Elements of a Periodic Table

The Rational Reconstruction of Rights from Teoría Analítica del Derecho

Abstract

The main concern of this essay is metaphilosophical and can be stated as follows: rational reconstructions of fundamental legal concepts respond to certain (theoretical and practical) requirements. Depending on what these requirements are, the theorist will pay attention or neglect (or, if she is not fully aware of it, she must pay attention or neglect) the potential virtues that her rational reconstruction might fulfill. Specifically, in this essay I critically expose and analyse Hohfeld’s and Kelsen’s theories of rights, in order to establish which main configurations of rights they establish and which ones they overlook or preclude. The mediate purpose of my analysis is to determine, within J. L. Rodriguez’s concise theory of rights, what are the major contributions and what tensions it displays. The ultimate purpose is to identify some decisions that the rights theorist can and should make in virtue of the kind of theory she aims to formulate.