Unveiling the meaning of social justice in Colombia
Autor: Pérez-Garzón, Carlos Andrés
Asesor: Prieto Suarez, Edgar (Thesis advisor)
Fecha: 2016-12-02
Programa: Bogotá - Medicina - Especialidad en Anestesiología y Reanimación
Facultad: Facultad de Medicina

Resumen: Abstract.  Through the presentation of a new history of social justice in the global constitutional discourse, this article aims to demonstrate that, despite there is no in Colombia, as in other countries, a constitutional purpose or principle of social justice, the modern notion of justice distributive, also called social justice today, is implicit in the Constitution of 1991 because it enshrined as mandatory rules the three main elements of its meaning in the time in which it was promulgated: the principle of social rule of law, the principle of human dignity and the right to a material equality. Thus, social justice must be understood in Colombia in accordance with those three elements, not the Aristotelian sense of distributive justice, and can be achieved only if they are fulfilled.

1
Unveiling the Meaning of Social Justice in
Colombia
Carlos Andrés Pérez Garzón
Universidad Nacional de Colombia
Facultad de Derecho, Ciencias Políticas y Sociales
Departamento de Derecho
Bogotá D.C., Colombia
20162
Unveiling the Meaning of Social Justice in
Colombia
Develando el significado de justicia social en Colombia
Carlos Andrés Pérez Garzón
Tesis presentada como requisito parcial para optar por el título de:
Abogado Grado de Honor
Director:
Dr. Iur. Bernd Marquardt
Profesor Titular
Línea de investigación:
Justicia Constitucional
Grupo de investigación:
Constitucionalismo Comparado – CC
Publicada como artículo de investigación por:
Mexican Law Review, Vol. X, No. 2, January – June 2018
Universidad Nacional Autónoma de México, UNAM
(El depósito de tesis en el Repositorio Institucional UNAL no implica su publicación,
Artículo 3 de la Resolución 023 de 2015 expedida por la Secretaría General)
Universidad Nacional de Colombia
Facultad de Derecho, Ciencias Políticas y Sociales
Departamento de Derecho
Bogotá D.C., Colombia
20163
Agradecimientos
Agradezco a Dios por haberme dado la oportunidad de haber conocido a personas como Carlos Santiago
Figueroa Londoño, mi mejor amigo, quien, con su atención, paciencia y comentarios críticos durante los
últimos dos años, me brindó un ambiente de discusión sin el cual no podría haber concebido este trabajo;
Fabiola Garzón Zemanate y Carlos Efrén Pérez Zúñiga, mis padres, por el apoyo incondicional en todos
mis proyectos; Bernd Marquardt, mi director de monografía de grado, quien me dio la confianza suficiente
para desempeñarme como su monitor y auxiliar de investigación, actividades que definitivamente
contribuyeron a enriquecer las ideas con las que inicié este proyecto; Carlos Erín Quesada Tovar, quien
me orientó en la estructuración de este trabajo en mis clases de investigación jurídica; Jorge González-
Jácome, quien, en tan sólo un semestre de intercambio en la Universidad de los Andes, me introdujo en
literatura jurídica que cambió radicalmente mi forma de ver el Derecho; Carolina Piracoca Fajardo, Juan
Fernando Romero Tobón y los pares de la Mexican Law Review, quienes hicieron sendos comentarios
sobre la redacción y los argumentos de este texto; y, finalmente, al equipo editorial de la Mexican Law
Review por su permanente colaboración durante el proceso de publicación.4
Contenido
Pág.
I. INTRODUCTION ............................................................................................................................................. 6
II. A SHORT HISTORY OF SOCIAL JUSTICE IN THE GLOBAL CONSTITUTIONAL DISCOURSE .............. 9
a. THE ARISTOTELIAN DISTRIBUTIVE JUSTICE ................................................................................... 9
b. THE EVOLUTION OF DISTRIBUTIVE JUSTICE AS SOCIAL JUSTICE: THE THREE STAGES ...... 11
i. THE FIRST STAGE OF SOCIAL JUSTICE ................................................................................... 11
ii. THE SECOND STAGE OF SOCIAL JUSTICE .............................................................................. 13
iii. THE THIRD STAGE OF SOCIAL JUSTICE .................................................................................. 17
iv. SOCIAL JUSTICE IN GOOGLE NGRAM VIEWER ....................................................................... 19
v. SOCIAL JUSTICE IN LATIN AMERICAN CONSTITUTIONS ....................................................... 24
III. SOCIAL JUSTICE IN THE COLOMBIAN CONSTITUTIONAL DISCOURSE ............................................. 25
a. SOCIAL JUSTICE IN THE CONSTITUTION OF 1991 ........................................................................ 25
i. THE PRINCIPLE OF SOCIAL RULE OF LAW .............................................................................. 25
ii. THE PRINCIPLE OF HUMAN DIGNITY ........................................................................................ 26
iii. THE RIGHT TO MATERIAL EQUALITY ....................................................................................... 27
b. UNVEILING THE CONSTITUTIONAL MEANING OF SOCIAL JUSTICE ........................................... 27
c. THE EXCEPTIONAL PRESENCE OF THE ARISTOTELIAN DISTRIBUTIVE JUSTICE ................... 29
d. ACHIEVING SOCIAL JUSTICE THROUGH LAW ............................................................................... 35
IV. CONCLUSION ............................................................................................................................................... 37
.5
ABSTRACT
Through the presentation of a new history of social justice in the global constitutional discourse, this article aims to
demonstrate that, despite there is no in Colombia, as in other countries, a constitutional purpose or principle of
social justice, the modern notion of justice distributive, also called social justice today, is implicit in the Constitution
of 1991 because it enshrined as mandatory rules the three main elements of its meaning in the time in which it was
promulgated: the principle of social rule of law, the principle of human dignity and the right to a material equality.
Thus, social justice must be understood in Colombia in accordance with those three elements, not the Aristotelian
sense of distributive justice, and can be achieved only if they are fulfilled.
Keywords: distributive justice, social justice, human dignity, merit, material equality, affirmative actions
RESUMEN
Mediante la presentación de una nueva historia de la justicia social en el discurso constitucional global, este artículo
pretende demostrar que, a pesar de no existir en Colombia, así como en otros países, un valor o principio
constitucional de justicia social, la noción moderna de justicia distributiva, también llamada hoy justicia social, se
encuentra implícita en la Constitución de 1991 porque esta consagró como normas obligatorias los tres elementos
principales de su significado en el tiempo en el que fue promulgada: el principio de Estado Social de Derecho, el
principio de dignidad humana y el derecho a una igualdad material. Así pues, la justicia social debe entenderse en
Colombia a partir de esos tres elementos, no según el sentido aristotélico de justicia distributiva, y sólo puede ser
alcanzada si ellos se cumplen.
Palabras clave: justicia distributiva, justicia social, dignidad humana, merecimiento, igualdad material, acciones
afirmativas6
I. INTRODUCTION1
It is not an easy issue to define what distributive justice is. In fact, if someone wants to write about it, it is very
important to establish first what will be understood by so, what author or school of thought will be followed, etc., in
order to make clear to the reader what the writer means by that. According to United Statian professor of philosophy
Samuel Fleischacker,2 distributive justice has been understood in two senses throughout the history of the tradition
of political philosophy based on the ancient Greek thought: the Aristotelian and the modern sense. In general terms,
the first one refers to giving everyone what they deserve according to their merits and the telos or purpose of the
thing to be allocated,3 while the second one, the object of this research article and also called “social justice” today,4
refers to a duty of the State to guarantee everyone in society a certain level of means to satisfy their needs.5
On November 26th, 2007, the United Nations (UN) established the World Social Justice Day which is celebrated on
February 20th every year.6 By doing so, the UN noticed that social justice is one of the most important issues that
it has to promote in order to achieve its original purpose of preserving peace and security in the world. Certainly,
social justice is a very omnipresent and controversial issue both in politics and the Law today. In politics, for
example, the highest chief of FARC-EP guerrilla, Rodrigo Londoño, alias Timochenko, once he heard of president
Juan Manuel Santos’ nomination to the Peace Nobel Prize, said that the only prize his guerrilla wanted was peace
with social justice.7 Now, in the legal arena, there are nearly seventy constitutions around the world that enshrine
the expression “social justice” -despite the different cultures and backgrounds- as a purpose or principle of the State
itself.8
1 To cite this paper, please go online to the Mexican Law Review, Volume X, Number 2, January-June 2018.
2 SAMUEL FLEISCHACKER, A SHORT HISTORY OF DISTRIBUTIVE JUSTICE (Cambridge: Harvard University Press, 2012)
[FLEISCHACKER, A SHORT].
3 Id. at 5.
4 However, it is worth noting that there is no consensus about how social justice should be understood, what its
origin is, and how it came to be a synonym for distributive justice; those issues will be addressed in this paper.
5 FLEISCHACKER, A SHORT, supra note 2 at 4.
6 G.A. Res. 62/10, U.N. Doc. A/RES/62/10 (Nov. 26, 2007).
7 El Espectador, “”El único premio al que aspiramos es el de la paz con justicia social”: Timochenko””, (Oct. 7,
2016), https://goo.gl/G2zqiM. Despite the historical evolution of the expression, it is still paradoxical that, following
the example above, a Marxist guerrilla uses that expression to describe the goal of its “revolutionary plan”, although
the term has strong roots in the social discourse of the Catholic Church (Catholic social teaching).
8 Countries whose current constitutions enshrine the expression “distributive justice”: Philippines, 1987. Countries
whose current constitutions enshrine the expression “social justice”: Afghanistan, 2004; Albania, 1998; Algeria,
1989; Angola, 2010; Antigua and Bermuda, 1981; Argentina, 1853; Armenia, 1995; Bahrain, 2002; Bangladesh,
1972; Belize, 1981; Bhutan, 2008; Bolivia, 2009; Brazil, 1998; Burundi, 2005; Costa Rica, 1949; Croatia, 1991;
Cuba 1976; Dominica, 1978; Dominican Republic, 2015; Ecuador, 2008; Egypt, 2014; El Salvador, 1983; Equatorial
Guinea, 1991; Eritrea, 1997; Gabon, 1991; Guatemala, 1985; Guinea-Bissau, 1984; Guyana, 1980; Honduras,
1982; India, 1949; Indonesia, 1945; Iraq, 2005; Ireland, 1937; Jordan, 1952; Kenya, 2010; Kosovo, 2008; Kuwait,
1962; Kyrgyzstan, 2010; Lebanon, 1926; Liberia, 1986; Macedonia, 1991; Montenegro, 2007; Morocco, 2011;
Mozambique, 2004; Nepal, 2015; Niger, 2010; Nigeria, 1999; Pakistan, 1973; Panama, 1972; Paraguay, 1992;
Philippines, 1987; Poland, 1997; Portugal, 1976; Qatar, 2003; Rwanda, 2003; Saint Lucia, 1978; Saint Vincent and
the Grenadines, 1979; Sao Tome and Principe, 1975; Serbia, 2006; Sierra Leone, 1991; Solomon Islands, 1978;
Somalia, 2012; South Africa, 1996; South Sudan, 2011; Sudan, 2005; Suriname, 1987; Syrian Arab Republic, 2012;
Timor-Leste, 2002; Trinidad and Tobago, 1976; Tunisia, 2014; Turkey, 1982; Uganda, 1995; United Arab Emirates,
1971; United Republic of Tanzania, 1977; Uzbekistan, 1992; Venezuela, 1999; and Zimbabwe, 2013. Notice that
the enactment date doesn’t always correspond to the year in which the expression was added to the Constitutions,
for example, by an amendment. See Constitute, https://goo.gl/9YFqxR7
In Colombia, even though the Political Constitution of 1991 doesn’t explicitly enshrine the expressions “social
justice” or “distributive justice” as a purpose or principle of the State, it is to be highlighted that the Constitutional
Court, its main and ultimate interpreter and a world-renowned institution because of its active protection of social
rights in the last two decades, has applied those expressions in its judgments since its foundation in 1992. Actually,
in a very famous judgment in 1992, the Court mentions social or distributive justice as a matter of allocation of
means with the aim of guaranteeing social rights in the new Social Rule of Law.9 Nevertheless, the year after, and
due to a Justice known for his Aristotelian-Thomist ideology, the Court issued a judgment in which distributive justice
was interpreted and applied according to its Aristotelian or ancient sense, and, furthermore, it assigned to it a
corrective function in the sense that distributive justice also allocates punishments, which, as will be explained later,
is against the principles of Social Rule of Law and human dignity, and the right to material equality, enshrined by
the Constitution.10
Now, what is important to notice, firstly, is not so much why the Court has applied an old-fashioned and
unconstitutional notion of distributive justice,11 but to notice that, even though there is no mandatory rule in the
Constitution that enshrines social or distributive justice as a purpose or principle of the State, the Court has
continuously described it as a purpose of the State itself in its judgments since 1992.12 At least three questions arise
from this fact: is it permissible for a Court, the Congress or the executive to appeal to an extra-systemic purpose or
principle when drafting, for example, a judgment, an act, a decree, etc.? Is social justice just an expression that
Colombian legal practitioners, judges, and legal scholars should not take into account? And, can it be freely
interpreted and applied both in the Aristotelian or a modern sense without contradicting the Constitution?
