Cute Sayings For Salons

The Liberal Left Conservatism


Metapolítica

articles

conversation with my friend the philosopher Victor Samuel Rivera ( http://www.victorsamuelrivera.blogspot.com/ ) exchanged views on fashion around this left-liberal scholars to adhere fervently to the call pragmatism, with the American professor (now deceased) Richard Rorty his new Guru and mentor. Gone
then Kant, Rawls and Habermas and they all give up now before this philosophical Anglo-Saxon root that seems to offer an attractive and simple argument to all the beliefs they advocate so vehemently as the obvious case of human rights, deliberative democracy, tolerance, transitional justice, civil society etc., etc. , etc.
But, before to refer to what I was saying to Victor Samuel, would need to know some basic scope of this new kind of pragmatism developed by Rorty on the basis of the classical theorists of the nineteenth century American power as Dewey, and James Pearce.
As is known, pragmatism is characterized by its rejection of any absolute truth and that the conceptual world (formal) the intellectual (rationalism) were unable to reflect reality.
Thus, one might say that "Pragmatism is an American movement in philosophy founded by CS Peirce and William James and characterized by the doctrines that the meaning of concepts must be found in its practical implications for the function of thought is to guide action and that the truth should consider pre-eminently by the practical consequences of belief "

Thus, as stated was no truth to them at the convergence of reality and thought but the utility they represented to the subject, not necessarily be useful as what providing pleasure or comfort to the subject but that serves to organize the world a practical way of thinking.
Richard Rorty, then picks up many of the theses of classical pragmatism to conclude with a completely anti-metaphysical and anti-foundational discourse as expected, in particular highlighting the contingency of language that was built just across the universe of modern philosophy then demonstrating the relativity of concepts such as rationalism and irrationalism or truth and falsehood, for example, they had behind them a living obviously be essential. However, Rorty would take care not to be accused of relativism (as also would be the case Isaiah Berlin, for example) while, it remained possible that the presence of consensus.
Undoubtedly, the best-known book Rorty has been Contingency, Irony and Solidarity, [1] text in which the American professor says it looks like to propose a liberal utopia in which one can speak of irony ( would mean the fund is not taken seriously any beliefs including ours) and at the same time also of solidarity in the sense that one must recognize other human beings as "one of us", thanks to our imagination.
as follows:
"The subject of Rorty the ironist, the citizens of their society Liberals are people who perceive the contingency of their language of moral deliberation, consciousness and community. The paradigmatic figure is the liberal ironist who think that cruelty is the worst thing you can do and who combines a commitment to understanding the contingency of their own commitment and here is the irony. "
turn, in a famous interview, Rorty needed on what was meant by the liberal utopia "is simply the idea, not new, of equal opportunities. More or less what Rawls describes in his book, a theory of justice, the idea of \u200b\u200ba society in which inequality and although there are reasons for it, would still many more otherwise " [2] .
Finally, for the achievement of his liberal utopia, Rorty bet on the development of a narrative against a theory, ie, a historicist and nominalist culture to communicate the present with the past on the one hand, and partly with utopias future, considering the continued manifestation of utopias as a clear presence of freedom. In short, freedom replaced the truth, and this was the main characteristic of liberal society.
But the tenor of the conversation to Victor Samuel Rivera was not exactly on the side of affirming the paradoxically conservative rortiano pragmatism and neo-pragmatism, they are clearly what we see today is rather the affirmation of a set of liberal values \u200b\u200b(individualism, human rights, etc..) obviously would have a degree of permanence in time - at least for liberals - and that without questions contain the essence of what we now call political correctness. But if we follow the discourse of contingency, we would expect that in future such values \u200b\u200bcan be moved, in fact, in the past we could find many ways not just liberal pragmatism, ie of various ideological tint [3] Edmund Burke in the eighteenth century (if the great enemy of the French Revolution that is claimed to date by the liberal left) was a pragmatist, Benito Mussolini in the twentieth century (this is commented Victor Samuel) was also another representative of pragmatism since then and in that context the rules stated fascism were the rules of common sense.

