The structural process as a suitable instrument for the protection of fundamental rights

Abstract

This article addresses one of the most controversial issues faced by constitutional law in recent years: judicial activism. The centrality of human dignity and the elevation of principles to the status of norms in post-positivism has led the Judiciary to assume a prominent role in the dynamics of power. Due to the binding force of the Constitution and the need for effective guarantees of fundamental rights, Constitutional Courts have assumed a political role in social transformation, and any lethargy on the part of the legislature or administrator in implementing public policies can be subject to control. But what are the limits of their actions? Through the analysis of cases not only domestically but also in foreign law, this article seeks to demonstrate that the structural process, through the technique of democratic experimentation, is an appropriate procedure for building participatory, consensual, effective, and transparent solutions to complex, systemic problems, such as the absence or inefficiency of public policies guaranteeing constitutionally assured rights.