In this article, the author will try to support the argument that, even though it is not a purpose or principle enshrined
by the Constitution, the modern notion of distributive justice or “social justice”,13 and not the ancient one, is an
implicit idea in the Constitution, because the latter enshrined the three main elements of such a modern notion, i.e.,
the principles of Social Rule of Law and human dignity, and the right to material equality, which were available in
the global constitutional discourse of the years in which the Constitution was promulgated.14 So, the expressions
9 Corte Constitucional [C.C.] [Constitutional Court], Judgment T-406 of 1992. As Fleischacker would have said, the
Court applied the modern sense of distributive justice.
10 Corte Constitucional [C.C.] [Constitutional Court], Judgment C-171 of 1993.
11 Changes in the definition of a very ambiguous expression through the years is justifiable because of the nature
of a collegiate body.
12 Although hundreds of them can be found, see, e.g., some current uses of the expression “distributive justice” in
this sense: Corte Constitucional [C.C.] [Constitutional Court], Judgment T-014 of 2016; Corte Constitucional [C.C.]
[Constitutional Court], Judgment C-027 of 2016; and some uses of the expression “social justice” throughout two
decades in this sense too: Corte Constitucional [C.C.] [Constitutional Court], Judgment T-476 of 1998; Corte
Constitucional [C.C.] [Constitutional Court], Judgment T-177 of 1999; Corte Constitucional [C.C.] [Constitutional
Court], Judgment C-063 of 2008; Corte Constitucional [C.C.] [Constitutional Court], Judgment T-891 of 2013; Corte
Constitucional [C.C.] [Constitutional Court], Judgment T-395 of 2016.
13 The author follows the current trend of equating these two expressions in meaning.
14 Now, by constitutional discourse, the author refers to a system of thoughts, beliefs, and knowledges about the
constitutional law that are shared by the agents of the constitutional field, i.e., judges, practitioners, and legal
scholars, a system that also includes the rules that make up the constitutional law itself, e.g., the constitution, the
ratio decidendi of certain judgments on the constitutionality of a rule, etc. Comp. MICHAEL FOUCAULT, THE
ARCHEOLOGY OF KNOWLEDGE (New York: Pantheon, 1972).8
social justice or distributive justice can be used in the national constitutional discourse,15 but by following the
principles and the right above, i.e., it ought to be understood, at least, as a duty of the State to guarantee a certain
minimum means, based on human dignity and a different treatment in benefit of the poorest as well as the
discriminated, vulnerable, and marginalized people in society. Finally, the proposed meaning can be proved by the
fact that, if the ancient or Aristotelian interpretation of distributive or social justice is followed in the constitutional
discourse, e.g., in a judgment, it would disregard, even violate, the two principles and the right mentioned above.
So, the general objective of this research is to demonstrate that, even though there is no purpose or principle of
social justice in the Colombian Constitution of 1991, social justice is implicit in it and can be achieved by
guaranteeing the principles of Social Rule of Law and human dignity, and the right to material equality. The first
specific objective -without exhaustivity pretensions- is to contribute to clarify the meaning of the expression “social
justice” today in the global constitutional discourse, by presenting new evidence about its origin, historical evolution,
and relation with the principles of Social Rule of Law and human dignity, and the right to material equality, which
are, in fact, the three legal tools of the State to materialize social justice. The second one is to show that, by
enshrining the two principles and the right mentioned above, social justice has become implicit in the Constitution
of 1991 and can be used in the Colombian constitutional discourse if it is only understood according to those rules
and not to the Aristotelian sense of distributive justice. Finally, the third specific objective is to prove that the
achievement of social justice in the Colombian State is possible and requires, essentially, the fulfilment of the
principles of Social Rule of Law and human dignity, and the right to material equality, which are mandatory rules to
the branches of power and the civil society. So, the justification for this research article is evident, because the
clarification of that expression can guide the agents of the legal field, mainly in Colombia, but also in the world, on
how to understand social justice in order to have the tools to materialize it through Law.16
Now, in the first chapter, by following the methodology proposed by the Socio-cultural and Transnational School of
Legal History which proposes that a legal institution (e.g., the Social Rule of Law, human dignity, material equality,
distributive justice or social justice, etc.) should be contextualized according to "(...) its preconditions and effects on
a concrete society and culture, under a transnational and comparative view,”17 an attempt will be made to construct
a historical overview of the evolution of the modern notion of distributive or social justice in the comparative
constitutional discourse. In the second chapter, it will be shown i) that the main elements of the modern notion of
distributive or social justice presented above were enshrined by the current Colombian Constitution in 1991, ii) how
a Colombian constitutional meaning of social justice would be like, iii) how the application of an Aristotelian meaning
of distributive or social justice in the constitutional discourse would disregard and even violate mandatory principles
15 For example, in a judgment or even in an amendment to the Constitution, but also in an act, decree, a scholarly
paper or a book, etc.
16 Although arguably, for the author, social justice cannot be achieved if nobody knows what it is or, at least, what
its essential elements are. Now, for the author, the very knowledge that social justice can be realized by the
application of the principles of Social Rule of Law and human dignity and the right to material equality, is a legal
tool by itself (e.g., for a judge, the legislator, or a policy maker), but also the especial lawsuits that protect those
principles and right and prevent their violation, for example: lawsuits demanding to declare unconstitutional an act
or the immediate protection of the fundamental right.
17 BERND MARQUARDT, HISTORIA CONSTITUCIONAL COMPARADA DE IBEROAMÉRICA 22 (Bogotá: Grupo Editorial Ibáñez,
2016).9
and rights, and iii) some examples on how distributive or social justice can be achieved by applying such meaning
in the national constitutional discourse. Finally, as a summary of the two chapters and a reflection, a brief conclusion
will be drawn.
II. A SHORT HISTORY OF SOCIAL JUSTICE IN THE GLOBAL CONSTITUTIONAL DISCOURSE
a. THE ARISTOTELIAN DISTRIBUTIVE JUSTICE
In his book Nicomachean Ethics, Aristotle distinguishes two notions of justice: the first one called "universal justice",
which includes all the virtues, and a second one called "particular justice", which belongs to the world of politics and
judicial decisions; within the latter notion, Aristotle presents two subtypes: corrective justice and distributive justice.18
The first one refers to the elimination of the benefits and losses produced by a situation of inequality in voluntary or
involuntary interactions, in order to restore equality between the parties of these interactions; over time, this type of
justice was more commonly known as commutative justice, a name that derived from the Latin expression used by
Thomas Aquinas "justitia commutativa", in which "commutare" means "to exchange"19. The second type of particular
justice says that political offices and property must be awarded according to merit; here, Aristotle points out: "(...)
all men agree that what is fair in distribution must be according to merit in some sense."20 However, the
understanding of this distinction has not been peaceful throughout the centuries and has been permeated by the
context from which Aristotle has been read.21
Thus, equality in corrective justice imposes a rectification of the inequality caused within a voluntary or involuntary
interaction, regardless of merit, for example: when a judge sentences someone to prison for homicide, he does not
consider whether the condemned man deserves the punishment because he was a bad man, or if he does not
deserve it because, in spite of everything, he was a good man. Therefore, Aristotle clarifies that "(...) it makes no
difference whether a good man has defrauded a bad man or a bad man a good man, (...) the law looks only to the
distinctive character of the injury."22
In distributive justice, equality is achieved through the sharing of common assets (e.g, property or political positions)
available in a society ruled by the same constitution, according to the merit of the person to whom such assets will
be awarded; justice requires that those assets be proportional to the merit of the individual to whom they are to be
awarded. For this reason, it is unfair to treat the "unequal in merit" as "equal in merit", giving them equal assets.23
If merit is the basis for doing such a distribution, then: what is merit? Aristotle does not give a definition of merit. In
fact, he notes that people may disagree on the meaning of merit in distributive justice and does not take sides in
18 ARISTOTLE, THE NICHOMACHEAN ETHICS 1129a1-1132b20 (Oxford: Oxford University Press, 2009)
[ARISTOTLE, N.E.].
19 IZHAK ENGLARD, CORRECTIVE AND DISTRIBUTIVE JUSTICE: FROM ARISTOTLE TO MODERN TIMES 7, 17 (Oxford: Oxford
University Press, 2009).
20 ARISTOTLE, N.E., supra note 18 at 1131a25.
21 ALLAN BEEVER, FORGOTTEN JUSTICE: FORMS OF JUSTICE IN THE HISTORY OF LEGAL AND POLITICAL THEORY 68-70
(Oxford: Oxford University Press, 2013) [BEEVER, FORGOTTEN]; FRED MILLER, NATURE, JUSTICE, AND RIGHTS IN
ARISTOTLE’S POLITICS 71-74 (Oxford: Oxford University Press, 1995).
