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The Logical Foundation of Fundamental Rights and their Universality

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Abstract

This paper offers a critical analysis of two central issues in Luigi Ferrajoli’s Principia iuris, and more generally of his theory of rights. One is the way in which ‘expectations’ play a crucial role in his deontic theory by establishing the logical basis for his guarantee-based conception of law and rights. The axiomatic way in which Ferrajoli arrives at his conception of fundamental rights is questioned, for it fails to give a full account of the nature of subjective rights. The other issues discussed here is Ferrajoli’s own defence of the universality of fundamental rights, and how this is made to depend on a ‘normative technique’ that one can associate with legal discourse and modern law in Western societies. This, however, poses the problem of how this formal universalism can be reconciled with the intercultural dialogue that Ferrajoli also advocates.

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Notes

  1. In the remainder of this piece, all references in brackets, unless otherwise specified, will be to volumes I and/or II of Principia iuris (Ferrajoli 2007), followed by the page number.

  2. [Editor’s note. The ‘Deontic Square of Opposition’ is normally represented as a square with the four corners occupied by ‘Obligatory’ (top left); ‘Permissible’ (bottom left); ‘Impermissible (top right); and ‘Omissible’ (bottom right). Ferrajoli’s own version has the four corners as: ‘Permissible’ [permesso che] (top left); ‘Obligatory’ [non permesso che non] (bottom left); ‘Omissible’ [permesso che non] (top right); and ‘Impermissible’ [non permesso che] (bottom right).].

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Authors and Affiliations

  1. Scuola di Giurisprudenza, Università di Camerino, P.za Cavour 2, 62032, Camerino, Italy

    Luca Baccelli

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  1. Luca Baccelli
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Correspondence to Luca Baccelli.

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Translation by: Angelina Zontine.

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Baccelli, L. The Logical Foundation of Fundamental Rights and their Universality. Res Publica 17, 369–376 (2011). https://doi.org/10.1007/s11158-011-9170-2

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  • DOI: https://doi.org/10.1007/s11158-011-9170-2

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