Los nuevos derechos sociales: El derecho al cuidado como fundamento del pacto constitucional

Abstract

We are faced with a historical and political moment which suggests a constitutional revision, with specific and different needs from the 1978 needs. There are new needs that require to review the constitutional pact, some directly affect the catalogue of rights, especially to the so-called social rights, involving on the one hand, the need to grant social rights already recognized the consideration of basic with everything that that entails; and secondly, the need to create new rights. The foreseeable increase of people in need of care, the shortage of utilities for their assistance, the kind of informal care provided almost exclusively by women who are faced with problems and personal dilemmas that affect the free development of the personality and the right to equality, but above all, the lack of an ethic of solidarity and the responsibility socially extended require recognition of a right to care. Therefore, we understand that this analysis should be done from the perspective of gender, as a category of analysis open committed to the exercise of a critical reading of reality to transform the situation of women and men in society for the sake of real equality postulated in our Constitution and on the basis of the transformative role of the constitutional law. The ethics of care, as a way of approaching the moral problems typically feminine, has served to emphasize the importance of care as basic ethical prescription; and therefore this ethics should guide the new configuration of the catalogue of rights for a future revision of the Constitution. The rights of care and which therefore constitute basic human needs to a dignified life, formulated in a context of change, require urgent intervention of the law to recognize them and apply them. The configuration of a right to care could have a twofold purpose: not only the right to be cared for, but also, the right to care for, implying for example to suspend work or enjoy special conditions temporarilywhile the need persists, which would allow a more equal involvement of men in care. Care has traditionally been a function of women, they have dealt with the care of children, sick and dependent persons; however this function so commendable and necessary to facilitate the conditions for a dignified life, has placed them at a disadvantage, making it difficult for them their participation in the public sphere. The possible solution is the assumption by the whole society that the sphere private and ultimately care tasks have to be shared between men and women; and most importantly: This reflection must have a political influence in legislation and public policies.