22 ARISTOTLE, N.E., supra note 18 at 1132a.
23 ARISTOTLE, N.E., supra note 18 at 1131a20.10
the debate expressly.24 Nevertheless, it can be said that, in general, merit constitutes a measure of the
accomplishment of certain requirements that make a person be part in distributive justice.25
Aristotle argues that the concept of merit depends on the type of political regime that a community has. Thus, in an
oligarchy, wealthy or noble birth are the basis to make the distribution of the benefits: whoever had more wealth
and a better rank deserved to receive a better public office than that who did not have them at all; in an aristocracy,
aristocrats would insist on a distribution according to excellence; finally, in a democracy, they would say that
distribution should be based on freedom, that is, a free citizen would have certain benefits that a slave would not
have.26
According to Aristotle, once the meaning of merit has been given, it will be possible to allocate the benefits in a
political community, a distribution that will take into account the relevant merit to the thing to be allocated.27 For
Aristotle, if there is a flute to be allocated, it should not be given to those who were born in a wealthy or noble family,
but to the person who can better play the flute, because that is the person who can better fulfill the purpose for
which the flute was designed, i.e., being well played to produce the best music.28
In this way, a reasonable answer to the question about the meaning of merit for Aristotle is that it is the virtue or
excellence relevant to the thing to be allocated (virtue or excellence understood as the ability to fulfill the telos or
purpose of the thing). Despite that, this answer is arguable if it is taken into account that there is no consensus
about the meaning of merit for Aristotle because he never defined it. At least in the distribution of the flutes, the
conclusion would seem to work, but if hypothetically a slave or a stranger had more virtues with respect to a political
office, would they deserve the flute? The answer in this case would be negative because, although excellence is
the most important part of the meaning of merit in distributive justice, Aristotle says that political virtue (the exercised
virtue in political life) cannot be exercised if it is not supported by external means; thus, without freedom and wealth,
a slave or stranger could not hold a public office. Merit, in the ideal political regime for Aristotle (the aristocracy),
would take into account the virtue complemented with freedom and wealth.29
Finally, if equality in Aristotelian distributive justice is based on the proportionality between the merit of a person
and the purpose or telos of the thing to be adjudicated to her, then, how would the Aristotelian distributive justice
deal with the socio-economic inequalities that are discussed by modern theories of justice? Of course, a logical
consequence of the Aristotelian distributive justice is that it could only remain immobile before these the claims of
material equality: socio-economic inequalities would be justified because the only thing that matters to Aristotelian
distributive justice is that the rule of distribution according to merit is not affected.30 Thus, neither the rich are called
to share their wealth with the poor nor the State is called upon to make distributive policies on wealth: the rich have
wealth because they have worked hard to obtain or preserve it (if it has been inherited) and have been prudent in
24 ARISTOTLE, N.E., supra note 18 at 1131a25.
25 John Hill, A Theory of Merit, 1 GEO. J.L. & PUB. POL'Y 19 (2002).
26 ARISTOTLE, N.E., supra note 18 at 1131a25; Rosen, 1975, pp. 234-236
27 MICHAEL SANDEL, JUSTICE: WHAT'S THE RIGHT THING TO DO? 186-188 (New York: Farrar, Strauss and Giroux, 2010).
28 ARISTOTLE, POLITICS 1282b14 (Oxford: Oxford University Press, 2009) [ARISTOTLE, P.].
29 David Keyt, Aristotle´s theory of distributive justice, in A COMPANION TO ARISTOTLE’S POLITICS 259 (David Keyt, &
Fred Miller eds., Oxford: Blackwell, 1991).
30 Eric Engle, Aristotle, law and justice: the tragic hero, 35 N. KY. L. REV., n.° 1, 2, 10–12 (2008).11
their investments; in addition, such inequalities would be naturally justified because of, e.g., the race, the education
level, or wrong decisions.31 In short, social inequities are the product of the difference in excellence to deserve the
means that the wealthy possess; the purpose of distributive justice is not to satisfy the needs of the poorest,
vulnerable, or marginalized people of society, but to give everyone what they deserve according to their excellence
with respect to the thing to be allocated.
b. THE EVOLUTION OF DISTRIBUTIVE JUSTICE AS SOCIAL JUSTICE: THE THREE STAGES
i. THE FIRST STAGE OF SOCIAL JUSTICE
In the first stage, which extends to the beginning of the 20th century, the expression "social justice" was born in
Europe at some point in the Old Regime, and was used to refer to "the justice of society", that is, to the justice that
were to regulate the relations between the individuals that compose society, and did not denote any relation with
the idea of obligatory minimum means, human dignity, or material equality, because, in that aristocratic and
hierarchical society, although the concern that the poor also needed some means to survive was not ignored,
Christian morality argued that the division between the rich and the poor was a natural distinction created by God
and any donation to the poor to alleviate their suffering was an issue of Christian charity (form caritas, Latin word
for “love”) rather than justice, which was either corrective or distributive in an Aristotelian sense.32 Some references
to the use of the expression according to the context of this period can be found in articles of journals published
with the mission of spreading the spirit of the Enlightenment, in which, for example, they refer to social justice as
an obligation of the monarch,33 and in works by Catholic theologians.34
According to Fleischacker,35 at least in Philosophy, it was not until Adam Smith and his book "The Wealth of Nations"
of 1776,36 that this conception of the poor, as those condemned to be poor on Earth and to be hierarchically inferior
and disdained by their behavior, began to be changed because Smith suggested a change of attitude towards the
poor by saying that they also possess the same intellectual capacities, virtues, and ambitions like any human being.
By the early 1790s, claims of equality in aspects such as the right to work and education, came to constitutionalism,
particularly in the Constitution of France of 1793,37 and, although, like many others, François Babeuf, for example,
was already talking about a natural right to an equal enjoyment of wealth,38 there is no evidence that the term
"distributive justice" or "social justice" has been used in this sense.
31 Id.
32 FLEISCHACKER, A SHORT, supra note 2 at 17-52.
33 PIERRE ROUSSEAU, VIII JOURNAL ENCYCLOPÉDIQUE OU UNIVERSEL 311 (1774), https://goo.gl/azD0O3; JEAN-
JACQUES TUTOT, L'ESPRIT DES JOURNAUX FRANÇOIS ET ÉTRANGERS PAR UNE SOCIÉTÉ DE GENS-DE-LETTRES. DECEMBRE.
131-133 (1784), https://goo.gl/QgwBr4
34 GIANVINCENZO BOLGENI, L'EPISCOPATO OSSIA DELLA POTESTÀ DI GOVERNAR LA CHIESA 349 (1789),
https://goo.gl/TZR3jz
35 FLEISCHACKER, A SHORT, supra note 2 at 62-68.
36 ADAM SMITH, 1 AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 96 (Oxford: Oxford University
Press, 1979).
37 Constitution de l’an I [French Constitution of Year I], 1793.
38 FLEISCHACKER, A SHORT, supra note 2 at 75-79.12
Traditionally, it has been pointed out that the expression "social justice" was coined in the mid-nineteenth century
by the Jesuit priest Luigi Taparelli D'Azeglio;39 however, as seen, the use of the expression is older. For Taparelli,
social justice is justice “between a man and another man”, which demands that, as equal members of the species
created by God (both are equal in humanity), they must be equal in rights even though, in respect to their
individuality, they are different by nature (e.g., some are more intelligent, others are stronger, etc.).40 Taparelli says
that social justice is divided into commutative and distributive justice: the first one balances the quantity of assets
to which someone has a right to in a private relation (e.g., if someone acquires an asset, she has to pay for it; the
right must be satisfied with something equivalent), while the second one balances the proportion in the distribution
of the common good (e.g., an office in government must be assigned to the most skilled person, not to anyone).41
So, it is not true that Taparelli did coin the modern sense of the term “social justice” because his definition of social
justice followed the typical features of this stage: social justice is the “justice of society”, which is understood in an
Aristotelian sense and, by consequence, divided into corrective (or commutative, according to Thomas Aquinas)
and distributive justice.42 In the same way, in the Anglo-Saxon world, John Stuart Mill used the expression "social
and distributive justice" in his essay "Utilitarianism"; however, as Taparelli did, that expression was understood in
an Aristotelian sense.43
However, as United Statian professor Thomas Burke clarifies,44 it was Taparelli’s conception about morality in the
economy which equivocally transcended as Taparelli’s concept of social justice and influenced the way that
expression should be understood later. Taparelli’s economic doctrine suggested a confrontation between the
economic liberalism and the ideal or catholic economy, which is the one he prefers; in the first place, he considered
that the individualism of the former condemned society to a permanent war (e.g., producers against producers and
buyers), leading to demands for redistribution and communism; second, the ideal economy was preferable because
it was based on the presumption of society as a community, founded on respect for the person and charity, and
where, as an accomplishment of the latter, the rich (not the State) were responsible for providing the poor with the
goods they needed to survive; thus, the role of the State was to protect the social order both from the cruelty of the
powerful (e.g., big industrialists) against the poor, and also from the communism promoted by the poor which rose
up against the powerful.45 Thus, in general terms, it can be said that the roots of the meaning of social justice that
eventually became globalized can be found mainly in the doctrines of a conservative Catholic political sector that
39 Thomas Burke, The origins of social justice: Taparelli d'Azeglio, 52 MODERN AGE. A QUATERLY REVIEW, n.° 2, 97-
106 (2010) [Burke, The origins].
40 LUIGI TAPARELLI, SAGGIO TEORETICO DI DRITTO NATURALE APPOGGIATO SUL FATTO 144, 145 (Livorno: Vincenzo Mansi,
2.ª ed., 1979) [Taparelli, Saggio]; comp. Burke, The Origins, supra note 39 at 101-103.
41 Taparelli, Saggio, supra note 40 at 145, 146; comp. Burke, The Origins, id.
42 Previously, in a footnote on page 143 of his book, when he tries to define “Law”, Taparelli says that he prefers to
use the expression “Social Law” rather than “Law” because the expression “social” shows the essential distinction
of Law: it is something which is between a man and another man or between “associated intelligences”. So, it is
possible to imagine that the reason why Taparelli used the expression “social Law” is the same to that why he used
the expression “social justice”, i.e., because justice is also a relation between a man and another one or “between
associated intelligences”.
43 JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS 198 (Oxford: Oxford University Press, 2008).
44 Burke, The origins, supra note at 105.
45 Id. at 103-106.13
was against the individualist laissez-faire of the capitalist Industrial Revolution and against the radical communist
demands for a greater economic equality, especially for the benefit of the poorest sectors of society.
ii. THE SECOND STAGE OF SOCIAL JUSTICE
This “Taparelli’s meaning” of social justice evolved in such a way that became a third way to liberalism and
communism, according to which a qualified type of poor (workers) should have the right to some minimum means
to be able to exercise their labor without the abuse of their ambitious employers and to minimum conditions of life
to develop themselves as persons; now, this is the second stage of social justice, which extends from the first
decade of the twentieth century to the middle of the same century approximately.46 Some fundamental documents
to understand this transit towards the transnational consolidation of social justice as "an obligation of the State and
also of the employers, to provide some minimum means so that workers can live with dignity" are:47 political scientist
Westel Woodbury Willoughby’s book, Social Justice: A Critical Essay, which says that the problem of social justice
is both “the proper distribution of economic goods (…) and the harmonizing of the principles of liberty and law, of
freedom and coercion,” and that is the first verifiable definition of social justice which expressly relates it to the
distribution of assets; 48 the preamble of the Constitution of the International Labor Organization in 1919 (the first
establishment of that expression in a legal document in world history);49 the encyclical "Quadragesimo anno" by
Pius XI (named because of the forty years of "Rerum novarum"),50 written by a pupil of one of Taparelli’s pupils,51
46 According to Leo W. Shields, social justice was a new word for an old type of justice, legal justice, which was
defined by Thomas Aquinas as the justice that regulates the actions of the parts of a community towards the
achievement of the common good. So, there were at least two main meanings of the word “social justice” in this
interregnum between the first two stages: the one that assimilated social justice with legal justice, i.e., named an
old idea with a new word (for example, American legal scholar Roscoe Pound used it in this sense); and the other
one who mixed it with distributive justice and was the most widespread meaning eventually. LEO W. SHIELDS, THE
HISTORY AND MEANING OF THE TERM SOCIAL JUSTICE (1941) (doctoral dissertation, University of Notre Dame). Following
Shields, the author of the present article argues that, with the ascent of the “social question” in political, economic,
and legal discourses, the expression “legal justice” was slowly replaced by a “social justice” because the inclusion
of the adjective “social” would seem to reflect the same issues that had been proposed to address the “social
question”. In this sense, social justice and not the old-fashioned “legal justice” would more precisely denote to the
readers that justice required that all parts of society, because of their interdependence, guided their actions with the
aim of achieving the common good, not only that good of the industrialists, for example. So, it was logical to pass
to the domain of distributive justice, because the achievement of that common good could only be possible if the
sick part of society in that moment, the oppressed workers, was shared the industrialists’ profits through their
distribution by the State, so that the whole society recovered its health and achieved the common good.
