• Ciceronianus the White
    1.4k


    You seem to be referring to a duty of government, though. What are the duties of those endowed with the rights, if there are any? Those are the duties I thought were being referred to when it's claimed there are no rights without duties.
  • Hanover
    5.9k
    You seem to be referring to a duty of government, though. What are the duties of those endowed with the rights, if there are any? Those are the duties I thought were being referred to when it's claimed there are no rights without duties.Ciceronianus the White

    If there is natural law, there is natural duty, which I think I described and which would relate to government insofar as what would a just government look like.

    As to what natural duties are imparted upon those endowed with the natural rights, that sounds like you're asking what I'm commanded to do by virtue of my humanity. I suppose I would be prohibited from lying and stealing, should honor my mother and father, and shouldn't covet my neighbor's wife, to name a few. To be more secular about this, my duties might entail being a charitable and kind person. Of course Kant spoke about ethical duty, so if you find that persuasive, then the categorical imperative would answer the question of what our duty is as well.
  • god must be atheist
    2.4k
    We hear this often, but I wonder what it means, at least in the context of a belief in natural rights. Does it mean there are natural duties as well as natural rights?Ciceronianus the White

    This is an excellent question. So is the question, what does "natural" mean in these expressions.

    To me "natural" means, on one hand, nature given, on the other hand, independent of human activity, as at one point human activity was sharply delineated form nature's activity.

    In the second sense, there is no natural human characteristics, and activities.
    In the first sense, I think natural human rights and ~duties are those that are

    1. Inescapable by any and all humans and
    2. pervasive across the species.

    So what could be defined as natural human rights and ~duties in this sense?

    Please feel free to alter my defintions, we already agreed there are no perfect definitions and perfect words for the occasion of any kind.

    Can the need to eat food and water be a rigth and a duty? Eating and drinking serve life. Without them life dies.

    With the same token, washroom duties and rights.

    But is the word "right" right here? or duty? they imply a moral component. Is eating or drinking moral? The act itself, not what you eat.

    So I tend to agree with Ciceronianus the White when he questions whether rights exist at all outside of legal contex or political context.

    I wish someone here could come up with the example of a right that is truly natural... a right that is born with every person and stays with the person until death, AND which is granted by Mother Nature, not by god or by other humans.
  • Athena
    948
    Whoo
    HanoverHanover
    I am glad you answered
    Ciceronianus the WhiteCiceronianus the White
    question. You all are much more fun to play with than the folks in a political forum who do none of the thinking you all do here. I had no thought of our government but we should know this ..

    We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of ...

    The Constitution | The White House
    — constitituion

    My understanding of rights and duties at the moment, didn't go further than family. If you are lucky enough to have a bedroom it is your duty to clean it up and if you don't the natural consequence is your space will become very unpleasant and you will not develop the strength of character to be an orderly and attractive human being. A responsibility ignored is a lost chance to develop our character, and the negatives build up making our lives unpleasant. If we are so lucky as to have people who care for us, it is our duty to care for them. See how the habit of caring for others, develops our character?

    As a great grandmother I can say it can seem near impossible to get children headed on the right track, especially in the culture we have today because none of us are supported by a culture that just puts the rights and duties in the air we breathe, so we assume they are just the way life is and don't even question them. As my statement of rights of duties was just something I assume without thought.

    Having a good life is so much about developing the right habits. Confucius speaks of this and I believe it can be found in the Bhagavad-Gita (AS IT IS) a Hindu book. We can think, we have a duty to ourselves to be the best human being we can be, and grow our character by making right choices. From there our family, the groups we belong to, our nation, are just extensions of ourselves. And the laws are natural cause and effect.
  • Athena
    948
    But is the word "right" right here? or duty? they imply a moral component. Is eating or drinking moral? The act itself, not what you eat.god must be atheist

    As you stated we must eat or we die, but the right to eat demands the right action, or we go hungry. I am working with some homeless people who are driving me crazy because the behaviors are not conducive to having a nice meal. A while, back someone in the forum, argued we get things for free and I went ballistic because mother nature does not take care of us as our humans mothers do. We might get oxygen without effort but I can't think of anything else we get without effort. If you want to eat, you better get up early and study the environment at this moment in time with the sensitivity of wolf looking for a meal. You might for you body and weapons and tools so that you survive a little longer. Sleeping through most the day, waking with no plan, waiting for life to happen to you, might not go so well.

