Ratio Juris. Vol. 16 No.

2 June 2003 (141–54)

Basic Social Rights, Constitutional

Justice, and Democracy
RODOLFO ARANGO

Abstract. The theory of rights is crucial as a means of relieving the tension between
basic rights and democracy, and as a means of resolving the problem of allocating
competence between the constitutional court and the legislature. To some theorists,
no tension between basic rights and democracy exists, for the latter presupposes the
former. To others, among whom I include myself, tension does exist, for basic rights,
in lending protection to certain persons and groups, limit the possibilities of politi-
cal decision. In this connection it is important to take up the problem of the neces-
sary conditions for realizing basic rights. One of these conditions concerns the
delimiting of the scope of institutional action that is found, so to speak, in the space
between the constitutional justices and the legislature, the latter as representative of
the popular will.

Introduction
The question of whether constitutional justices must recognize basic social
rights, namely, to food, shelter, health, education, or social security, is espe-
cially important for an analysis of the relation between constitutional justice
and democracy. Basic social rights are the touchstone of the delimitation of
constitutional decisions and politics, since their judicial recognition invades
economic policy and legislative competency.
In Colombia, of the nearly 1200 decisions handed down each year by the
Constitutional Court, 60 percent are concerned with the recognition of basic
social rights, and about 80 percent of these cases are upheld. Unlike the
situation in “well-ordered societies” (Michelman 1973, 967, 996), where
liberties prevail over equality, in the Third World this relation is inverted:
Social rights are seen as more important than individual liberties (Dasgupta
1993, 23f.).
Nevertheless, what some theorists consider a welcome activism on the
part of the constitutional court (Nino 1993, 295; Diez-Picazo and Ponthoreau
1991; Michelman 1969, 7; 1979, 659; Fiss 1976, 107; Rawls 1993, 230)
which purports to secure the realization of basic rights, means to others the
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142 Rodolfo Arango

destruction of the democratic system through judicial populism

(Böckenförde 1992, 154; Cranston 1987, 224; Sunstein 1993, 148). According
to these critics, political gains that would be impossible for various social
groups—pregnant women, workers, pensioners, the sick, etc.—are to be
guaranteed by decisions that would illegitimately recognize rights to posi-
tive benefits from the state without there having been any previous demo-
cratic debate leading to their inclusion in statutory law. Such judicial
behavior, according to the critics, represents the supplanting by judges of
the bodies that exercise political responsibility (government and congress)
over public spending. Thus—they hold—the discourse of rights is used to
erect a judicial state (Böckenförde 1992, 154).
These objections seriously challenge the status of basic social rights in a
democratic and constitutional state. In response, the thesis that will be
defended here is that it is possible to recognize basic social rights objectively,
without replacing the democratic system with a judicial state or adopting a
position of moral maximalism. The thesis, which stands for the objective
recognition of basic social rights by the judges, will be called the Cognitivist
Thesis of Rights. It is meant to be the most defensible approach in a consti-
tutional and democratic state. This thesis challenges the legitimacy of rela-
tivist and the non-cognitivist views on rights.
The cognitivist thesis of rights is to be presented in three steps. First, I will
point to the flaws in the standard theories of rights, which serve as the basis
for the modern political philosophy of basic rights. Concluding this first
part, I will propose a consequentialist model for the recognition of rights,
which is at the heart of my cognitivist thesis. Second, I will deal with the
problem of the objectivity of evaluative judgements, and especially the con-
trast between constitutional decisions and political decisions. Third and last,
I will show that the cognitivist thesis of rights that I defend does not col-
lapse into perfectionism or moral maximalism. Far from making constitu-
tional judges a group of authoritative moralists, the objective recognition of
basic social rights provides for the correction of extreme situations, which
affect marginalized or discriminated groups, and it thus becomes crucial in
a constitutional theory appropriate to countries that are characterized by
profound social and economic inequalities.

