Theoretical Foundations Regarding the Nature of the Right to Housing in the Peruvian Constitutional Court

Rebaza O.F.J.V.; Vásquez T.L.B. · Revista de Filosofia (Venezuela) (2022) · DOI: 10.5281/zenodo.6459481

Resumen

The purpose of this research is to analyze ontologically the position adopted by the Constitutional Court of Peru with respect to the legal and philosophical nature of the right to housing. For this purpose, we will use the exegetical method, as it will allow us to interpret the current provisions on the right to housing in the Peruvian and international legal system and to examine the jurisprudence issued by the Constitutional Court; the dogmatic method, as it will contrast different legal and philosophical theories. This analysis will focus on approaching the theory of structuring fundamental rights followed by the non-positivist philosopher Robert Alexy, who defines the meaning of the double dimension of the fundamental right: real and ideal, and its division into rights of protection, of organization and procedure of provision. This position will be contrasted with the theory of the subjective right offered by Ganozzi and Zatti, in order to conclude whether the issuance of a development law is a necessary requirement to guarantee the binding nature of the right to housing. Therefore, the contribution we present here consists of a critical analysis of the philosophical and legal position of the fundamental right to housing assumed by the Peruvian Constitutional Court, contextualized in the situation of vulnerability of the unprotected sectors in terms of the enjoyment of this right, and some reflections leading to establish a starting point in the improvement of the life of Latin American citizens.

Instituciones: Pontificia Universidad Católica del Perú; Universidad Privada Antenor Orrego