Luigi Ferrajoli’s Formal Definition of Fundamental Rights
Item I: Definition of Fundamental Rights
1. Ferrajoli’s Formal Definition
Luigi Ferrajoli proposes a theoretical definition, purely formal or structural, of fundamental rights. Fundamental rights are defined as all those subjective rights that are universally attributed to all human beings as endowed with the status of persons, citizens, or persons with capacity to act.
In this context, the key terms are defined as follows:
- Right: Any positive expectation (of performance) or negative expectation (no injuries), attached to a subject by a rule of law.
- Status: The position of a subject, also provided by a standard positive law, defining its suitability for the grant of legal situations and/or for being the perpetrator of the acts that exercise these rights.1
Theoretical vs. Dogmatic Definition
This definition is theoretical because, even when prescribed with reference to fundamental rights enshrined in positive laws and existing constitutions in democracies, it ignores the fact that such rights are set out in constitutions or fundamental laws, and even the specific statements that appear in positive law rules. In other words, it is not a dogmatic definition2—that is, one made with reference to the rules of a particular order (for example, the Italian or Spanish Constitution).
Correspondingly, we say they are “fundamental” rights assigned by law to all individuals as such, as citizens, or as capable of acting. Our definition is not unnatural; it acknowledges that a legal system, for example, a totalitarian one, might have no fundamental rights. The anticipation of such rights by the positive law of a particular system is crucial for their existence or validity in that order, but it does not affect the meaning of the concept of fundamental rights itself.
It affects even less the meaning in a constitutional provision, which is only a guarantee of its observance by the ordinary legislator. For example, the rights attaching to the accused by all the procedural safeguards dictated by the Code of Criminal Procedure—which is an ordinary law—are also essential.
Formal and Structural Nature
Secondly, ours is a formal and structural definition in the sense that it disregards the nature of the interests and needs supervised by its recognition as fundamental rights, and relies solely on the universality of its claim. We understand “universal” in the purely logical and evaluative sense of universal quantification of the class of subjects who are holders.
Rights such as personal freedom, freedom of thought, political rights, and social rights are protected as a matter of fact universally, and are therefore fundamental. However, if such rights were alienable and thus not universally attributed—as would happen, for example, in a slave society or an entirely mercantilist one—they would not be universal and therefore not fundamental. Conversely, if a right absolutely futile, such as the right to be hailed on the street by one’s acquaintances or the right to smoke, were established as universal, it would be considered a fundamental right under this formal definition.
Advantages of the Formal Definition
There are obvious advantages to such a definition:
- Universal Validity: As it ignores factual circumstances, it is valid for any legal order, regardless of whether fundamental rights are provided in it or not, including totalitarian and premodern systems. Its value belongs to the general theory of law.
- Ideological Neutrality: As it is independent of the property, assets, and substantial needs protected by fundamental rights, it is also ideologically neutral.
Thus, it is valid whatever the legal or political philosophy professed: positivistic or naturalistic, liberal or socialist, and even anti-liberal and undemocratic.