47 It is curious that the encyclical Rerum novarum by Pope Leo XIII, which has been traditionally mentioned as the
starting point of the “Catholic social teaching”, doesn’t have the expression “social justice”, even though it was
drafted by one of Taparelli’s pupil, according to Burke (supra note 85 at 106): Leo XIII, Rerum novarum, 1891.
48 W. W. WILLOUGHBY, SOCIAL JUSTICE. A CRITICAL ESSAY 11 (New York: Macmillan, 1900). According to Leo Shields,
Willoughby is an example of the use of “social justice” in similar meaning as that of distributive justice. Now, for the
author, a research is needed on how the expression “social justice” spread out throughout the world in the first
stage, for example, from Europe to the United States of America and Latin America, and its influence, for example,
on the beginning of social movements, the creation of public policy, researches in Economy, Political Science, etc.,
inspired by this expression.
49 World Labor Organization, Constitution of the World Labor Organization, 1919. It is not clear what sense of social
justice this document is based on (legal or distributive justice); nevertheless, whatever it be, both have in common
the compromise to improve the health of the sick part of society in the time (the workers) to achieve the health of
the whole society, as explained above.
50 Pius XI, Quadragesimo Anno, 1931.
51 Burke, The origins, supra note 39 at 106.14
in which the Catholic Church officially incorporates social justice into its "social teaching" by saying that it is an
institution which orders, for example, that workers' wages must satisfy the needs of their families, including
education, and that they cannot be diminished in order to increase the wealth of the employers, because social
justice condemns the excessive accumulation of individualist capitalism; and finally, the encyclical "Divini
redemptoris" also by Pius XI,52 according to which social justice, from whose rules no one can escape from,
demands that, for society to function, all members of society, endowed with the dignity of the human person, must
have all the means to be able to fulfill their particular social function, just as the parts of an organism are
interdependent and they need theirs so that they can give life to it; this way, the notion of social justice starts to be
linked to human dignity explicitly and continues its path to become a constitutional and international rule as
explained by Samuel Moyn below. Also, this was the context in which the principle of Social Rule of Law was born
as explained below too.
In the constitutional domain, the Constitution of Ireland became the first one to enshrine the expression “social
justice” by stating that the exercise of the natural right to private property “(…) ought, in civil society, to be regulated
by the principles of social justice”.53 The next one was the Constitution of Costa Rica in 1949 which, by following
the typical Christian sense of the term in the second stage, enshrined social justice as a principle of social rights
like work and family.54 Finally, the preamble of the Constitution of India in 1949 enshrined social justice, together
with economic and political justice, as a purpose of the State itself; now, this is an example of the diffusion of the
expression “social justice” beyond the explicit influence of Catholic tradition of thought in constitutional law; so,
further research is encouraged to unveil the origin of “social justice” in the Indian Constitution.55
Now, as suggested before, it is necessary to make some precisions about two transcendental concepts in
contemporary constitutional law, which, as seen, are linked to the emergence of social justice in the world and that
would eventually become the legal tools through which the State will try to materialize social justice itself: the
principle of Social Rule of Law and the principle of human dignity.
1. THE PRINCIPLE OF SOCIAL RULE OF LAW
The Social Rule of Law is a legal institution that arose as a result of several reactions against the classical legal
thought of the late eighteenth century, which spread to Europe, America, and other parts of the world during the
nineteenth century and conceived the Law (and the State) as an individualistic system, a consequence of a "socio-
Newtonian" conception of society.56 Because of the deepening of the effects of the Industrial Revolution, there was
a need to respond to phenomena such as the exploitation of workers, the growth of misery, and health problems in
the cities, etc.; thus, at the end of the nineteenth century, the social question arises as a concern to solve the
problems attributed to that individualist perspective of society, which also ignored the interdependence among all
52 Pius XI, Quadragesimo Anno, 1931.
53 Bunreacht na hÉireann [Constitution of Ireland], 1937, art. 43.
54 Constitución de Costa Rica, 1949, as originally published, art. 74.
55 Consitution of India, 1949, preamble.
56 BERND MARQUARDT, 4 HISTORIA MUNDIAL DEL ESTADO 25 (Bogotá: ECOE Ediciones, 2014) [MARQUARDT, HISTORIA].15
of the components of society.57 Then, a labor and social security legislation emerged with ideas such as social
function of property, among other aspects, that marked the beginning of a State committed to two purposes: the
preservation of the Rule of Law and its liberal and capitalist values, as opposed to the communists’ pretensions,
and, second, the establishment of certain minimum means for people to exercise their rights of the first generation
(i.e. civil and political rights), in order to prevent communist popular uprisings.
In spite of these advances, which can first be verified in the Constitution of Mexico and, later, in the Constitution of
Weimar,58 the principle of Social Rule of Law was not expressly enshrined at a constitutional level but after the
promulgation of the Constitution of France of 1946,59 the Constitution of the State of Bavaria of 1946,60 and the
German Basic Law,61 and, in Colombia, in Article 1 of the Constitution that includes the progress made in social
rights by the constitutional amendment of 1936 to the former Constitution.62 It is worth pointing out that the use of
the expression "Social Rule of Law" (Sozialstaat in German), although not used at the beginning to denote all the
characteristics that today are attributed to the Social Rule of Law, was popularized in Germany after World War I
by the social-democrat legal scholar Hermann Heller,63 although its theoretical background may be found in
previous works by Lorenz von Stein almost a century earlier.64 By contrast, in the Anglo-Saxon world, there is no
such principle of Social Rule of Law in the constitutional discourse and that cannot be assimilated with the Welfare
State, a set of economic measures undertaken by the federal government of the United States to overcome the
Great Depression of 1929 through the State intervention in the national economy. Summarizing, it can be said that
a Social Rule of Law is a Rule of Law in which social rights are enshrined as a complement to civil and political
rights, and whose purposes are to preserve the liberal values of the Enlightenment revolutions and to ensure some
minimum material means for the exercise of civil and political rights.
2. THE PRINCIPLE OF HUMAN DIGNITY
The expression "dignity", in Latin "dignitas", was used by the Romans to denote the social status of someone in life
and the honor conferred by that status. At least two traditions with a different sense of human dignity can be
mentioned in European philosophy: the Catholic and the Kantian ones. According to the former, starting from
Thomas Aquinas, this expression was used as the intrinsic value of something (not only the human person, at least
until 1937 because of the encyclical Divini Redemptoris by Pius XI)65 with respect to its place in the hierarchy of
God's creation; for example, women and animals would have a lesser intrinsic value than a Catholic man, and even
57 DUNCAN KENNEDY, TRES GLOBALIZACIONES DEL DERECHO Y DEL PENSAMIENTO JURÍDICO 55-68 (Bogotá: Universidad
Externado de Colombia, 2015).
58 Constitución Política de los Estados Unidos Mexicanos [Const. Mex.], as originally published, Diario Oficial de la
Federación [D.O.], 5 de Febrero de 1917 (Mex.), arts. 27, 123; Die Verfassung des Deutschen Reichs [Constitution
of the German Empire], 1919 (Germ. Emp.).
59 Constitution du 27 octobre 1946, IVe République [Constitution of French 4th Republic], 1946 (Fr.), art. 1.
60 Verfassung des Freistaates Bayern [Constitution of Bayern], 1946 (Bay.), art. 3.
61 Grundgesetz für die Bundesrepublik Deutschland [Constitution of Federal Germany], 1949 [Ger.], art. 20.
62 Congreso de la República de Colombia [Congress of Colombia], Acto legislativo número 1 de 1936 [Amendment
Act n.° 1 of 1936].
63 HERMANN HELLER, ESCRITOS POLÍTICOS 283-301 (Madrid: Alianza Editorial, 1985).
64 KENNETH DYSON, THE STATE TRADITION IN WESTERN EUROPE 21 (Colchester: ECPR Press, 2009).
65 Pius XI, Divini redemptoris, 1937.16
the Catholic sacraments would have a greater dignity.66 In the second one, starting from Immanuel Kant, in
Philosophy, dignity (Würde in German) began to be understood as the intrinsic value of every human being, because
they have autonomy (a moral law given by their own), which prevents their instrumentalization by anyone.67 Now,
two theories on the first constitutionalization of the expression “human dignity” can be mentioned: those of German
scholar Bernd Marquardt and United Statian scholar Samuel Moyn.
According to Marquardt,68 the first modern constitutionalization of human dignity is found in the Bavarian
Constitution of 1946,69 where it was mentioned as one of the elements that did not take into account the former
Nazi State and as an inviolable obligation of the State; in addition, Marquardt says that this constitution took up the
expression "dignity", which was enshrined for the first time in the Weimar Constitution of 1919,70 where it was
prescribed that economics should be governed by "the principles of justice" (an expression that, by its time, context,
and environment, does not seem to refer to the Aristotelian notion of distributive justice) to guarantee human
conditions in accordance with dignity;71 finally, Marquardt seems to suggest that the Fundamental Law of Federal
Germany was more influential, in the later transnational constitutionalization of human dignity,72 and he says that,
in relation to the female population, the accentuation of human dignity in the subsequent decades was the key to
gender equality, for example, in societies of patriarchal traditions such as the Catholic ones and those with a
Napoleonic Civil Law tradition.73
On the other hand, scholar Samuel Moyn has attempted to demonstrate that the Irish Constitution,74 by its fervently
Catholic framers that wanted to follow the indications given by the papal encyclical Divini redemptoris -which
denounced the atheistic communism-,75 was the first constitution in world history that proclaimed the individual
dignity of the human person as a founding principle of the State; of course, dignity was interpreted still according to
the context of the Catholic doctrine of the time, opposed, for example, to recognizing the total equality to women
vis-à-vis men, especially in the traditional Catholic patriarchal home.76 Moyn's central idea is that this constitution is
important because it reflects a historical fact that no current scholar had noticed, which is that the inclusion of the
expression "human dignity" in the contemporary global constitutional discourse was spread from the tradition of
Catholic thought about dignity and not from the Kantian tradition, as it is currently believed broadly. According to
Moyn, in addition to the Irish one, it was enshrined later in the constitution of the largely Catholic State of Bavaria,77
as in Ireland, by the influence of the Catholic thought of this period, and globalized, totally secularized, thanks to
66 MICHAEL ROSEN, DIGNITY: ITS HISTORY AND MEANING 47-54 (Cambridge: Harvard University Press, 2012).
67 Id. at 19-31, 80.
68 BERND MARQUARDT, DERECHOS HUMANOS Y FUNDAMENTALES. UNA HISTORIA DEL DERECHO 137 (Bogotá: Grupo
Editorial Ibáñez, 2015) [MARQUARDT, DERECHOS].