    :smile: A right is what gets us what we want. A duty is taking responsibility for doing the right thing. Rights exist as the law of nature and things don't go well when we choose wrongs. Whoo, I want to scream to the citizens of the US "grow up". Only your mother is going to your give you your rights without you fulfilling your duties. Mother nature will not and expecting society to care for you like your human mother once did, is just wrong. However- capitalism is good up to a point and then it turns bad and our government needs to resolve this problem. Like if there is plenty of land for us all to take land enough for a farm simply by being the first ones to get to that piece of land, then government doesn't have to do any more than protect our right to own the land. But when far more people need that land than their is land, government must act for justice and compensate for this demand and supply problem.
  • god must be atheist
    2.4k
    The fact that self-interest isn't a virtue doesn't mean one cannot be self-interested.Ciceronianus the White

    Yes, but it excludes the possibility of being virtuous. You have already placed a lot of stake on being virtuous. Being non-virtuous is being immoral... maybe. You argue that not being viruous is not immoral, it is just simply not outstanding moral might.

    I actually agree. My objections were made in haste and they were not correct. Carry on.
  • god must be atheist
    2.4k
    We hear this often, but I wonder what it means, at least in the context of a belief in natural rights. Does it mean there are natural duties as well as natural rights?
    — Ciceronianus the White

    This is an excellent question. So is the question, what does "natural" mean in these expressions.
    god must be atheist

    I wish you'd visit my post there. (Just click on any part of my portion of the quote above here. It will take you there.)
  • Benkei
    3.8k
    I've always understood it as reciprocity. If you believe you have a right and wish to have that respected, you have a dirty to respect another's same right. My right to property implies a duty to respect yours, if I don't I can't expect you to respect mine and the system collapses.
  • Ciceronianus the White
    1.4k
    As to what natural duties are imparted upon those endowed with the natural rights, that sounds like you're asking what I'm commanded to do by virtue of my humanity. I suppose I would be prohibited from lying and stealing, should honor my mother and father, and shouldn't covet my neighbor's wife, to name a few. To be more secular about this, my duties might entail being a charitable and kind person.Hanover

    The claim that is no (natural) right without a duty, though, indicates that for each such right, there is a corresponding duty. A duty not to lie, or a duty to honor my mother and father, don't seem to be associated with a right--unless a right to be told the truth exists, or a right to be honored.
  • Ciceronianus the White
    1.4k
    A right is what gets us what we want. A duty is taking responsibility for doing the right thing.Athena

    The questions I'm (now!) trying to pursue (which I think are still pertinent to this thread) are--assuming there are natural rights, in what sense are duties associated with them, or arise from them? If there are no rights without duties, why is that so? What duties supposedly arise from rights? Are those duties a condition of natural rights--do we forfeit rights if we don't comply with those duties? Doing the right thing wouldn't seem to be dependent on a concept of natural rights.
  • Ciceronianus the White
    1.4k
    I wish you'd visit my post there. (Just click on any part of my portion of the quote above here. It will take you there.)god must be atheist

    I'll check it out. Been a bit tied up.
  • Ciceronianus the White
    1.4k
    I've always understood it as reciprocity. If you believe you have a right and wish to have that respected, you have a dirty to respect another's same right. My right to property implies a duty to respect yours, if I don't I can't expect you to respect mine and the system collapses.Benkei

    And that could well be what is meant, in which case the duties nature imposes on us become purely negative--we should not infringe on someone else's right to property, right to free speech, right to life, etc. These rights and duties are arguably necessary to restrict the power of government and protect us from others. Understanding that, I think that the concept of individual rights and their sanctity, so to speak, is fundamental to a system of laws. But I think it's flawed as a foundation for morality because it says nothing regarding what we should do, i.e. what positive obligations and responsibilities we have.

