The Law beneath Rights’ Feet. Preliminary Investigation for a Study of the Charter of Fundamental Rights of the European Union

Abstract

This article is meant as a philosophical preface to the study of the European Charter of Fundamental Rights. In particular, attention is focused on a particular legal positivistic reading of legislation as a political moment which would not allow for transcendental rights. This view is rejected by pointing out how much the notion of citizenship and consequently of fundamental rights is central for the democratic, and in some case even for the legal positivistic, celebration of legislation. In the last section a few conclusions are drawn as far as the scope of the Charter is concerned. In particular, any interpretation of it in the framework of the so–called regulatory paradigm (which gives up the democratic connection between deliberation and representation) is considered incoherent and self–defeating. In addition the principle of indivisibility of rights is evoked in defence of the validity of social rights within the Charter.