69 Verfassung des Freistaates Bayern [Constitution of Bayern], 1946 (Bay.), preamble, art. 100.
70 Die Verfassung des Deutschen Reichs [Constitution of the German Empire], 1919 (Germ. Emp.), art. 151.
71 MARQUARDT, DERECHOS, supra note 68 at 137.
72 MARQUARDT, DERECHOS, supra note 68 at 137, 138; Grundgesetz für die Bundesrepublik Deutschland
[Constitution of Federal Germany], 1949 [Ger.], art. 1.
73 MARQUARDT, DERECHOS, supra note 68 at 141-143.
74 Bunreacht na hÉireann [Constitution of Ireland], 1937, preamble.
75 Pius XI, Divini redemptoris, 1937.
76 Samuel Moyn, The secret history of constitutional dignity, 17 YALE H.R. & DEV. L.J., n.° 1, 53-60 (2014) [Moyn, The
secret].
77 Verfassung des Freistaates Bayern [Constitution of Bayern], 1946 (Bay.), preamble.17
the Universal Declaration of Human Rights,78 in which the inclusion of the expression "human dignity" was due, to
a large extent, to the influence, on its writers, of the frequent use of the expression “dignity of the human person”
by the Pope during World War II, and, again, not to the Kantian tradition of dignity.79
Nevertheless, today, the Kantian tradition is preferred when interpreting the expression "human dignity". Therefore,
all the current debates on justice revolve around the best distribution scheme and it is not disputed if all people have
equal worth when they are taken into account to be subjects of distributive justice; that is to say, it is taken for
granted that all people have a dignity that cannot be ignored and must be respected when they are to be allocated
rights or means, an aspect that was in discussion in Aristotle's times.80 Thus, egalitarians, like John Rawls,81 argue
that the best distribution scheme is one where benefits are guaranteed to the most disadvantaged, contrary to
libertarians, like Robert Nozick,82 for whom there should be no distribution by the State because it would be against
individual freedom.
iii. THE THIRD STAGE OF SOCIAL JUSTICE
In the third stage, which extends from the mid-twentieth century to the present, the notion of social justice has been
expanded from the context of labor relations thanks to the evolution of affirmative actions, the international
establishment of a catalog of economic, social, and cultural rights (as a duty for the State to guarantee a certain
level of minimum means to allow people exercise their civil and political rights; a covenant signed, but not ratified
by the United States),83 and the discussion on the adoption of differential treatment to the benefit of the poor in
income and wealth as part of social justice.
The term "affirmative action," in its modern sense, originates in the Executive Order 10925 by U.S.A. President J.
F. Kennedy,84 in which all contracting agencies of the government were ordered to apply affirmative action to ensure
that both applicants and employees were treated equally regardless of race, creed, color, or origin (note the link
between the expression “affirmative action” and labor); however, this expression had already a certain tradition in
the American language in the same slang of labor relations. This understanding of affirmative action as an
instrument to fight discrimination and achieve equality of opportunities allowed the expression to be applied to
measures with the same purpose taken, in addition to the government, by the Supreme Court of the United States,
for example, in the case "Regents of the University of California v. Bakke ",85 that allowed universities to include
race as an admission criterion in order to achieve greater diversity, and, indirectly, to provide more opportunities to
groups traditionally discriminated, in line with the precedent of the case "Brown v. Board of Education of Topeka.”86
78 U.N. Universal Declaration of Human Rights, 1948.
79 Moyn, The secret, supra note 76 at 59.
80 BEEVER, FORGOTTEN, supra note 21 at 66.
81 JOHN RAWLS, A THEORY OF JUSTICE. REVISED EDITION (Cambridge: Harvard University Press, 1999) [RAWLS, A
THEORY].
82 ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (New York: Basic Books, 1974).
83 G.A. Res.2200A (XXI), U.N. Doc. A/RES/21/2200 (Dec. 19, 1966).
84 J. F. Kennedy, Executive Order 10925, 1961, https://goo.gl/p38Hqc
85 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
86 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).18
It is in this period of increasing affirmative action in government and the judiciary in the United States and then in
the rest of the world, where John Rawls' very influential book in philosophy, Law, politics, and economics, "A Theory
of Justice", was conceived (published in 1971 and revised throughout his life), in which the expression "social
justice" is used to refer to the very notion of distributive justice that he carries out there,87 and whose center is the
principle of difference, according to which socio-economic inequalities of an ideal well-ordered society are justified
if they work for the benefit of the least advantaged of society, which are not women, the elderly, or the traditionally
marginalized people, among others, but those who, although share with other people an equality in liberties and
opportunities (the first principle of justice and the first part of the second principle), have just less income and wealth,
i.e., the poor.88 So, it is important to clarify that Rawls’ social justice did not conceive as one of its main aims to
overcome the discriminations and marginality present in the non-ideal sphere of the theory, that is, in the real context
of the American society and other liberal societies of the time, as the promoters of affirmative action had actually in
mind.89
Most contemporary constitutions that enshrined the expression “social justice” as a purpose or principle of the State,
did it in this stage, i.e., from the seventies to the second decade of this century.90 So, even though social justice, as
a third path between communism and laissez faire capitalism, arrived into the contemporary global constitutional
discourse from the Catholic thought just like human dignity, the Christian heritage is not evident at all in the third
stage, which has also favored the expansion of the expression in contemporary constitutional discourse throughout
the world. Today, social justice is not only used in the labor discourse, but also in the field of affirmative actions to
the discriminated, the vulnerable, and the marginalized; in the discourses that promote the achievement of social,
economic, and cultural rights; and in those discourses that encourage a differential treatment by the State to benefit
those with lower income and wealth. The last features make up the contemporary notion of material equality (as
opposed to formal equality).
Summarizing, these are the three basic elements which make up the current meaning of social or distributive justice
in contemporary comparative constitutional discourse: i) its understanding as a duty of a new kind of State, the
Social Rule of Law, which has to guarantee or allocate some minimum means so that people can subsist ii)
according to the human dignity they possess, and iii) has to promote affirmative actions in order to guarantee the
poor, the marginalized, the discriminated, and the vulnerable, an equal opportunity to develop their life plan, i.e.,
the warranty of the right to material equality.
Now, just like the principles of Social Rule of Law and human dignity, it is necessary to clarify the meaning of
“material equality” as a right, which is also a transcendent element both in the configuration of the current
understanding of social justice and in contemporary constitutional discourse.
87 RAWLS, A THEORY, supra note 81 at 177.
88 JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 65 (Cambridge: Harvard University Press, 2001)
[RAWLS, JUSTICE]; SAMUEL FREEMAN, RAWLS 106-108 (New York: Routledge, 2007).
89 Thomas Nagel, John Rawls and affirmative action, n.° 39, 82 (2003).
90 Supra note 8.19
1. THE RIGHT TO MATERIAL EQUALITY
In contemporary constitutional discourse, this expression “material equality” has been generally understood as a
duty of the State to promote affirmative actions, so that equality be not merely formal as it was before the
enshrinement of the socio-economic-cultural rights, in order to overcome socio-economic inequalities to benefit the
poorest in income and wealth, but also the traditionally discriminated and marginalized sectors of society.91
Although there is no certainty about the first use of the expression "material equality" in the global constitutional
discourse, some early sources and similar in meaning like the described in the previous paragraph can be found
both in France and in Germany at the end of the nineteenth century.92 The modern use of this expression in English
can be verified in the Austrian economist Friedrich A. Hayek's book "Road to Serfdom" in 1944 ;93 of course, he
uses it in a context of criticism to centralized or collectivist economic planning.94
Nevertheless, just like the principle of Social Rule of Law, the expression “right to material equality” is not present
in the Anglo-Saxon constitutional discourse and, actually, its conceptualization and use are part of the European
and Latin American civil law tradition; of course, this doesn’t mean that, in the Anglo-Saxon constitutional discourse,
there are no ways to realize the purposes that the right to material equality has in the other part of the world.95 That
is why, in Latin America, it can be verified the constant use of the expression, for example, by the Colombian
Constitutional Court since 1992;96 in fact, it is also used interchangeably with others just like "real and effective
equality" (as it appears in Article 13 of the Colombian Constitution) or "substantial equality".97 Also in Latin America,
the first constitution worldwide that enshrined the right to material equality as opposed to formal equality was the
Constitution of Ecuador in 2008.98
However, no conclusive proof can be given about the original source of inspiration for the modern use of this
expression. So, it would be interesting to advance in the discovery of the primary sources of its inspiration to
determine when they began to be used to signify a different right to that of formal equality before the law;
nevertheless, this is beyond the scope of this research.
iv. SOCIAL JUSTICE IN GOOGLE NGRAM VIEWER
Now, it can be seen some graphs to illustrate the trend of the use of the expression “social justice”, thanks to Google
Ngram Viewer, a novel technological tool for research in social sciences that allows to observe an approximate
91 Eduardo Cifuentes, La igualdad en la jurisprudencia de la Corte Constitucional, PENSAMIENTO JURÍDICO 65, 66
(1996).
92 GERMER BAILLIÉRE, REVUE SCIENTIFIQUE 364 (1885), https://goo.gl/0m9aPS; ARTHUR MÜLBERGER, P. J. PROUDHON:
LEBEN UND WERKE 77 (1899).
93 FRIEDRICH HAYEK, CAMINO DE SERVIDUMBRE 113 (Madrid: Alianza Editorial, 2007).
94 See, e.g., Corte Constitucional [C.C.] [Constitutional Court], Judgment T-406 of 1992.
95 See, e.g., Encarna Carmona, El principio de igualdad material en la Constitución Europea, REVISTA DEL FORO
CONSTITUCIONAL IBEROAMERICANO, n.° 8, 1 (2004).
96 See, e.g., Corte Constitucional [C.C.] [Constitutional Court], Judgment T-406 of 1992.
97 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), art. 13.
98 Constitutución de Ecuador, as amended, 2008, art. 66 No. 4.20
evolution of the frequency in the use of a word over time in several books of different languages.99 It can be seen
that the use of the term social justice is older in French (Figure 1) and Italian (Figure 2) than, for example, in Spanish
(Figure 3), English (Figure 4), and German (Figure 5).
Figure 1
Source: https://books.google.com/ngrams
Figure 2
Source: https://books.google.com/ngrams
99 Google Ngram Viewer will be used in this article as a way to complement the historical narrative presented here,
by inquiring into the trend of the use of some expressions (social justice and distributive justice) in a comparative
spectrum. It is not, of course, the main or ultimate source in which such a narrative is based.21
Figure 3
Source: https://books.google.com/ngrams
Figure 4
Source: https://books.google.com/ngrams
Figure 5
Source: https://books.google.com/ngrams
In all these languages, the rise of its use happened in the late nineteenth and early twentieth centuries, i.e. at the
beginning of the second stage of its evolution, and, despite valleys that could be due to reasons of different nature
which are not pertinent to discuss here, what it is important to notice is that it shows that its ascent deepens after
World War II, when the notion of social justice of the second stage is consolidated, arriving at its highest peak in
the 1980s, when social justice is strengthened by the ascent, first in the United States, and since the 1970s in the22
rest of the world , of the discourses of affirmative actions (with its ideals of non-discrimination), equal opportunities,
and distribution of wealth and income to the poor or disadvantaged. However, it remains a question on why in
Spanish and Italian, and not in English and French, its use has a moderate downward trend.
