Personality rights: legal nature, legal positivism, and democracy

Abstract

There is a common sense of justice in the sense that there are certain rights of the person regardless of the terms of the law: the rights of the personality. Such perspective incurs in the relational discussion about positive rights and natural rights, thematized in this study. The problem that guides this research is: what is the legal nature of personality rights and what is their relationship with the State? The initial hypothesis is that such rights are tributaries of a natural law order, which do not depend on positivization and are not impeded by the state will. The general objective of the work is to analyze the relationship between personality rights and their connection with the State. The article has the following specific objectives: a) to verify what legal positivism is and what is its relationship with natural rights; and b) ascertain the nature and production of contemporary personality rights, with the aim of analyzing the relationship between natural or positive law and the State in contemporary times. The method used is deductive, in which one advances from major theoretical premises of positive law to touch the institute of personality rights. It uses essentially bibliographical sources, especially those of Hans Kelsen and Noberto Bobbio. At the end of the research, it appears that the simple consideration of personality rights as natural rights would imply risks to the existence of positive legal order and to democracy.