Metapolítica
Articles By Eduardo Hernando Nieto
Posted in: Records and People ", Lima, Reniec, 2010
Article 2 paragraph 1 of our Constitution states that" everyone has the right to life, his identity, his moral, mental and physical to self development and welfare. The unborn child is subject of law in every respect "and Article 19 also maintains that all Peruvians have the right" to their ethnic and cultural identity. The State recognizes the ethnic and cultural diversity of the Nation. " Thus, the right to identity has an important place in our legal system, however, which not stated in the constitution is that thing we understand identity or that is what the law - or judges - must understand that in order to determine which cases could be affected or not this right.
According to some classical definitions from the theory doctrines of modern law and civil law identity means "being in itself" as the way in which the person is within their society, also our leading scholar Carlos Fernández Sessarego in turn, maintains that identity is what makes each one is "self" and not "other" and that allows you to know the person in the "very same" as to what their human essence
be understood that these two perspectives have important nuances to the extent that in the first case appears to be a rather static definition while in the following definition if we would consider a proposal dynamics and identity initially can be seen in issues such as gender, age etc., however, compared to the second well expect a more evolutionary in nature based on the same changes that can be verified within society and not only involve basics registration (personal status) but would cover the many activities of the subject and "the cultural and ideological heritage of the person. "
However, my interest in this text is rather to explore around the "radicalization" of the existentialist project that in some cases and paradoxically could be perceived in terms of a growing nihilism, ie the negation of the values and indifference to human projects and purposes. A situation like this will bring significant changes in all the reality of modern law as nihilistic stage is also known as "postmodern" or deconstructive which involves affirming the uncertainty and also to relativize any concept or structure, it ie, if the modern law was created from Cartesian metaphysics which stated the distinction between subject and object (thinking thing and extended thing) and also a hierarchy between them (the subject is always located above the object or subject placed in the center while the object in the periphery), now rather a challenge to find any possibility to locate fixed points in space and thus also would deny the possibility of asserting the subject. Ie, we would enter a stage in which if the subject can be moved and placed at any point then not only would have trouble finding it also generate a huge problem to identify, more may be that the same subject is created and recreated and the same as their own will or mood and would only will that defines everything.
precisely the problem we would like to highlight today is to the effect that causes the right to identity and the postmodern paradigm State because the times have changed and we are no longer in an era in which the existentialist perspective could provide to this issue some progressives and libertarians air but now with the help of the technique could pose major conflicts and disputes simply because with the added technology (which must be read as a power or power given to the individual) existentialism (which was very useful to assert the right to identity as stated by Fernández Sessarego) could contribute today to increase uncertainty and create more problems than solutions, is paradoxically could become a threat to personal autonomy same
.
For example recent cases such as the Scottish Norrie May-Welby, who not long ago has been recognized as a neutral subject and that he said he was not August or the male or the female would be just the tip of the iceberg of radical transformation could experience the modern built right under the pillars of Cartesian rationalism and now could not contain all of these changes result of technology, scientific progress together with a radical individualism that now that the laws seek to adapt to the subject's will and not the reverse as would be natural in the origins of the right .
But back to the case said, speaking on the example here of a non-neutral gender or sex, which in itself would be not only confusing but also could give rise to multiple legal problems, for example to set - as in our law - that marriage is for only the union of a man and a woman - and excluding any other possibility, then what would also to facilitate new forms of union between neutral as being implemented in the case of homosexuals in various countries? However, some people argue that the case of May - Welby, is only trivial or unusual so you do not have to worry too much about the need to legislate on the subject. However, as might have been said years ago when someone decided to change sex (transsexual) through surgery and appearance contrasted now with your identity document which reflected their original identity (eg man). In these circumstances raised a number of legal actions designed to amend not only the name but also the sex stated in the document of identity. Obviously, these cases have been increasing in our country as well rapid changes occurring in this regard and would not miss it too short or medium term drastic legislative changes.
The possibility that cases like that of May - Welby can actually arise quite easily these days is undoubtedly due to the presence of neutral liberalism that came regularly to the contemporary law, ie the view that no one can or to judge the preferences of others as doing so would affect individual autonomy and do not respect the choices personal. In fact, it is liberalism that has been promoting the thesis of neutrality from what the critique of the state as it can interfere with the elections of life of any citizen, likewise, they pose a distinction between what behavior means allowing and promoting it or promote it, that is, that for them the fact that they would not allow pornography that was promoting or were in favor of it. However, conservative critics do not think the same way and would consider such a distinction is not viable to what liberals eventually they would reply that should not be in favor of pornography or other such behavior, but what happens is that they value above all tolerance and freedom of choice.
Thus, the prevailing liberal model is based on the defense of the value tolerance above all things but in fact is a tolerance that is without foundation because if one starts from the subjective nature of any value then tolerance can not be justified because no value could be objective. This contradiction of liberalism would lead to an impasse since the conception of liberalism that handle rest in reality relativism.
