domingo, 25 de agosto de 2013

Dworkin's conception of rights (as trumps), Rawls's first principle, and Hart's criticism

In the Dworkinian conception of a right (right as a kind of trump), does “A has a right to free speech” means that the political objective of A having free speech ought to prevail over almost every other political objective, except for other rights heavier than A’s right to free speech and for social ends with acutely high urgency or relevance? Wouldn’t that mean that A ought to have as much free speech as morally possible?

I know that Dworkin’s definition is more of an interpretive conception of rights and their status in the general frame of political objectives, and not a semantic analysis of what means to have a right, but I was thinking that, if the translation above is right, then in Dworkin the principle that everyone should have the widest system of freedom would not be a demand of justice about rights (as in Rawls), but would rather be contained in the very concept of rights. It would be conceptually impossible for a legal system to recourse to the idea of rights without intending to grant everyone the widest system of freedom. In a way, Hart’s criticism of Rawls’s formulation and lexical priority of the first principle of justice (stating that both would be chosen only by individuals animated by liberalism as an ideal of life, something that the parties in the original position are not supposed to be) would apply even more properly to Dworkin’s conception of rights.

(But wouldn’t Dworkin defend himself by saying that he never meant to merely describe what is a right, because that is impossible, he meant instead to provide an interpretation of rights, which, according to his ideas, must necessarily commit itself to a normative ideal? So he was not trying to sketch a definition of rights with which rational parties under the veil of ignorance would agree, but rather an interpretation of rights that would both explain and justify our political practices, making them as morally appealing as possible. But even if we accept what he says that “interpreting” implies, wouldn’t a “thinner” conception of rights, one not committed from the start with the principle of the widest system of freedom, be explanatorily more powerful and meta-ethically more pluralistic?)

Nenhum comentário:

Postar um comentário