Derechos y autoridad: ¿Qué autoridad se encuentra legitimada para especificar los derechos?

Abstract

The paper presents guidelines to develop an institutional theory of decision-making around rights that explains which authority is legitimated to specify them. This theory is made up of two sub theories: one about human rights, and the other about authority. To that aim, first, the paper reviews the need to conceive an objective, realistic and solid sub-theory of human rights, which allows the elaboration of conceptions of rights whose legitimacy does not depend exclusively on the will of the subjects (whether legislators or judges). In this sense, the paper considers the theory developed by John Finnis in Natural Law and Natural Rights. Second, a sub theory of authority of that relies upon the previously proposed conception of human rights is elaborated, which, in turn, allows determining which government body should have the last word in the specification of rights. The conclusion is that, once the questions about what rights are, what their content is and why they are important have been answered, it will be possible to discern which political body is in the best conditions to specify them and, in turn, on what grounds. The answers, thus, will end up providing the necessary guidelines to develop a theory of political decision-making around rights.