Sobre los derechos

Abstract

Legal systems are often presented as sets of rights, and legal norms operate to ensure these rights. In this paper, I try to clarify the concept of right according to the different shades in which, as a matter of fact, the idea of a right is interpreted. As a matter of fact, if law is seen from the point of view of the legislator, the will to make a certain action effectively accessible by the bearer of the corresponding right admits different degrees or levels of intensity, and each of those levels can be represented by a different configuration of duties or competences. The first level, the weakest of them all, is represented by negative permission: doing p is not forbidden. At the second level, the legislator has considered the matter and deemed it important enough to enact legislation expressly granting citizens the permission to do p. In the third level, even without a superior explicit permission, the legislator wants to prevent a delegate authority to prohibit p. So, she forbids such authorities from enacting a norm which includes that prohibition. In the fourth level or degree, the superior tries to prevent the delegate authority from disobeying its purpose. In order to do so, it establishes that the prohibition of p is out of the competence of any of its delegates. In the fifth degree, the fact that p is permitted and cannot be forbidden is not enough for the legislator: she insists that the subject willing to do p shall not be prevented from it by third persons. In the sixth level, the legislator acknowledges that, even if nobody opposes an obstacle to p, some willing persons are not individually able to perform such behaviour. In order to solve this last difficulty, the legislator establishes an obligation, for every subject, or for some of them in a certain favourable situation, or even for a delegate authority, of giving an effective help to any person willing to perform p but finding some obstacle to do so. Once individuated and defined those six levels of intensity of rights, some examples of each degree may be proposed. The aim of this paper is not to maintain or to change the present priorities, nor to deny the importance of rights or encourage courts to ignore them. Its purpose is to show the operative reality of rights, compared with the different emphasis they are attributed to within the political discourse, presently deeply received in the legal field. The analysis of the levels exposed above may be a useful tool to understand some difficulties of the legal discourse when compared to the legal practice.