being” or an ‘entity’ considered a purpose in himself by the legal code."23
25.
Therefore, human beings far from being reduced to a single object, occupy a
central position in all type of concerns and reflections. The same occurs in the
conceptual universe of Law. The human being is a subject of rights, and juridical
personalism is directly related with the exercise of the subjective rights themselves
and the search for the fulfillment of common good.24 The human being goes on to
vindicate his own rights. In this sense, the conceptualization of subjective rights,
which I presented in my Concurring Opinion in Advisory Opinion n. 17 (of 08.28.2002)
of this Court, on the Juridical Condition and Human Rights of the Child has also
contributed, in a historical perspective. There I weighed in that
"(...) It may be recalled, in the present context, that the conception of
individual subjective right already has a wide historical projection, originated in
particular in the jusnaturalist thinking in the XVIIth and XVIIIth centuries, and
systematized in the juridical doctrine along the XIXth century. Nevertheless, in
the XIXth century and the beginning of the XXth century, that conception
remained in the framework of domestic public law, emanated from public
power, and under the influence of legal positivism25. The subjective right was
conceived as the prerrogative of the individual such as defined by the legal
order at issue (the objective law).26
Notwithstanding, there is no way to deny that the crystallization of the
concept of individual subjective right, and its systematization, achieved at least
an advance towards a better understanding of the individual as a titulaire of
rights. And they rendered possible, with the emergence of human rights at
international level, the gradual overcoming of positive law. In the mid-XXth
century, the impossibility became clear of the evolution of Law itself without the
individual subjective right, expression of a de true "human right".27 (...)
The emergence of universal human rights, as from the proclamation of
the Universal Declaration of 1948, came to expand considerably the horizon of
contemporary legal doctrine, disclosing the insufficiencies of the traditional
conceptualization of the subjective right. The pressing needs of protection of
the human being have much fostered this development. Universal human
rights, superior to, and preceding, the State and any form of politico-social
organization, and inherent to the human being, affirmed themselves as
oposable to the public power itself.
The international juridical personality of the human being crystallized
itself as a limit to the discretion of State power. Human rights freed the
conception of the subjective right from the chains of legal positivism. If, on the
one hand, the legal category of the international juridical personality of the
human being contributed to instrumentalize the vindication of the rights of the
human person, emanated from International Law, - on the other hand the
corpus juris of the universal human rights conferrred upon the juridical
personality of the individual a much wider dimension, no longer conditioned by
the law emanated from the public power of the State." (paras. 46-47 and 4923
.
Ibid., pages 18 and 20.
.
In effect, underlying the legal personalism is the belief in the correlationship between
human beings and common good (persona et bonum commune sunt correlata); E.G. da MataMachado, Contribuição ao Personalismo Jurídico, Rio de Janeiro, Forense, 1954, pages 174-175.
24
.
25
L. Ferrajoli, Derecho y Razón - Teoría del Garantismo Penal, 5th. ed., Madrid, Ed. Trotta, 2001,
pages 912-913.
.
Ch. Eisenmann, "Une nouvelle conception du droit subjectif: la théorie de M. Jean
Dabin", 60 Revue du droit public et de la science politique en France et à l'étranger (1954)
pages 753-774, esp. pages 754-755 and 771.
26
27
.
J. Dabin, El Derecho Subjetivo, Madrid, Ed. Rev. de Derecho Privado, 1955, page 64.