curious affinity between Burke then with Mussolini and the latter with Rorty!. Sure there may say that Mussolini could not be a liberal pragmatist because as the teacher pointed out - too late - Judith Shklar, a liberal would be one which would consider the worst act that could make would be an act of cruelty, and Mussolini would probably be seen - by the Communists and the Liberals - as a cruel man is, someone not supportive (although it could have been supportive of his countrymen love that he originally came from the quarries of socialism.)
Anyway, I think that there are still a lot to say about this problem of contingency, irony and solidarity, especially how it could continue to support this "utopia" that preaches freedom, but can not find the way to give real meaning to it, just what if you could make a metaphysical discourse which would be also essential for her to finally be valued and not become just a word used in political struggle.
[1] Richard Rorty, Contingency, Irony and Solidarity, Cambridge, Polity Press, 1996
[2] Richard Rorty, Protecting freedom, Madrid, Trotta, 2005
[3] Clearly, Rorty and the company Liberalism is not an ideology

36 Weeks Pregnant Iron Tablets

" What is Neoconstitutionalism? Can



Metapolítica

articles

Eduardo Hernando Nieto

As stated in the famous English professor Luis Prieto Sanchis, neoconstitutionalism or contemporary constitutionalism is way today referred to the various aspects that characterize our legal culture [1] , they can be shared simultaneously by the vast majority of legal theorists and philosophers right now [2] .

actually basically means neoconstitutionalism constitutional theory that emerged after World War II and cases of the Italian Constitution (1947) and Germany (1949), Portugal (1976) and Spain (1978) and Latin America in the case of the Brazilian Constitution of 1988 or the 1991 Colombian characterized mainly by the inclusion of a set of material elements in the Constitution, it ceased to be exclusively a form of organization of power or the establishment of competence to address the realization of a series of substantive purposes [3] .

As indicated in a recent text on contemporary legal philosophy: "the constitution is not only the basis for authorization and under the ordinary law. With concepts such as dignity, freedom, equality and rule of law, democracy and welfare state, the Constitution provides a substantive content to the legal system. This fact is embodied in the application of law by the omnipresence of the maxim of proportionality, and a trend to replace the subsumption Insite classical legal rules made by a weight to weigh constitutional values \u200b\u200band principles " [4]

In this sense it is also usual to consider that neoconstitutionalism arises from the integration of two classic constitutional models, the American model and the European model. In the first case, we find the idea of \u200b\u200bthe Constitution as the rule of competition and social policy, such as minimum pacts in the context of equal individuals to develop their life plans within the framework of a neutral state however, the European model the Constitution is clearly a political project of transformation social and political [5] looking closer to the political ideals of the French Revolution, in affirming the values \u200b\u200bof freedom and especially that of democracy (read equality)

Indeed, as the first feature that could be seen would be the fact that this constitutional tradition have arisen in countries that went through some similar schemes to the liberal ideology [6] would be very interested to say very strongly the principles of liberalism, especially the defense of human rights.

Thus, the traditional rule of law has ceased to be the paradigm of legal rationality to meet now with the constitutional rule of law, in which the Constitution becomes as noted, in an area in which a confluence of values, guidelines and principles of liberal and democratic roots are used to solve the most important cases in law and therefore clearly adhere to the now famous thesis of the relationship between law and morality [7] , ie the perspective that transcends the traditional legal science proposal based on the thesis the separation between law and morality. [8]

This thesis of the linkage between law and morality has been widely disseminated Anglo-Saxon context by Professor Ronald Dworkin and Robert Alexy continental Europe [9] who in turn have resulted in a strong enough defense for individual rights thesis reaching even to propose such as Dworkin's categorical in the sense every difficult case has only one correct answer (ie the defense of a principle) [10] even when Alexy perspective may be less rigid in the sense of recognizing the possibility that there are several possible answers, however there are also those who think that this is not necessarily antagonistic positions. [11]

If we wish to emphasize some changes that we perceive between the rule of law and the constitutional rule of law might note for example that while the rule of law opted for a static, a Legicentrismo and a formal interpretation of the law, in reality the constitutional rule of law we see that State sovereignty is relaxed, the principles are of great importance and ultimately may be perceived also to be given increasing forms of material or substantive interpretation. In this line

Professor Prieto Sanchis turn highlights five characteristics that define what it means today neoconstitutionalism, namely the dominance of the principles on the rules, the frequent use of the technique of weighting the detriment of subsumption, relevant and active presence of the judges over legislators, the recognition of evaluative pluralism in opposition to what would be an ideological homogeneity and finally constitutionalism invasive device which penetrates all areas of law [12] .

other hand, Riccardo Guastini has found another set of conditions that we would know when we are in a context "neoconstitutionalism" including the following may be noted, constitutional rigidity, resulting in a written constitution and the difficulty of modification part of the legislation, the judicial guarantee of the constitution, namely, control over the creation of standards with the constitution, the binding force of the constitution, which specifically highlights the fact that constitutions also contain rules that organize the State also contain principles and pragmatic arrangements should be secured like any other rule of law, the over-interpretation of the constitution, which overcomes any apparent gap thanks to the principles that exist in the constitution, the direct application of constitutional norms, before the constitution only controlled the power, now governs relations trying to develop their social principles, the interpretation under the law, it does not relate to the interpretation of the constitution but from the law, where the judge must prefer the interpretation that best fits the constitutional text and finally, the influence of the establishment of political relations is perceived by example in the argument that legislative bodies can provide and to be based right in the Constitution [13] .