    Perhaps an argument can be made that natural rights carry with them a duty to exercise those rights responsibly in a positive, proactive sense. I don't like the word "proactive" myself; I mean, though in a manner which, e.g., isn't purely self-indulgent. Maybe that would result in a theory of natural rights which could be included in what the ancients thought to be natural law (I haven't begun reading that book yet, but I will--it looks very good).
  • Athena
    948
    The questions I'm (now!) trying to pursue (which I think are still pertinent to this thread) are--assuming there are natural rights, in what sense are duties associated with them, or arise from them? If there are no rights without duties, why is that so? What duties supposedly arise from rights? Are those duties a condition of natural rights--do we forfeit rights if we don't comply with those duties? Doing the right thing wouldn't seem to be dependent on a concept of natural rights.Ciceronianus the White

    I am not aware of what I think until you ask the question. In the process of trying to answer your questions, I figure out answers. This time my thinking led to the conclusion that only humans have duties because their brains can ask why and come up with an answer. (religion is superstitious answers and science works better). Chimps can learn to use a twig to fish for termites in dead trees (technology) but they will not know the life cycle of trees and termites (science). Our duty comes out of what we can know.

    :smile: We are born in sin. Sin is ignorance. We are not born knowing right from wrong. We are born with only a few instincts. Animals learn through trial and error and can learn from each other. However, humans are unique in that they question why something is so and come to learn and understand cause and effect. This makes it possible for them to live in unnaturally large groups in increasingly more complex societies. This demands more of humans than other animals.

    Social duties arise out of rights. Of course, it is easy to take and ignore our duties, and then blame others for the problems. But those problems are proof of the wrong, proof our failure to fulfil and duty.
    Perhaps we are ignorant of what is right or we justify why we can ignore doing the right thing. Both are a failure to take responsibility for our actions. Polluting the land and waters becomes a problem we can not ignore. Media indulging our lowest instincts has encouraged a reality that is unpleasant. Wars are very destructive and the damage of war continues for several generations. On the other hand, I just had an awesome medical procedure yesterday that might extend my life and no other animal can do this. That is, because we can learn and understand so much, we can manifest a better and better reality. We can declare everyone has the right to food, shelter, medical care, and equal opportunity. Because we can do that, it might be our duty to do that? What happens if we think that is our duty? What happens if we do not? Or what happens if people think they have rights and no duties?
    .
  • Athena
    948
    I've always understood it as reciprocity. If you believe you have a right and wish to have that respected, you have a dirty to respect another's same right. My right to property implies a duty to respect yours, if I don't I can't expect you to respect mine and the system collapses.
    — Benkei
    Ciceronianus the White

    I find it hard to find the right words to explain how that works, but you made the point I am trying to make. "Reciprocity" is a good word.

    In reading old textbooks, I think there was a time when that concept came through education. Old textbooks taught consideration of others. One flat out says, a rich person may not be happy in a way to make someone with less feel good about what s/he has and ware of others. Money doesn't always make people happy. And it explained a rich person has an obligation to share as the farmer shares a surplus of food. That sharing is giving back a small portion of what one has received and hopefully, there is some intrinsic happiness in sharing.

    An old health book said when someone comes to your home, you should focus on making that person comfortable and when you visit someone, you should focus on getting along with the people in that home. That is always being considerate of others, and not putting oneself first. We built a culture on virtues that seem to be forgotten in the present as education dropped interest in the humanities and focused on technology and competitiveness.
  • Ciceronianus the White
    1.4k
    Social duties arise out of rights.Athena

