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Configuration of fundamental rights and their essential content within the Constitution of Ecuador

Abstract:

The configuration of the contents of fundamental rights in the constitutional arena is an issue of the utmost importance, which directly depends on its underlying theory. Although this topic has been subject of intense debates in Europe, particularly during the last third of the previous century, the discussion in Ecuador is inexistent, despite the emergence of a renewed constitution. Judicial development has, in turn, been inexact. Facing this situation, caused basically by a theoretical misunderstanding of the problem, this article reviews some of the most relevant theories regarding the contents of rights. It then closely analyses the text of the constitution and the existing judicial precedents. The conclusion is that a relative theory of the essential contents of rights, which sees fundamental rights as constantly interrelated, is the most adequate for the constitutional model embodied in the 2008 Constitution. At the same time, the article interrogates the uncritical adoption of a theory that has not been rightly undersroood in the Ecuadorian context.