Derechos fundamentales: un debate desde la argumentación jurídica, el garantismo y el comunitarismo

This article proposes a reflection on the concept of fundamental rights from the perspective of Alexy, who exposes as his central argument that, upon being transformed into positive law, human rights become fundamental, that is to say, these rights are formally linked to a Constitution. He also recognizes that there are fundamental rights outside the Constitution that are linked by means of a constitutional block. From another perspective, according to Ferrajoli, fundamental rights are those that are acquired by people with capacity to act as holders and they must be guaranteed by state institutions. These perspectives are part of what has been known in the theory of constitutional law as neo-constitutionalism; Ronald Dworkin has become a promoter of them due to the conception that principles are essential to the Law and are superior to the laws that are promulgated based on a more particular appreciation of the interests that characterize the parties that form the Parliament. The meeting point of these theorists is that principles and rights are superior to the laws and their interpretation by the judges and their fulfillment determines a more democratic society.

• Autores: Velasco-Cano, Nicole; Llano-Franco, Jairo Vladimir
• Tipo de recurso: Article of journal
• Fecha de publicación: 2016
• Institución: Universidad Católica de Colombia
• Repositorio: RIUCaC - Repositorio U. Católica
• Idioma: spa
• OAI Identifier: oai:repository.ucatolica.edu.co:10983/16386
• Acceso en línea: http://hdl.handle.net/10983/16386
• Palabra clave: DERECHOS HUMANOS; TEORÍA LEGAL; CONSTITUCIÓN; JURISTA; HUMAN RIGHTS; LEGAL THEORY; CONSTITUTION; JURIST
• Rights: openAccess
• License: Derechos Reservados - Universidad Católica de Colombia, 2016