3. Some conclusions

The fundamental conclusion to be drawn from all this is that the meaning of permission is different in each one of the three contexts we have distinguished, and that it is this variety of contexts of usage (rather than the distinction be­tween weak and strong permission) that is decisive.

Appendix to Chapter in A Note on Constitutional Permission and Basic Rights

The characterization of constitutional permissive sentences we have just pre­sented is, in our view, perfectly compatible with an adequately elaborated theo­ry of basic rights. As an example of such a theory we will use the conception presented by Francisco Laporta (1987)^[54] which we will briefly sketch.

In this paper, Laporta has two objectives: to clarify what it generally means 'to have a right'; and to analyze the structural and formal characteristics normally attributed to the notion of human right, that is, their universality, ab­soluteness and inalienability. Concerning the first, Laporta's thesis is that 'to have a right' cannot be paraphrased entirely in normative terms. Rights are prior to the normative protection granted to them. Rights are entitlements, i. e., reasons justifying the existence of certain norms, but not norms themselves:

"What I want to suggest", Laporta (1987,27 f.) writes, "is that 'rights' are something, so to speak, prior to actions, claims or requirements, prior to normative powers, prior to normative freedoms, and prior to immunities of status. They are better understood if they are conceived as the entitle­ment [...] underlying all those, and other, techniques of protection, that is, if they are seen as what justifies setting all those techniques in motion. I suggest that when we use the notion of 'right' we are not referring to any primary or secondary norms of some normative system, but to the reason [...] that is presented as the justification for the existence of such norms."

From this characterization, Laporta derives three very important conclusions: 1) rights are not exclusive to legal systems; it makes perfect sense to speak of moral rights; 2) the core of the notion of a right is something prior to norms, but existing in legal systems (which not only consist of norms, but also of definitions, descriptions of states of affairs, and value judgments); and 3) normative systems are not only deductive systems; among their elements, their are also — non-deductive — relations of justification or of an instrumental kind.

Concerning the second objective — to clarify the universality, absolute­ness and inalienability normally attributed to human rights —, Laporta formu­lates three fundamental theses:

1) Universality does not refer simply to a formal logical predicate; it says something substantial about the subjects of those rights; the characteristic of 'universality' means that human rights are ascribed to all human beings:

"While purely logical universality permits one to put any kind of circumstance of the case, con­dition of the subject, or characteristic of the context into the universal sentence (for example: 'For all X such that X is in circumstance A, satisfies condition B and lives in context C, X has the right to the universality of human rights requires precisely that one disregard such circumstances, conditions and contexts, because those rights claim to be ascribed to everyone, unconditionally. Apparently, it is enough to fulfil the minimal condition of being a 'human being' in order to have those rights ascribed to one (for all X such that X is a 'human being' — irrespective of the context and circumstances —, X has the right to...')" (Laporta 1987,32).

According to Laporta, this characteristic places human rights into the sphere of ethics.

2) As for their absoluteness, human rights appear as moral claims endowed with a characteristic force deriving from the fact that "they are the expression of goods of special relevance for human beings" (ibid., 37); they are "the strongest moral requirements to be had in moral discourse" (ibid., 41). This means that a) they cannot be the object of trade-offs or negotiation, i. e., they always prevail over other claims — even moral ones — not entailing rights; and b) they can only be displaced by conflicting moral claims of equal value, i. e., by other human rights (in that sense, their absoluteness is prima facie).

3) Finally, their inalienability means that "human rights cannot be renounced even by their own holders" (ibid., 43):

"Just as everyone has the obligation to respect the right of everyone else, and cannot change that right, the holders of a right themselves have the obligation to respect their own rights, that is, they are normatively immunized against themselves." (Ibid., 44)

Now, if one compares this conception of rights with our reconstruction of con­stitutional freedoms (which are a subclass of the class of human or basic rights, grounded on the value of autonomy), one easily sees that they fully coincide.

Laporta's idea that rights are prior to norms we had expressed by saying that constitutional permissive sentences contain an aspect of a value judgment that has priority over the directive aspect of the prohibition to interfere. Also, the consequences Laporta draws from his general thesis have (in our conception of constitutional permissions) the following three correlates:

ad 1): That rights are not exclusive to legal systems translates into the idea that the value judgment expressed in the permissive sentence is not created by the authority; authorities cannot create values — basic rights — but only recognize them.

ad 2): The entities Laporta locates prior to norms and which are the core of the notion of a right are, in our conception, value judgments; what happens is that, as will be seen in the next chapter, we understand that value judgment as something internal to the norm; more precisely, we think that in norms two aspects must be distinguished: an evaluative aspect, and a directive aspect.

ad 3)i Between E_t and E₂, there is not a deductive logical relation, but a relation of justification: E_} justifies e₂, but not vice versa.

As for the three characteristics of human rights, the correspondence with our conception is as follows:

Universality, in our opinion, is connected to the open configuration of the conditions of application that characterizes principles and, especially, the class of principles we are interested in now: those deriving from constitutional freedoms. The 'claim' of universality of rights — rights to freedom — implies that the antecedent of the corresponding normative (conditional) sentences contains very abstract properties. Nevertheless, the translation of such basic rights into legal terms does have an effect: on the one hand, the claim of uni­versality can be — and usually is to some degree — restricted by peculiarities of the respective legal system, as, for example, their national character; on the other hand, since what justifies legal systems is that they make it possible for practical reason to go beyond what general practical discourse, i.

As for the absolute character of rights, this is exactly what made us em­phasize the difference between policies and principles in the strict sense. From the fact that constitutional freedoms are expressed in that kind of principles, we can derive two consequences parallel to those indicated by Laporta: that there can be no trade-off or bargaining, in our model corresponds to the impossibility of submitting them to a process of optimization; and their prima facie character corresponds to the fact that one must take into consideration the claims de­riving from other principles in the strict sense, in order to determine which should prevail in each case. This does, of course, not mean to deny that rights — freedoms — also translate into requirements that have the form of policies. But the essential idea is that the core of rights — of freedoms — is constituted by principles (and mandatory rules derived from principles).

Finally, inalienability, understood in the sense we have seen above, seems to conflict with the idea of constitutional freedoms or permissions, that is, with human rights based on the value of autonomy. But this incompatibility is only apparent. We can without any problem stick to the idea that constitu­tional freedoms are inalienable, in the sense that their holders cannot renounce them (one cannot renounce the right to life, or to freedom of expression), although they can renounce their exercise (one can renounce to go on living, or to express any kind of opinion). This is exactly how Laporta understands it too:

"(O]ne does not have the freedom to have or not to have basic rights, although some basic rights consist in having some freedom. Freedom, in this case, refers to the exercise of rights, not to having them, which is always imposed on the individual." (Laporta 1987,44)

To conclude (and this is probably the most important lesson to be drawn from all that has been said here), sentences expressing constitutional freedoms cannot be seen exclusively in terms of directives; they must also be conceived in terms of value judgments. In the next chapter, we will extend this thesis to all normative sentences. We think that in this way we can contribute to filling a substantial gap, since, unfortunately, a theory of values — or of value judg­ments — in the law is still almost entirely missing.