Estado-Nação e Direitos: Uma Relação Conflituosa

Abstract

The modern State was constituted by the end of the Middle Age and the Nation-State, as we understand it today, appeared during the 19 th Century. The relationship between the Nation-State and rights was forged in the French Revolution, in the mark of the 1789 Declaration of the Rights of Man and of the Citizen. Therefore, from the said Declaration, the state of law is consolidated in modern Western tradition, balancing the individual rights and guarantees based on an abstract conception of individual rights to be safeguarded by the State and against the State, although sustained by a problematic and incomplete theoretical framework, the source of a discussion that extends to the present day. In face of this fact, the aim of this work is to test the following hypothesis: the human person is the bearer of rights only if he is under the protection of the State, otherwise he is reduced to nothing, invalidating the universalist view of the 1789 Declaration (and the 1948 Universal Declaration of Human Rights). To do so, we will expose the debate, dividing it according to the view of three groups of scholars: 1) the advocates of the universalism of rights; 2) the critics of such universalism; 3) the advocates of a conciliation between universalism and specific cultural demands. As a conclusion, we will present a balance of the debate and show its perspectives.