Kolloquien und Oberseminare Übersicht Detail

Vortragende Person/Vortragende Personen:
Noelia Martínez-Doallo

Raditionally, human rights have been described as inalienable, absolute and universal, yet such features seem to contradict the formal semantics of the legal language at various levels. First, the thesis of correlativity – as deployed by W.N. Hohfeld – demonstrates that, to be actual subjective rights, human rights must be enshrined through legal rules and be necessarily alienable, otherwise theyshould be articulated in terms of a different category of legal norms, i.e., principles. Second, constitutional case law supplies with a number of examples about human rights collisions, that not only requires to weigh them against each other on a case-by-case basis, but it also contradicts their alleged absolute character. To this effect, the weight formula developed by R. Alexy appears as a promising tool to solve such conflicts, while bringing once again into question the conceptualisation of human rights as rights proper. Finally, on the basis of a dialectically necessary method, A. Gewirth’s principle of generic consistency proves that no prospective purposive agent can deny other agents’ ownership of human rights without logical contradiction, though placing the debate in the moral domain and, thus, evincing the hybrid nature of human rights insofar as moral-legal entities. From the premises of the semantics of logic, I will turn to the aforementioned theories to make the case that legal norms on human rights should be better formulated as principlesand, consequently, the subjective rights approach should be abandoned.