I. Flaws in Standard Theories of Rights

1. The Problem of Poverty
Philosophical theories of rights have been somewhat parochial. This applies
to progressive liberals, such as John Rawls, as well as to libertarians.
Such theories were designed for well-ordered societies, or industrialized
societies with a high degree of rationalization, without any notion that they
be extended to other countries, namely, those with nascent capitalist
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 Basic Social Rights 143

economies, characterized by high levels of inequality. As a response to this

parochialism, John Rawls in Political Liberalism (1993) modified his Theory of
Justice (1971) by leaving aside the strict priority of liberty over equality and
accepting the judicial recognition of constitutional welfare rights, as a result
of adopting the social minimum specified by basic needs in the Constitu-
tional Essentials (Rawls 1993, 230, 236f.).

2. Underdevelopment in the Theory of Rights

The challenge posed by growing poverty has made it evident that the theory
of rights is underdeveloped (Shue 1988, 687f.; Shue 1980). Such under-
development is manifest in its justification, its logical structure, and the
judicial recognition of rights.
Regarding its justification, it is not tenable, from a more realistic perspec-
tive that considers rights not only as spheres of liberty protected from state
intervention but as normative positions necessary for the quality and dignity
of human life, to identify rights with liberties, as John Rawls (1993, 338) and
Jürgen Habermas (1996, 83) do.
With respect to the logical structure of rights, as has been rightly pointed
out by Henry Shue, the thesis of the correlation between rights and duties
which underlies the conception of various important legal theorists, such as
Herbert Hart, is wrong, for it ignores the fact that each right has not one but
several correlative duties (Shue 1984, 89). For example, an individual liberty
right entails not only the duty of all to respect that liberty, but also a duty
to protect it when it is threatened by third parties, a duty to act if it depends
on the exercise of others, and a duty to promote or assist in the case of a
material impossibility to make use of such liberty.
Not only is the theory of the logical structure of rights erroneous, but it is
also a restricted view of rights that results in an affirmation such as the fol-
lowing: It is possible to demand the judicial protection of basic liberty rights
only if their existence is prior to that of the state and they are not a matter
of cost, whereas social rights are not basic, for they have to be determined
by law and their cost is high. Nevertheless, a well-developed theory of rights
does not exclude social rights from basic rights. On the contrary, that theory
can resolve the problem of the judicial protection of these rights. The fact
that there are many duties and relevant actors involved in the fulfilment
of social rights does not stand in the way of their implementation by the
judiciary. These characteristics of basic social rights demand the application
of other principles, such as the principles of subsidiarity and solidarity,
which are not taken into account by most judicial theorists and political
philosophers who defend standard theories of rights.1
1
The justiciability of a right must not depend on special duties defined by the law, but on prin-
ciples such as solidarity and subsidiarity, which allow the concretization of general duties for
certain people according to different situations. The allocation of duties requires taking into

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3. A Proposal That Is Sensitive to Human Realization

Elsewhere I have tried to show the limitations of important rights theories
(Arango 2001a, 173). Regardless of their limitations, the theories proposed
by Frank I. Michelman, David Wiggins and Thomas M. Scanlon contribute
to the construction of a theory of rights that is applicable to all types of soci-
eties. It was Michelman who succeeded in persuading Rawls of the pos-
sibility of arguing in favor of the objective recognition of basic social rights
by means of a coherent argument that does not have constitutional judges
substituting for the legislator (Michelman 1979, 664, 669). Wiggins, though
not entirely persuasive in his attempt to arrive at a foundation of rights on
the basis of a concept of absolute versus relative necessities (Wiggins 1991,
31), correctly links the concept of rights with that of threats, and thereby
constructs a bridge between the theory of rights and the modern theory
of the society at risk (Beck 1986). Third, Scanlon’s reflections on moral
rights (Scanlon 1995, 146) and their structure bring to mind the fact that a
theory of rights which is not sensitive to the consequences of failing to
recognize rights in certain circumstances reveals itself as inadequate and
without political or moral legitimacy. The link between rights and conse-
quences in Scanlon’s theory reflects Herbert Hart’s view that no theory of
rights is satisfactory unless it takes into account the contributions of
utilitarianism (Hart 1983, 222).
A consequentialist model for the recognition of rights diverts attention
from the content of the right and directs it to a situation that allows the deter-
mination of all its elements. Such a theory takes the following definition as
its point of departure:

