Abstract

ZANON, Andrei  and  TREVISOL, Marcio G.. The Foundation of Human Rights from Habermasian Discursive Ethics. Pap.polit. [online]. 2016, vol.21, n.2, pp.395-407. ISSN 0122-4409.  https://doi.org/10.11144/Javeriana.papo21-2.fdhe.

This study aims to analyze the foundation of human rights from the Habermasian perspective of discursive ethics. In the book Law and Democracy (2003), the author presents a system of rights constructed from the origin of discourse, the principle of democracy and the legal form that introduces five categories of fundamental rights. These rights are called absolute and relative. Given these groups of rights, the aim of the article is to situate Habermas’ human rights debate in the sphere of law. Habermas focuses his discussion on the legitimacy of human rights in highly diverse and pluralistic democratic societies. His perspective is to draw a safe diagnosis that can sustain a set of rights from communicative action. The Habermasian innovation lies in the rationality of understanding that the foundation of a set of rights is only possible through language as a condition for consensus. The condition of language allows us to formalize the consensus in an intersubjective form that overcomes fragmentation, relativism and dogma, and establishes a democratic condition as an essential element to define human rights. Theoretically grounding this set of human rights from discursive ethics, enables a critical view on the process of their legitimization. The tension between legality and legitimacy is vital and necessary for guaranteeing the process of legitimization of human rigths. Discursive ethics makes rights effective.

Keywords : human rights; discourse ethics; legitimation.

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