In difesa del costituzionalismo dei diritti

“Rights constitutionalism” (or, as it is sometimes called, “new constitutionalism”) is a kind of legal and political culture that has now a global spread: it affects the way in which legal systems are designed around the world, and it shapes the legal reasoning of courts and jurists. The “rights constitutionalism” model is quite rich and complex, but ultimately it boils down to the idea that fundamental rights (primarily, but not exclusively, and not even necessarily, the rights enshrined in a constitution) are properly legal rights – i.e., rights that are supposed to be applied and implemented also by courts. As a consequence, I argue that in order to properly assess the many and varied criticisms that the “rights constitutionalism” model has attracted, it is necessary to gain a clear understanding of what a fundamental right is, and how a legal reasoning involving fundamental rights is supposed to work. The essay tries, thus, to provide a sample of the way in which a clear theoretical understanding of the structure of rights may pave the way to rebut many recurring criticism to rights constitutionalism, and to the ‘age of rights’ more generally.