Berkeley Program in Law and Economics

The goal is to represent the problem of the conditions of the emergence and stability of cooperation among interacting individuals, as we interpret the classical contractualist approach of the problem of the origins of civil and political rights, in terms of the model of commons tragedy. This is pursued in order to show that the formation of the civil and political rights follows a process with two stages: privatization and statization or subjectivity and objectivity. The privatization process is related to the emergence of the individual as individual throughout the emergence of the property rights as dimensions of his individuality. In this case, each individual is himself a scarce resource still it is a common property from the point of view of the others individuals. The process of statization is related to the emergence and stability of the cooperation among the individuals. The social cooperation is the next stage and it is a strategy that results necessarily from each rational individual in order to make objective the recognition by the others of his property rights that was subjectively constructed in the process of individualization or privatization. The social cooperation, by its turn, requires the design of a contract among the individuals looking for recognition in which each of the property rights is specified and also its amount. Besides, it must specify the design of a mechanism, the State, to which is attributed the task of being in charge of the enforcement of the contract. The characteristics of the design as of the contract as of the mechanism of the state depend upon certain axiological elements of the classical contractualist conception. Hobbes chooses as the main axiological element the property right to life and states the main problem is that of the preservation of the life. Therefore, the goal is to make the property right of life objective or, in other words, that must be a mutual recognition of this property right. In order to reach this goal it will be acceptable a trade-off between others property rights such as freedom, equality and also the right to defend each one with all means, among them the life of the others. This article, however, deals with the development of these ideas from Locke to Kant. Locke approaches the solution of this problem by incorporating new property rights as his main axiological elements. This means that these rights are not to be submitted to trade-off as they were in Hobbes except for the property right to life. The new property rights are the rights of liberty and rights of property together with the property right to life. The design of the contract and of the mechanism has to do with the enforcement of these rights. It follows the pattern developed by Hobbes as the basic conditions to solve the problem of the emergence and stability of cooperation: the state. However, the self-government of the individuals in the state of nature is not completely abolished, because the mechanism of coordination incorporates elements which aim to keeping the control of the government in the hands of the individuals. With this strategy he amplifies the idea of the individual as an end by creating many more rights that are not submitted to trade-off. Rousseau will add other property rights to those of Locke and Hobbes and will universalize them. Besides, he will bring the mechanism of the government totally in the hands of the individuals. We could say that Rousseau´s solution to the problem of the emergence and stability of cooperation is the institution of the self-government with his idea of autonomy. Kant pushes this idea of autonomy to its limit by completing the formation of the civil and political rights and makes the idea of the individual as a end and never as means the unifying idea of his conception. He gives a final picture for the classical contractualist conception with the construction of the realm of the ends.