On the other hand, it can be seen how the notion of social justice did not echo so much in Russian, the majority
language of the main communist country in the twentieth century, the Union of Soviet Socialist Republics, and that
is because the notion was typically used in those legal-political discourses that were against Communism (Figure
6). However, as a way to set up here a debate that can be developed later, there is a timid rise of the expression
during the 20s and 40s, which coincides with the emergence of important documents in other parts of Europe that
contain the expression "social justice" as described above. Moreover, it is noteworthy to mention that only after the
collapse of the USSR and its opening to the capitalist and liberal bloc, the expression has a vertiginously upward
trend that has been declining for some time.
Figure 6
Source: https://books.google.com/ngrams
Finally, if the frequency of the use of the expression "social justice" in Spanish, English, and French is compared
with that of "distributive justice" in the same languages (figures 7, 8, and 9), it can be concluded that the first
expression has been more popular than the second one starting from the second stage, a phenomenon that may
be explained by the fact that the expression “social justice” began to include distributive justice by this time, as
explained above.100
100 Supra note 46.23
Figure 7
Source: https://books.google.com/ngrams
Figure 8
Source: https://books.google.com/ngrams
Figure 9
Source: https://books.google.com/ngrams24
v. SOCIAL JUSTICE IN LATIN AMERICAN CONSTITUTIONS
The first Latin American constitution that used the expression “social justice” was the Constitution of Costa Rica in
1949 and, by following the typical Christian sense of the term in the second stage.101 Nevertheless, the expression
was popularized in the Latin American constitutionalism in the current third stage of its evolution, in which the
theological component is not evident anymore.102
So, the Constitution of Panama enshrined social justice as an element that the right to education must foment, and
as a purpose that the State should carry out when intervening in enterprises;103 the Constitution of Cuba decreed
the enjoyment of social justice as the purpose of the republic;104 the Constitution of Honduras said that the
“principles” of social justice are the foundation of the economic system and the objective to be guaranteed by the
process of agrarian reform in rural areas;105 the Constitution of El Salvador enshrined social justice as a duty of the
State and a founding principle for labor rights, social security, and the economy;106 the Constitution of Guatemala
decreed that the labor law and the social and economic orders are organized on the “principles” of social justice;107
the Constitution of Brazil said that the economic order has to guarantee a dignify existence, according to the dictates
of social justice, and that the social order (social security and health) must achieve social justice;108 the Constitution
of Paraguay enshrined social justice as a purpose that the right to education must promote;109 the Constitution of
Argentina commanded the Congress to legislate in order to achieve economic development with social justice;110
the Constitution of Venezuela decreed social justice as a purpose of the State and one of the principles in which
the economic regime is founded;111 the Constitution of Ecuador said that social justice is the principle in which the
right to the enjoyment of city and its public spaces is founded;112 the Constitution of Bolivia enshrined social justice
as founding purpose of the State and as one of the purposes both of the State when carrying out its functions and
the higher education;113 and, recently, the Constitution of the Dominican Republic said that social justice is a
founding element both of the functions of the State and of the economic regime.114
The most important exceptions of this trend are Mexico, Chile, Peru, and Colombia, which could be studied by
future researchers that analyze the political, ideological, and legal causes which determined that, in some countries
and not in others, there had been a consensus to expressly constitutionalize the term “social justice”.
101 Constitución de Costa Rica, 1949, as originally published, art. 74.
102 Although some researches in the future could go deeper into the influence of the Catholic social teaching (even
the so-called Liberation Theology) in the construction of some constitutions in the region in the seventies and
eighties.
103 Constitución Política de la República de Panamá, 1972, as originally published, art. 87, art. 243. In 1992, the
expression was included in the preamble as a purpose of the State.
104 Constitución de la República de Cuba, 1976, as originally published, art. 1.
105 Constitución de la República de Honduras, 1982, as originally published, art. 328, art. 344.
106 Constitución de la República de El Salvador, 1983, as originally published, art. 1, art. 52, art. 101.
107 Constitución Política de la República de Guatemala, 1985, as originally published, art. 101, art. 118.
108 Constituição da República Federativa do Brasil, 1988, as originally published, art. 170, 193.
109 Constitución de la República de Paraguay, 1992, as originally published, art. 73.
110 Constitución de la Nación Argentina, 1853, as amended in 1994, art. 75.
111 Constitución de la República Bolivariana de Venezuela, 1999, as originally published, preamble, art. 299.
112 Constitución de la República del Ecuador, 2008, as originally published, art. 31.
113 Constitución del Estado Plurinacional de Bolivia, 2009, as originally published, art. 8-II, art.9, art. 91, II.
114 Constitución Política de la República Dominicana, 2015, as originally published, art. 8, art. 217.25
III. SOCIAL JUSTICE IN THE COLOMBIAN CONSTITUTIONAL DISCOURSE
The reception of the notion of distributive or social justice of the third stage in Colombia can be verified in the
debates that led to the enactment of the new Constitution in 1991.115 In the Gaceta Constitucional (Constitutional
Gazette), the official newspaper that published the projects and proposals discussed in the National Constituent
Assembly, it can be seen how the notions of human dignity, affirmative actions, and social justice were expressly
used according to the discourse of the third stage of social justice. Thus, some constituents understood social
justice as one of the main purposes of the Social Rule of Law,116 by comparing it with the full warranty of labor rights
(both individual and collective), according to its use in the Catholic social discourse of the second stage,117 and by
understanding it as an essential purpose of the intervention of the Social Rule of Law in the economy.118 One year
later, the Constitutional Court decided the Judgement T-406 of 1992, in which it mentions both social and distributive
justice as a matter of allocation of means with the aim of guaranteeing social rights in the new Social Rule of Law.119
So, it is possible that social justice or distributive justice can be considered, at least implicitly, as an aspiration of
the Colombian Social Rule of Law, and which, according to the Court’s jurisprudence, has been understood as a
"constitutional purpose",120 although it has not been expressly enshrined by the Constitution. However, its express
establishment as a purpose, a principle, or even a constitutional right corresponds to the competence of the
constituent power, whether original (the people through a National Constituent Assembly by drafting a new
Constitution) or derivative (the Congress through an amendment to the Constitution). Nevertheless, the Constitution
of 1991 enshrined the three elements of social justice described above as will be shown in the next three items.
a. SOCIAL JUSTICE IN THE CONSTITUTION OF 1991
i. THE PRINCIPLE OF SOCIAL RULE OF LAW
Article 1 of the Constitution describes Colombia as a Social Rule of Law,121 whose main purpose is to guarantee
some minimum means for the exercise of civil and political rights, as discussed earlier. Many books, articles, and
judgments have defined this principle enshrined by the Constitution,122 but, what it is important to describe here is
that, since the beginning, the main interpreter of the Constitution, the Constitutional Court, has pronounced on the
essential purpose of this kind of State mentioned above, and it has identified it as the sense of social or distributive
justice that derives from a Social Rule of Law such as the Colombian one: "if it were necessary to give an abstract
judgment on distributive justice (...) one could resort to the principle of equality, (...) from which all distribution of
115 Even though the word "reception" may imply a passive process of assimilation of foreign legal-political ideas
about distributive justice in the country, before adopting another expression, a profound research is necessary to
show that there was, at the time, an original local or regional understanding of social justice or modern distributive
justice, which is not relevant to carry out in this text.
116 Asamblea Nacional Constituyente [National Constituent Assembly], 6 Gaceta Constitucional 1, 2 (1991).
117 Asamblea Nacional Constituyente [National Constituent Assembly], 11 Gaceta Constitucional 11 (1991).
118 Asamblea Nacional Constituyente [National Constituent Assembly], 8 Gaceta Constitucional 2 (1991); Asamblea
Nacional Constituyente [National Constituent Assembly], 22 Gaceta Constitucional 41, 51 (1991).
119 Corte Constitucional [C.C.] [Constitutional Court], Judgment T-406 of 1992.
120 See supra note 3.
121 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), art. 1.
122 See, e.g., JHEISON TORRES ÁVILA, EL MANDATO DEL ESTADO SOCIAL DE DERECHO EN LA CONSTITUCIÓN COLOMBIANA
(Bogotá: Universidad Santo Tomás, 2012); Luis Villar Borda, Estado de derecho y Estado social de derecho, 20
REVISTA DERECHO DEL ESTADO 73 (2005).26
means, in order to be fair, should, at least, improve the social position of the most disadvantaged. In other words,
distributive justice must be considered as a problem of distribution -of allocation by the State- of new available
means, whose final result, whoever the beneficiaries or those affected by such distribution are, does not spoil the
situation of those who have fewer means."123
Now, in the legal system, evidence of this principle of Social Rule of Law as a duty to guarantee some minimum
means to allow people exercise their rights can be found in the Constitution itself, which has an entire chapter
devoted to social, economic, and cultural rights,124 and an article on the State intervention in the economy in order
to guarantee the fair distribution of opportunities and other objectives,125 and in other norms such as the acts on
social security,126 higher education,127 etc.
ii. THE PRINCIPLE OF HUMAN DIGNITY
Article 1 of the Colombian Constitution enshrines human dignity as a founder principle of the Social Rule of Law;
this precept is not a mere aspiration of the constituent or a symbolic text, but a binding legal rule.128 In several
judgments, the Court has emphasized human dignity as a fundamental principle and right of the Constitution and
the Social Rule of Law; human dignity is an inherent attribute of human beings, which makes them the creditors of
minimum rights in order to guarantee their development in the best conditions.129
Furthermore, this principle is i) a mandatory hermeneutical directive for all public authorities, ii) an absolute a priori
principle, that is, it cannot be limited or relativized, like other principles and rights;130 and iii) a direct normative
source of fundamental rights both enshrined in the Constitution and non-enshrined expressly.131 It is important to
clarify here that, by fundamental rights, are also understood the economic, social, and cultural rights recognized as
123 Corte Constitucional [C.C.] [Constitutional Court], Judgment T-406 of 1992. In Spanish: “Si fuese necesario dar
elementos de juicio en abstracto sobre la justicia distributiva (…) se podría recurrir al principio de igualdad, (…) a
partir del cual toda distribución de recursos, para ser justa, deba mejorar al menos la condición de los más
desfavorecidos. Dicho en otra perspectiva, la justicia distributiva debe ser planteada como un problema de
repartición -de asignación por parte del Estado- de recursos nuevos disponibles, cuyo resultado final, cualesquiera
que sean los beneficiarios o los afectados por tal repartición, no desmejore la situación de aquellos que poseen
menos recursos.”
124 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), title 2,
chap. 2.
125 Id. at art. 334.
126 Ley 100 de 1993 por la cual se crea el sistema de seguridad social integral y se dictan otras disposiciones [Act
100 of 1993 by which it is created the integral social security system and other issues are enacted], as amended,
Diario Oficial [D.O.], 23 de diciembre de 1993 (Col.).
127 Ley 30 de 1992 por la cual se organiza el servicio público de la educación superior [Act 30 of 1992 by which it
is organized the public service of higher education], as amended, Diario Oficial [D.O.], 29 de diciembre de 1992
(Col.).
128 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), art. 4.
