Special Workshop Abstract

Rolando Tamayo y Salmorán

This essay deals with political systems and adjudication. It points out to some of the required conditions for a political system to be a democratic system. Where those conditions are satisfied, people are entitled of rights.

An important issue of my argument is the roll Courts play in the functioning of rights. Nevertheless, this essay does not deal with Courts, but with the fair distribution of the access to them. Consequently, in this essay I do not deal with the legal procedure but with the “access to justice”. I do consider this access a necessary condition for the existence of any right. I defend the thesis that the availability of a legal process is a necessary condition of any right. 

Rights are practical advantages conferred to some (or classes of) individuals. When someone is conferred with a right, he is legally permitted to do things others do not. Those who have more rights, have more practical (normative) advantages, they enjoy more permitted behaviour. If rights are advantages, then rights are goods. 

Democracy claims for a fair distribution of goods. Actually, there is a basic (meta) requirement for distribution: equal treatment. A fair distribution must satisfy this basic requirement (as in Rawls’ original position). But the conferring of a right is not a simple giving (as could happen with some other portion of goods). For a man to have a right it is not enough to be conferred with it, far from that. For having a right, properly so called, many other conditions have to be given, among them there must be a judiciary. The thesis that lies behind these lines is that the (functioning) of a judiciary is a necessary element for men to have rights. In this respect I joint the idea that judiciary is a primary institution of legal systems. 

From the above said it follows that a right (named ‘liberty’, ‘immunity’, ‘prerogative’) exists if, and only if, there are courts (in acting).

This argument gives rise different interpretations on the relation between rights and the judiciary. I distinguish two. The first one (which could be called the ‘strong thesis’) is formulated as follows: a right exists (other conditions satisfied) when it is expressly recognized by the courts (e.g. in a ruling). Thus, Aulus Agerius (the plaintiff) has a right only when decides that he actually has it. The “weak thesis” would be: a right exists when (other conditions satisfied) there are courts that, if required, they can render it effective. Certainly, the Aulus Agerius’ right exists just because there are courts, but this thesis recognises that rights exist whether or not a the legal process really takes place. In this essay I adopt a version of this thesis.

In the political discourse (as in the legal one) ‘democracy’ presupposes two independent elements. The first one is “equal treatment” according to which every individual is entitled of democratic rights (e.g. freedom of expression, right of vote, etcetera). The second element refers to a set of procedures through which the individuals exercise and secure their rights (any right of which they are entitled). Among these procedures outstands the legal process. 

The most relevant economic aspect of democracy it is not welfare, but distribution or better redistribution. The term ‘distribution’ is not a neutral term. It alludes to the idea of distributive justice, which implies the existence of a mechanism morally correct through which good are distributed (people rights included). If rights are to be distributed it is clear that what has to be distributed is a right, properly so-called, and not mere words on a piece of paper. The procedure has to assure equal treatment and an egalitarian result. 

It is said that a state of affaires is fair if the distribution of rights brought about is the result of a fair distribution (or redistribution). Off course, the distribution does not conclude with the distribution lay dawn by the legislator (lato sensu), his distribution is a prima facie one. The distribution of rights proceeds with an egalitarian distribution of its exercise conditions, namely: access to justice (which presupposes, it as well, equal treatment). 

Rights are conferred by a proper source (i.e. the legislator) but they have to count with the availability of a legal process to make them effective. Those are two characteristic traits that define rights properly so called.