Even from a superficial analysis of its historical development, one cannot but notice that, starting from post-World War II constitutionalism, the notion of subjective right has been affected by a significant process of transformation which has concerned both the level of the claims as much of the ascriptions. Alongside the multiplication of the social needs of citizens, also the number of rights’ holders (individuals, communities, animals, plants, inanimate objects, future generations, etc.) has increased considerably, so to include on certain occasions new1 legal subjects and collective interests2, as well as peculiar tools of legal recognition and protection.

Compared to previous phases in the evolution of rights - which dealt with the traditional individual freedoms and with economic, social and cultural rights - the most recent claims for rights display their own peculiar traits. Just to give some examples: issues such as the guarantees in the face of the risks posed by genetic manipulation, the rights of the embryo or the right to abortion, the right to development or to a sufficient life quality, have acquired, and continue to acquire, unquestionable relevance within the scenario of individual and collective claims that characterize contemporary constitutionalism.

We are indeed faced with a heterogeneous set of subjective situations that are difficult to include in the traditional classifications. In this sense, within the current globalized and multicultural societies, the claims that are considered as rights of fourth generation (collective rights and rights of solidarity) make up an increasingly open, dynamic and flexible catalogue, composed by rights that are rarely justiciable, or even not recognized by positive law. There is an increasing tendency within the legal and philosophical reflection on latest rights to extend the notion of ownership to nonhuman subjects which, strictly speaking, are not entitled to full legal capacity and, in some cases, even to the ability to express their own will. In such a way, the result is a process of fragmentation of the original subject of rights, traditionally identified with an individual endowed with autonomy, rationality and intangibility.

The special configuration that the issues of the recognition and the entitlement of fundamental rights has acquired in today’s constitutional states has determined, in recent decades, the development of a body of normative proposals that regard the problem of the anomic expansion of rights as one of the main factors behind the crisis of the so-called “age of rights”.3 These approaches tend to highlight a relationship of inverse proportionality between the tendency - rather widespread in contemporary legal-political language - to conceive any claim as a right and their effective capacity to satisfy the interests and needs of people: the ever-wider recognition of the ownership of rights and the progressive increase of their instruments of judicial protection are thus accompanied by a continuous decrease in their effectiveness.4

In this sense, Roberto Bin observes that

the incongruency is pretty evident: as much as the sale of nobility titles is a prelude to the loss of their social meaning, so it is also for the constitutional status of “rights”: to bestow the status of constitutionally-recognized right to interests that are borne out of extremely unsubstantiated interpretations makes less credible the attempt to use this status to repel other antagonistic interests, which do not possess a title of nobility (BIN, 2000, p. 23-24).5

A further step in this direction is arguing that, in order to prevent morally and legally relevant assets from being weakened, it would be appropriate to limit the recognition and legal protection to those interests more closely linked to the traditional negative freedoms6, i.e. perfectly concluded in themselves, easy or immediate to implement, inherently non-conflictual and free of charge (or inexpensive). 7This argument also proposes a redefinition of the catalogue of rights (and of their guarantees) in a markedly deflationary manner. In this perspective, which in most cases takes a markedly normative valence, the restriction of the quantity of interests that are morally and constitutionally legitimate is thus seen as a way to prevent the “real” rights from being weakened.8

The process of specification of goods and holders, the ever-wider diffusion of speeches, claims and appeals to rights, may result often in an increase of the possibility of conflict between rights themselves and an objective difficulty of protecting all formally recognized rights. In the reflections that follows, we intend to focus attention on two brands of minimalism particularly relevant within the philosophical-political and philosophical-juridical debate: 1) an approach that could be defined as “anti-conflictualist”, whose main purpose is to solve or limit problems of incompatibility between different rights; and 2) a “liberal” approach, which aims instead to restrict the body of rights to the fundamental freedoms of the classical liberal tradition. Although these two positions are generally confused under a single category, it seems appropriate to distinguish them at least from a conceptual point of view, keeping in mind that it is mostly a conventional categorization.

