¿Cómo piensa los derechos…
- At 30 September, 2016
- By admin
- In Articles
HOW DOES THE ENGINE ROOM OF THE CONSTITUTION THINK ABOUT RIGHTS?
[¿Cómo piensa los derechos La Sala de Máquinas de la Constitución?]
Marisa Iglesias Vila
Universidad Pompeu Fabra
Edificio Roger de Llúria (Campus de la Ciutadella)
Ramon Trias Fargas, 25-27 – 08005 Barcelona
marisa.iglesias@upf.edu
ABSTRACT
This paper comments on one aspect of Roberto Gargarella’s critical approach to the evolution of constitutional reforms in Latin America: the inclusion of constitutional rights without redistributing institutional power. His proposal to transform the Latin American constitutionalism is to improve the collective dialogue between state powers, and between these powers and the citizenry. I suggest that Gargarella neglects the relevance of reviewing the conception of constitutional rights too, since such reconsideration may contribute to unblock designs which end up preserving social inequalities without enabling political resistance to them. In this vein, I propose substituting the traditional understanding of constitutional rights as barriers or trumps for the idea of rights as mandatory goals or optimization requirements. In the paper I point out some advantages of this revised conception as compared to the liberal perspective, and explain why it may be helpful in strengthening the egalitarian constitutional project.
Key words: Constitutional Rights; Rights as Goals; Proportionality; Culture of Justification; Institutional Division of Labor; Deliberative Quality.
