7 Structuring Addressees in Fundamental

Rights Norms: An Application

David Duarte

7.1 The Basic Proposition

The basic proposition claimed here is the following: the subjective scope of application of
fundamental rights norms depends solely on the content of the subjective fields normatively
assigned to them, which are determined, as with all norms, through interpretation of
normative sentences or by operation of any other norms on the matter. Essentially, this
means that definitions of the addressees in a fundamental rights norm not based on these
common methodological operations lack any normative support and, consequently, are
not scientifically acceptable.
This seems to be particularly relevant since a major part of the theory of fundamental
rights has been marked by approaches not limited to the objective analysis of norms and
their texts, moreover with particular impact on this precise area of the addressees of norms.
Good examples of these misleading approaches are, for instance, those which see funda-
mental rights as legal positions merely against the State or which deny that they are directly
applicable between private parties on the basis of arguments seeking to maximise the
function of private law.1

7.2 Subjective Fields in Fundamental Rights Norms

Like all norms, fundamental rights norms have a threefold structure, comprising an
antecedent, a deontic operator and a consequence. As a general rule, these three elements
are only identified on the basis of the norm’s material content; in other words, with reference
to its substantive incidence.2 Notwithstanding, now, the difference of principles and rules

1 For the first example, amongst many, A. Pace, Problematica delle Libertá Costituzionali, Cedam, Padova,
2003, p. 19; G. Manssen, Grundrechte, Beck, München, 2000, pp. 23 and 24. For the second, for instance,
J. Neuner, ‘A Influência dos Direitos Fundamentais no Direito Privado Alemão’, in Direitos Fundamentais
e Direito Privado, Almedina, Coimbra, 2007, p. 236; C.-W. Canaris, Direitos Fundamentais e Direito Privado.
Tradução de Ingo Sarlet e Paulo Mota Pinto, Almedina, Coimbra, 2006, pp. 53 and 54.
2 On the norm structure, H. Zuleta, Normas e Justificación, Marcial Pons, Madrid, 2008, pp. 99 et seq.; J.
Rodriguez, ‘Un Dilema en la Representación de las Normas Condicionales’, Isonomia, Vol. 23, 2005, p. 99.

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regarding the morphology of their antecedents, this structure, configured in simply

material terms, can be seen in the following schema:3
– in ‘freedom of expression’, which is “in any opportunity of expression it is allowed to
do it”, a norm is expressed: ‘q P r’;
– in ‘q P r’: q = in any opportunity of expression (antecedent); P = it is allowed (deontic
operator); r = to do it (consequence).

However, this material configuration of the normative structure is significantly reductive:

norms combine the material content, divided into the three elements, with the delimitation
of their addressees.4 So it is necessary to include in the normative structure what might be
called their ‘subjective fields’: the areas in which the norm identifies the subjects or
addressees to which it applies.
The initial subjective field is that stated in the antecedent, in relation to the subjects
whose conduct triggers the normative conditions. Of course, this subjective field only
exists when the antecedent refers to human actions and not to states of affairs.5 Continuing
with the same example, this subjective field may be exemplified as follows:
– in ‘q P r’, ‘q’ = in any opportunity of expression (antecedent);
– the subjective field of ‘q’: ‘q (those who have an opportunity of expression)’6.

The norm’s second subjective field is that which is directly associated with the effects
provided for in the consequence: it therefore delimits the universe to which the consequence
applies directly. The fact that this is a subjective field directly defined by the consequence
means that it can be called ‘consequence direct addressees’. Continuing with the same
example, this subjective field may be exemplified as follows:
– in ‘q P r’, ‘r’ = to do it (consequence);
– the subjective field of ‘r’: ‘r (those who are allowed to express themselves)’.

The existence of a subjective field representing the range of addressees to whom the effects
apply is not however the only way in which the consequence delimits the subjects. It is on

3 On the structurally distinct antecedents of principles and rules, D. Duarte, ‘An Experimental Essay on the
Antecedent and its Formulation’, i-Lex, Rivista di Scienze Giuridiche, Scienze Cognitive ed Intelligenza
Artificiale, Vol. 16, 2012, p. 51.
4 The concept of ‘addressees’ is used here in a very broad sense, encompassing all subjects that are under the
subjective scope of application of norms. It includes, therefore, right holders and addressees in a strict sense,
as commonly used (for instance, R. Alexy, Theory of Constitutional Rights, Oxford University Press, Oxford,
2002, p. 120).
5 Regarding this difference, Duarte 2012, p. 42.
6 Strictly speaking, the antecedent’s subjective field does not describe addressees because there is not a defi-
nition of subjects subordinated to a legal effect. As this is only a normative condition, the subjective field
of the antecedent merely outlines the subjects to whom the conduct representative of the norm’s conditions
is ascribed.

