About The Workshop
SW 68– Argumentation, Constitutionalism, and Rights: Concepts, Foundations, and Practice
Convenors: Manuel Atienza; Danny Cevallos; Lucas E. Misseri
Contact: manuelatienzarodriguez@gmail.com; djosecevallos@gmail.com; lucas.misseri@ua.es
This workshop is framed within a post-positivist perspective of law associated with ‘legal constitutionalism’—i.e., a constitutionalism that adopts the recognition and acceptance of fundamental rights as its argumentative basis. This form of constitutionalism is constructed from the universalist elements of constitutions: a ‘common constitutional law’ that is gradually taking shape, notwithstanding certain setbacks, around the internationalization of rights (through international treaties and human rights courts).
We are particularly interested in discussing three areas. The first is strictly internal to legal systems and concerns the redefinition of virtually all basic legal concepts based on these new parameters. Consider questions such as: What does it mean for a right to be ‘fundamental’ within a legal system? What is its role in legal argumentation? What accounts for the need for specific modes of protection (e.g., the amparo process)? What relationship can be established between legal rights and duties? What is the relationship between rights and principles? What does it mean to interpret a right, and what are the interpretive arguments related to them? What are the most significant classifications of rights, and what argumentative function do they perform?
The second area concerns assumptions linked to the recognition of fundamental rights as practically inalienable. The questions we pose here include: Does the recognition of fundamental rights commit one to some form of moral objectivism? What is the relationship between fundamental rights, moral rights, and human rights? Is the concept of legal gaps applicable to the protection of fundamental rights? Do rights maintain hierarchical relationships with one another? What role does the moral foundation of fundamental rights play in legal argumentation? Is dignity the foundation of these rights, or simply another right?
The third area relates to the constitutional practice. The concept of fundamental rights within a legal system completely alters the distinction and the relationships between legal statics and legal dynamics. Consequently, fundamental rights also transform the notions of lex superior and lex posterior. Just as the argumentative presence of legal principles overflows a merely systematic conception of law, the idea of the continuity of fundamental rights demands—with even greater intensity—the need to conceive of law as a practice. Here some questions are: What does it mean to attribute a foundational role to rights within a legal order? What do they provide a foundation for? Is it possible to account for such a role from a purely structural perspective of law?
Ultimately, the workshop aims to contribute to the development and consolidation of a new conception of law and its methods, adapted to the legal-political reality known as the constitutional rule of law, in which rights are placed at the legal forefront. To this end, the workshop draws upon the contributions to legal post-positivism made by authors such as Dworkin, Nino, Alexy, and MacCormick.
