At this point, arguments and justifications must be sought to provide a rational basis for the existence of "human rights". In short, it must be assumed that "human rights" are "something", this is an ideal, a necessity or value, of which the whole society needs to build and give himself a sense, maintaining the integrity individual, and its full development.
Starting from assumption that all "human rights" are of a regulatory contrafacta in different systems, the same will determine the validity of the legal-political which will be located, but meanwhile it is known that these rights are created, grow and evolve within a referential framework of cultural history, thereby establishing a dynamic relationship and interaction between these areas.
Therefore, it will be the study of different theoretical perspectives to determine, after having read this, what are the arguments which, while retaining their validity within the world system, help to strengthen their value.
One of the most important in giving support to the defense and protection of "human rights" in the world is that there are inalienable rights that people have for the mere fact of being a man ( regardless of culture). In this way the legal system, recognizing those rights, shall not proceed with their creation, but only the adoption of laws or decrees that guarantee compliance.
The school axiologica part from the thesis that the origin of "human rights" can not be legal, therefore, confirms them as eternal and inalienable, that are above the legal status and do not need to become facts of positive law, but will be guaranteed only through the law. In this way, the rights will be something above and beyond the law.
This thesis will then be criticized by other schools of thought. For example, the philosophical and ethical vision of "human rights" conceives of origin are in existence and in the concrete fact of life itself as a physical act, this view considers the fact of life, from now on, as a value (value = Right) to be primordial and fundamental for the construction and development of society. This principle will help the conceptualization of Right to life, right to form a primordial moral and ethical category, as a result, will give the opportunity to create "a list" of values \u200b\u200bor rights shall be deemed to be fundamental and indispensable condition for the a life worthy of being called such, thus giving rise to the creation of " fundamental rights."
This category of fundamental rights will be developed and will change with the evolution of society itself. What is considered essential at a given time, not necessarily in others, offering a characterization of the human rights, even from a anthropological point of view, as a "something" that is with us, grows, changes and dies with us. We can see and conceive of "human rights" as a variable from company to company.
The development of a life "worthy" therefore assumes that there are values \u200b\u200bthat will lead to the construction of other securities or rights acts to preserve, maintain and carry it out. These values \u200b\u200bwill bring the basis for the construction of multiple rights in different spheres. The values \u200b\u200bthat I believe will be core:
· 's Autonomy, which will allow the construction of personal rights associated with the 'idea of \u200b\u200bhuman dignity and regard the individual as autonomous, free and responsible for his actions;
· The Freedom , Which will give the basis for civil and political rights of the individual, in order to be able to be active member of both society and the political
· L ' Equality, which will allow the formation of the list of economic and social rights, which must be alleged before the state.
Another school that has contributed to the emergence of the concept of human rights, was the liberal school "which, based on the definition that human rights just because you have to be a man, gives support to the principles of universality and individual freedom. Unfortunately, this theory will prove to be inefficient, unable to provide the bases necessary to justify the rights that men express some requests starting from their social, historical and particular. " 7
The sociological school, especially in legal, with its strongest exponent Eugene Ehrlich, provided that you should not imprison the right time or people between the articles of a code, because such action would be so unreasonable as to try to imprison the river within a dam.
"From the point legal-political terms," \u200b\u200bhuman rights ", lying between the ethical demands and positive rights, will be part of a state and legal order agreements International and will be closely linked to the ability of this institution to make their effective implementation. " 8
analyzed from a historical perspective and cultural will be understood as the result of concrete struggles, in most cases very bloody and social conflicts that depend on the cultural consciousness of the people. Therefore be regarded as a changing phenomenon as the evolution of history.
The Marxist school , always starting from the search of that "something" that are "human rights" was the inspiration for the foundation of the "Theory of necessity " . Assuming that the needs may be limited and specific, they are in fact beyond doubt, where recognition, exercise and protect a right means to satisfy basic needs conceived as a series of unavoidable for the development of a life "worthy", thereby granting the theory and the foundations of "human rights" in general, a reason to understand them as an instrument of social transformation. Then, starting from the historical development, the rights will change their foundations and doctrines, being conceived as the historical rights and related variables.