129 RODOLFO ARANGO, EL CONCEPTO DE DERECHOS SOCIALES FUNDAMENTALES 289, 290 (Bogotá: Legis, 2012).
130 Corte Constitucional [C.C.] [Constitutional Court], Judgment T-401 of 1992.
131 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), arts. 1,
5, 94.27
such by the constitutional jurisprudence, such as the right to health and to a vital minimum, because of their deep
and indissoluble connection with human dignity itself.132
An example to show the scope of human dignity is the Judgment C-177 of 2001,133 in which the Court decided a
public lawsuit of unconstitutionality against a part of Article 322A of the Criminal Code, which enshrined that the
crime of genocide did not protect illegal groups, e.g., guerrillas. The Court declared the unconstitutionality of that
part of the rule, motivated by the fact that it was against human dignity because it enshrined a limitation to the
unalienable rights that every person has by virtue of being human,134 which cannot be restricted even if the acts of
the persons involved are outside the Law; i.e., everybody has some unalienable rights based on their human dignity,
which must be guaranteed regardless of their degree of contribution to the common good or “regardless of whether
they deserve those rights or privileges".
iii. THE RIGHT TO MATERIAL EQUALITY
As a development of the principles of human dignity and solidarity,135 article 13 enshrines the right to “material
equality”.136 This expression has been frequently used by the Constitutional Court in its judgments since 1992 when
it makes a reference to the right that every Colombian has to demand from the State affirmative actions to overcome
socio-economic inequalities of the poorest, vulnerable, and traditionally discriminated or marginalized sectors of
society.137
In fact, most of the Court’s judgments on social rights in the last two decades grant the protection to the right to
health when the Health Care Service Providers (Entidades Promotoras de Salud) do not guarantee the right to
health service access to the plaintiffs, especially when they have low economic means, poor means of subsistence,
or are subjects that have a special status in the Constitution (children, pregnant women, old men or women, etc.).
This is a clear accomplishment of the fundamental right to material equality in Article 13: the State must guarantee
the right to real and effective equality as well as equal opportunities in the protection of rights and access to social
assets, especially if they are subjects in conditions of vulnerability.
b. UNVEILING THE CONSTITUTIONAL MEANING OF SOCIAL JUSTICE
So, the modern notion of distributive justice or social justice and not the ancient or Aristotelian one is an implicit
idea in the Constitution because the latter enshrined the three main elements of such modern notion, i.e., the
principles of Social Rule of Law and human dignity, and the right to material equality, which were available in the
global and national constitutional discourse of the years in which the Constitution was enacted. This exercise allows
to construct a notion of distributive justice that, contrary to the Aristotelian one, is in accordance with the Constitution
and can be applied by all public authorities (not only the Constitutional Court) and citizens when they are asked:
132 BERNARDO CARVAJAL-SÁNCHEZ, EL PRINCIPIO DE DIGNIDAD HUMANA EN LA JURISPRUDENCIA CONSTITUCIONAL
COLOMBIANA Y FRANCESA 27-35, 40-47 (Bogotá: Universidad Externado de Colombia, 2005).
133 Corte Constitucional [C.C.] [Constitutional Court], Judgment C-177 of 2001.
134 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), arts. 1,
5.
135 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), art. 1.
136 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), art. 13.
137 See, e.g., Corte Constitucional [C.C.] [Constitutional Court], Judgment C-177 of 2016.28
how should social justice be understood in the Colombian constitutional discourse? It is not intended to give an
irrefutable definition, but rather to present a concept that can be used to i) clarify a diffuse notion in the Colombian
legal system, ii) interpret and apply it more consistently with the Constitution, and iii) generate an intense debate
about the notion itself (both in the academy and in those sectors that have the power to make the Law). Recently,
for example, the same Constitutional Court has brought to the Colombian constitutional debate the concern for an
"environmental justice", thus complementing the anthropocentric approach to distributive justice by ruling that the
use of natural resources must be made in a sustainable way, ensuring that their exploitation generates the least
negative environmental impact so that both present and future generations can enjoy the environment on equal
opportunities.138 However, the fulfillment of environmental justice requires the concomitant materialization of
distributive justice, which is one more reason for all the legal agents in the Colombian legal system to be sure about
the essential meaning that the expression social or distributive justice must have if it is going to be used in the
Colombian constitutional discourse.
Thus, all public authorities and citizens are called to understand, interpret, and apply the constitutional distributive
justice in the Colombian constitutional discourse, at least, as follows: the social justice of the Colombian Social Rule
of Law is a duty of the State to guarantee or allocate everyone, by virtue of their human dignity, some minimum
means so that they can exercise all their rights and fulfill their life plan, and a material equality through the application
of affirmative actions, which consists in a distribution of rights with equal opportunities and always for the benefit of
the most disadvantaged of the society, that is, the poor, the vulnerable, the discriminated, or the marginalized.
The definition above shows that, in the current constitutional order, it is not congruent to turn, for example, to
Aristotle to define the meaning of social justice inside the constitutional discourse, and that the demonstration of
the implicit presence of a modern notion of distributive justice in the Constitution is a more complex exercise than
the simple textual comparison between John Rawls’ principles of justice (from which modern debates on distributive
justice start)139 and the constitutional text, as has already been expressed by some scholars.140 Also, it is important
to emphasize that any approximation to the meaning of distributive justice in the Colombian constitutional discourse
cannot be understood only from a single discipline (e.g., political philosophy) or from a single group of “fashion
authors" -which, ultimately, are the product of their own historical context- (John Rawls, Jürgen Habermas, etc.),141
because such exercise needs i) the comparative historical contextualization of the received discourses about social
or distributive justice in Colombia, and, of course, ii) the analysis of the presence of their essential elements in the
Constitution, as this paper has attempted to do.
Now, the question about the minimum means of social justice is an issue that contemporary political philosophy is
currently debating, for example, from Rawls' approach on primary goods,142 the alternative approach centered on
138 Corte Constitucional [C.C.] [Constitutional Court], Judgment T-294 of 2014.
139 RAWLS, A THEORY, supra note 81.
140 Ricardo Sotaquirá-Gutierrez, Justicia distributiva y problematización de la desigualdad en el discurso
constitucional colombiano, 7 REFLEXIÓN POLÍTICA, n.° 13, 154 (2005).
141 Cf. OSCAR MEJÍA QUINTANA, TEORÍA CONSENSUAL DEL DERECHO. EL DERECHO COMO DELIBERACIÓN PÚBLICA
(Bogotá: Universidad Nacional de Colombia, 2016).
142 RAWLS, JUSTICE, supra note 88 at 168-176.29
capacities formulated by Amartya Sen,143 and the ideas about material contents of distributive justice demanded at
an international level.144 However, the answer to the Colombian case should not only be based on these theoretical
references, since, above all, a "list" of vital minimum means guaranteed by the Social Rule of Law must be the
result of the political struggle for its recognition by the Colombian society, in arenas such as the legislative and the
executive branches of power, according to the need to solve the problems that society itself has and without
depending on a decontextualized theory that ordains the explicit content of such “list”, allowing, in turn, a
strengthening of participatory democracy that counterbalances the Court's marked judicialization of politics in
deciding the content, scope, and enforceability of social rights, without depriving it from this function.
Furthermore, it is important to clarify that, although many of the components of this notion of social justice have
some antecedents in the Catholic Church's tradition of thought, this does not imply that the interpretation of these
components must be done on the basis of this religion or that they should be rejected because of their origin, despite
their potential to materialize the Social Rule of Law, which is achieved if they are interpreted and contextualized
within the framework of the Constitution.
So, it can be said that, as social justice or modern distributive justice is implicitly contained in the Colombian
constitutional discourse, it is not an extra-systemic element or an absolute idea, because, although it is not
enshrined by a specific rule, its components are Constitutional rules of mandatory compliance.145 Actually, the same
exercise can be done in other countries which have no purpose or principle of social justice in their constitutions
such as Mexico or Chile, in order to identify both i) its implicit presence through the enshrinement in their
constitutions of the three main elements of social justice in the transnational constitutional discourse, and ii) the
legal mechanisms to materialize social justice.
c. THE EXCEPTIONAL PRESENCE OF THE ARISTOTELIAN DISTRIBUTIVE JUSTICE
The jurisprudence of the Constitutional Court has understood distributive justice, in most of its judgments in which
it has tried to define it, according to its modern sense. Nevertheless, there are some judgments where the Court
has used a very unusual mixture between the corrective justice in an Aristotelian sense and the distributive justice
based on merit (defined by the Court as the amount of contributions to the common good).
In Colombia, there are no academic works about the presence of the Aristotelian notion of distributive justice in the
jurisprudence of the Constitutional Court. For instance, Alejandro Matta, in his paper on the influence of Aristotle in
the Court’s judgments, only briefly analyzes the value of justice to Aristotle, by saying that his ideas have been
followed by the Court in some judgments as a tool aimed to overcome a norm-centered hermeneutic, but he doesn’t
143 AMARTYA SEN, THE IDEA OF JUSTICE (Cambridge: Harvard University Press, 2009).
144 ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR THE INTERNATIONAL
LAW 191-230 (2004).
145 Whatever the meaning of social justice be in a determined legal system of a society, it is not an absolute one
because it depends on its background and its evolution conducted by the legal agents; comp. HANS KELSEN, WHAT
IS JUSTICE? 1-24 (Berkeley: University of California Press, 1971). Even though Kelsen talks about a personal notion
of justice, the essential message is clear: it has no absolute meaning, but a relative one.30
identify how the main features of the Aristotelian notion of distributive justice have been applied in its
jurisprudence.146
The methodology used to select the “Aristotelian” judgments was as follows: first, on the Court’s web page, all
judgments which contain the expression “distributive justice” were searched; then, those judgments which define
the distributive justice were selected; after that, each one was studied with the aim to determine their sense of
distributive justice, i.e., an Aristotelian or modern sense; finally, these cases were classified by year and their
category of distributive justice, and were organized in the next table. The “Aristotelian” judgments are marked with
an asterisk.
