Dai diritti umani ai diritti fondamentali: sulle conseguenze di una distinzione concettuale

Problems like how to put the idea of human rights into practice in societies that violate them or how to defend the weaker individuals in communities existing within multicultural western societies are the source of bitter controversies. One of the most important theoretical problems that influences the possibility of drawing a suitable picture of this kind of questions depends on the indiscriminate use of the notion of fundamental rights with respect to the notion of human rights. The definition of human rights proposed here identifies them as philosophies of what is due to human beings, while fundamental rights are construed as that set of rights that become part of the substantial criteria internal to the norm of recognition of a legal and social system. The functional value and ethical significance of fundamental rights are not the same as those of human rights as abstract philosophies of what, in principle, is deontologically essential to the defence of human beings as such. If human rights are concerned with questions of justice, fundamental rights focus on ethical priorities. This distinction can be used to tackle the political problems related to equality, to safeguarding individuals in multicultural societies and to putting human rights into practice: this relies on the condition that these problems are concerned concretely with questions of system, with regard to which rights can become fundamental and how, in a given social context, and not simply to exporting moral philosophies all over the world.

Gianluigi Palombella, Dai diritti umani ai diritti fondamentali: sulle conseguenze di una distinzione concettuale in "SOCIOLOGIA DEL DIRITTO " 2/2004, pp , DOI: