The Quest for Rights
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The Quest for Rights

Ideal and Normative Dimensions

Edited by Massimo La Torre, Leone Niglia and Mart Susi

This discerning book explores the concept of human and fundamental rights, originating from the seminal work by the German legal scholar and constitutional lawyer Robert Alexy. Recognising the growing challenges to the idea of the universality of Human Rights, expert scholars consider time-independent conceptual questions which inevitably lie at the heart of any contemporary human rights discourse: What is the justification of balancing and/or trading off fundamental rights against other rights and collective goods? And are there utilitarian considerations that can limit the normative force of human rights?
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Chapter 3: Radbruchs formula and human rights

Martin Borowski

Abstract

The obvious candidate for a severe moral defect that may render positive law invalid is a qualified violation of human rights, which form the core of justice. This chapter undertakes an analysis of the role of human rights for Gustav Radbruch’s concept of law. It is well known that human rights are explicitly mentioned in his post-War writings, albeit only in passing. His earlier writings implicitly comprise, however, human rights standards, in particular a prohibition of discrimination in his substantive concept of law. This is to say that human rights in the post-War writings are less of an innovation than many commentators would have us believe. Against this backdrop, the prevailing subjective reading of the disavowal formula, the neglected second part of the greater Radbruch formula, proves less than convincing. An objective reading of the disavowal formula emerges, which allows for a coherent reading of the greater Radbruch formula.

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