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 7: How right is the basis of law

Matthias Kaufmann

Abstract

The question whether a certain group of persons has a concept of right may be understood in very different ways, affecting the views on the ‘historicity’ or ‘necessity’ of rights. The question whether a group has a right will have to be approached differently when it comes to legal and moral rights. Therefore, the meanings of ‘right’ and ‘morals’ and their mutual relations have to be clear. Currently, legal systems are facing the problem of legal pluralism, hence law cannot be seen as one eternal and global natural law and should not be seen as the dictate of some kind of irresistible power. Instead, we should interpret law as the result of rational negotiations between human beings who are obligated to maintain or improve the situation of human rights. In this legitimating sense, they are at the basis of any legal system.

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