Etica e storia in Jellinek: la fondazione religiosa dei diritti umani

Georg Jellinek (1851-1911), philosopher and jurist, did not think that Rousseau’s Contrat Social, the philosophers of the Siècle des Lumières and the Déclaration des droits de l’homme et du citoyen of the revolutionary Constituent of 1789 were the source of the modern principle of individuality, but, quite to the contrary, the justification of a popular will placed in absolute terms and unable to recognise the autonomy “in principle” of the individual. According to Jellinek, the establishment of the right to freedom of conscience instead should quite rightly revolve around that substrate of «substantial equality» that Rousseau wished be guaranteed by the doctrine of natural law, but should also count on a principle of differentiation that may allow the individual to become a single person, while safeguarding at the same time his own freedom of choice and his own responsibility for action. For Jellinek, the Petition of Rights and the Bill of Rights, with which the English of the 17th-century North American colonies attempted to amend the conflicts between Parliament and Crown by putting in writing the mandatory religious principle of freedom as an undisputable right, are not only remarkable for being the first signs of the idea of codifying the individual’s public rights but also for the reason that, by moving towards the exact clarification of the relationship between people and sovereign, between parliamentary power and regal power, thrust to the fore in an innovative manner that relationship between individual and institution which in turn would require the juridical addressing of the foundation of freedom and of the principle of equality. The safeguarding of innate human rights therefore becomes the driving motive for the founding of the State, from which the citizens mainly claim personal and public safety. Human rights preserve both a status negativus – i.e. they belong to the system of juridical guarantees represented by the so-called «rights of defence» (the right to protect life, freedom and private property, according to John Locke’s classification) – and a status activus, and, as such, they are part of the «rights of participation in public life». Neither of its two dimensions, however, the negative («freedom from») and the positive («freedom to»), can prevail one over the other, penalty the onset of a nihilism that makes any common-life science of man impossible. Thus, according to Jellinek, the threat to safety on the one hand, and the risk of a nihilism capable of undermining the foundations of social coexistence on the other are the causes that, between the 17th and 18th centuries, led to a specialization of rights from the theoretical viewpoint. The emphasis on the principle of autonomy and individuality of the religious man therefore can proceed on an equal footing only with the acknowledgement of the unchallengeability of the spiritual life of the individual. This principle, on the one hand, signals the unsurpassable limits of any juridical positivism and, on the other, is the theoretically substantial consequence of the conviction of the prevalence of the religious and of the ethical on the political that underlays the idea of the religious (and therefore founding and not merely conventional or pactional) origin of the innate rights of the individual. Thanks to its presenting itself as locus revelationis of the divine, religious conscience provides the individual with all of the tools necessary to perceive himself not only as a man intrinsically free before any heteronomously established law, but also as ontologically equal to other men in the name of common divine filiality and of common unworthiness and sinfulness. Or, in Ernst Troeltsch’s words, in the name of that ethical-anthropological watershed, key to any history of juridical-political thought, provided by the distinction between «absolute natural law» (i.e. status naturae integrae) and «relative natural law» (i.e. status naturae lapsae).