A right is a normative position based on valid and sufficient claims, whose unjustified non-
recognition imminently harms the right-bearer. (Arango 2001b, 142)

This concept of rights is pivotal for defining basic and human rights
(Arango 2001c, 47). For now, it is enough to state that the theory defended
here is sensitive to human realization, for it begins with the differences of
capacities and conditions of individuals and avoids seeing natural or social
disadvantages as objective limitations to the recognition and enjoyment of
rights. This brings the Cognitivist Thesis of Rights closer to the “integrated
thesis of rights” held by Amartya Sen (1996, 24), with the advantage of not
having to address the problematic aspect of what Sen understands by capa-
bilities,2 and not having to adopt a moral maximalist position either.3

account principles of allocation of duties to the agents in question. The principles of allocation
of duties still require development by philosophers and jurists interested in “bringing down to
earth” the discourse of human rights and giving it practical application. See Sen 1982, 3–39;
Sen 1984, 69–81; Shue 1984, 83–95.
2
See Cohen’s critique in Cohen 1993.
3
See infra III. 1.

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 Basic Social Rights 145

To complete this first section, an example of the application of the Cogni-

tivist Thesis of Rights can be illustrated with the right to education. To some
theorists, this right is a mere political goal, not a true, justiciable basic right
at all (Böckenförde 1992, 154). Thousands of children beg for coins on the
streets of the cities of Colombia. These children are deprived of food, shelter,
health and education. This is a paradox in the context of a Constitution that
establishes compulsory and free education in public institutions. But for
practical reasons this mandate has remained on paper: There are not enough
places in the schools, nor enough funds to cover additional costs that would
make it possible for all children to go to school; also, in many cases the
parents live in misery and need the income generated by their children
begging on the streets to cover basic family needs, which in practice then
deprives these children of an education. It is, in other words, a vicious circle:
Children from low-income families are condemned to live in poverty, for
they lack formal education and as a result have little chance of finding a job
that would free them from this situation. Hence, the question is whether
children have a basic right to demand from the state not only a place in
school, but also the resources that would make it possible for them to attend
school in an effective way. The best constitutional reasons speak on behalf
of decisions by constitutional judges that would compel the authorities to
guarantee not only the availability of places but also the material resources
to secure the exercise of basic social rights. The reasons against such
guarantees, that is, a lack of money or inadequate infrastructure, and the
responsibility of the parents, do not justify the failure to recognize the afore-
mentioned constitutional position, for its non-recognition by the state will
harm the individual, by excluding him from the benefits of progress and
condemning him to a marginal status in the society.
The counterargument would be that the recognition of basic social rights
by constitutional judges would displace legislative decisions and the
political will of the majority.

II. Objectivity of the Constitutional Decision vs. Will of the Majority

1. The Problem of Objectivity
According to the Cognitivist Thesis of Rights, the difference between a
political and a constitutional decision is that the latter may be founded
on objective reasons, whereas the former is a product of the will of the
majority at a given point in time.
The objectivity of value judgements—be they evaluative, be they norma-
tive—is a difficult topic in moral and political philosophy. There are various
positions on the problem of the objectivity of value judgements (Putnam
1995, 5ff.; Coleman 1995, 33–68; Dworkin 1996, 87ff.; Stauropoulus 1996).
Subjective and relativist tendencies reject any possibility of an objective
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146 Rodolfo Arango