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account of the legal position conferred by the consequence to its direct addressees that an
additional subjective field arises, formed precisely by the subjects who take on the inverse
legal position. Accordingly, the consequence also defines the subjective field of the ‘conse-
quence indirect addressees’, who are all those on the other side of the ‘three-point relation’
configured by the consequence itself: those who act → action → those who are affected by
the action7. So the consequence includes two subjective fields, as may be illustrated as fol-
lows:
– in ‘q P r’, ‘r’ = to do it (consequence);
– subjective field of direct addressees of ‘r’: ‘r (those who are allowed to express themselves)’;
– subjective field of indirect addressees of ‘r’: ‘r (those who cannot interfere with the
expression of others)’.

Inclusion in the norm of its subjective fields leads to a complete normative structure in
which we may point to three material elements – antecedent, deontic operator and conse-
quence – and three subjective fields, of which one is included in the antecedent and two
in the consequence. Of course, the deontic operator, as the element encompassing the
deontic mode of the norm, does not in itself include any subjective connection. The
structure of the norm, when its material elements are completed by its subjective fields,
may be illustrated as follows:
– q (antecedent subjective field) P r (consequence direct addressees/indirect addressees);
– with N1: ‘[q] in any opportunity of expression [P] it is allowed [r] to do it’:
– ‘q (those who have an opportunity of expression) P r (those who are allowed to express
themselves/those who cannot interfere with the expression of others)’.

7.3 Universes of Subjective Fields

As with all norms, subjective fields of fundamental rights norms comprise three potential
universes for completion: (i) the ‘all’ universe; (ii) the ‘some’ universe; and (iii) the ‘one’
universe. The first is equivalent to completing the subjective field where the norm delimits
all the addressees subject to the legal order in question. In this universe, the norm deter-
mines that the subjective field delimits all the subjects without distinction, setting no limits
of any kind. This universe may be illustrated by the following example, presupposing, of
course, that ‘freedom of expression’ is effectively universal in all its subjective fields:

7 See, Alexy 2002, p. 121. On another hand, and regarding the example used, the underlying idea is that a
permission creates always a duty to not interfere (stricto sensu) in the factual exercise of the action foreseen,
not overlapping, of course, the counterpart exercise of a similar or different permission. This point, ques-
tioning the idea of unprotected liberties, cannot be, however, developed here.

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– with N1: ‘[q] in any opportunity of expression [P] it is allowed [r] to do it’;
– ‘in any opportunity of expression (all) it is allowed to do it (all/all)’.

The second universe corresponds to cases where the circle of subjects is delimited on the
basis of a category, defining that, for the subjective field in question, only those belonging
to the category are the norm’s addressees. The fact that a universe is delimited on the basis
of a category does not prevent the norm from being general, insofar as there are no space
or time definitions which would make it possible to determine who the subjects are8. In
another hand, it could be debatable whether this second universe has a separate existence:
in essence, it is similar to the first, with the difference that it includes a predication which
limits the ‘universality’ of the subjects (all those having property X, the defining feature
of the category)9. But it seems to make sense to regard it as a separate universe: not only
does its limited universality effectively distinguish it from the first, but this limitation also
serves to explain the distinct subjective projections of fundamental rights; rigorously, it is
in the ‘some’ universe that it is possible to differentiate between the distinct fundamental
rights attributed to specific groups within the community to which the legal order refers.
This circle may be illustrated by the following example:
– with N2: ‘[w] while working workers [O] have the right [s] to be paid’;
– ‘while working (workers) have the right to be paid (employees/workers)’.

The third universe is that in which the norm’s subjective field only delimits a subject that
is or can be determined, which, in fundamental rights norms, practically only happens
with a reference to the State (even though it can be a reference to a set of public legal per-
sons). The ‘one’ universe may be exemplified as follows:
– with N3: ‘[z] in any opportunity for it everyone [O] has the right to [t] public health
care’;
– ‘in any opportunity for it (physical persons) have the right to public health care
(State/physical persons)’.

8 Being this a proper criterion of generality: indeterminacy of addressees. On the matter, S. Nino, Introducción
al Análises del Derecho, 11th edn., Ariel, Barcelona, 2003, p. 77; A. Ross, Directives and Norms, Routledge
& Kegan Paul, London, 1968, p. 109.
9 See, Ross 1968, p. 110. See also, J. Sieckmann, ‘Norma Jurídica’, Enciclopedia de Filosofía y Teoría del Derecho,
2, UNAM, Ciudad de México, 2015, p. 910.

