Formal and Material Theory of Fundamental Rights. Thinking on the Luigi Ferrajoli's Theory of Fundamental Rights

This paper critically examines Ferrajoli's thesis around the Theory of Law and the Theory of Fundamental Rights. He offers a Formal Theory of Law and rights, providing a theoretical and formal concept. However, it is defended that the formal and material dimension of the Theory are inseparable. In addition, it is considered that some critics to the foundation of rights offered by Ferrajoli are appropriate. For example, when he considers democracy. Other Ferrajoli's proposition that has been discussed is to consider all the rights as rules rather than principles. In this question, the base of the debate is doubtful, because there is no structural distinction between principles and rules, but a functional distinction. So, unavoidably, rights act sometimes as rules, some other times as principals. Similarly, his conception of rights guarantees is a good attempt to end with the confusion between rights and protection techniques, but suffers from a disadvantage: the lack of guarantees is not well resolved on the basis of the dynamic principle of plenitude but perhaps on the basis of the static principle of respect for some basic content.