ANÁLISIS DE LA ESTRUCTURA NORMATIVA DE LOS DERECHOS FUNDAMENTALES COMO MANDATOS DE OPTIMIZACIÓN Y SU INCIDENCIA EN LA SUPREMACÍA JUDICIAL A TRAVÉS DE LA JURISPRUDENCIA DE LA CORTE CONSTITUCIONAL DEL ECUADOR ENTRE 2015 - 2020

Abstract

Positive rights that require the state to take action are often criticized because they give rise to a problem of justiciability: courts, rather than democratic legislatures, decide on their scope and content. This paper argues that this democratic objection against positive

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rights is wrong. The control of constitutionality admits degrees. The conflict between the powers of the legislature and the courts can be resolved through a balancing exercise whose relevant aspects are analyzed in this research. The balanced constitutionality control model is explained later with a case analysis that is based on the right to a decent minimum subsistence. It is widely accepted that any attempt to limit the positive dimension of rights to certain types or categories of rights is futile. Rather, literally all rights can impose negative consequences as well as positive obligations on the authorities. Thus, status positivus in the sense of the German scholar Georg Jellinek potentially has very wide applicability. The positive dimension of rights is discussed mainly with respect to socioeconomic or social rights such as education, health, housing, water. However, the positive dimension is by no means limited to social rights. All the classical liberal rights of the first generation of rights can have a positive dimension, while social and socioeconomic rights also protect a negativus status. It follows that liberal rights cannot be distinguished from socioeconomic rights in the positive-negative dichotomy. This is why this research uses the term 'positive law' in a way that encompasses the positive dimension of rights, no matter what generation the law comes from.