is interested-based or choice-based. Thus, it does not matter that cooperators can choose to cancel or command the obligation of beneficiaries to do their share.

What is important is to distinguish between a conception of the content of a right and the appeal to rights as a justification of the fairness obligation. The choice theory suggests a conception of the content of a right, which asserts that a right consists in the holder having a choice with respect to whether another has a duty to perform a particular act. As a conception of the content of a right, the interest theory holds that it is possible in some cases for others to have a duty to perform a particular act regardless of the choice of the person to whom the duty is owed. I do not take a stand on this dispute.

What matters to the discussion of the moral foundation of the principle of fairness is whether the interest theory or the choice theory can morally support the fair right thesis as a justification of the fairness obligation. However, it is not clear whether the choice theory of right justifies the right of cooperators with reference to the choice of the cooperators while it is clear that the interest theory of right appeals to the interest of cooperators. Hart finds the moral foundation of mutuality of restrictions in „the equal right of all men to be free‟ (Hart 1955: 175, 191), which does not directly refer to the choice of the right-holders, but rather equality among all men. Equality as a moral foundation of the fairness obligation will be discussed in the following chapter. The current chapter focuses on the interest theory of right as a bolster of the fair right thesis because the only plausible argument about the right of cooperators is that the non-compliance of beneficiaries would disadvantage cooperators.18

The interest theory of right basically holds that it is the interest or benefit of the right-holders that justifies the corresponding obligation on others (Raz 1986, ch7). For example, children have a right to public education because they have an interest in having such an education; the interest of children justifies the parental and social obligation to provide them with public education.19 To put in

our language, cooperators have the right to the compliance of beneficiaries

18

I do not mean to say that Hart takes the position of the interest theory of rights with regard to the moral foundation of the fairness obligation. However, I suggest the interest theory of rights as an understanding of „mutuality of restrictions‟.

19

The interest theory of right is well explained in comparison with the will theory of rights by Sumner in his book, The Moral Foundations of Right (1987: 45-53), and also in the three authored book, A Debate over Rights by Kramer, Simmonds, and Steiner (1998).

because the former would benefit from the compliance of the latter.

However, not every beneficiary is an interest-right-holder, but vice versa. That is, an interest-right-holder is a beneficiary (Kramer 1998: 67). Interest is not a condition for, but an important function of, a right in the interest theory of right. A right functions in the way that the right holder benefits from having such a right or that the holder gets disadvantaged from the absence of the right. Thus, the interest theory of right can be stated in either a positive or a negative mode. The right of cooperators to the compliance of beneficiaries is based on the interest stemming from having the right or the disadvantage coming from not having the right.

The interest right thesis in a negative mode is similar to White‟s reciprocity principle; both concern the disadvantage that cooperators may experience when beneficiaries do not comply with relevant rules. According to White‟s reciprocity principle, one has a duty to do one‟s share in return for benefit received from others‟ cooperation; otherwise others are burdened beyond their share (2003a: 49-61). He believes that

certainly, citizens who have democratic mutual regard for each other would, as an expression of their regard for other citizens as their equals, want to share these costs and not offload them onto others (ibid. 61).

Similarly, the interest right thesis is sensitive to the disadvantage to cooperators which is caused by the non-compliance of beneficiaries. On the basis of the same assumption, both White‟s reciprocity principle and the interest right thesis ultimately argue that beneficiaries have an obligation to do their share.

With regard to the fair right thesis, the interest right thesis can be stated in a negative mode as follows:

 When and if cooperators are disadvantaged by the non-compliance of beneficiaries, then the former should have a right to the compliance of the latter. [Normative premise]

 Cooperators are disadvantaged by the non-compliance of beneficiaries. [Factual premise]

 Therefore, cooperators have a right to the compliance of beneficiaries. [Conclusion]

The conclusion is not justified by the factual premise, which is not a justificatory reason, but only a condition, for the conclusion. The conclusion is justified by the normative premise, which is itself the very interest right thesis. The interest right thesis is justified when its normative premise is justified, on condition that the factual premise is satisfied.

Thus, if the interest theory of right is to reach the conclusion that cooperators have the right to the compliance of beneficiaries, the factual premise has to be satisfied, which is a premise to be established not by the interest theory of right but by the fair right thesis because the former just takes it for granted. And then, the interest theory of right should be able to explain how cooperators obtain the right to the compliance of beneficiaries when they are disadvantaged by the non-compliance of the latter while the latter do not gain a right to their non-compliance even though they are disadvantaged by their compliance. Once

the right of cooperators to the compliance of beneficiaries is established by the interest theory of right, the fair right thesis needs to clarify under which conditions the right of cooperators triggers the obligation for beneficiaries to comply with relevant rules. Let me begin with an argument that cooperators are not disadvantaged by the non-compliance of beneficiaries.