Derechos fundamentales, interpretación proporcionalista y consecuencialismo. La relevancia jurídica de las teorías morales fundamentales

Abstract

The proportionalist interpretation of the fundamental constitutional rights and the human rights is a conception about the nature of the norms that grant those rights as ‘maximization principles’, that is, as principles that do not have immediate application in the cases, but only after they have been subjected to a process of ‘balancing’ with other principles applicable to the situation, as well as an evaluation of the factual possibilities of application. It is presupposed here that any principle can be compared in its weight –both in abstract as in concrete– with any other principle. What is required of the judges is that they come with the optimal solution for the satisfaction of all the interests involved in a case. It is argued here that the rationale for such a conception of the fundamental rights is consequentialist through and through. Consequentialism is, to say the least, a controversial ethical theory about the evaluation of actions and states of affairs. It should not be presumed without further argument and, especially, it should not be presumed as valid law in our constitutions and in the international instruments of human rights.