Human rights, political functionalism and legal minimalism in John Rawls and Joseph Raz

• Autor(a) principal: Jacarandá, Rodolfo de Freitas
• Data de Publicação: 2021
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Espaço Jurídico/Espaço Jurídico Journal of Law
• Texto Completo: https://periodicos.unoesc.edu.br/espacojuridico/article/view/16438
• topic: Human rights; Political functionalism; Legal minimalism; Traditional theories; Direitos humanos; Funcionalismo político; Minimalismo jurídico; Teorias tradicionais

Traditional human rights theories - normative and substantive theories - establish general criteria for moral values ​​to be normatively universalized, as well as the reasons for imposing obligations for compliance. In recent decades, however, philosophers and legal theorists, concerned with the global realism of human rights discourse, most of them under the influence of John Rawls's work, have criticized traditional theories based on a functionalist account of human rights. Putting political and legal practices in evidence, political functionalists like Charles Beitz and Joseph Raz argue for the lack of logical precision and the incoherence in the excessive proliferation of rights attributed to the normative and substantive approaches of such authors as Jeremy Waldron and James Griffin. In this paper I will describe the main arguments of the political functionalism account in human rights, emphasizing the legal minimalism common to this approach. My objective is to evaluate the conditions of application of the theory to the problems arising from the lack of a coherent theoretical foundation attributed by the functionalists to the more orthodox thinkers. My conclusions demonstrate that without greater integration between the theoretical groups it remains very difficult to correctly understand the complexity of the challenges of theory and everyday human rights practice.