Insofar as the right to free speech is constitutionally protected, the article distinguishes between opinions and facts. Whereas the former is protected as a free speech matter, the latter has nothing to do with the r...Insofar as the right to free speech is constitutionally protected, the article distinguishes between opinions and facts. Whereas the former is protected as a free speech matter, the latter has nothing to do with the right to free expression Holocaust Denial concerns denying facts and therefore, it is not a question of freedom of speech. At the same vein, inquiring into the conceptual grounds of the theory of criminalization, the article provides that Holocaust Denial cannot and should not be criminalized.展开更多
While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights. If they are subjective rights, they are justiciable. The main argument in fav...While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights. If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be either juridical or factual. Juridical liberty has no value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. Nevertheless they are subjective rights indeed, but special ones： they are primafacie subjective rights. There is only one subjective right that is a priori considered definitive： the right to Existenzminimum） Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. Existenzminimum is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, there are also arguments related to juridification of politics, administrative discretion and the possible reserve clause. The counter-arguments refer to original and exceptional competence, necessary objective proof of state＇s economical incapability, prohibition of State＇s will, principles of legality and of non-obviation o f Judiciary jurisdiction, Existenzminimun guarantee.展开更多
Recent critical approaches on human rights have exalted the potentiality of this category for seeking progressive agendas （Santos 2007） insofar as they are enacted within counter-hegemonic cognitive frames （Rajagop...Recent critical approaches on human rights have exalted the potentiality of this category for seeking progressive agendas （Santos 2007） insofar as they are enacted within counter-hegemonic cognitive frames （Rajagopal 2006） towards the construction of ＂subaltern human rights＂ （Onazi 2009）. Others,. however, have pointed out that the human rights institutional and political hegemony makes other valuable emancipatory strategies less available, and that this foregrounds problems of participation and procedure at the expense of distribution （Kennedy 2005）. Finally, others have explained how the abstractedness of the category entails a de-politicization （Rancière 2004; Zizek 2005; Douzinas 2007） or an emptiness that, of course, can be filled by progressive activism, but whose substance is easily reappropriated by those in power （Miéville 2005）. By engaging with the above-mentioned perspectives, and following the decolonial approach （Mignolo 2009; 2011）, I suggest that the category human rights can be decolonized and being used for progressive agendas only after a comprehensive critique of liberal legality （that entails a critique of liberal abstract rationality, political economy, and modernity/coloniality） has been performed.展开更多
文摘Insofar as the right to free speech is constitutionally protected, the article distinguishes between opinions and facts. Whereas the former is protected as a free speech matter, the latter has nothing to do with the right to free expression Holocaust Denial concerns denying facts and therefore, it is not a question of freedom of speech. At the same vein, inquiring into the conceptual grounds of the theory of criminalization, the article provides that Holocaust Denial cannot and should not be criminalized.
文摘While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights. If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be either juridical or factual. Juridical liberty has no value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. Nevertheless they are subjective rights indeed, but special ones： they are primafacie subjective rights. There is only one subjective right that is a priori considered definitive： the right to Existenzminimum） Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. Existenzminimum is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, there are also arguments related to juridification of politics, administrative discretion and the possible reserve clause. The counter-arguments refer to original and exceptional competence, necessary objective proof of state＇s economical incapability, prohibition of State＇s will, principles of legality and of non-obviation o f Judiciary jurisdiction, Existenzminimun guarantee.
文摘Recent critical approaches on human rights have exalted the potentiality of this category for seeking progressive agendas （Santos 2007） insofar as they are enacted within counter-hegemonic cognitive frames （Rajagopal 2006） towards the construction of ＂subaltern human rights＂ （Onazi 2009）. Others,. however, have pointed out that the human rights institutional and political hegemony makes other valuable emancipatory strategies less available, and that this foregrounds problems of participation and procedure at the expense of distribution （Kennedy 2005）. Finally, others have explained how the abstractedness of the category entails a de-politicization （Rancière 2004; Zizek 2005; Douzinas 2007） or an emptiness that, of course, can be filled by progressive activism, but whose substance is easily reappropriated by those in power （Miéville 2005）. By engaging with the above-mentioned perspectives, and following the decolonial approach （Mignolo 2009; 2011）, I suggest that the category human rights can be decolonized and being used for progressive agendas only after a comprehensive critique of liberal legality （that entails a critique of liberal abstract rationality, political economy, and modernity/coloniality） has been performed.
