La barba di Solzenicyn e la frammentazione dei diritti umani.

Abstract

This article is in some respects provoking. It starts using a quotation from the famous Kundera s book on Immortality as a peg to hang a discussion on the transformation of individual whishes into rights and on the fragmentation sustained by human rights after the cultural revolution of 1968. It was in that period that the evolution of modern legal and political thought (deeply rooted in gnosticism) reached its climax, after developing through Scolastic rationalism in the 14th century and the modern doctrines of natural law (together with the scientific revolution) in the 16th. Between the 18th and the 19th century the human rights went through an age of abstractness (the Enlightment and the Déclaration in 1789) and then of socialization, until their ultimate denial as "individual" rights in the 20th century, dominated by totalitarian nationalism and communism (both anti-individualistic). After the Nuremberg Trial and the rising crisis of legal positivism, the human rights have been submitted to a process of constitutionalization and internationalization (see UN Universal Declaration) which, however, have not been able to cast light on their pre-normative (i.e. metaphysical) nature. In such a way human rights remain under control of a single power (either from a nation state or from some supranational community) instead of being founded on what is essentially human. It is the individualistic nature of modern human rights, strenghtened by secularization in the post-modern age, that prevents the durable foundation of human rights from being revealed, leaving them to the fragmentation of individual wishes - as written in Kundera 's book. Only a deep rethink of the (gnostic) process which has led mankind to modernity could allow us to save the notion of "human right", bringing it from the pluralistic fragmentation to the essence of the law.