The Transversality of Human Rights in the Practice of the Legal Profession
Both the continental and common law legal systems are undergoing fundamental transformations that compromise their sensibility, which is a key element of their substantive legitimacy.
The disproportionate proliferation of norms in continental systems compromises the systemic coherence of the "legal order" as a structural framework of logical rules, underpinned by stable and general categories. On the other hand, the common law legal system has evolved towards the codification, a process that alters the meaning of constitutional conventions, as ad hoc solutions, as well as the role of the courts.
Human rights, on the contrary, are increasingly seen as a normative system founded on interpretation and an overarching hermeneutical criterion. The legal tests for equality, non-discrimination, minimum content, limits, or conflict, constitute daily interpretive parameters for jurists. Each and every defense is articulated by weighing the rights of "action" and the rights of "resistance" in a concrete legal situation. The sensibility of a specific legal position is increasingly constructed via the hermeneutics of subjective human rights and draws less from the rationality of the system.