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1 results

  • 11 - Rights

  • Roberto Gargarella, Universidad de Buenos Aires, Argentina
  • Book:
    The Law As a Conversation among Equals
    Published online:
    25 April 2022
    Print publication:
    21 April 2022, pp 149-165

  • 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.