Revisiting “Subjectivity” in Rights Theories: The (Re)Creation of the “Legal Subject” in Second Scholastics Juridical Discourse

• Autores: Ana Caldeira Fouto
• Localización: Revista portuguesa de filosofía, ISSN 0870-5283, Vol. 75, Fasc. 2, 2019, págs. 1103-1124
• Idioma: inglés
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• Resumen

  • Rights theories can be characterized by the conflicting views regarding the meaning of the “subject” of those rights. Traditionally identified as a characteristic of modern legal thought, individualism reflects not only in philosophical and political options, as well as in the technical constructions which have contributed to the definitions of rights still very much in use. Legal historiography has dwelled with the quest for the origins of what is seen as the structural element of modern rights – subjectivism – in the disruption of a scholastic paradigm of law, but broadening the sources used in that research suggests that the modern “legal subject” as a “subject of rights” is drawn from a less disruptive concept and therefore the modern notion of “rights” is structurally more complex – in fact, that underlying hidden complexity emerges in some contemporary jurisprudential debates regarding the nature of rights.