THE HYPERINFLATION OF FUNDAMENTAL RIGHTS: CONSIDERATIONS ABOUT THEIR LIMITS, POTENTIALITY AND RELATIVE INVIOLABILITY

• Autor(a) principal: Martínez-Villalba, Juan Carlos Riofrío
• Data de Publicação: 2017
• Tipo de documento: Artigo
• Idioma: spa
• Título da fonte: Revista de Direito Brasileira (Online)
• Texto Completo: https://www.indexlaw.org/index.php/rdb/article/view/3293
• topic: Fundamental Rights. Imprescriptibly. Inalienability. Indefeasibility. Inviolability.; Derechos fundamentales. Imprescriptibilidad. Inalienabilidad. Inembargabilidad. Inviolabilidad.

We consider here the potential aspects of human and constitutional rights. Then we deduce the respective consequences. Chapter I shows the incongruity that any right (including the right to a hat, to a proportionate snack, and to a warm treatment) could be indefeasible. Chapter II defines the essential elements that every subjective right must have. Chapter III distinguishes between “real subjective rights” and “hypothetical rights”: there is only a “real subjective right” if in reality one can demand something from another; previously it will be only a hypothesis of work, more or less justified, in a doctrinal or constitutional text, or in a treaty of rights. Chapter IV shows the potential aspects of rights, following the doctrine of the inverted pyramid of Riofrío. Chapter V, following this same doctrine, shows what the indefeasible aspects of rights are. Finally, it is evident that the potential and indefeasible aspects are delimited by the extramental reality, by human reason and by acts of will (norms, business, legal acts, etc.). As each of these three factors acts differently, the indefeasibility of rights becomes a flexible and progressive concept.