In the words of Benedetto Croce, although it was not Marxist, " rights are accepted as such for people of a particular epoch. It will not be required because of the eternal, but only of historical rights demonstrations of the need for this or that 'time and efforts to meet them. So "human rights" will be mostly of the achievements, the result of a historical process through which individuals, groups or nations struggle to conquer them and enforce them " 9
The Marxist school , with the theory of needs, give you another point of view with its postulates and is any opposition to natural law school, he thought, as we mentioned before, that "human rights" are natural, universal and absolute and yet prior to and superior to the company.
These schools of thought tried to make their bases more or less solid, but none was able to give a complete sense of the term "human rights", leaving a gap for the creation of other theories.
One theory as being very interesting is that of lawyer Robert Alexy, who, starting from the study of political discourse analysis, he developed a theory to conceptualize and support the creation of "fundamental rights", differentiating them from "human rights". He exhibited his work through those differences "Theory of speech and human rights" , which is still considered of paramount importance, as the author stated that in order to give foundation to the "human rights" must be from the same rules of discourse.
The reading of his texts is difficult, being a highly dense and complex text. Here we will attempt to explain clearly his thesis, using a concept map.
According to Alexy is necessary to start the theories of Kant, to understand not only how "human rights" become the "fundamental rights", but also by how these "fundamental rights" are given a solid foundation to theory of the democratic constitutional state.
According to Kant, in order to develop as a democratic constitutional state, must be able to do total confidence in the full swing of the principles of universality and Autonomy, Universality in understanding the extent to which all men have certain rights and understanding that the autonomy takes place in two respects, the private and public, realizing that an "x" or "y" law, is a case of autonomy, or even that the "x" or "y" law is only a means by which the individual can perform independently.
decide on the "autonomy" (ie "human rights") should be transformed into positive law (ie, "fundamental rights") raises several issues as "human rights" are themselves problems Content and Form
· content problems in society because it will determine which of these rights are necessary in a legal system;
· problems form because it will determine how the rights that have been chosen to become positive rights.
So Alexy will consider one of the conditions necessary for the transformation of "human rights" in positive rights. Will be with the consent society, to be achieved through political speeches, which will help to legitimize the system of positive law. This agreement will ensure fairness and equality will give the necessary conditions for the affirmation of the democratic constitutional system . So the fundamental rights must be understood not as absolute rights, but as "warrants optimization" to be granted and will stage the principle of proportionality.
These rights entail obligations that will result in the intrinsic relationship between rights and standards.
Concept Map 1: DEVELOPMENT OF THE THEORY OF SPEECH AND HUMAN RIGHTS conceptualization.
Alexy also always on the path to lay the foundations of "human rights", there will be two more questions.
The first question to be addressed is related to the problems that arise within the political discourse, to the foundations of human rights, leading inexorably to the necessity of positive law that will ensure their protection and defense.
1. In political discourse, in the first place, it reveals a problem of knowledge, which does not necessarily imply that knowing the "human rights" will lead the operation and the creation of positive law as a final consequence, not by offering processes, but simply giving space to a discussion or debate.
2. Secondly, it also reveals a problem of execution , which arises because the knowledge and the legality of the rule is different from its actual fulfillment.
3. Finally, it presents the problem organization, which derives from the numerous moral demands.
For these reasons, the achievement of "human rights" as an end extremely valuable, can not be fully achieved, much less succeed only through collective participation or merely individual actions.
The second question is which property must have a fundamental right to be considered as such. The fundamental right is now under develop three spheres:
- That Formal , where the fundamental right will be all that right enshrined in the constitution as such policy;
- That Material , where in order to give a more concrete conception of the "human rights", they will pass to be made of positive law;
- That Procedural , which is the ' the coupling formal and material, where the fundamental rights an integral alienate the majority of the parliament to make decisions free.
We can therefore say that "human rights:
- " I have a proposal for a permanent interpretation of what they are humans;
- I am a social and political ideal, which is a common ideal based on autonomy, happiness, the common good and democracy that is joined to freedom, respect and justice;
- have the support to achieve the highest form of humanitarian co-existence, based on the universal character of its legislation as right: peace
- Finally, are a set of tools, standards, rules and mechanisms that regulate and control the mutual relationships between individuals, groups, communities, peoples, nations and the state. " 10
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