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.