As a general rule, the conflictualist approach tends to consider the problem of incompatibility between rights 9as an antinomical relationship, of “logical inconsistency” 10, between norms (generally principles) conferring fundamental rights, imputable to subjects who are located in antagonistic position or even to the same subject. In this situation, the duties involved are not “compossible” or consistently applicable, as Hillel Steiner explains:

[t]he incompossibility of rights can assume either of two dimensions: incompatibility may exist between different persons’ exercises of different kinds of rights; or it may exist between different persons’ exercises of the same kinds of right. My exercise of my right to free speech may interfere with your exercise of your right to privacy; or my exercise of my right to free speech may interfere with your exercise of your right to free speech. One objection that is sometimes registered to such exemplifications of incompatibility consists in claiming that they enjoy whatever damaging plausibility they appear to possess by trading on what are merely abbreviated descriptions of the rights involved (STEINER, 1977, p. 768).11

It is therefore an operational problem of application of the rules (who attribute fundamental rights), which occurs within the legal systems whenever it is not possible to meet all the recognized needs at the same time: the implementation of a right that belongs to an individual x requires, for conceptual or factual reasons (i.e., abstractly or concretely), the lake of fulfilment of another right (which may also represent another instance of the same right) of an individual y.

In opposition to this understanding, several normative approaches deny that, in the abstract, genuine cases of collision between rights occur, or states that in case they occur during the application phase, they can be resolved by establishing which right should prevail12. According to this perspective, the mistake usually committed in detecting a conflict between rights lies in the failure to specify the antecedent of the rules which attribute fundamental rights. In a situation of alleged conflict, either one of the two rights involved is not an authentic right, or the exact perimeters of one (or both) of them are being ignored.13 Rights would come into conflict only in their generic formulation, but would then prove to be susceptible of specification, identifying a third rule whose formulation would make the appearance of conflict disappear. Such goal is shared by various philosophical-political and philosophical-moral approaches: to build a normative system of rights in which conflicts tend not to occur ex ante.

Within the philosophical-political debate, an illuminating example of this first form of minimalism is the argument developed by Robert Nozick to neutralize the clash between rights at the level of the (minimal) state theory. This position is notably part of a wider project of utopian transformation of society: it is within this framework, therefore, that we need to place also the intention to restrict the category of interests which can aspire to the qualification of “rights” exclusively to the classical negative freedoms of abstention. These spaces of freedom can then operate as “side-constraints”: like certain collateral, absolute and negative limits to people’s conduct.14 Although the author does not clearly explain its content, from a global analysis of Anarchy, State and Utopia emerges the strongly individualistic inspiration of the theory, centred on the idea of the inviolability of the person: rights, in this perspective, express the basic idea that individuals cannot be exploited for the achievement of other ends without their consent.

To understand the scope of this discourse it is necessary to start from the problem of the origin of goods ownership. In this regard, the one developed by Nozick is a pure theory of the valid title (“entitlement theory”), aimed at determining whether people are entitled to what they possess, which is structured around three assumptions: 1) the principle of justice in acquisition, that deals with the initial acquisition of holdings (how people first come to own unowned and natural world goods, what types of objects can be held, etc.); 2) a principle of justice in transfer, that explains how one person can acquire holdings from another, including voluntary exchange and gifts; 3) a principle of rectification of injustice, that explains how to deal with holdings that are unjustly acquired or transferred, whether and how much victims can be compensated, how to deal with long past transgressions or injustices done by a government, and so on.15 Regarding the latter point, in theory, this principle requires redress as to possible injustices committed through previous acquisitions and transfers: it may imply, therefore, even substantial compensation in benefit of those who have been illegitimately harmed. In some contexts, although for a limited time, a strong state interventionism will be necessary in order to improve the situation of the most penalized subjects and social groups. Nevertheless, it should be noted that Nozick does not provide any systematic explanation in relation to when and to what extent the abuses of appropriation - the acquisition of property in conditions of scarcity for the rest of the community - must be modified or sanctioned.16

