Autore
Perfetti, Luca R.

Titolo
I diritti sociali. Sui diritti fondamentali come esercizio della sovranità popolare nel rapporto con l'autorità
Periodico
Diritto pubblico
Anno: 2013 - Fascicolo: 1 - Pagina iniziale: 61 - Pagina finale: 130

The notion and the system of social rights take their place at the problematic confluenceof a series of problems that is not small. This involves a subjective positionmarked - perhaps more than others - by the historical evolution of continentalconstitutionalism, conditioned by the matter of welfare, by the uncertaintiessurrounding the claims deemed to be addressed to public authority and, finally -but closely related to the idea of perfect subjective right - to the system of primaryguarantees. The reflection on social rights is the occasion for grasping the substanceof the vexed questions surrounding them, which have influenced the solutionsthat have been proposed in a way that is anything but minor. Since we aredealing with a claim that appears conditioned by complex problems, the work givesan account in particular of: (a) the representations that have been put forwardby our law literature, (b) the evolution of welfare, (c) the EU and constitutionalregulation thereof. The core issues on which the article reflects are: (i) the attractionof social rights in the structure of what is traditionally considered the sovereigntyof the State, along two convergent paths, one arising from the relationbetween administration and law - which leads to configuring social rights as untenablepositions without legislative recognition - and the other arising from therelation between administration and jurisdiction - which limits the effectivenessof the right unless and until the activity corresponding to it is assumed as its ownby the authority - to assess whether there are (ii) reasons for instead consideringsocial rights as belonging to the area of fundamental individual rights by virtue of(iii) the pertinence thereto of sovereignty, (iv) ensuring protection through the systemof secondary guarantees and, in particular, of the general actionability of thesubstantive claims ensured by Art. 24 of the Constitution.



SICI: 1721-8985(2013)1<61:IDSSDF>2.0.ZU;2-6
Testo completo: http://www.mulino.it/download/article/10.1438/75193
Testo completo alternativo: http://www.mulino.it/doi/10.1438/75193

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