From Human Rights to Fundamental Rights. Consequences of a conceptual distinction.

Abstract

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. those which are assigned a meta-normative role in a legal order and an ultimate value in the corresponding social and ethical context. The article shows also how the use of these definitions can clear some theoretical misunderstandings, improve our critical analysis and help in explanation of real processes. This article will be published in “Archiv für Rechts- und Sozialphilosophie”, in 2007