This perspective, aimed at highlighting the conditions of legitimacy of the private appropriation of natural resources, is openly based on the theory of work and property developed by John Locke in the Second Treatise on Civil Government, who in particular in par. 27 offers a logical reconstruction of the process of appropriation of things by individuals. In this sense, Nozick takes up the classical theory of the state of nature, understood as that condition in which each person can reach a certain level of wellbeing according to their abilities. This level of welfare, while not equal, must be maintained via what the author defines the “Lockean proviso”17, according to which selfownership provides to a person the freedom to blend his or her labour with natural resources, converting common property into private property.18 In the Nozickean reinterpretation, the proviso implies that, although every appropriation of property represents a diminution of another individual’s rights to it, it is acceptable as long until it worsens the condition of no individual than they would have been without any private property.19 Every person - argues Nozick - will thus only have to worry about respecting those constraints that make possible the rights of others: the possible violation of person A’s right does not justify that person B should try to avoid it. Every individual has total and exclusive dominion over his own person, provided that he also respects the ownership that others have over themselves.

Based on these premises, therefore, rights are configured as the “boundaries” that delimit the legitimate and inviolable sphere of action of individuals. Such barriers cannot be crossed without the consent of those same individuals, by definition entitled to freely build their own future, thus making unjustified any action or political measure that imposes any sacrifices on them. Within this reconstruction, the only conceivable positive rights are those that result from voluntary transactions between people (such as those that arise when contracting certain essential services).

On the foundation of this normative and deontological proposal one can identify the claim to define the content of rights by considering their purely semantic aspects: the problem of compatibility between fundamental rights, in this perspective, is presented as exclusively definitive or stipulative, depending largely from the notion of rights previously accepted.

Constitutions - critics of the Welfare State often argue - are legal documents whose functions are intrinsically limited: if we tried to make all the claims contained in them binding and enforceable, we would end up undermining even the traditional negative freedoms of the liberal rule of law.

Following this line of reasoning, they uphold that the complex of rights recognized by constitutional texts should be limited (or should recognize their superiority) to traditional civil and political freedoms. Thereby, a clear, axiological, distinction between “self-executing” rights (the civil and political rights of first and second generation20) and public benefit rights or credit rights for the state (social, economic and cultural rights, as well as fourth generation rights) is attributed to the historical succession of the different categories of rights. In this perspective, the former ones impose mere abstentions on the State (avoiding killing, torturing, imposing censorship, etc.), while the latter ones mostly require it to fulfil positive obligations (disbursement of public funds, provision of health or education services, etc.). On the other hand, the other rights are frequently described as interests whose implementation requires a plurality of public interventions, mainly financed through taxation, and thus potentially damaging individual property rights.

According to this perspective, social rights (those rights meant to neutralize certain forms of inequality present in society)21, in particular, as well as all rights in which the provision of positive performance is a constituent part of their own logical structure22, are represented as expectations of services that consume large amounts of community resources. In other words, they are seen merely as “conditional opportunities”23, inevitably tied to the discretionary choices of the administration, and whose implementation depends to a large extent on the availability of resources. Given the natural scarcity of resources, these rights are frequently represented as interests that, when put into effect, risk causing inefficiencies in the economic system, by placing them in a condition of structural competitiveness in accessing community assets.24 Based on this interpretation, the effectiveness of socio-economic, cultural and new generation rights is dependent to a large extent on choices on how to redistribute national wealth (for example, in the case of health care or public education), while civil and political freedoms can be guaranteed regardless of the economic conjuncture, without affecting the liberal architecture of society.

