Pluralismo razonable en el Estado constitucional: de la tolerancia a la discrecionalidad judicial
In this article, I submit that toleration (as an institutional response to pluralism) is functionally displaced by the exercise of judicial discretion. The linchpin for this is the relevance and limits of substantive reasoning involving a claim to correctness. First, after presenting a concept of to...
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| Format: | Article |
| Language: | Spanish |
| Published: |
2019
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=7216292 |
| Source: | Nuevo derecho, ISSN 2011-4540, Vol. 15, Nº. 25 (Julio - Diciembre), 2019, pags. 88-109 |
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| Summary: |
In this article, I submit that toleration (as an institutional response to pluralism) is functionally displaced by the exercise of judicial discretion. The linchpin for this is the relevance and limits of substantive reasoning involving a claim to correctness. First, after presenting a concept of toleration, I recall arguments which point toward its insufficiency regarding the achievements of constitutionalism. This follows from toleration implying either a comprehensive social context or an antiuniversalist bias in the justification of human rights and public reasons. Then, I claim that this incompatibility in itself is no obstacle for social stability or the operation of constitutionalism. This is so, since we find a functional equivalence in the safeguard of rights in constitutional states. However, it is on account of the abstract character of human rights, as well as disagreements in public justifications, that we are compelled to recognize the necessity of a margin of discretion, which becomes especially salient in constitutional adjudication. Finally, I pose the question whether it is adequate for the constitutional judge to draw limits in a piecemeal fashion to reasonable pluralism. I pose that a key element for this emerges from the commitments entailed by the claim to correctness in judicial reasoning, either in a bivalent fashion or as a matter of degree through reasonableness. |
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