Essay about Pluralism and the Universality of Rights

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Pluralism and the Universality of Rights

ABSTRACT: The problem of the coexistence of cultures arises inside modern societies that have a constitutional set-up expressed by 'pluralism.' Their central problem lies in the relationship between individuality and sociality, freedom and order. The function of law is to transform absolute pluralism into a relative pluralism limited by fundamental common interests, thus overcoming the problems that arise from the variety of different views of the world and from different values. In the context of H. Kelsen's Reine Rechtlehre, we ask: 1. Do pre-positive legal grounds exist that can claim to have universal validity under the conditions of pluralism? 2. Can the demand for pre-positive principles
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In three steps I will try to substantiate the fact that, and for what reason, fundamental rights and human rights provide the basis for the legitimation of the modern state in its constitutional form.

The crucial question is to whether - and if so, how - guidelines can be formulated which, given the existence of factual pluralism, can bind both the state as well as the law to an unqualifiable fundamental norm. My initial response to this question is: state and law share this norm as the basis of their morality and rationality, not as result of any particular material ethics which may exist in competition in the various cultures, but rather through the positivised fundamental and human rights.

The situation in which we debate law is a paradox one. In modern times the enforcement of subjectivity and individual rights has given rise to a collision of interests and because of this has made necessary the juridification, or regulation by law of the life relations of society which were previously regulated by conformity in morals and ethical practice. This paradox can be reduced to the following simple formula: The more freedom, the more law; the more law, the more state; the more state, the less freedom; and the less freedom, the greater the necessity of law.

At the very beginning of the age-old struggle for fundamental and human rights, which ought

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