Diritto soggettivo e diritti umani. Una comparazione giuridica

Abstract

From a perspective internal to western legal theory, rights and human rights are universal concepts. As such, they have been enforced in a number of international papers dating back to 1948 Universal Declaration of Human Rights. Nevertheless, non-western legal traditions have recently drafted their own local or regional charters of right and see in the western effort to universalize human rights a modem form of imperialism. What the reason of this apparent contrast? This paper maintains that one of the major problems in this field rises from fact that, in western legal tradition, all human right are conceived as individual rights or, more precisely, they are constructed in terms of droit subject of (diritto soggettivo, subjektiv Recht). And it is just this powerful figure of western legal theory which is not universal, nor neutral from a social and cultural point of view. Rights, as they are conceived in the West, are indeed closely linked with an individualistic conception of the social world and they do not fit with a different way of thinking and building up the social order. The structural connection between the individual and the rights is here investigated with regard to the major legal traditions of the world, such as Roman law, the legal traditions of indigenous people, Talmudic law, Islamic law and East Asian legal tradition. In a perspective of cross-fertilization among all legal traditions of the world, this worldwide tour reveals that the western conception of individual rights has much to learn from a different (and probably wiser) way of thinking the social order.