Nuovi diritti, vecchie minacce (al Rule of Law)

In this paper, we will outline the most salient features of the so-called “new rights”, a heterogeneous category of claims that aims to 1) protect individuals who suffer from particular situations of need or discrimination, situations that arise as a result of technological development and can be resolved through the codification of these rights 2) abandon the Eurocentric and male-centric model of the legal subject 3) recognise new supranational institutions for the protection of these rights, run by individuals who fight for the rights of those who often have no voice (activists from non-governmental organisations, indigenous communities, and any other discriminated or vulnerable group). Some criticisms of this category will be shown, in particular 1) offering an idea of salvific and totalising law; 2) justifying a transfer of decision-making power from representative authorities to judicial authorities. It will be clarified how “new rights” can constitute “old threats” to the ideal of the rule of law because those who support them do not recognise that the claim to authority of legal norms rests on decisions that are contestable in conditions of ethical pluralism and irreconcilable conflicts of values (individual rights vs. collective needs, social rights vs. rights of non-interference). It is for this reason that the rule of law is equivalent to government by rules and not by men, even if they are moral or motivated by the protection of “new rights”.