Gastprofessor Massimo Meccarelli

02.12.2019

Concept Idea for the Teaching on “Rights and Social Cohesion: Perspectives from Legal History”.

The teaching will analyse, in a legal-historical perspective, the relationship between rights and social cohesion. Considered in its history - a history that starts in the early modern age, from the discovery of the New World and the rise of Protestantism within the Christian world – the unprecedented idea to provide legal protection, directly to the natural person, by way of recognition of rights, is a consequence of the search for new approaches in producing and renewing the interest in coexisting within society and in generating new political and legal spaces. Aim of the lectures is to grasp this deeper dimension in the concept of right (which, in effect, underpins the functional destination of rights as means of legal protection).

Starting from an overview on the current framework, in which a crisis of effectivity affects fundamental, social and human rights, the teaching will propose a long-term path in the legal thought of the modern and contemporary age. The analysis, considering the different theoretical declinations, will focus on the kind of legal spatiality which is shaped through the use of the concept of right. In particular will be taken into account: the jurisdictional pluralistic space for rights, outlined by the Iberian scholastic of the modern age; the state monistic space for rights, conceived in the doctrines of natural law and social contract in the 16th and 17th centuries as well as in the main trends of legal thought in the 18th and the 19th centuries; the space of justiciability of power with respect to rights and its ultra-state dimensioning, in the constitutionalism of the second half of the 20th century up to the present time.
The purpose will be also to gain a critical point of view on three phenomena, which are linked to the history of rights, and mark important changes in the modern legal experience: the relationships between the issue of diversity, the problem of legal protection and the (program to implement) equality principle; the change of function for legal protection, from an instrument to enforce justice (in legal order), to an instrument to enforce freedom (of human beings); the paradigmatic transition from legal pluralism to legal monism in legal systems.

The final part of the teaching will offer some methodological suggestions on features and function of legal history in addressing this kind of topics, which set an interdisciplinary challenge for legal studies.

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