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7.4 Disjunction and Conjunction of Subjects

The existence of universes with indeterminacy of subjects, such as the ‘all’ or ‘some’ uni-
verses, raises the issue of whether the subjects are referenced conjunctively or disjunctively10.
As is immediately clear from the terms in which it is enunciated, this question is almost
strictly theoretical: only rarely will the representation of subjects in a fundamental rights
norm refer to a conjunction of subjects; in other words, only rarely will the norm confer
a legal position which is exercised collectively by all the subjects in the universe and not
by each of them individually. However, this seems to be the case of fundamental rights
norms that attribute legal positions to groups, a universe of the ‘some’ type, but where the
legal position is held by the group and not by each of its members. This is what happens
with ‘collective rights’, where the group is indivisible and the subjects can only be considered
as members: thus, under the perspective of the individuals within the group, this looks
like to be a case of a conjunctive exercise of a legal position11. For instance:
– with N4: ‘[n] in any opportunity for it [O] the State recognizes the rights of a people
[v] to self-determination and to independence’;
– ‘in any opportunity for it (∧ people) the State recognizes the rights of a people to self-
determination and independence (State/∧ people)’;
– thus, not only the action that triggers the norm, but also the legal position referred in
the second subjective field of the consequence are exercised conjunctively.

Nevertheless, the standard way of referencing addressees in fundamental rights norms is

through a disjunction: for example, the existence of an ‘all’ universe means that the legal
position conferred by the norm is exercised alternatively by each of the subjects of this
universe. This disjunction may be illustrated as follows:
– with N1: ‘[q] in any opportunity of expression [P] it is allowed [r] to do it’;
– ‘in any opportunity of expression (∨ all) it is allowed to do it (∨ all/∨ all)’;
– thus, all actions referred in each subjective fields are exercised alternatively by each of
the subjects.

7.5 Filling Out Subjective Fields

The basic proposition claimed here is that subjective fields of a given fundamental rights
norm can only be defined on strictly normative terms. This means that addressees should

10 On this distinction, G. von Wright, Norm and Action, Routledge & Kegan Paul, London, 1963, pp. 78 and
79.
11 Regarding the exercise of collective rights, M. Jovanović, ‘Recognizing Minority Identities Through Collective
Rights’, Human Rights Quarterly, Vol. 27, No. 2, 2005, p. 640.

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be defined on the same basis as the material content of the norm: (i) through interpretation
of normative sentences; and (ii) through any other norms which might have a bearing on
this. So what follows from this is: any element for consideration here unsupported by the
norm lacks scientific grounds and cannot therefore contribute to delimiting the subjects
to which the norm applies.
First. The norm sentence is interpreted in order to fill out its subjective fields in the
same way as the norm’s material content is determined. This is a process of semantic
decoding, using the relations of signification supplied by the natural language in question,
as is intrinsic and proper to legal interpretation: more or less explicitly, the norm sentence
determines through language who the norm applies to, thereby defining the addressees to
be included in each of the subjective fields12. Whilst this seems to be clearly undisputed,
two aspects should not however be overlooked: (i) the contribution of the material content
to defining addressees; and (ii) the specific approach for filling out the subjective field of
‘consequence indirect addressees’.
Regarding (i). The material content of a fundamental rights norm may confer a legal
position whose object is incompatible, as regards who can exercise it, with the interpretation
outcome of the words expressing the addressees. This is quite common in fundamental
rights norms, as a result of politically inspired assertions of universality: often, fundamental
rights norms address to ‘all’ but, due to the nature of their object, the legal position con-
ferred is only exercisable by ‘some’.13 Interpretation of the normative sentence should
therefore take into account the effect of the material content on the definition of addressees,
who should be determined in order to be consistent with the object of the legal position
conferred by the norm at hand.
– with N3: ‘[z] in any opportunity for it everyone [O] has the right to [t] public health
care’;
– ‘everyone (physical persons) has the right to have public health care (State/physical
persons)’;
– thus, the object of the legal position – health care – changes ‘everyone’ to ‘physical
persons’.

