Inside-out. Internal and external limits to rights : does it matter?

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Sajeva, Giulia (2019) Inside-out. Internal and external limits to rights : does it matter? Diritto e questioni pubbliche, 19 (2). pp. 201-223. ISSN 1825-0173 (http://www.dirittoequestionipubbliche.org/page/201...)

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Abstract

Literature is rich on whether and how rights are limited by external considerations, such as other rights or particularly important general interests. This article concentrates on what could be a different type of limit of rights: internal limits stemming from the very foundations of a right. Its aim is to understand whether these hypothetically different internal limits actually collapse on the idea of internal limits of coherence theories; or whether they are equivalent, in terms of effects, to external limits to rights.  In order to show the origin of the troubling with internal limits, the article begins with a brief introduction of biocultural rights of indigenous peoples and local communities and of the challenges they encountered, allegedly, because of the internal limits that rose from their foundations. It then concentrates on coherence theories and the internal limits they envisage, and continues with the analysis of two examples – freedom of expression and parental rights – in order to understand whether turning external limits into internal ones causes any change in the arising normative positions. Building on this thought experiment, it tries to explain which of the sui generis features of biocultural rights are, actually, due to their double foundation and which, instead, are generated by other, concealed operations. Finally, after recognizing the complexities of the idea of care and stewardship between two subjects/interests, it points out the more subtle implications of internal limits of rights, opening the way to considerations concerning the way legal concepts are used and interpreted.

ORCID iDs

Sajeva, Giulia ORCID logoORCID: https://orcid.org/0000-0001-5714-4804;
CORE (COnnecting REpositories)