Three Problems for Luigi Ferrajoli
Author: Guastini, R.
Source: International Journal for the Semiotics of Law, Volume 14, Number 1, 2001 , pp. 35-39(5)
Abstract:The author discusses three topics, viz., the definition of a subjective right, the universality of fundamental rights, and the non-disposability of such rights.
As to the first topic, the author argues that, if a subjective right is defined as a claim to which a duty corresponds, then one cannot maintain that, nevertheless, a right can exist without the corresponding duty (the absense of such a duty being a gap in the legal system). If no duty is stated by positive law, there is no gap – quite simply, the conclusion must be that there is no right as well.
As to the second, the author raises a number of logical doubts concerning the very possibility of distinguishing between rights and privileges on the formal basis of universality.
As to the third, the author argues the non-disposability is not logically entailed by universality.
Document Type: Regular Paper
Affiliations: Facoltà di Giurisprudenza Università di Camerino Via Balbi 30, 16126 Genova Italy
Publication date: 2001