    I disagree. Ancient Western thinkers--I mean Greeks and Romans--felt that what was appropriate according to natural law could be determined in part from the fact that we're social animals. It's our nature to live in communities. It's a view which is, I think, foreign to the view that we're by nature individuals, each with inalienable rights; in effect, antisocial animals. The individual is of primary importance and is to be protected from the community (and government) according to the modern conception of human rights. There are no obligations to be considerate, or kind, or noble, or honorable towards others, or even to be honest. One need only forego violating their rights.
  • Athena
    948
    I disagree. Ancient Western thinkers--I mean Greeks and Romans--felt that what was appropriate according to natural law could be determined in part from the fact that we're social animals. It's our nature to live in communities. It's a view which is, I think, foreign to the view that we're by nature individuals, each with inalienable rights; in effect, antisocial animals. The individual is of primary importance and is to be protected from the community (and government) according to the modern conception of human rights. There are no obligations to be considerate, or kind, or noble, or honorable towards others, or even to be honest. One need only forego violating their rights.Ciceronianus the White

    :grimace: What you said is true and is why I make my arguments! The Greeks held that the purpose of birds is to fly, horses run, and humans think, right? The polis is natural to humans, and during this pandemic that should be obvious to everyone. We hate isolation! Some of us also hate overcrowding and living in a multiple story apartment is not my idea of a good life. But most of us would choose the apartment over too much isolation. My X kept the family isolated and I thought I was going to loose my mind. That was before computers and the internet and I feel so sorry for all the pioneer women who lived on farms miles from others and lucky if they could go to church once a week. So we think and we need each other.

    I would say, we also need all those values of which you spoke and the Greeks strived for human excellence. I think humanity is far better off when the culture promotes those values and motivates people to be the best they can be. This is truly the point of democracy. It is the dream of the enlightenment that we lift ourselves out of the dirt and do a little better than beings made of mud and born in sin.

    Our liberty is the right to decide the right thing, not the right to say or do anything we please with no more self-control than a 3-year-old.
  • Ciceronianus the White
    1.4k
    What you said is true and is why I make my arguments!Athena

    Then I must have misunderstood. You seemed to be saying duties derive from rights. I don't think they do, unless "duties" consist solely of the duty not to infringe on the rights of others
  • Athena
    948
    Then I must have misunderstood. You seemed to be saying duties derive from rights. I don't think they do, unless "duties" consist solely of the duty not to infringe on the rights of othersCiceronianus the White

    I will quote from an explanation of Confucius.

    "A character disciplined by ren (love) is the ideal in morality and goal of education. How do we attain this goal? In the Analects Confusius provided a very clear answer: the transformational process leading to the realization of ren is the practice of li. The English translation of li has been "rites," "ritual," "proprieties," "ceremonies," "courtesy," "good manners," "politeness." and so on."

    I am calling all of the above "duties". To be transitioned to a higher form of human we must perform our duties, the same as we must nourish our bodies with food and water, exercise and sleep. Failure to do so is to remain as a base human, always experiencing need and unpleasantness, lack of love. It does not stop at not hurting others, because it is about how we develop ourselves and experience life.
  • Athena
    948
    ↪Ciceronianus the White I've always understood it as reciprocity. If you believe you have a right and wish to have that respected, you have a dirty to respect another's same right. My right to property implies a duty to respect yours, if I don't I can't expect you to respect mine and the system collapses.Benkei

    "Reciprocity" is a good word.

    Above is the mention of the word "virtues" and in the past, we thought "virtues" is a synonym for "strength". If we perform the duty we are strengthened in virtue.
  • Benkei
    3.8k
    And that could well be what is meant, in which case the duties nature imposes on us become purely negative--we should not infringe on someone else's right to property, right to free speech, right to life, etc.Ciceronianus the White

    I'm not sure. It would be interesting to see when they first thought of negative and positive freedom. Eg. freedom from interference and actively creating choices to maximise freedom. In the latter we recognise there's a duty to save people from certain death, to create the circumstances that they can be the best person they can be, etc. That's not just respect for another's rights. We can imagine duties to exist without an underlying right to exist. That might be already in Aristotle his time as part of his idea of flourishing. Maybe @180 Proof knows more?

    It certainly is part of collectivist philosophies but those are relatively young.
  • Athena
    948
    And that could well be what is meant, in which case the duties nature imposes on us become purely negative--we should not infringe on someone else's right to property, right to free speech, right to life, etc.Ciceronianus the White

    I saw a show last night that makes me think I should concede to you and say any ideas of rights and duties are man-made. We can realize them and live by them, but nature does not force us to do either. We can remain brutish and treat each other very badly and survive. I think I was arguing out of my bias, not totally fact-based. However, I am extremely thankful that I live in a society where at least half the people believe we have rights.