Regarding (ii). It is unusual to find fundamental rights norm sentences that define expressly
the subjective field of the ‘consequence indirect addressees’: as a general rule, the norm
sentence merely requires an action from someone under a given deontic operator, without
linguistically signalling the universe of addressees who are counterparties to the legal
position conferred. This textual absence, as it is common in the relationship between norm

12 On interpretation, P. Chiassoni, Tecnica dell’Interpretazione Giuridica, Il Mulino, Bologna, 2007, pp. 53 et

seq.; N. MacCormick, Rhetoric and the Rule of Law, Oxford University Press, Oxford, 2005, pp. 125 et seq.
13 Regarding this, in general, F. Schauer, Playing by the Rules, Clarendon Press, Oxford, 1991, pp. 31 and 32.

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sentences and norms, means nothing: the ‘three point relation’ contained in fundamental
rights norms survives the linguistic omission, as it is inherent to the norm that the subjects
affected by the action of ‘direct addressees’ should be determined as well14. So, technically,
it is necessary to define the counterparty position and to delimit the universe of subjects
who hold this position. This question may be illustrated as follows:
– with N1: ‘[q] in any opportunity of expression [P] it is allowed [r] to do it’;
– the norm sentence does not have linguistic elements to fill out the ‘consequence indirect
addressees’;
– thus, this definition is only possible through the delimitation given by the counterparty
position:
– from ‘those who are allowed to express themselves’ to ‘those who cannot interfere with
the expression of others’.
– thus, in the consequence, there is: ‘it is allowed to do it (all/all)’.

Second. As stated, interpretation of the norm sentence is not the only methodologically
legitimate operation for determining addressees in fundamental rights norms. In a very
frequent parallel with other normative situations, such as the definition of the territorial
domain of application, the system itself includes norms that have as object solely the defi-
nition (or redefinition) of the universe of addressees. In general terms, the normative
connection established here works as follows: (i) through interpretation, an universe of
addressees is determined; and (ii) a different norm redraws this universe, establishing that
the content of the norm corresponds to a distinct one15. In a certain way, this is a schema
similar to that of definition norms, but which serves merely to delimit the universes of
addressees of fundamental rights norms. This can be illustrated by the following example:
– ‘all citizens have freedom of expression’ (q [citizens] P r [citizens/citizens]);
– with N5 ‘foreigners and stateless persons have the same rights that citizens do’, then:
– ‘all have freedom of expression’ (q [all] P b [all/all]);

Taking all this into account, it may be asserted that there are no addressees of fundamental
rights norms, positively or negatively, other than those resulting from the actual norms

14 See, Alexy 2002, p. 121.

15 This a crucial point in some constitutional texts, being the German case the most significant. In question
is Article 1.3 of the Fundamental Law which states that the basic rights enshrined therein bind the legislature,
the executive and the judiciary as directly applicable law. Given that these powers are, as an addressee, the
State (or states), this seems to be a norm defining the State as the ‘direct’ or ‘indirect’ ‘consequence addressee’
of those fundamental rights norms, with this impact on the composition of all subjective fields involved. It
is a rather problematic norm, in some way responsible, taking into account the massive importation of
German legal doctrine, for unrecommendable derivations such as indirect applicability and horizontal
effect in Constitutions where a similar provision does not exist (see, J. J. G. Canotilho, Direitos Fundamentais
e Direito Privado, tradução de Ingo Sarlet e Paulo Mota Pinto, Almedina, Coimbra, 2003, p. 1288; P. Luño,
Los Derechos Fundamentales, 6th edn., Tecnos, Madrid, 1995, p. 67).

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conferring these rights. This means, for example, that the constitutional provision assigning
a legal position to an ‘all’ universe defines that anyone within the universe, in line with the
usual disjunctive definition of fundamental rights norms subjects, is an addressee of this
norm, and is entitled to exercise the legal position in question. On completion of the task
of interpretation, by matching the object of the legal position to the universe and by
establishing the delimiting effects of other norms, the norm is defined as regards its
addressees and no normative reason is seen as capable to alter this delimitation.
The question is important insofar as it provides grounds, for example, for banishing
the myth of fundamental rights as legal positions only against the State, supporting the
rather different premise that the subjects of fundamental rights norms are those contained
in each particular norm, in its natural post-linguistic location. So it makes no sense to
regard a norm such as that which confers the right to image as a norm against the State,
just as it makes no sense to say, because the State is involved as counterparty, that a norm
conferring the right to marry only imposes on the State the duty to approve norms allowing
a person to marry. In both cases, these assertions are no more than the outcome of precon-
ceptions that cannot be incorporated in correct normative propositions and in reality
amount to a mere ‘historic-political’ reconfiguration of fundamental rights norms. A
fundamental rights norm is what a normative authority has defined as such through the
usual linguistic processes of drafting norms and their content, both material and subjective:
thus, only what appears as a result of all the processes of establishing meaning, including
what regards the definition of addressees, is attendable as its content.

