Can social rights be guaranteed? A proposal for the new Chilean Constitution

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In the framework of the Chilean constituent process, and in the face of ideas that propose replacing the current Fundamental Charter with one that considers a social State principle or the enhanced justiciability of social rights, the purpose of this article is to explain the dogmatic limits to the justiciability of this type of prerogatives and why an improvement of this type could only translate into a relative improvement in the enforceability of the respective benefits. In this framework, an improvement that respects at the same time the competences and responsibilities of the authorities, the limits of the jurisdictional work and the technical characteristics of social rights, could consist in the inclusion of a collegiate and consultative body that, as in other countries, would allow these demands to be considered in a timely manner within the legislative process, which, together with respecting the need for social policies to have a democratic origin, would help the adjudicatory work of the judge to focus on the proper legal interpretation of the relevant constitutional provisions.




Estay, J. I. M., Rojas, M. I. P., & Bugueño, R. A. P. (2022). Can social rights be guaranteed? A proposal for the new Chilean Constitution. Revista de Derecho Politico, (114), 337–357.

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