    But if we assume we have duties I don't see them as negatives. The virtues are positives. Hopefully, we have people who have the courage to stand up for what they believe is right. We may have the duty to be honest and we might see leadership that lies to us as very dangerous. Our liberty is the right to decide what is the right thing and only highly moral people can have liberty. Oh dear, I am back in the argument that we have to get it right if things are going to be good. But nature will let us get away with being brutish.
  • Ciceronianus the White
    1.4k
    However, I am extremely thankful that I live in a society where at least half the people believe we have rights.Athena

    So am I. But those rights exist only to the extent they arise from the law. Even if they do, I think it's clear enough that other people, if not the government, would gladly trample on your rights or mine if they saw fit to do so, particularly if they felt their rights were threatened in some self-serving manner. Their rights may not be restricted; if they conflict with those of others, why should those rights be considered superior to their rights? What standard is to be applied when rights conflict, apart from a legal standard? If there is a standard to be applied in that case it must be one based on something other than the rights themselves, which indicates that a theory of morality based on supposed natural or inherent rights is lacking.
  • Ciceronianus the White
    1.4k
    We can imagine duties to exist without an underlying right to exist.Benkei

    I agree, and think this indicates that rights and duties are not intertwined, dependent or complimentary.
  • Athena
    948
    So am I. But those rights exist only to the extent they arise from the law. Even if they do, I think it's clear enough that other people, if not the government, would gladly trample on your rights or mine if they saw fit to do so, particularly if they felt their rights were threatened in some self-serving manner. Their rights may not be restricted; if they conflict with those of others, why should those rights be considered superior to their rights? What standard is to be applied when rights conflict, apart from a legal standard? If there is a standard to be applied in that case it must be one based on something other than the rights themselves, which indicates that a theory of morality based on supposed natural or inherent rights is lacking.Ciceronianus the White

    China is arresting people who say things China's leadership does not want to be said. So a government does not have to protect freedom of speech, or does it? There are universal laws and man laws. Is denying people the right to speak going to make things better or worse?
  • Ciceronianus the White
    1.4k
    China is arresting people who say things China's leadership does not want to be said. So a government does not have to protect freedom of speech, or does it? There are universal laws and man laws. Is denying people the right to speak going to make things better or worse?Athena

    When it comes to the law we create, even in the U.S., there is no law which requires the government to protect freedom of speech. There is no affirmative obligation to do so. Pursuant to the Constitution, government is prohibited from adopting laws which unduly restrict freedom of speech or acting to repress it. It isn't required to protect freedom of speech, but is instead forbidden to restrict it.

    If we depart from the laws we adopt, then an argument can be made that freedom of speech should not be restricted according to natural law. But I would maintain that it ought not to be restricted on that basis because it would be unjust to do so--it would be the imposition of the will of the government and particular points of view without basis--not because there exists a "natural right" to freedom of speech. Repressing freedom of speech would be improper for that reason, not because we all have the "right" to speak freely.
  • Athena
    948
    I agree with you but stopping with an agreement kills the thread. It kind of depends on how we understand the law. Not all laws are written and it could be interesting to put Cicero's words in a Bible.:grin:

    “For there is but one essential justice which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked.”
    ― Marcus Tullius Cicero, On the Laws

    “God's law is 'right reason.' When perfectly understood it is called 'wisdom.' When applied by government in regulating human relations it is called 'justice.”
    ― Marcus Tullius Cicero

    Hate speech does not lead to justice, does it? Hate speech is harmful is it not? That which is harmful is immoral and must not be tolerated or the whole nation falls into immorality. This is a higher law based on right reason. On the other hand, our freedom to reason is different from hate speech, isn't it? In the book "Thinking, Fast and Slow" Daniel Kahneman, differentiates an automatic reaction from thinking. This makes freedom to reason different from saying anything we want to say.

