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Understanding Fundamental Rights and Guarantees

This document discusses the concepts of fundamental rights, individual guarantees, and human rights. It explains that fundamental rights are those protected in the constitution and treaties, while human rights is a broader category. It also describes different approaches to studying fundamental rights, such as legal, philosophical, and sociological theories. Finally, it notes that guarantees are the means to protect rights through the state's positive and negative obligations.

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8 views15 pages

Understanding Fundamental Rights and Guarantees

This document discusses the concepts of fundamental rights, individual guarantees, and human rights. It explains that fundamental rights are those protected in the constitution and treaties, while human rights is a broader category. It also describes different approaches to studying fundamental rights, such as legal, philosophical, and sociological theories. Finally, it notes that guarantees are the means to protect rights through the state's positive and negative obligations.

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© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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I.

THE CONCEPT OF LAW


FUNDAMENTAL

1.- Approaches to studying rights


fundamentals
2.- The Foundations of Rights
3.- Fundamental Rights, individual guarantees and
human rights
1.- APPROACHES TO STUDYING RIGHTS
FUNDAMENTALS
Essential questions at this point would be

• Why do we need to have fundamental rights?


• Because we assign certain prerogatives or
intentions for enhanced protection, to
consider them fundamental, compared to others
rights?
1.- APPROACHES TO STUDYING RIGHTS
FUNDAMENTALS
The study of rights must distinguish, in
consequence, various levels of analysis, each one of
which attempts to answer different questions

1. It corresponds to legal dogmatics in accordance with


which studies the fundamental rights that
they are enshrined in constitutional texts or in
some international treaties, responds to the
pregunta ¿cuales son los derechos fundamentales?
1.- APPROACHES TO STUDYING RIGHTS
FUNDAMENTALS
2. Corresponds to the theory of justice or also to the
political philosophy, answers the question what should be
What are fundamental rights?

3. Corresponds to the theory of law, responds to the


Question: What are fundamental rights?
1.- APPROACHES TO STUDYING RIGHTS
FUNDAMENTALS
4. It relates to sociology in general and to sociology
legal in particular, as well as historiography, here
the relevant question is What rights, with which
degree of effectiveness, because of reasons and through what
procedures are and have been, in fact,
guaranteed as fundamental?
2.- THE FOUNDATIONS OF RIGHTS

At this point, different levels can be used.


of analysis that we have just mentioned.

But for a first approximation, it can be


it is interesting to place oneself in the second point

2. Corresponds to the theory of justice or


also to political philosophy, responds to the
question what should the rights be
fundamentals?
2.- THE FOUNDATIONS OF RIGHTS

Luigi Ferrajoli, four axiological criteria:

Equality
2. The democracy
[Link] peace

4. And the role of fundamental rights as


laws of the weak
2.- THE FOUNDATIONS OF RIGHTS

What needs to be emphasized is that when we talk about


fundamental rights we are talking about the
protection of the most vital interests of all
person, regardless of their personal tastes,
of their preferences or any other circumstances
that can characterize its existence
2.- THE FOUNDATIONS OF RIGHTS

Taking the above into account, we can say that the


the question of the foundation of rights
fundamentals attempts to answer the following
questions

Why should we protect a certain good as a


fundamental right?
2.- THE FOUNDATIONS OF RIGHTS

What should we take into account to decide


What goods should have the rank of rights
fundamentals and which should be considered
secondary rights, rights that can be agreed upon
between the individuals or simple aspirations
social or moral principles not supported by the power of
legal system?
3.- FUNDAMENTAL RIGHTS, GUARANTEES
Individuals and Human Rights
The concepts of "fundamental rights"
individual and social guarantees and rights
"humans" are not equivalent, nor can they be used
indifferently.

The guarantees are the means, as their name indicates,


to guarantee something, to make it effective or to return it to its
original state in case it has been distorted,
violated, not respected.
3.- FUNDAMENTAL RIGHTS, GUARANTEES
Individuals and Human Rights
Ferrajoli: they are obligations that derive from rights
Positives: they compel abstentions from the state
and of the individuals in respect of some right
fundamental
Negatives: they create obligations to act
positively to meet the expectation that
derived from some right
3.- FUNDAMENTAL RIGHTS, GUARANTEES
INDIVIDUALS AND HUMAN RIGHTS
Primaries: these are the obligations or prohibitions that
correspond to the established subjective rights
in some regulatory text
Secondary: obligations that the bodies have
judicial bodies to apply the sanction or declare the nullity
when they confirm, in the first case, illicit acts and in
the second case invalid acts that violate the
subjective rights and therefore violate them as well
primary guarantees
3.- DERECHOS FUNDAMENTALES, GARANTÍAS
Individuals and Human Rights
Human rights should not be confused with
fundamental rights. They are fundamental
rights that are provided for in the text
constitutional and in international treaties

Human rights are just one more category.


broad and that in practice, they are often used with
less legal rigor than that of rights
fundamentals
fin

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