Fundamental rights as an individual
In an introductory way, in this work I will use the relationship between Fioravanti’s text, "theoretical foundations of freedoms" and the text of Fernando Muñoz "History of fundamental rights in Chile". In the first text I covered the individualist model, definition, characteristics used by the concept and contexts where this model would arise. On the other hand, the existing relationship between both texts, covers from iusnaturalism onwards, where fundamental rights would be formed, which had already been deepened from the individualist model, and to end up complementing with the last text of Garzón Valdés “the relevance of dignityhuman ”with the concept of human dignity of Emmanuel Kant, what is the current perspective of this concept and the relationship of human dignity with fundamental rights.
The right in addition to being a manifestation of the political phenomenon is a social science, this means that, there is a fundamental influence in the way in which political subjects are related in each historical moment which helps us understand the content ofThe fundamental rights that fulfill certain functions within our society, these rights are considered to be born before the State since these are limits that have arisen from the political conflicts that have occurred throughout history in certain contexts.
To limit the different ways of abuse of power that have been manifested throughout history in society, there are three theoretical models of the foundation of rights;(Fioravanti, 2003) First, the historicist model, which seeks in the Middle Ages a limited and moderate government, individualistic model, in charge of confronting the past and finally, the stateist model based on the idea that the State is the conditionfundamental for the creation of rights and freedoms. While these models are different, they are usually combined with each other having as the main objective to delimit the abuse of power in different ways.
It is in the individualist model in which we will focus since it is where a break with the Middle Ages is produced by spreading a social revolution in which France becomes a representative of this model where the country goes from absolutism to the French Revolutionwhere human rights are declared and the modern State is built based on man as a subject of rights, freedoms and obligations, tending to eliminate privileges, improve the living conditions of social groups and end the stately order. Therefore, in the individualist model, fundamental rights and freedoms of the individual are guaranteed, which are not based on history but on the authority of the sovereign state, thus one of the main and most elementary right that individuals have is to reject all authorityDifferent from the State Law.
This model is a form of organization that has its principles in the state of nature that must be broken through the social pact where the legislator is recognized as a protective source of political rights and freedoms that although it recognizes them, it is not the creatorof these rights, granting the will of the sovereign people to decide on the maximum order having the ability to create or change at any time a constitutional order as a mechanism for the protection of the individual rights of man based on the will of individuals, thepolitical will and impose the presumption of freedom, highlighting that no authority could restrict the freedom of a subject without before being a law since this is the fruit of the constituent will guaranteeing the security of the rights of individuals. In addition, the individualistic model maintains that positive freedoms are not only control over the different threats to negative freedoms, but are the determination of the general orientation of public authorities so that it can respond to the will of the people, forming politically subjectsAssets that place the action of public authorities, responsible for configuring rights, freedoms and limitations through the law and limiting the action of authority and possible abuse of power that it can exercise over society. In this way, the constituted power is strong if it adequately interprets the will of the nation, if not, it becomes a fragile constituted power.
Throughout the Modern Age from the beginning of iusnaturalism to covering the rule of law and the democratic State becomes a period marked by individual rights and its improvement, by destroying different orders of power control, such as feudalism andGovernment’s statusalism reflecting in the destruction of the Middle Ages that produced a strong impact on society from this context, fundamental rights begin to take a new turn, recognizing the needs of freedom and justice of man and society. It is the scholastic of the 16th -century century developed at the University of Salamanca with intellectuals such as Francisco de Vitoria and Francisco Suarez who raise a theory on the rights of man in natural state, influencing the contractualism of Hobbes and Locke where a more secular iusnaturalism will emerge foundingHis understanding of the natural rights of man. Later, the law becomes mandates and prohibitions to multiply the permits that it recognizes, in the form of negative freedoms and positive freedoms, ownership that will correspond to every human being by the mere fact of possessing such a condition where they will be holdersOf the same rights, it was the philosophers who dared to warn that men had rights and could only be sent under the conditions of a social pact. But what are these rights of man and the citizen? Equality: If all men are born free and independent, the law must be the same for all, the security: protection that society delivers to each of the citizens, the property: faculty that citizens have to provide their assets to taste,income, fruits of his work and rent, freedom: do everything that is without attempting against the rights of the other, and finally, the resistance to oppression: which is the consequence of all the rights of man, demanding the action ofall to assure each man the enjoyment and conservation of their rights.
How to materialize protection to human dignity?
Regarding dignity and its definition, Kant forms a moral content where human rights would derive, where it raises: in the kingdom of ends everything has or a price or dignity. What is priced can be replaced by something equivalent;On the other hand, what is above all price and, therefore, does not admit anything equivalent, that has a dignity. (Kant, 1785) . In addition, it adds a distinction between what is priceHe makes man resistant to everything and that only he possesses this characteristic and law, observing dignity from a relational point, since what has dignity is the condition for something to be an end in itself, being morality such condition “theEssence of the dignity of man lies in a free and flying being, endowed with will and freedom and at the same time, it is an end in itself ”. These Kantean approaches will become the basis of the modern concept of human dignity and inspiration since it recognizes an absolute value to man, a duty of respect that the subject must use through relations with others and with himself and with himself.
Currently, dignity is inviolable and the foundation of human rights being a very important concept in society, since it is considered the protection and guarantee of any subject that constitutes the rule of law, deriving from respect towards oneself and the people whoThey surround it, without forgetting that all men have rights that must be recognized by political power only because of the fact of having dignity, an attribution of the human being since it is born until it dies. Although this is a fundamental right, many times dignity is attack by discriminatory deals or inequalities that occur within society and abuses that lead to power relations between people such as: violations, discrimination, marginalization, inhuman jobs,abuse, terrorism, etc.
In my work I chose the individualist model of the first text, and not the other models since I find it interesting the break that this model uses on the previous one, because on the one hand, the historicist model was inspired by the Middle Ages aboard theEuropean tradition where the power of the feudal lords on their subjects was supposed to limit a contractual relationship of abuse by the stately order with which the individualist model will end it. On the other hand, the state model uses the Hobbes social pact where it expresses that rights are born with the State, that is, freedom and power are born together and it seems to me that the subjects of the people will be subordinated and oppressed to the authority,On the other hand, as is used above, the individualistic model has the characteristic of the people and this is the sovereign having the condition of creating or changing the constitutional order at any time to avoid abuse of power or oppression from the authority. In my opinion, it was more usefulThey are perfected and evolving over time until they have the foundation of human dignity.
Finally, human dignity is intertwined with fundamental rights as well as the individualistic model, since fundamental rights are created in order to protect and ensure the effectiveness of human dignity these are essential in our society and by which they have beenReason for struggles and injustices in different historical contexts such as breaking with the stately order of the individualist model, the individual rights of men who begin to appear and the power of revolution against the authority of the people, achieving throughout history, proclaimnew rights and consecrate them through Constitutions and the Universal Declaration of Human Rights that marked a milestone worldwide, proclaiming all persons economic, social, cultural, civic and political rights that support a life without fear or miseryinalienable from all people without discriminations. While this letter did not end human rights abuses, people have been able to contemplate their freedom and autonomy throughout the world.
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