Luigi Ferrajoli

For a Theory of Fundamental Rights

  • Abstract

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What are we talking about when we speak of 'fundamental rights'? Four different answers can be given to this question, depending on their different foundations and on the different viewpoints from which they are formulated. This essay intends to show how the theory of law is able to offer common ground to different disciplinary approaches. To this end I shall show (par. 3) the fertility, in particular, of the theoretical definition proposed here of 'fundamental rights' as rights attributed universally to all inasmuch as persons and/or inasmuch as citizens and/or inasmuch as capable of acting. Although it is a formal definition, which tells us nothing about which are but only about what are the established rights or that it would be right to establish or that are actually safeguarded as fundamental, this definition in fact has numerous theoretical implications in all the different disciplinary ambits. It is to these implications and their importance that the subsequent paragraphs are devoted: on the plane of political philosophy, with reference to the criteria of justice on the basis of which it is possible to identify which rights deserve to be safeguarded as fundamental (par. 4); on the plane of positive law theory, with regard to the more complex conditions of validity generated by the constitutionalisation of fundamental rights (par. 5); and, finally, on the plane of historiography and of legal sociology, with regard to the origins and to the degree of effectiveness/ineffectiveness of fundamental rights determined by the extent of their guarantees (par. 6).

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