    Adam Smith is working with Cicero's understanding of law and justice. In the quote he is speaking of the British attempted to control trading, protecting a few with exclusive trading rights from the many wanting to engage in trading. He is holding an idea of natural law and justice that is right reasoning but not the written law.

    "Thirdly, the hope of evading such taxes by smuggling gives frequent occasion to the forfeitures and other penalties, which entirely ruin the smuggler; a person who, though no doubt highly blameable for violating the laws of his country, is frequently incapable of violating those of natural justice, and would have been in every respect, an excellent citizen." Adam Smith
  • Ciceronianus the White
    1.4k

    The quote from Adam Smith is interesting. Before him, Hugh Grotius relied on natural law as a basis for freedom of the seas/trade. Grotius is considered a pioneer of international law. Given the absence of any written law in that area (except to the extent treaties were made and honored), there wasn't much else which could be relied on in claiming that there was such a thing as a law among nations.

    Hate speech is an example of the conflicts which I think arise, inevitably, from insistence there are natural rights possessed by each individual. On what basis could objection be made to hate speech if the speaker has the natural right to speak freely, and what would justify its suppression? Hate speech doesn't infringe on the natural rights of others to speak freely. Is there a natural right not to be exposed to hate speech, or other speech (that's a rhetorical question)?

    It happens there are restrictions to the legal right to free speech which have been developed in case law in the U.S. The courts recognize what are called "time, place and manner" restrictions to which it's subject. Legal rights aren't absolute; that's one of the reasons why legal rights have a place in the law. Are natural rights absolute, provided their exercise doesn't infringe the natural rights of others? If so, I think that's a problem for natural rights theory.
  • Athena
    948
    Yes, the Adam Smith quote comes from that time in history when international laws were not well established. A positive effect of piracy was uniting merchants in favor of laws and mutual protection against pirates. A main reason for early migration to the New Land was to get away from the king's and the landlords' control of economic activity. The natural right being to actualize one's potential instead of being held under the authority of the church, kings, and landlords.

    As for the hate speech, we can begin with the universal do unto others as you would have them do to you, and don't do unto others as you would not have them do to you. Hate speech is going to cause trouble, so it is just wrong, and because it is wrong, it is not right. We can not tolerate wrongs because of the damage they do.

    Our laws might not be absolute but I believe cause and effect are consistent, which focuses me on Cicero. I love his explanation that no prayers, animal sacrifices, or rituals are going to change the consequences of our actions. Man-made laws may be ignorant of natural laws and for this reason, we must have freedom of speech to correct faulty reasoning.
  • Rafaella Leon
    17
    If power is a concrete possibility of action, what can be the right if not the guarantee that someone from outside offers the exercise of power? “I have the right” to express my opinion when someone gives me or at least promises me the necessary guarantees that I can express it. To suppress these guarantees is to curtail the right to free speech, which shows that the
    current distinction between rights and guarantees is just an elegant formalism intended to illustrate the fact that not every right that is proclaimed is an effective right. Law and guarantee are not really distinct
    species, but a single species accompanied by two accidents: when the guarantee is still a promise, a commitment, an assumed duty, it is called “right”; it starts to assume the name of guarantee itself when this promise is invested in the concrete means of being fulfilled. The notion of “right” has no substance except as a guarantee promise, the guarantee means nothing if it is not a guarantee of fulfilling a previously signed commitment. For this reason, the legislator who enacts a law that has no means of being enforced already repeals it in the very act of signing it: ad impossibilia nemo tenetur.
    The right is, therefore, a kind of guarantee — a guarantee of the exercise of power — and nothing
    more.

    However, the opposite is not true: not every guarantee is a right. Suppose I abandon these philosophical chores and become a bank robber. While, armed with a pick, I break and empty the safe, my partner, equipped with a machine gun, will guarantee me the possibility of doing so, keeping the guards at a distance: this will not make him a guardian of my rights.