foundation. For defenders of these views, value judgements are only wishes,
ideals, desires, interests or individual values (Mackie 1977). On the other
hand, some proponents of non-cognitivism insist that anyone who rejects
the ontology of value thereby also rejects the possibility of knowing when
a value judgement is objective.4 As an example, the recognition of a right to
establish schools and the payment of aid to education is based on an ideo-
logical conviction of the judge, and this judgment is then imposed on the
democratic authorities responsible for the corresponding political decision.
It is not necessary to adopt a strong thesis of moral or value-based objec-
tivism (Habermas 1999, 18) in defending the objectivity of decisions made
by constitutional judges, where the judicial protection of basic social rights
is concerned. It is enough to accept a consequentialist theory that makes it
possible to show that the refusal of a judge to recognize a well-founded and
valid normative position is incompatible with a democratic and constitu-
tional state. In order to accept the Cognitivist Thesis of Rights, it is therefore
not necessary either to embrace a specific metaphysical position or accept
the existence of an objective set of values. On the contrary, the consequences
of certain events constitute the basis for establishing whether an action or
an omission is objectively necessary from a constitutional point of view. The
question is whether it is contrary to the constitution that children are
deprived of access to education owing simply to the fact that their family,
or the state, is poor, or owing simply to the fact that the legislator has not
adopted the measures necessary to avoid that situation. The correct answer
in this case is that such factors as these lack weight. The constitution does
not leave the needy unprotected. If a state calls itself social, constitutional
and democratic, it is then not permissible that it remain blind to situations
of marginality, discrimination and material disadvantage.

2. Important and Urgent: Consequentialist Objectivism

The main reservation to the recognition of basic social rights—for example,
the right to adequate food, medical attention, education, etc.—is that their
realization presupposes a certain degree of economic development in the
society as well as the political will of the people vis-à-vis the distribution of
resources and the definition of priorities. It is said that if a judge recognizes
the right to education and orders a public authority to deliver a food subsidy,
this would mean imposing the judge’s decision on the will of the majority.
If the subsidy were not provided for in the law, the judge would not be able
to recognize and grant it. In the case at hand, children from poor families
have no access to education for want of a minimal level of well-being, and
their families are not able to do without the income from begging.
4
There are different versions of non-cognitivism. One can distinguish, for example, one who
is indifferent to the existence of values but who insists on the impossibility of knowing any-
thing about values.

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 Basic Social Rights 147

The objection just mentioned takes as its starting point a materialist vision
of social relations and a voluntarist approach to state action. It is said that
effective access to education for children living in misery depends on the
distribution of resources “from the haves to the have-nots” as well as on the
decision of the majority to approve that distribution. Such a vision of social
life is both reductionist and incompatible with the constitution. Social rela-
tions go beyond material exchange. A society without human dignity, ac-
customed to human suffering and the degradation of life, and blind to
marginality and discrimination, is not a society that can aspire to building
and identifying itself as a social, constitutional and democratic state of law.
Although the constitution is not an Aladdin’s lamp that would make it
possible for us to make our wishes come true at once, judges must take the
constitution seriously when violations of human dignity, particularly viola-
tions of basic human rights, are at stake. What makes it possible for the con-
stitutional judge to intervene in a controlled, objective and reasonable
manner in the recognition of basic social rights, without falling into the temp-
tation of replacing the legislator? The answer here is found in the applica-
tion of objective principles that do not allow him to be arbitrary. One of these
principles is urgency (Scanlon 1975, 655ff.), which leaves human autonomy
untouched but is presupposed by a constitutional and democratic state.
Most, if not all, of the time, the significance of an individual, a situation
or an object can only be appreciated in extreme situations. It is in such situa-
tions that the idea of losing something manifests its true importance. Col-
loquially, there is the remark that one does not appreciate what one has until
it is gone. This phenomenon, besides being culturally true, is central for the
establishment of the objectivity of the value-based judgement, which sees
loss or damage as a situation contrary to what was expected and that is
allowed to take place only on pain of violating the Constitution. The urgency
of the situation gives rise to the justiciability of basic social rights. To observe
the practice of protecting basic rights is to see that the 1991 Colombian Con-
stitution (Cepeda 1993, 199) offers the possibility, in objective situations of
urgency, of preserving human dignity.
We could be asked whether allowing children to beg, in order to help their
parents obtain the means to survive, violates the basic right to education
and all basic rights of children. To deny that there is a violation here is to
abandon every possibility of a dignified, peaceful and prosperous future
for our society. The consequences of the failure to act and the exclusion of
millions of people from welfare and culture are contrary to a modern dem-
ocratic and constitutional state.

