Fundamental rights as truffles of the majority

Abstract

This article aims to analyze the idea that fundamental rights are primarily intended to protect individuals and oppressed groups, serving, in Dworkin’s terms, as trumps of the minority against the majority. The correction of the idea stumbles into a series of obstacles the path of its enforcement. The first major stumbling block of constitutional effectiveness may be the semantic stone placed or left in the path of understanding, hence the need to clarify the terms without, however, neglecting the practical result of the overall operation of the system. The methodology adopted for the investigation was a broad literature review on the topic. Its result shows that not rarely the rights are used as rhetorical appeals and, in some cases, as a mere petitio principii. They serve as attempts of argumentative legitimacy of decisions that violate the commands or the consequences that they prescribe. In the realm of poliyics and administration, they gain a perlocutionary and alienating nature, leading recipients to a false comprehension of what actually happens. In this distorted environment, the discourse of rights as trumps of the minority legitimizes the domination of the majority and its enjoyment of the ‘truffles’ of power.

Keywords: fundamental rights, protection of minorities, rhetoric, effectiveness.