    In order to distinguish the law from other types of guarantees, it is necessary to highlight these two characters more: reciprocity and sociality. A guarantee is a right when it is reciprocal (in the legal sense) and when it compromises, at least in principle, an entire society, not just isolated individuals or groups.

    Legal reciprocity, as Miguel Reale has already explained, is that the right of one corresponds to an obligation for another. We will see later what is an obligation. For the time being take that word in the current sense and consider the following obviousness: it is only necessary to say that a child has the right to food if someone, at the same time, has an obligation to feed him. A right exists only when it exists and the holder of the corresponding obligation is clearly indicated. If this does not exist or is blurred, the law becomes a guarantee that no one guarantees and is a mere flatus vocis.

    Finally, since the right is the guarantee of the exercise of a power, and a power cannot be guaranteed except by a stronger power, independent of it and pre-existing to it, the holder of the obligation must necessarily possess some power that the holder of the right, per se, does not have. But since the
    exercise of the necessary power to guarantee the exercise of the right of others must also be a right, this must in turn be guaranteed by another power, and so on, which would result in an ad infinitum retreat and would make it impossible for any right if a second and more subtle meaning of legal reciprocity did not intervene there, which can be stated as follows:

    "for a right to exist, it is necessary that, if not always, at least in certain cases, the holder of a right be also holder of the obligation to guarantee in turn someone the exercise of the power necessary to guarantee that right"

    Thus, for example, the mass of citizens has the right to police protection only insofar as it also has certain obligations that guarantee the police authority the exercise of its functions, such as the obligation to pay the taxes with which the corporation of the police will be sustained.

    I will call the reciprocity of the first type direct; to the second, indirect. Direct legal reciprocity exists only between holders taken two by two: two individuals, two groups, two companies, a buyer and a seller, father and son, etc. Indirect reciprocity, by its very nature, is only achieved through the complex network of obligations and rights that constitute the entire legal system in force in a given society. This constitutes precisely the second specific character of the law, which is its sociality: there is no right outside the legal system in which all the guarantees and obligations in force in a given society are expressed. There is no isolated right, loose in the air, outside the support of the system.

    Direct reciprocity is structurally equivalent to a simple mathematical proportion: a / b = x / y, that is: a has the right b to the exact extent that x has the obligation y. The formula for direct reciprocity is therefore the
    perfect equivalence, or quantitative equality, of a right and an obligation, without leftovers or absences: children under the custody of the divorced mother are entitled to an alimony of x dollars to the extent that the divorced father has the obligation to pay them the same amount, neither more nor less. In cases where the law in question cannot be expressed quantitatively, the problem of the judge — the problem of justice — will be to find the most perfect equivalence possible between qualitative values. But, whether by the exact calculation of quantities, or by the ideal balance of qualities, direct reciprocity is always and only in equivalence, that is, in the idea of quantitative equality and leveling of differences. None of this occurs or can occur in indirect reciprocity, where only by a very rare exception can the guaranteed right be quantitatively equivalent to the obligation that the holder of this right has towards the authority that
    guarantees it. Just to give a strident example: if, of the total taxes that the State collects from a citizen, say, one thousand dollars in a year, only the tenth part — one hundred dollars — goes to the maintenance of public health care services, this does not mean that this citizen should be entitled
    to only one hundred dollars of medical assistance per year.

    If the direct reciprocity consists of equivalence and leveling, the indirect one, on the contrary, consists precisely of differences and unevenness that cannot be compensated one by one and that, as it rises from plane to plane in the order of complexity and scope of relations, increase with the increasing amounts of power necessary to guarantee the rights of everincreasing groups of people, so that one can only find some kind of unity, equivalence or proportion at the last level, that is, at the level of total
    system, the legal life of the whole society. It is also evident that direct reciprocity, covering its holders two by two, does not exist outside the indirect, that is, outside the system. Direct reciprocity is an abstract or potential right, which only takes on a concrete existence in the life of the total system. On the other hand, the network of indirect reciprocities would be of no value if it could not guarantee the predominance of law among the members of society in their relations of direct reciprocity, that is, the realm of equivalence.