3. Procedural Democracy vs. Functional Democracy: the Realization of Rights

Many leading political philosophers agree that without securing the neces-
sary material conditions for a dignified life, it is not possible to exercise one’s
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rights. Furthermore, some of them think that the assurance of such condi-
tions need not be automatic, and it ought not to be in the hands of constitu-
tional judges, since the natural forum for their development is the political
arena (Habermas 1996a, 406). Were it otherwise, we would have a situation
in which the conceptions of a few about what is “good” prevail over the view
of the rest, which would deny the liberty of individual choice and democ-
racy (Habermas 1996a, 408). Thus, Habermas offers an absolute foundation
of civil and political rights in contrast to a relative foundation of social and
ecological rights. The latter depend on the changing paradigm of law and
have to be defined via political participation. However, with the historic dif-
ferentiation of first and second generations of rights now raised to a differ-
ence in the philosophical foundation of rights, Habermas rejects the necessity
of securing de facto freedom, with respect to which no specific vision of the
world is imposed on the individual or the community. Where this de facto
freedom is concerned (Alexy 1996, 377ff.), no specific vision of the world is
imposed on the individual or the community. All may have the real option
of choosing the form of life they wish to lead, including the refusal of mate-
rial goods that are provided for. Not to accept this de facto freedom would be
tantamount to defending an idealistic notion of liberty that does not take into
account the conditions of inequality inherent in reality.
Something similar occurs with respect to the conception of democracy
held by Habermas. It is an idealized concept, which presupposes the
existence of the rights to autonomy and political participation, but which
is not concerned to assure that the material conditions for this autonomy
and participation be exercised effectively by every individual. Habermas’
democracy is a procedural democracy, which does not presuppose the
guarantee of basic social rights (Habermas 1996, 427ff.). These represent a
possible result of political action rather than a condition for it.
Contrariwise, theories such as that of Frank I. Michelman (1973, 962ff.;
1975, 319ff.; 1979, 659ff.) or Martha C. Nussbaum (1990, 152ff.) defend a
concept of functional democracy. They are not willing to rest content with a
nominal democracy, where social actors are supposed to participate, on their
own initiative, in political life. As opposed to that, only a conception of
democracy that guarantees the material conditions for the effective exercise
of civil and political liberties will make it possible to achieve a real
democracy.
Finally, there is the question of why the cognitivist thesis of rights does not
lead to the adoption of a maximalist position that would be morally and
juridically unacceptable.

III. Democratic Limitations on Basic Rights: not Moral Maximalism

Thus far, I have defended the justiciability of basic social rights from the
standpoint of a cognitivist thesis of rights. This thesis turns urgency into a
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fundamental constant of recognition by judges according to the concrete

situation of the person who claims the violation of a right. Critics of this
strategy say that it leads to a minimalist position in regard to basic social
rights that would be contrary to their defense and promotion. Recently,
Luciano Sanín criticized the use of the criteria of urgency in the determina-
tion of the justiciability of social, economic and cultural rights, adducing the
argument that such criteria correspond to what, in social politics, is called
focalization, and which, regarding the justiciability of economic, social and
cultural rights, we might call “miserablist”, for it is only possible to protect
those belonging to marginalized groups, and not all those who are the sub-
jects of these rights (Sanín 2001).
I should like to reply to this objection. If it were accepted, it would count
against the proper realization of basic social rights in a social, constitutional
and democratic state.