However, in order that the liberal discourse is contradictory and that the defense personal choice and tolerance are justified then the "aggressive" behaviors such as sexuality "neutral" or the "transgender" or the union of same sex should be supported to some value (tolerance). What would then be the basis of tolerance? It is understood that there are two modern moral that could justify utilitarianism and Kant's moral rights, however, both are being failed as you can draw several theoretical perfectionists, democratic republicans and communitarians, because utilitarianism is not considered at all as autonomous beings (some are means for other purposes) or because the morality of rights is based on a distinction that can not be sustained, namely, the distinction between right and good. So if there is no justification for tolerance (which if it could be justified on other models certainly not neutral) is difficult to accept the liberal thesis. Is more successful if they were not criticisms of the moral rights and tolerance was justified, then it would make sense to ask why only because tolerance and other values?. Without doubt, the discussion about values \u200b\u200bis a constant in recent years.
Indeed, in the development of the theory contemporary legal you can find a current surge in calls to the right postpositivist emphasize the aspect of the correction before the validity of legislation, such as a sample of these new perspectives is the case of the Argentine legal philosopher (died prematurely) Carlos Santiago Nino, for him, the right must be understood as the institutionalization of procedures (deliberative) that help us to solve disputes and also encourage social cooperation within a framework of protection of personal autonomy, the inviolability of the person and dignity. In this sense, we understand that the basis of his speech is in human rights (autonomy, inviolability and dignity) from which arise leading discussions to resolve disputes by majority approval. (Defining its approach and deliberative democracy)
Thus, the rules of democracy, such as those imposed there can be no discrimination because of race, sex, economic status, etc., That the voting citizens should be equal, that collective political decisions are taken by majority procedure, there must be real alternatives, that the representatives are elected periodically, you can not violate the rights of the minority, generating a process making similar decisions, according to Nino, the procedure governing moral discourse.
For example, Nino could establish certain rules concerning human rights as the claim that human rights are moral rights that has every human being irrespective of contingencies such as sex, religion or nationality and the fact that they are or not recognized by the government or the function of these rights is to prevent people being used as means to meet the objectives of other persons, corporate or government entities between
other, being explicitly stated that the role of a State Liberal should be the promotion of those rights (as a moral obligation)
A speech like this that unlike the classical positivist moralizes institutionalized and individual rights has undoubtedly served to facilitate the legalization favor different behaviors and events that were previously not even thinking (change sex for example), extending the right of autonomy and non-interference by others with regard to personal choices (neutrality) for instance would be considered as ways to meet the standards proposed by the morality of individual rights.
In fact, this trend in his side postpositivist neoconstitutionalism called, what it does is define the legal not from the mere constitutional law but from the (early) and to the extent that the principles are by their nature uncertain then it is easy to see that through extensive corrective interpretations or "under" the Constitution could overcome the lack of regulation or empty resolve the matter and then the cases would be presented as such the change of sexual identity and its corresponding recognition through the creation of an identity. (Or, finally, the recognition of the "no identity" as happened in Australia recently)
In short, the stage postpositivist certainly favors this discretion and is proving very favorable to the defense of various interests or desires "subjective", the same as we are now empowered by technology and lead us to the reality of "transsexuality" or "neutrality" or God knows another new concept could be known in the near future. Postmodernism postpositivism and then converge in radical defense of modern subjectivity and the law seems to go on without any opposition or response trend. This current was actually born and with "existentialism" (Fernández Sessarego), which promoted this kind of identity "dynamic" that seem to respond While a kind of social morality away from metaphysical link, then positivism (which was powered by modern incidentally) took steps forward in this aspect individualistic harm than good, although it maintained some sense of order and predictability, also seeking to harmonize as far as possible individual autonomy with social autonomy, thanks also to the principle of harm to third and considering that the aim was to form a community of autonomous beings (Kant) and preserve the lives of the subjects (Hobbes) . Finally, the postmodern attack on the other hand the theory of security, order and predictability (which allow the inclusion of concepts like the "No Sex") while the postpositivism be responsible for facilitating the realization of individual desire by the indeterminacy of liberal principles. CONCLUSION
While liberal theory posed by the distinction between enabling and promoting along with neutrality and tolerance in the legal positivist thesis soon be lined with a sense liberalism neoconstitutionalism went on to become and to "commit" with the values \u200b\u200bwhich no longer made sense to talk about tolerance, right now - as she held Nino - should promote individual will.
Liberals say that the morality of individual rights is justified in itself, however, do not know if this is enough to say that they really should be acceptable, rather it appears to be circular reasoning in nature, I understand that in the ancient world or in non-Western "transsexuality" or "sexual indeterminacy" were not major problem for the march of civilizations that also contributed much in developing our world today, why not see why legislators, judges or de facto powers should be so interested in legitimizing these conditions or any other "politically correct" without raising an analysis deeper as to why such behavior should be legitimized or because it would have to recognize any identity according to the will of the complainant, covered in the vagueness of "tolerance". The defense of personal autonomy need not imply any order to always access or immediate access to every whim, no matter how attractive it is made without taking into account how these new rights could affect the progress of what was considered a civilization of progress and collective welfare.
