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11 - Rights

Citizenship As Repository of Rights

Published online by Cambridge University Press:  25 April 2022

Roberto Gargarella
Affiliation:
Universidad de Buenos Aires, Argentina
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Summary

In this chapter, I demonstrate that the declarations of rights that were incorporated into the modern Constitutions relied on a conception of rights that was hostile to democracy. There were various versions of the idea of “natural rights” to which the “founding fathers” subscribed, but the one that prevailed placed rights and citizenship in separate, distant boxes. I also explain, in this chapter, that good part of the prevailing doctrines on the subject are derivations of that original paradigm. Both the idea of rights as “trump cards” that “beat” majority decisions (in Ronald Dworkin’s terms) and the idea that rights constitute a separate sphere (“the sphere of the undecidable” in Luigi Ferrajoli’s work) that must be put out of reach of democracy. According to these prevalent understandings -I claim- rights must be rigorously left to the technical and exclusive care of the judges.

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Publisher: Cambridge University Press
Print publication year: 2022

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  • Rights
  • Roberto Gargarella, Universidad de Buenos Aires, Argentina
  • Book: The Law As a Conversation among Equals
  • Online publication: 25 April 2022
  • Chapter DOI: https://doi.org/10.1017/9781009105682.012
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  • Rights
  • Roberto Gargarella, Universidad de Buenos Aires, Argentina
  • Book: The Law As a Conversation among Equals
  • Online publication: 25 April 2022
  • Chapter DOI: https://doi.org/10.1017/9781009105682.012
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Rights
  • Roberto Gargarella, Universidad de Buenos Aires, Argentina
  • Book: The Law As a Conversation among Equals
  • Online publication: 25 April 2022
  • Chapter DOI: https://doi.org/10.1017/9781009105682.012
Available formats
×