Arguments in Favour of a Functional Theory of Fundamental Rights

Abstract

The article suggests a relational concept of fundamental rights.This concept enhances the «functional» rôleplayed by some of the rights in the system of a state governedby the rule of law, rather than an ethical universality or asubstantial content coinciding with any list of «human»rights. Fundamental rights belong to the fundamental (ideal, substanticeand normative) criteria of recognition/selection of actions and normain the institutional/normative practice of a legal order. Given thispremise, the work analyses some relevant issues: universal-fundamentalnexus, property rights, liberty rights, social rights. Fundamentalrights refuse any rigid classification which identifies anddistinguishes among them on the basis of their fixed doctrinal structure: universal rights vs. non universal ones, property vs.liberty rights, social rights as rights to state services. Theseclassifications miss the real point about “fundamental” rights,which are to protect interest and values of individuals sociallydeemed worth of the best legal efforts in the most effective approach.