1. Moral Perfectionism and Non-definition of Democracy

The minimalist critique of the cognitivist thesis of rights is unacceptable
when it addresses moral minimalism. The criticism is invalid if it refers to
political minimalism. I confirm my adherence to juridical minimalism. If we
do not have a better theory that can assure objectivity in the constitutional
decisions that recognize basic rights, it will suffice to have a decision that is
compatible with human dignity as well as with democracy. Let us take up
three possibilities of a “minimalist” criticism against the theory that I
defend: moral, political, or judicial minimalism.
First, moral maximalism would mean that we are all under an obligation
to satisfy everyone’s needs in every sense. That image is close to a world
full of good and with zero selfishness. The ideal is not defensible. No moral
maxim is acceptable if it eliminates the autonomy of the individual. The
elimination of autonomy would, at the same time, mean the elimination of
morality. Moral maximalism leads, then, necessarily to authoritarianism, for
only by means of absolute control in the allocation of rights and duties, as
well as in the distribution of goods and responsibilities, would it be feasi-
ble to satisfy human needs exhaustively. Moral minimalism, on the contrary,
leaves sufficient room for human self-determination. What can be morally
demanded from others, the family, the community or the state, is what
is needed to avoid the degradation of not being able to live under basic
material and cultural conditions, and it is up to each individual to better
his situation, be it material, spiritual, or intellectual.
The defense of moral minimalism in the recognition of basic social rights
is compatible with political maximalism, with which I agree. Political action
for the full recognition and realization of the right to food, shelter, health,
education, etc., is entirely justified, for it is in the course of debate and
negotiation that concessions are made. What we cannot do is to mix the
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moral and political aspects, or the latter with the juridical, even though they
are inherently related.
Last, judicial minimalism with respect to the recognition of basic social
rights is justified for a number of reasons: First, judicial strategy is not to
aim at supplanting political strategy. The opposite would be to make the
fight for social rights a matter for the state and the judiciary, and this would
be counterproductive. For example, what would be the consequences of
having the state do the impossible? Quite surely, it would lead to the
devaluation of the discourse on human rights or to a change in the social ori-
entation of the state. Second, is there any sense in placing the task of deter-
mining priorities and allocating material resources to democratic entities,
according to ideological purposes and specific social goals? No decision of
a constitutional court can serve as the substitute for political self-
determination that expresses diversity of thought and way of life. A
maximum realization of basic social rights would leave little, or almost
nothing, for the legislator to do. The exercise of democracy presupposes areas
of material non-definition that precisely require peaceful deliberation and
the confrontation of ideas. The imposition of moral maximalism via judicial
maximalism would be like asking for a court order for human happiness.

