Papers by Lorena Velasco Guerrero
Análisis del proceso de recepción en nuestro ordenamiento de la jurisprudencia del TEDH entorno a... more Análisis del proceso de recepción en nuestro ordenamiento de la jurisprudencia del TEDH entorno al Derecho a la Educación y la educación no reglada.
Thesis Chapters by Lorena Velasco Guerrero
The main goal of this research is The concept of person in the decisions of the Constitutional Co... more The main goal of this research is The concept of person in the decisions of the Constitutional Court. Person is a concept used in many texts of political nature, as well as in the declarations of rights and international treaties drafted after the World War II. It is recognized as the sui iuris. However, despite this presence of the term, its conceptualization contains opposing and even irreconcilable purports. The Spanish Constitution is construed by the Constitutional Court (cf. Article 1 LOTC). Both the Constitution and the interpretation of the Constitution are binding upon the canons of construction and the enforcement of Statutes and Regulations by Judges and Courts (cf. Article 5 LOPJ). Therefore, the concept of person in the decisions of the Constitutional Court determines the reading of the term for the whole legal system. We seek to determine the concept of person through the systematic study of the sections of normative foundation in the decisions of the Constitutional Court. The aim is to answer three questions: what is person? Who is a person? And why is the person expressed as rights holder? The four-chapter-study is divided into two parts. The fi rst part: analytical. It has been split up into two chapters, in order to study the decisions of the Constitutional Court. The fi rst chapter deals with the Constitution. We seek to delimit the relevant articles for our study. Once analysed the text, 28 terms of specifi c relevance were singled out: person, personal, personality, human, individual, all, nobody, citizen, male, security, man, woman, physical, natural, legal, dignity, inviolable, right, duty, life, integrity, liberty, honour, guardianship, education, marriage, family, and equality. Thereof we necessarily inferred the following collation of relevant articles: Preamble, 1, 2, 3, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 38, 39, 40, 41, 43, 44, 45, 46, 49, 50, 51, 53, 55, 56, 57, 59, 60, 61, 62, 64, 65, 66, 67, 72, 77, 79, 81, 86, 90, 92, 94, 102, 104, 105, 122, 124, 125, 129, 130, 132, 135, 139, 140, 141, 147, 152, 161, 162 and 164. The second chapter is the central and more extensive part of the investigation. After reading the 3,724 decisions that consign any of the aforesaid 79 articles, throughout a systematic work of exegesis, 584 decisions where any of the 28 relevant terms is developed are selected and studied. The assertions and postulates regarding the interpretation of the terms and the infl uence of other Courts in those decisions are also studied. Second part: a critical approach to the concept of person obtained from the exegetical study of the decisions of the Constitutional Court. It is divided into two chapters —III and IV of the investigation—. The fi rst is a synthesis effort of the jurisprudential postulates throughout its temporal display. In the second section of this chapter the contradictions and open questions in the decisions around the person are highlighted. Provided that understanding is conceiving, according to what the Constitutional Court itself states (cf. STC 117/1998). The second —chapter IV— estimates the scientifi c doctrine. Two variables have been taken into consideration: those authors being or having been Justices of the Constitutional Court and Professors of Constitutional Law. Due to his relevance, Manuel García Pelayo is also included. Examining the total of the doctrinal contribution of these authors, we focus on the elaborations around the concept of the person posited by each one of them. In a fi nal section coincidences and key points are highlighted. The bibliography referred and consulted is divided into two sections: legislation and case law—Spanish, European, and international legislation and the Constitutional Court precedents— and doctrine —Justices of the Constitutional Court and other authors—. Four annexes accompany the study: the decisions of the Constitutional Court divided by the article they are referring to (Annex I), the total body of decisions per year (Annex II), the selection of the relevant texts of the decisions (Annex III) and the magistrates of the Constitutional Court (Annex IV). The conclusions obtained in our study allow us to affi rm that, although the term person occupies a nuclear position in the whole body of decisions of the Constitutional Court, it is not conceptualized in the decisions. It is an unexpressed presupposition. The absence of a defi nition of the term relegates the answer to the question about its nature to the mere juxtaposition of the various attributes sustained in the normative foundation of the Court’s judgments and makes it diffi cult to determine either they are referring to when using the expression and the why the person is expressed as holder of rights. The doctrinal development is not coherent. The equivocalness of the constitutional text is maintained in the court decisions. Stances which, in fact, tend to be grounded upon a multiplicity of arbitrary and voluntarist interpretive canons, which, together with a total lack of unconditional elements, leads to a begging the question (petitio principii). The scientifi c doctrine around the concept of person refers to the term as recognition or attribute assigned to the human being. As an abstract idea originated in the culture of the Enlightenment, it means freedom and substantive equality —autocausative self-determination and substantial identity—. Attributes by which the person has dignity. The authors proclaim themselves members of the school of natural law. The analysed doctrine posits the attributes of freedom and equality as the only political and social legitimacy criteria, as well as the end of the social and democratic State of Law in the unfold of fundamental rights as mechanism for the change of human and social awareness.
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Papers by Lorena Velasco Guerrero
Thesis Chapters by Lorena Velasco Guerrero