The term “fundamental rights” is ambiguous and needs clarification. Fundamental rights must have a special status against positive law, which makes their recognition in some sense necessary and independent from positive legislation. Their validity does not follow from mere positive enactment, but they present requirements to be recognised by positive law. Hence, they are normatively justified by moral arguments, particularly by human rights principles. This implies that positive law cannot dispose of their validity. They must be recognised in positive law as in principle legally valid. Positive law might restrict them, but such restrictions need justification. In particular, such restrictions must be proportionate.