Constitutional and Fundamental Rights: A Comprehensive Analysis
Fundamental Rights Course I
Unit I – Basic Concept of Law
Concept: It is associated with Constitutional Rights, Human Rights, Public Freedom, Public Subjective Rights, Natural Rights, and Essential Rights.
These expressions refer to certain powers and freedoms that a person possesses. What is now meant by Fundamental Rights has its first record in the expression “Natural Rights,” used by Enlightenment thinkers in the eighteenth century to refer to a set of rights that people have by nature.
These Natural Rights were called such because, according to these thinkers, they were not conferred by the monarch’s power but came to human nature in its pre-social state of nature. The act of signing the social contract protects these rights, which are taken into the state of nature.
Public Subjective Rights: An expression from the late nineteenth century, it is a construction of German lawyers. Public Subjective Rights have a clear legal meaning and were called “public” because it was understood that their owner, who were the people, could oppose the State. In other words, it refers to the rights that citizens have before the State, which are expressed in the legal system.
Civil Liberties: The creation of French lawyers, it refers to those legal rights that are recognized and enforceable against the State.
Human Rights gained a boom due to the Universal Declaration of Human Rights in 1948. It refers to humans as any person who, by nature, is inherent in these rights. There is a relationship with the expression “Natural Rights” because Human Rights is the new name of the former.
By Human Rights, we mean that human rights are international law, and hence there is the term “international law of human rights.” The term “human rights” should not be confused with humanitarian law (governing the treatment of prisoners and civilians during armed conflicts).
Today, human rights, especially those covered by international treaties or standards, are an indicator for assessing the legitimacy of governments in the world.
Essential Rights: This expression is not commonly used but can be found in some international treaties and the Constitution of Chile. The term “Essential Rights” refers to those rights that everyone has solely by being and deriving from the essence of being human.
The term Constitutional Rights is an expression that can qualify as jus positivist, and it refers to provisions that have been conferred by the Constitution. This expression is also used in the Chilean Constitution.
The term “Fundamental Rights”: Gian Luigi Palombella (As confusing)
- It is intended to refer to rights that human beings have regardless of the circumstances of time and place and, therefore, are not conferred by the legal system. The basic idea would be referring to anything connected to humans and not with the law. In a first sense, it has a natural law aroma.
- The “Fundamental” expression is restricted exclusively to those valuable rights in a given legal system, precisely because they have been conferred by law. This is an alternative to the previous sense and is clearly legal positivism.
Gregorio Peces Barba says that fundamental rights have two features simultaneously.
On the one hand, fundamental rights set out all the moral ideology of Enlightenment values expressed by the enlightened thinkers proposed in the eighteenth century to establish policy and law in the new social order.
Moreover, fundamental rights are rights contained or expressed in the legal system. From these two ideas, we can say in summary that fundamental rights are values that have been enlightened by positivism.
Fundamental Rights from the Point of View of the Course
According to Robert Alexy, fundamental rights are those conferred by rules of law or rules legally and fundamentally essential. The rules legally and fundamentally are those found in the catalog of fundamental rights of the Constitution and other rules of the fundamental law that grant rights.
If we apply what Alexy says to the Chilean legal system, we can say that the following are fundamental rules:
- The rules contained in the catalog of rights of Article 19 of the Constitution.
- The rights conferred by subjective standards and found in Chapter II of the Constitution are only the fundamental legal norms that provide individual rights. Article 13, inc. 3.
In addition to the newly identified fundamental rights conferred by the legally and fundamentally attached rules and regulations, in this course, we call them legally and fundamentally accurate.
Directly legally and fundamentally rules enacted in the Constitution are rules that are stated in the Constitution. Moreover, the rules legally and fundamentally accurate directly explain the fundamental rules enacted in the Constitution.
Example: Article 19, No. 1 says that the law protects the life of the unborn.
Our Constitution uses four different expressions to refer to the rights of people.
- a) The term Basic Rights has a clear natural law connotation; it refers to rights deriving from human nature regardless of its inclusion in the legal system. Article 5 inc 2.
- b) The term Human Rights refers to the provisions set forth in international law, both in international treaties, international custom, as in Article 9.
- c) The term Constitutional Rights refers to those fundamental rights that we call Chapter heading III.
- d) Fundamental Rights. Article 93, 16, paragraph 3.