Democracia deliberativa y derechos sociales: ¿Qué deben hacer los jueces?

Abstract

Two recent rulings by the City of Buenos Aires High Court of Justice (HCJ)
have taken on added importance for their implications on the subject of social rights.
They are “Asesoría General Tutelar c/ GCBA” (“AGT”) and “Alba Quintana c/ GCBA
y otros s/ amparo”, and the most striking –and potentially controversial– points made
by the judges regard the role of the Judiciary in granting social rights real-world effectiveness.
This writing aims to assess the stance adopted by the HCJ in light of deliberative democracy theory. To that end, the author elaborates on the differences and similarities to
be found between ‘civil and political rights’ (CPR) and ‘economic, social and cultural
rights’ (ESCR); analysis which leads him to examine the paradox of the preconditions of democracy. Ultimately, the writer’s aim is to find a solution to the paradox by means of a
double criterion, thus allowing for a distinction between a priori and a posteriori rights.