2. Correction via Constitutional Control

In a constitutional and democratic state of law, constitutional justice must
not be allowed to replace the organs of political expression. It must purport
to correct the excesses and omissions that are contrary to a higher percep-
tion that guides, in its content, the acts of all the authorities. This orienta-
tion is also valid in the realization of social rights in general. The
justiciability of basic social rights takes as its point of departure a thesis on
the theory of justice that can only be outlined here, for its full development
would take far more space than I have available. I refer to the thesis that
holds that basic social rights are associated with compensatory justice rather
than distributive justice. This is compatible with the function of correction
exercised by constitutional control.
I will briefly explain this thesis. In the political philosophy of the last third
of the twentieth century, especially under the influence of John Rawls, the
topic of the “social minimum specified by basic needs”—which is directly
related to basic social rights (Alexy 1997, 263ff.)—was always understood
as a topic concerned with distributive justice. The reason is simple. Any
recognition of basic social rights implies economic redistribution. This view
explains why the perfect forum for that recognition was the parliament
itself, according to the principle of “no taxation without representation.”
Nevertheless, the criticisms of the progressive liberal model raised by
republican theorists, feminists, communitarians, neomarxists and neo-
aristotelians showed how the distributive focus with respect to rights,
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especially basic social rights, is too narrow (Habermas 1996a, 345ff.). The
reason is obvious. It is not reasonable to make a nominally equal distribu-
tion, when those who will supposedly benefit from it find themselves living
in altogether different conditions. Amartya Sen, responsible for the change
in the indexes for measuring world poverty, has shown that it is not the same
to distribute the same amount of resources to everyone where the differ-
ences between the capacities of people to make of these resources “effective
liberty” are so evident (Sen 2000). It is not the same to give a pound of rice
to A and one pound to B, when A burns twice the calories of B. This simple
example shows that a genuinely equal distribution is one which takes into
account the conditions of each person, for example, whether one suffers dis-
crimination owing to his or her origins or whether one has geographical or
natural disadvantages and thus requires some form of compensation. This
latter concept is precisely the key to the relationship between justice and
basic social rights. Every distribution of resources must be preceded by a
correction via compensation of people’s objective disadvantages. If this does
not take place, any distribution, as fair and equal as it may seem, does not
take into account the relevant factors for the allocation of rights and the dis-
tribution of public responsibilities. This thesis, which makes the recognition
of basic social rights part of compensatory justice, is in fact based on a more
realistic idea of the human being than that adopted by the majority of liberal
philosophers.

3. The Idea of a Human Being Presupposed in the Defense of Basic Social Rights
What is the idea of the human being that underlies the cognitivist theory of
rights and allows for judicial recognition of basic social rights? I would like
to answer this question with a quotation from a recent decision of the Inter-
American Court of Human Rights on the situation of street children, which
also gives us ideas on how to solve the problem of the child-beggars on the
streets in Colombia. The Inter-American Court said:

In the last years, the conditions of life of large segments of the population of the
states parties to the American Convention have deteriorated notoriously, and an
interpretation of the right to life cannot make abstraction of this reality, above all
when dealing with children in situation of risk in the streets of our countries of Latin
America. [ . . . ] A person who in his childhood lives, as in so many countries of Latin
America, in the Degradation of Misery, without even the minimum condition of cre-
ating his project of life, experiences a state of suffering which amounts to a spiritual
death; the physical death which follows to this latter, in such circumstances, is the
culmination of the total destruction of the human being. These offences render
victims not only those who suffered them directly, in their spirit and in their body;
they project themselves painfully into the persons dear to them, in particular into
their mothers, who usually also endure the state of abandonment. [ . . . ] The right
to life implies not only the negative obligation not to deprive anyone of life arbi-
trarily, but also the positive obligation to take all necessary measures to secure that

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that basic right is not violated. [ . . . ] The arbitrary deprivation of life is not limited,
thus, to the illicit act of homicide; it extends itself likewise to the deprivation of the
right to live with dignity. This outlook conceptualizes the right to life as belonging,
at the same time, to the domain of civil and political rights, as well as economic,
social and cultural rights, thus illustrating the interrelation and indivisibility of all
human rights.5

This quotation is quite explicit. The words of the Inter-American Court of

Human Rights begin with a comprehensive concept of the individual. The
individual is no longer taken as an abstraction or as a simple agent of liberty,
but as dependent on his surroundings. Human life is not only subsistence.
It is dignified existence in situations where an individual may flourish to his
maximum potential. The full realization of this idea is the goal of an enriched
vision of basic rights but also of a real functioning democracy.

National University of Colombia

Faculty of Law, Political and Social Science
Ciudad Universitaria
Bogotá
Colombia
E-mail: rodolfoa@corteconstitucional.ramajudicial.gov.co

References
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——— . 1997. John Rawls’ Theorie der Grundfreiheiten. In Zur Idee des politischen
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