For instance, on the jurisprudential level, we can considered the particular treatment reserved to national fundamental (in particular social) rights by the Court of Justice of the European Union roughly in the last two decades: net of some fluctuations25, the most frequent scenario that summarizes its legal reasoning in this regard is that member states can apply the rights recognized within their respective systems until they interfere with the application of European law and with the uniform prevalence of the rights and freedoms recognized and regulated by it. In this regard, there are numerous decisions of the Court of Justice which show, in general, that social rights can only be recognized (be raised to the status of a fundamental right) only if they contribute to attributing relevance to traditional economic freedoms of movement , capital, people, goods and services (the four freedoms of the common European market.26 It is no exaggeration to assert that, in many cases, social rights (especially labour rights and rights related to social security systems) are “functionalized” to the competitiveness needs of the European common market, of the free competition and more generally of the economic development. In this way, more or less consciously depending on the case, the theoretical distinction between the different generations of rights ends up legitimizing the unfavourable treatment that the rights of the third and fourth generation usually receive.

This dichotomy, being devoid of any logical backing, it must be rejected. In the considerations that follow, we will highlight the main aporias that undermine the minimalist model in both its variations.

Since minimalism aspires to be a philosophical-political project of social transformation, its unreasonableness cannot to be found exclusively in its impermeability to the conditionings of the positive law. However, it should be noted that considerably moves away from the legal reality the claim, advanced by minimalist theorists, to analyse the relations between rights through a linguistic and conceptual analysis in which the semantic level is completely separated from the concrete context of their implementation. In the field of legal interpretation and jurisprudential practice, in most cases, the determination of the boundaries of a right imposes a work of proportioning and balancing with other potentially conflicting rights within the circumstances of the specific case.27

Cristopher Wellman, in particular, in evaluating the Nozickian proposal, notes that not even such a configuration of the relation between rights could exclude the possibility of conflicts between negative rights.28 Similarly, Bruno Celano states that even a minimalist set of classical liberal rights, in order to be plausible, should include a plurality of rights that can clash with one another (and cause conflicts between correlative duties), as well as the establishment of open clauses, limitations and “thick ethical terms”.29

The constitutional discipline of rights shows that the protection of any right always depends on a body of jurisdictional guarantees put in place by public subjects. The widespread recourse to balancing techniques, proportionality tests and reasonableness criteria, as well as the continuous regulations (specifications, determinations of content) that the constitutional courts and the common courts apply to all types of rights, demonstrate that even the exercise of freedom rights can be gradual and bound to the material and juridical resources available in a given context.30

Therefore, the traditional civil and political rights (personal freedom and freedom of movement, freedom of association and assembly, inviolability of the home, private property, etc.), generally associated with the typical functions of the liberal rule of law, require positive interventions such as the establishment of bureaucratic, administrative and judicial systems, the development of rules and regulations, the exercise of police power, and other functions. One can considerer, for example, the right to democratic participation, which in practice require much more than mere abstention on the part of the State, since some political structures that provide adequate space for popular participation are always necessary.31

At the same time, not even the socio-economic, cultural and the new fourth generation rights can be seen exclusively as the result of positive obligations: even when their holders have already had access to the good that is the object of the right in question, the state power will continue to have to refrain from carrying out those behaviours that could damage it (for example, in the case of the freedom to unionize or the right to strike), and to use appropriate control measures to prevent and sanction any violations. In this regard, J.A. Cruz Parcero correctly points out:

when talking about the right to education, we immediately think of the positive obligation of the State to provide education, build schools, pay teachers, give scholarships, etc.; but, in turn, the State has passive obligations of not worsening education, of not expelling children from schools, of not denying access to education (under certain circumstances), of not charging tuition or fees when education is free, etc. (CRUZ PARCERO, 2007, p. 76, my translation).

Furthermore, it cannot be overlooked that the same public funds used to finance the protection of rights can constitute, in a future-oriented perspective, a productive investment to increase collective well-being. To this end, partially taking up a thesis by Amartya Sen - which highlights the connection between the economic, industrial and technological development of Japan and China at the beginning of the 20^th century and the investments in education and scientific research carried out in the previous period -Luigi Ferrajoli rightly maintains that “if it is true that fundamental rights have a cost, it is also true that violating or not implementing them costs much more.”32 Especially in contemporary democracies, characterized by a close link between economic, cultural and technological progress, the recognition and protection of essential rights such as access to food, social security, health or education are the basis for individual survival, but also for the socio-economic development of the whole community.