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 12: An existential foundation for human rights - meaning before justification

Massimo La Torre

Abstract

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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