Love, Anankasticity, and Human Rights: The Perspective of a Petrazyckian continental legal realism

In this essay the author analyzes the social phenomenon of human rights from the perspective of Leon Petrażycki’s Continental legal realism (Petrażyckianism). After shortly presenting this approach in § 1, in § 2, the author argues that, from this perspective, that of human rights is to be regarded as a naïve concept – akin to the concept of vegetable. As a naïve concept, for its investigation the concept of human rights requires stipulative concepts. To this goal, in § 3, the author proposes the stipulative concept of a humane jural conviction. In § 4, by combining Petrażyckianism with the ideas of Gianluigi Palombella, on the one hand, and those developed within the Contean school (in particular, by Amedeo G. Conte and Giampaolo Azzoni), on the other, further stipulative concepts are proposed, namely, those (a) of a fundamental substantive-jural anankastic normative-factical conviction and (b) of a fundamental substantive-jural paranankastic normative-factical conviction. By the former term (a), the author understands an individual’s conviction concerning certain jural norms that it must be possible (or impossible) to extract from a normative fact for that normative fact to be experienced as binding. By the latter term (b), the author understands an individual’s conviction concerning the jural norms that it must be possible (or impossible) to extract from a binding normative fact1 for a certain authority (e.g., a constitutional body) not to be regarded as entitled (or as obliged) to enact a normative fact2 aimed at removing the psychosocial effects brought about by that normative fact1. In the last section, the author discusses the issue of a possible “foundation” of human rights, from the perspective of Petrażyckianism. In this section, also the connection of anankasticity and paranankasticity to the principle of proportionality is discussed.