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From Human Rights To Fundamental Rights: On The Consequences Of A Conceptual Distinction, Gianluigi Palombella

Gianluigi Palombella

This article introduces a peculiar distinction between "human" rights and "fundamental" rights, explaining through diverse areas, the role that the difference can play. Rights are loaded with contrasting properties and burdens, opposing features and values (neutral, pre-political, negotiable, democratic, etc.). On the contrary, we should accept - on one side - human rights as moral visions of what is due to human beings, deontological imperatives, even if abstract. But on the other side we cannot ignore the ethical problems: e.g. those resulting from their blind implementation. We need to enhance the institutional, legal and ethical-political meaning of "fundamental" rights, i.e. …

Arguments In Favour Of A Functional Theory Of Fundamental Rights, Gianluigi Palombella

Gianluigi Palombella

The article suggests a relational concept of fundamental rights. This concept

enhances the «functional» rôle played by some of the rights in the system of a state

governed by the rule of law, rather than an ethical universality or a substantial content

coinciding with any list of «human» rights. Fundamental rights belong to the fundamental

(ideal, substantice and normative) criteria of recognition/selection of actions and norms in

the institutional/normative practice of a legal order. Given this premise, the work analyses

some relevant issues: universal-fundamental nexus, property rights, liberty rights, social

rights. Fundamental rights refuse any rigid classification which identifies and …