From the foregoing it is apparent that the axis of neoconstitutionalism is without doubt the fundamental basis of contemporary liberal discourse taking it as already noted a number adherents as Ronald Dworkin, John Rawls, Thomas Nagel, Jürgen Habermas, Robert Alexy and also in Latin America and Spain, just let me now address one of the most important American neoconstitutionalism, Argentina Professor Ernesto Garzón Valdez, who has been around for some long time the concept of "off limits", which specifically reflect that space where there could be negotiated and there is absolutely nothing could have disagreements in understanding the so-called basic rights [14] .

This "off limits" in terms of Garzón Valdés, resguardaría then the so-called fundamental rights and would be the necessary condition for state representative democracy.

Certainly, this conception of representative democracy as a morally sound come from his reading of Hans Kelsen and the idea that representative democracy is not given according to the rule of majorities, but rather in terms of the principle of majority is different because it means they recognize the presence of a minority must be respected:

"In Kelsen, the exercise of the majority principle is limited by respect for minority rights which significantly calls for fundamental and human rights." [15]

In this thesis Kelsen, Garzón Valdés draws their own conclusions about the meaning of democracy: "a society is homogeneous if all its members enjoy the rights in the preserve of basic goods. When this is not the case, the principle of majority rule becomes most (Kelsen) or is an ideological form of justification of normative power (Habermas). " [16]

ideas converged with other liberal academics - for example Dworkin - [17] , handled the claim that individual rights must be understood as a means of protection which have minority order to defend themselves from attacks or preferences of the majority.

So, if it comes to justifying the existence of this "off limits" of rights then we will find a variety of reasons that could theoretically justify them, although as indicated it would be a space not negotiable in any way view and is said also would bind future generations to the extent that they could only add new rights but could not exclude those already found within the preserve. [18] Moreover, Garzón Valdés would call "basic incompetent" to one who does not understand the importance of the property core found within the reserve and may be unaware that only someone who does not move within the bounds of rationality. [19] In this sense, paternalistic intervention is justified if it is to protect the autonomy of individuals.

Indeed, referring to the preserve will be thinking primarily on fundamental rights, linked to the idea of \u200b\u200bbeing able to realize a life plan, at least not enough to Garzón Valdés only traditional civil and political rights and their corresponding guarantees, but should also be room for the rights of second and third generation and obviously with the obligation by the state to guarantee them. [20]

as clearly seen, the arguments start from a moral neoconstitutionalism rights Kantian subjective result and consider that if you want to act as a rational (moral) then it is essential to live within a democratic regime representative, ie a system which ensures equal opportunities for autonomy for all without exclusion and that just takes this set of basic goods such as essential requirements to develop autonomy.

Finally, it means that judges and legislators are required to be consistent with these principles and resolve or legislate always in favor of defending the preserve of basic goods even though they may go against the will of the majority. [21]

The latter statement only serves to highlight the liberal component that permeates the neoconstitutionalism, whose commitment is then given to this ideology that is based on defense-Kantian principles - dignity, autonomy and the inviolability of persons and displayed as the unshakable core that nobody even could violate the popular will at the cost of his own sacrifice.

In this sense, judges and lawyers neoconstitutionalism necessarily act according to the tenets of individualism what remains in serious doubt the thesis of the plurality of valuation and the worst falling into the fallacy of identifying the administration of justice with the protection of so-called "fundamental rights."

