Ideal and Normative Dimensions
Edited by Massimo La Torre, Leone Niglia and Mart Susi
Chapter 12: An existential foundation for human rights - meaning before justification
This chapter will try to resume the discussion about the formal structure of human rights and then to offer a possible foundation of human rights that is alternative to the now predominant justificatory paradigm. Human rights will thus be reconsidered as the outcome of a specific human predicament. They are projected as first of all the result of an existential situation. Four normative situations will be elaborated to give rights a concrete shape as fundamental devises of a liberal State. Professor Alexy’s influential doctrine will be considered and taken into account and somehow included in this reassessment of rights. Though two points of Professor Alexy’s theory are seen as problematic – the justification of rights as the ground of their existence, and their being equated with precepts of optimization and consigned to balancing as their specific procedure of application – the chapter will specially focus on the first point.
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