Freedom, Property and Equality in the Theory of `Fundamental Rights'. A Commentary on an Essay by Luigi Ferrajoli

The essay that Luigi Ferrajoli published inTeoria politica is a partial, althoughvery important, preview of an importanttheoretical work on which he has been labouringfor several years. Ferrajoli is knownto be aiming at achieving a rigorousformalisation of the theory of subjectiverights, an undertaking to which he first turnedhis hand at the beginning of the seventies,with the book Teoria assiomatizzata deldiritto, in which he laid the foundations forhis subsequent work, including his extensivetreatise of the theory of criminal law,Diritto e ragione.So it is quite natural that this new essaycontains a quantity of references to conceptualcategories that come together in a veritableWeltanschauung, as it used to be called at onetime, in addition to an epistemology and ageneral theory of law.In order to discuss all his theses in thisessay as seriously as they deserve, we reallyshould go back to that set of philosophicalpremises to which they refer – and whichFerrajoli tends to nurture in a sort oftheoretical latency – and try to focus on anddiscuss them. As this is not the place for such amassive task – for which I may not even havethe necessary competence – I shall restrictmyself to touching on just a few points thatconcern me more closely. I apologise for thisselective and thus not very systematicapproach, made necessary to some extent also bythe large numbers of theoretical and politicalquestions that Ferrajoli's essay tackles,raises or merely touches on. Nevertheless, myselection will be aided by the criticalsignificance that Ferrajoli dedicates to someof my opinions. In short, I shall not try to doany more than to respond indirectly to hiscriticisms. And I shall do so with the greatestof respect, as Ferrajoli well knows, for histheoretical work and for the profoundmotivations that inspire him.