Fundamental Rights and the Structure of Legal Equality
The Formal Definition of Fundamental Rights
The formal definition of fundamental rights is sufficient to identify the basic principles of legal equality. Indeed, thanks to the universality expressed by the universal quantification of types of individuals who are holders of such rights, these rights are configured as a structural feature. As we will see, they consist of inalienable and unavailable substantial interests. In the historical experience of constitutionalism, such interests coincide with liberties and other essential needs—won at the cost of struggles and revolutions—pertaining to the life, survival, equality, and dignity of human beings.
The Guarantee of Universal Constitutional Rights
This guarantee is realized precisely through the universal recognition of their stipulation as fundamental constitutional rights, superordinate to any decisional power. If they are normatively granted to "all" (members of a particular class of subjects), these rights are not alienable or negotiable. They correspond, so to speak, to non-contingent and unalterable prerogatives of the owners, acting as insurmountable limits to all powers, both public and private.
The Relativity of Universality in Legal Classes
On the other hand, it is clear that this universality is not absolute, but relative to the arguments on the basis of which it is predicated. Indeed, the "all" of those rights who can preach equality is logically related to the classes of those to whom ownership is normatively recognized. Thus, if the intension of equality depends on the quantity and quality of the interests protected as fundamental rights, the extension of equality—and thus the degree of democracy in a certain order—depends on the extent of those classes of subjects, namely the removal or reduction of the status differences that determine them.
Parameters of Equality: Personhood and Citizenship
In our definition, these kinds of subjects have been identified by the status determined by the identity of "person," "citizen," and/or "capable of acting," which, as we know, have historically been subjected to varied constraints and discrimination. "Personality," "citizenship," and "capacity to act," in terms of equal ownership of all types of fundamental rights, are therefore the parameters of both equality and inequality in droits fondamentaux (fundamental rights).
The proof lies in the fact that their foundations have historically been more or less extensive. They were extremely restricted in the past, when sex, birth, wealth, education, or nationality excluded most individuals from them. They have been progressively expanded, though without yet reaching—even today, at least regarding citizenship and the capacity to act—a universal extension that includes all human beings.