Law, subjective right, human rights. Some legal-philosophical reflections on a “transversal” problem

Abstract

The instrument of human rights reprsents an attempt of the -modern response to a internal problem of juridical modernity which is intrinsically connected to its own genesis: the grammar of human rights inclines to effectively establish a supreme form of the positive juridical protection of the citizen with respect to the degeneration of state’s sovereignty. Human rights therefore embody a form of the second generation Reflexerechte, which seek to stem various problems of juridical positivism, without understanding that this strand of legal philosophy itself constitutes the problem. If subjective right really originates as the modern conception of a facultas agendi ex norma agendi, human rights are structured accordign to these coordinates, even when they enhance the level of the norm within a given scale of normative sources. A real juridical protection of human rights, instead, imposes a conception of right — understood also as subjective right — in the terms of objective metaphysics. The certainty of ius and therefore also the certainty of its subjective projection (to the point ofestablishing the right to self-determination) imposes the comprehension that the foundation of right in itself is not anchored in the claim (of the state or of the individual), but rather in the foundation of justice which is applied according to various circumstances and contexts, without ever representing a limit, but always seeking the criterion for the exercise of human freedom.