[1] SANCHÍS PRIETO, Luis. Constitutional Justice and Rights, Madrid, Trotta, 2003, p.101.
[2] Authors like Ronald Dworkin, Robert Alexy, N. MacCormick, Carlos Santiago Nino, Ernesto Garzón Valdez, Luigi Ferrajoli, Joseph Raz and many others who cite the development of this work.
[3] Carbonell, Miguel. "The Neoconstitutionalism in his Labyrinth" in: Theory of Neoconstitutionalism Edition Miguel Carbonell, Madrid, Trotta, 2007, pp. 9 to 10. Also, Carbonell, Miguel. "The new time for Constitutionalism" in Neoconstitutionalism (s), edited by Miguel Carbonell, Madrid, Trotta, 2005, p.9, GASCON ABELLAN. Marina & GARCIA FIGUEROA, Alfonso, Argumentation in the law, some key issues, Lima, Palestra, 2003. pp. 21 to 31
[4] Faralli, Carla. Contemporary Philosophy of Law, Madrid, Hispania Books, 2007.
p.83 [5] regard, SANCHÍS PRIETO, Luis. Constitutional Justice and Rights, Madrid, Trotta, 2003, chapter 1
[6] For example the case of National Socialist Germany, Fascist Italy, Franco's Spain among others.
[7] thesis which is characterized precisely by acknowledging the presence of values \u200b\u200band principles within the law as directed by Professor Alfonso García Figueroa: "• The Constitution brings together two important characteristics for our purpose: the content includes a series of moral values \u200b\u200bby shape, its precepts are expressed more through principles under the guise of rules. In very general terms, these two properties share two interesting consequences for non-principlist positivism: first, constitutionalism seems to favor non-positivism as it facilitates the conceptual link to the moral law and, second, seems to favor a non-principlist positivism. See GARCIA FIGUEROA, Alfonso. Principles and Legal Positivism, Madrid, Center for Constitutional Studies, 1998, pp. 61 to 62.
[8] precisely to allow the right is an exact science and not a speculative science.
[9] Ibid ., P.45.
[10] Cf Dworkin, Ronald. Rights Seriously, Barcelona, \u200b\u200bAriel, 1999
[11] "However, this apparently conciliatory Alexy's theory must be qualified because, despite his rejection of holism, the result of his own theory is close to that of Dworkin, as Alexy maintain a conception of law, from what he calls "the active side of the law", ie from the proceedings. " GARCIA FIGUEROA, Alfonso. Op.cit., P.58. In fact, this neighborhood would be due to its relationship with Kantian philosophy and its commitment to the morale of individual rights.
[12] SANCHIS PRIETO, Luis. "Neoconstitutionalism and judicial weight" in: Neoconstitutionalism (s), edited by Miguel Carbonell, Madrid, Trotta, 2005. pp. 131-132. See also, ALEXY, Robert. "Legal System and Practical Reason" in, the concept and the validity of law, Barcelona, \u200b\u200bGedisa, 1994.
[13] Guastini, Ricardo. "The constitutionalization of the legal system: the Italian case", in: Neoconstitutionalism (s)
[14] Garzón Valdés, Ernesto. View "Representation and Democracy," in: tolerance, dignity and democracy, Lima, Universidad Inca Garcilaso de la Vega, 2006. Also, institutions Suicide, ethics and policy studies, Mexico, Polity Press, 2000. For a discussion and democracy neoconstitutionalism see text: Salazar Ugarte, Pedro. Constitutional democracy, an X-ray theoretical Mexico, FCE, 2006.
[15] Garzón Valdés, Ernesto. "Representation and Democracy, p. 147.
[16] Ibid. p.153.
[17] "constitutional theory which is based on the United States government is not a simple majority theory. The Constitution, and particularly the Bill of Rights "is intended to protect citizens, individually and in groups against certain decisions that might want to take a majority of citizens, even when that majority acts in accordance with what she is interest or common. " Dworkin, Ronald. Rights Seriously, p.211.
[18] Garzón Valdés, Ernesto. "Representation and Democracy," p.154.
[19] Ibid., P.148.
[20] A similar line is found in many European neoconstitutionalism also advocate the need to ensure economic and social rights for example. Cf Ferrajoli, Luigi. Rights and guarantees, the law of the weakest, Madrid, Trotta, 2006; Pisarello, Gerardo. Social rights and guarantees, Madrid, Trotta, 2007. However, in the case of Anglo neoconstitutionalism (Dworkin, Rawls) rather think of civil and political rights as the rights guaranteed and not in the sense proposed by Professor Garzón Valdés and his Italian colleagues.
[21] Without doubt one of the most important advocates of the majority will and the defense of public deliberation is Professor Roberto Gargarella, see for example his article "The judges compared to the preserve" http:// www.cervantesvirtual.com/servlet/SirveObras/12925071916700495109213/discusiones1/Vol1_04.pdf . However, this does not adhere to the Kantian thesis but consider that the model neoconstitutionalism could end in an elitist system where judges appear as the major defining policy and do not always act in favor of the majority.