    There, however, a problem arises As a guarantee, it is an effective exercise of the power of the powerful man to assure the less powerful the possibility of exercising the power that belongs to it, not only the total legal system is hierarchical in itself, in the logical sense of a deductive system that descends from the fundamental norms to derived norms (in Kelsen’s sense), but, as a practice and reality, it only exists as an aspect and expression of the total system of powers, and is therefore doubly hierarchical.

    Hierarchy is subordination of the multiple to the one. As an reality, embedded in the total system of powers, the legal system is a hierarchical unification of multiple strata of obligations and guarantees, one
    subordinate to the other according to its greater or lesser importance for the functioning of the system as a whole. In this sense, the maximum rule of the system is its own sovereignty: there is no right above the total system of rights and guarantees, or, in other words, no isolated right or group of isolated rights can prevail over the total system that guarantees them to all.

    But if the network of indirect reciprocities that make up the total system is governed by the principle of subordination and vertical unity, and if each right guaranteed by direct reciprocity is governed by the principle of equivalence or leveling, the contradiction between law as a total system and the law as the norm of direct reciprocal relations can only be eliminated in a society that succeeds in producing the perfect identity between the vertical hierarchy of power and equality between individuals. This is, however, impossible not only in practice, but even in theory, since law being the possibility of exercising power, perfect equality of rights would require an equal distribution of the possibilities for exercising power, in which contradicts the very idea of the hierarchical structure necessary to maintain
    the system and guarantees.

    It follows that the principle of equality before the law, if taken in a literal, flat and atomistic sense, considering only individuals as numerically distinct and qualitatively identical entities, contradicts the very idea of law as a concrete obligation to respect rights. No existing society has escaped this contradiction, nor will any society that may exist.

    The contradiction between law as a system and law as the norm of relations between individuals has no logical solution, nor should it have, because it is constitutive of social life itself, where each individual is both totality and part on two different levels, without being able to reduce them to one, which would imply the perfect and impossible identity of their bodily individuality with their place and function in society, or, in other words, the final identity of nature and society. Justice as a social ideal therefore consists
    only in reducing this contradiction to the minimum tolerable, and not in seeking to root it out. It is not entirely accurate to say that human justice is imperfect, because there is no imperfection in a thing being what it is, and human justice has the perfection of the provisional arrangement and the art, indefinitely variable and never exhausted, and not that of the ideal eternal norm that it somehow imitates and in which it is inspired.

    Every attempt to bring human justice closer to ideal perfection has resulted and will necessarily result, either in demolishing the system of guarantees in the name of abstract equality, or in suppressing guarantees in the name of preserving the system, or in alternating these two evils. Among other practical conclusions that can be drawn from this is the following: the life of democracy does not depend on the maximum realization of justice in an abstract sense, but on the dynamic, dimensional balance between the ideal of justice and the concrete requirements of the system that makes it possible to seek justice.
  • Ciceronianus the White
    1.4k
    "for a right to exist, it is necessary that, if not always, at least in certain cases, the holder of a right be also holder of the obligation to guarantee in turn someone the exercise of the power necessary to guarantee that right"Rafaella Leon

    The word "rights" carries quite a bit of baggage. If you mean to say that a right to do X exists if doing X cannot be prohibited or restricted by any legal means, i.e. to the extent the holder of the right has recourse in the law if it's restricted--then I agree, as I've maintained that only legal rights exist. Maintaining that a right exists when there is no recourse, sanctioned in the law, if it's violated, for me, is the equivalent of saying that a right should exist in the same sense a legal right exists, but does not. So my references to rights in this thread have largely been references of claimed rights which aren't legal rights.

    I'm not entirely clear whether what you refer to are legal rights, or non-legal rights. I don't understand what's intended by the language you quote, which I've copied above. It seems to me that a person with a legal right doesn't accordingly "guarantee" anything, to anyone. I don't "guarantee" the police power of a state when I pay taxes. I would have no obligation to do so in any case. If I fail to pay taxes, or violate the law, I don't forfeit my due process rights, for example. My possession of a legal right isn't necessarily contingent on a "guarantee" as I understand that word.
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