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Poverty and the Creation of Fundamental Rights

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Pablo Ruiz-Tagle Poverty and the Creation of Fundamental Rights Pablo Ruiz-Tagle This exploration is about the influence that poverty has on the creation, content, and configuration of fundamental rights. It explains that poverty is a contributing or principal factor in the creation of fundamental rights as well as an influencing factor in the mechanisms and procedures that create them. The first part summarizes various conceptions of poverty. The second illustrates in a non-exhaustive manner the influence of poverty on law, emphasizing the relationship between poverty and subjective law; poverty and the taxation and police powers; poverty and the ideas of democracy and an extended republic; poverty and the principle of parliamentary representation; poverty and colonialism; and poverty and international law. This part also discusses statements made by Carlos Rosenkrantz, Owen Fiss, and Cristián Courtis that are alleged to have some relationship with the ideas about poverty that I present here. The third part explains a few Chilean experiences with poverty, particularly the emergence of the social question and of the social programs dubbed “AUGE” (a health care program) and Chile Solidario (a program designed to eradicate extreme poverty). The partial explanation of these programs seeks to demonstrate, almost as a conjecture, how the content of the fundamental rights to health, dignity, and equality in Chile are developed through the administrative and legislative avenues and, later on, through the judicial one. For purposes of discussion, it is sustained that the content and configuration of fundamental rights are not always shaped by constituent democratic deliberation, nor by the parliament or the courts. Fundamental rights can also be constituted as such through a strategy or measure, of a social program or resolution that must certainly be consolidated with some form of judicial guardianship and with the constitutional guarantees that we attribute to these rights. Finally, the essay concludes with answers to the questions posed to this panel. SELA 2005 Panel 2: The Institutional Strategies for Eradicating Poverty 1Pablo Ruiz-Tagle 1) A FEW CONCEPTIONS OF POVERTY: With her authorization, I have extracted the ideas and concepts about poverty that I explain in the following pages from Paula Urzua’s Master’s thesis. 1 She has identified the principal concepts of poverty as follows: 1.A) The Economic Well-Being Concept: This is the concept used by Chilean state agencies to measure poverty that makes possible comparisons with other developing countries. In any case, plenty of evidence demonstrates that low-income people also exhibit lower scores on other socioeconomic and social participation indicators. The absolute criterion consists of the arbitrary establishment of a minimum standard based on technical reasons. The most common measure is the basic basket of goods and services considered indispensable. It is normal to distinguish extreme poverty (which represents the lack of income necessary to satisfy nutritional needs) from general poverty (which represents the lack of income necessary to satisfy nutritional and non-nutritional needs); 1.B) The Capability Concept: This concept centers not around what people have, but rather what they can do. In Sen’s (1987, 1992) terms, attention is concentrated on “functionalities”, understood as the capability to live a long and healthy life and to make free and informed decisions. With respect to this, UNDP studies of human development, especially the 1990 Human Development Report, graphically show different countries’ behavior in terms of 1Ver Urzúa, P. ¿QUIÉNES SON LOS POBRES EN LA REGION DEL BIOBIO?, Universidad de Concepción, Magíster en Investigación Social y Desarrollo, TESIS DE MAGÍSTER, PROFESOR GUIA: OMAR BARRIGA, Diciembre 2004. En el marco teórico de este tesis se han explicado y profundizado las categorías de Spiker, Paul (The International Glossary on Poverty”,99) que distingue once conglomerados – clusters- de definiciones de pobreza que, si bien se complementan y superponen en muchos aspectos, expresan distintos acercamientos teóricos y diferentes énfasis en la definición del concepto. La tesis usa el término enfoque que yo he reemplazado por conceptos. SELA 2005 Panel 2: The Institutional Strategies for Eradicating Poverty 2Pablo Ruiz-Tagle economic growth and social well-being and demonstrate that economic growth is not necessarily associated with improvements in quality of life. The UNDP measures poverty of capabilities in terms of illiteracy, malnutrition, life expectancy, deficient maternal health, and preventable infectious diseases. In this sense, the notions of capability and functionality are also related to the notion of human rights, especially the so-called “second generation” human rights that include economic, social, and cultural rights that do not simply require that no one prevent individuals from exercising them but rather involve the individual having a certain level of capacity to exercise them. In spite of this concept’s significant contribution, it is criticized for overvaluing individual factors and undervaluing the role that social structure and social relationships play on individual capability. 1.C) The Social Exclusion Concept: In the United States the term “underclass” or “infraclass” was coined to refer to groups comprised of immigrants, the chronically unemployed, and others who did not have access to public assistance and that were unable to sustain themselves without it. The European Commission describes social exclusion as follows: “the process through which individuals and groups are totally or partially excluded from full participation in the society in which they live” (1995). Other more pragmatic definitions refer to low income, precarious employment, deficient living conditions, family tensions and social alienation. The socially excluded might lack ties to family, a local community, voluntary associations, unions and even to the very country they live in. They might also be disadvantaged with respect to the extent of their legal rights or their capacity to exercise these rights. SELA 2005 Panel 2: The Institutional Strategies for Eradicating Poverty 3Pablo Ruiz-Tagle 1.D) The Vulnerability Concept: This concept lies somewhere between the capability and the exclusion concept. The focus of the vulnerability concept has been


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