7.6 An Application: A Norm in Conflict with Itself

The exposition of norms with their subjective content in addition to the material one gives
clarity to their understanding. It seems that many common problems of the general theory
of fundamental rights benefit from a more complete representation of these norms: for
instance, the traditional debate concerning the ‘horizontal effect’ of fundamental rights is,
above all, and besides the mentioned ‘German effect’, the outcome of a limited understand-
ing of the definition of the addressees of fundamental rights norms. Notwithstanding the
relevance of this issue, the application of the previous proposition will be made here with
another topic: the rather problematic case of normative conflicts of one norm with itself.
The observation that, as a general rule, the addressees of fundamental rights norms
are the disjunctive subjects of a universe, specifically in the cases of universes such as ‘all’
or ‘some’, makes it possible to understand cases where a norm is apparently in conflict
with itself. On the face of it, the proper designation sounds immediately strange because,
by definition, a norm cannot be in conflict with itself: (i) a conflict of norms presupposes
two or more norms; and (ii) a conflict presupposes incompatibility of effects and a norm

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does not have «internal» incompatible effects16. Nonetheless, this does not alter the fact
that there are conflicts of fundamental rights where the same legal position is involved
and, consequently, the conflict derives only from the same legal position being held by
different persons. So although it might even be incorrect to call this normative situation
a norm in conflict with itself, this is what is actually the case. The situation may be illustrated
as follows:
– with N1: ‘[q] in any opportunity of expression (all) [P] it is allowed [r] to do it (all/all)’;
– however, if John wants to speak and Tom wants to speak as well, but, for some empir-
ical reason, only one of them can speak, then ‘q P r’ seems to be in conflict with itself.

Analysis of the addressees of fundamental rights norms as disjunctive subjects of a universe

reveals that fundamental rights norms can be broken down into several ‘particular norms’,
one for each of the alternative addressees included within the universe of a subjective field.
So when such a conflict arises between the holding of the same fundamental legal position
by different persons, from a normative perspective this is conflict between two particular
refractions (two ‘particular norms’) of a single fundamental rights norm.
– ‘q P r’ in conflict with itself (N1 ∨ N1) is actually the conflict between:
– ‘q (John) P r (John/Tom)’ ∧ ‘q (Tom) P r (Tom/John)’, two particular refractions of
the same norm (N1).

Analysis of the conflict between the holding of the same fundamental legal position by
different persons under a single norm is relevant to understanding what is effectively at
stake, from a normative point of view. But it is relevant for more than this: it also permits
an understanding of how a legal order can respond to resolve the conflict in question.
Taking this into account, it follows that this involves all the possible responses that a legal
order can give to normative conflicts. Essentially, this points to the fact that normative
conflicts are resolved primarily by norms of conflicts and, in their absence, only balancing
can provide a solution.17
In the present case, and with the last statement, the solution to the problem seems to
come naturally: insofar as no norm of conflict can resolve conflicts of a norm with itself
– at least no norm of this sort is known in any legal order – the only solution is to operate
a common balancing between the ‘particular norms’ withdraw from the single norm present.
This means, thus, that the case of a norm in conflict with itself is only solvable by a common
balancing. And, as it happens in all ‘normal’ cases, it seems that it is also possible here to

16 On this requirements of normative conflicts, Nino 2003, p. 272; J. Hage, ‘Rule Consistency’, Law and Phi-
losophy, Vol. 19, 2000, p. 373.
17 See, D. Duarte, ‘Normative Conditions of Balancing: Drawing Up the Boundaries of Normative Conflicts
That Lead to Balances’, in J. Sieckmann (Ed.), Legal Reasoning: The Methods of Balancing, Franz Steiner
Verlag, Stuttgart, 2010, p. 57.

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assign distinct degrees of interference and distinct degrees of reliability of empirical

assumptions, which are the only variables at stake given the fact that the weight of the
(single) norm is here, and by definition, neutral.18

18 On the weight formula, J. Sieckmann, ‘Balancing, Optimisation, and Alexy’s “Weight Formula”’, in J.
Sieckmann (Ed.), Legal Reasoning: the Methods of Balancing, Franz Steiner Verlag, Stuttgart, 2010, p. 109;
B. Pulido, ‘On Alexy’s Weight Formula’, in A. Menéndez, J. Eriksen & E. Eriksen (Eds.), Arguing Funda-
mental Rights, Springer New York, 2006, p. 103. With reference to the neutral output of the abstract weight
variable, Alexy 2002, p. 406.

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