Table 1
Colombian Constitutional Court’s judgments since 1992 to 2016 which contain and define the expression
“distributive justice”
Year Judgments
1992 T-588, T-406, C-472, T-532, T-432, T-505, T-422, C-479
1993 T-483, C-228, T-484, T-140, C-094, C-171*, T-253, T-122*, T-236, C-002, T-292, C-260, C-006, T-
574, C-197
1994 T-290, C-372, T-563, T-411, C-266, T-467, T-525, T-463, C-547, C-069*
1995 C-028, C-136, T-113, T-165, C-419, C-430
1996 C-251, C-59, C-036, C-080, T-715, T-566
1997 SU-519, T-674, C-384, C-536, T-002, T-455, T- 516, T-526, C-588, SU-519
1998 T-288, C-159, T-748, T-208, T-208, C-002, T-311, T-707, C-317, C-094
1999 C-925, T-865, T-528, C-741, T-798, C-082, C-152, C-741, C-474, T-209, C-866
2000 T-1571, T-1134, T-1104, T-1293, C-386, T-1294, T-1730, T-1752, T-1576, T-1596, C-922, T-1451, C-
392
2001 T-1133, T-075, T-209, C-651, T-752, T-022, C-1060A, C-555, T-1154, C-1218, C-648, T-1040, C-
1168
2002 T-610, T-770, C-762 *, C-184, C-261, C-109, C-615
2003 C-482, C-1005, C-875, C-271, C-870, C-776, T-1089
2004 C-1029, C-1054
2005 T-640
2006 C-741, C-666
2007 T-065, C-308
2008 T-250, T- 1040
146 Alejandro Matta, Aproximación a la metaética de la Corte Constitucional Colombiana: influencia de la filosofía
práctica de corte aristotélico en su jurisprudencia constitucional, PENSAMIENTO JURÍDICO 31 (2013).31
2009 C-324, T-543
2010 C-073*, C-639
2011 T-551, T-176
2012 T-999, T-1094, C-715
2013 T-235, T-583, T-370, T-095, T-427, C-912, T-646, T-799, C-753, C-839, SU-130, C-099, C-359, C-
579
2014 T-695, T-271*, T-600, T-565, T-682, C-616, C-180, C-286, T-294
2015 C-044, T-606, T-539, T-080, T-191, T-648
2016 T-112, C-209
Source: http://www.corteconstitucional.gov.co
According to the results of this research, two things can be concluded: the first one is that the judgments where the
Aristotelian notion of distributive justice is used to base the decision on are five: C-171 of 1993, C-069 of 1994, C-
762 of 2002, C-073 of 2010, and T-271 of 2014; Judgment C-171 of 1993 is the founder of the “Aristotelian
precedent” because it was cited by the other ones. The second one is that, as there have been no changes in the
Aristotelian definition of distributive justice in Judgment C-171 of 1993 throughout the years, this judgment will be
studied alone in order to extract the Court’s Aristotelian notion of distributive justice; this hermeneutic methodology
is known in by Colombian legal scholars as the “análisis jurisprudencial estático” (static jurisprudential analysis), as
opposed to the “análisis jurisprudencial dinámico” (dynamic jurisprudential analysis), which consists in the
interpretation of an individual judgment, not several ones over the years.147
Now, Judgment C-171 of 1993 by Justice Vladimiro Naranjo Mesa decided the constitutionality of Decree 264 of
1993,148 which was enacted in the frame of an “estado de excepción por conmoción interior” (State of exception by
internal shock), declared on November 3th, 1993 with the aim to fight criminality through the establishment of some
mechanisms that allowed the Attorney General to get from the defendants and convicts a greater collaboration to
the State in the prosecution and punishment of the crimes related to drug growth, funding, trafficking, elaboration,
and promotion; the obstruction to justice by public authorities; terrorism and those crimes against the security and
existence of the State itself (e.g., espionage) and against the valid constitutional regime (e.g., rebellion and sedition).
The mechanisms that this Decree gave to the Attorney General were benefits to the collaborator such as house
arrest, partial or general pardon, among others.
At least two legal problems were considered by the Court: the first was whether this Decree had violated the
constitutional prohibition to modify the judicial accusation and judgment functions through a State of exception;149
the second one was whether the Decree had broken the right to equality by giving certain benefits only to some
criminals and not to all of them. The Court’s decision to the first problem was that the executive modified the
147 DIEGO LÓPEZ-MEDINA, EL DERECHO DE LOS JUECES 193-264 (Bogotá: Legis, 2006).
148 Decreto 264 de 1993 por el cual se expiden normas sobre concesión de beneficios por colaboración con la
justicia [Decree 264 of 1993 by which some rules on the granting of benefits for collaboration with justice are
enacted], Diario Oficial [D.O.], 5 de febrero de 1993 (Col.).
149 Constitución Política de Colombia [Const.], as amended, Diario Oficial [D.O.], 20 de julio de 1991 (Col.), art. 252.32
accusation and judgment functions because it was giving judicial functions to the Attorney General and also
congressional functions such as general pardons, which are only granted in cases of political crimes. On the second
problem, the Court said that the Decree made an unjustified distinction between the beneficiaries and the rest of
criminals, even though the formers had committed the worst crimes according to the Criminal Code.
According to the Court, the constitutional right to equality was violated by the Decree because “it gave a more
favorable treatment to certain type of criminals, paradoxically, (…) to those who [had] committed the worst crimes
against society, including crimes against humanity, such as indiscriminated terrorist acts. There is, in this case, an
evident violation of the principle of distributive justice and commutative justice.”150 Then, the Court defined the sense
of distributive justice to adjudicate this case: “in the distributive justice, it is observed the mean according to the
merit of the people. But that merit also is observed in the commutative justice, for example in the allocation of
punishments, because the punishment will be higher to that person who seriously affects the common good. As
said before, the distributive justice allocates something among people, according to everyone’s personal merit. So,
a benefit cannot be granted only according to the thing exclusively, but according to the proportion of the thing with
respect to the person.”151 Now, on the meaning of merit, the Court said: “the more a person participates through
her daily actions to the common good, the greater the prerogatives must be. That is to say, the objective contribution
to the common good and the consistent action with the general interest must be taken into account in order to apply
the principle of equality which corresponds not to quantity but to proportion.”152 Then the Court explained that
distributive justice could tolerate difference or inequality, except in cases where it is contrary to the proportional
distribution of merit; the Court said that “granting some citizens a series of benefits (...), excluding the other
individuals from those exceptional privileges, means establishing the principle known as "people differentiation"
opposed to that of equality proper to justice. In fact, the anti-juridical maxim which has been mentioned contradicts
distributive justice since it consists in allocating the goods and the penalties to the different people in proportion to
their merit. Consequently, when one considers this property of the human being, by which she is given what is due
to her, her individuality is not observed as much as her merit or dignity. Therefore, it is clear that the differentiation
of people is opposed to justice, since adjudicating without proportion is not equal. And nothing is as much opposed
to justice as inequality.”153 In this way, the Court emphasizes that, when it comes to adjudicating a case on
150 Corte Constitucional [C.C.] [Constitutional Court], Judgment C-171 of 1993. In Spanish: “al darle un trato más
favorable a cierto tipo de delincuentes, paradójicamente, (…) a quienes [habían] incurrido en los peores crímenes
que puedan cometerse contra la sociedad, incluyendo delitos de lesa humanidad, como son los atentados
terroristas indiscriminados. Existe en ello un evidente quebrantamiento del principio de justicia distributiva y de
justicia conmutativa.”
151 Id. In Spanish: “En la justicia distributiva se observa el medio de acuerdo con el merecimiento de las personas.
Pero ese merecimiento también se observa en la justicia conmutativa, como por ejemplo en la imposición de penas,
pues será mayor el castigo a quien afecte gravemente el bien común. Como se ha venido sosteniendo, la justicia
distributiva adjudica algo entre los particulares, según el merecimiento personal de cada uno de éstos. Por tanto,
no se puede conceder un beneficio según la cosa en sí-exclusivamente-, sino según la proporción que guardan
dichas cosas con las personas.”
152 Id. In Spanish: “Entre más participa la persona por medio de sus actos cotidianos al bien común, mayores deben
ser las prerrogativas. Es decir, debe tenerse en cuenta el aporte objetivo al bien común y una actuación coherente
con el interés general, para así aplicar el principio de igualdad donde éste corresponde no a la cantidad sino a la
proporción.”
153 Id. In Spanish: “concederles a algunos ciudadanos una serie de beneficios (…), excluyendo de esos privilegios
excepcionales a los demás individuos, significa establecer el principio conocido como la "acepción de personas",33
distributive justice, that is, allocating both property and penalties, merit is a substantial element and cannot be
negotiated.154 The Court declared that the Decree contradicted the right to equality because it enshrined punitive
privileges to a group of criminals -especially those who deserved it the least- and denied them to the rest of
criminals.155
The question that arises now is: where did the Court get the concept of distributive justice from? This is not an
innocuous issue because the decision on the unconstitutionality of the Decree depends on the adopted concept of
distributive justice. In fact, in the other three judgments of constitutionality, the Court decided a similar issue, i.e.,
the unconstitutionality of a criminal act in which special benefits were given to criminals because their lesser
contribution to the common good made them less worthy of those punitive benefits; and, in the most recent
judgment, the Court denied a request made by a prisoner with HIV to house arrest because of his illness, and it
founded its arguments also on the lack of merit of the prisoner to such a punitive benefit, even though, despite his
vulnerable condition, it could be argued that his stay in prison was against his human dignity.156 Anyway, what is
clear at first glance is that, in these five judgments, the Court follows the well-known "meaning" of justice: "justice
is to give everyone what they deserve”, i.e., the Aristotelian or ancient sense of distributive justice.
However, the Court has mixed the two types of particular Aristotelian justice, in what has been named here an
“Aristotelian and corrective distributive justice”. Indeed, to the Court, distributive justice consists in the distribution
of goods and penalties and is based on merit, thus falling into a substantial theoretical imprecision because the
penalties, according to Aristotle, cannot be allocated according to merit, because it is intended to correct the
inequality caused by an anti-legal damage. Thus, the Court has based the unconstitutionality of the Decree in this
judgment, and in the others which followed it as a precedent, on a wrong interpretation of the Aristotelian theory of
justice, although it does not mean that the applied notion of distributive justice has no Aristotelian roots. Then, by
applying such an Aristotelian and corrective notion of distributive justice, the Court violates the principle of Social
opuesto a la igualdad propia de la justicia. En efecto, la máxima antijurídica a que se ha hecho mención contradice
a la justicia distributiva; pues ésta consiste en distribuir los bienes y las penas a las distintas personas en proporción
a su merecimiento. En consecuencia, cuando se considera dicha propiedad del ser humano, por la cual se le da lo
que le es debido, no se observa tanto su individualidad como su merecimiento o dignidad. Por tanto, es evidente
que la acepción de personas se opone a la justicia, puesto que al obrar sin proporción desconoce la igualdad. Y
nada se opone tanto a la justicia como la desigualdad.”
154 Therefore, the distribution of the benefit of a total punitive pardon to defendants and convicts of the crimes
mentioned above clashes with equality because -through their actions- they have not contributed to a large extent
to the common good and, therefore, have no personal merit proportional to the purpose of such forgiveness, which
is to reward people who -in spite of their transgressive acts- have contributed the most to the common good; so, as
these crimes affect the most the public order, according to the Court’s opinion, the damage to the common good is
greater than the benefits that an effective collaboration of these criminals can bring to justice.
155 This way, the Court, as part of the notion of distributive justice, justified inequalities among persons according to
their merit, without taking into account the justification of inequalities according to the disadvantaged position in
society, a fundamental element in the modern debate on distributive justice. In fact, the Court explained that
differences with respect to merit could be justified on the grounds that persons who are convicted of less heinous
crimes than those convicted by the most atrocious crimes are "more deserving", otherwise, it would be to treat
equally persons who have a different merit.
156 In fact, in a dissenting opinion, Justice Jorge Iván Palacios said that the act prohibiting anyone convicted because
of the crimes such as those of the plaintiff, ought not to be applied in this case because it could not fully guarantee
his right to life.34
Rule of Law because that notion does not take into account the concern for ensuring everyone a minimum quantity
of means to fulfill their life plan, which is the base of one of the essential objectives of the State itself.
Also, as it can be seen, there is also no coherence between the Court’s notion of distributive justice based on merit,
according to which a person will be entitled rights and benefits from the society depending on the quantity of her
contribution to the common good, and the principle of human dignity which, applied to the idea of distributive justice,
means that everyone can be a subject of distributive justice just for the fact of being human and, therefore, has an
equal dignity to participate in the distribution of rights available in society without relying on the merit as the quantity
of their contribution to the common good. Thus, by interpreting distributive justice based on the Aristotelian merit,
the Court violated the principle of human dignity and questioned its absolute character because it said that it does
not matter that all human beings have the same dignity to participate in the distribution of social goods, because
there are always some people more dignified than others, that is, there are people who deserve more than others
to be treated in a privileged way by the Law and the State.
Additionally, there is no coherence between adopting the Aristotelian notion of distributive justice which allows
socio-economic inequalities as long as equality in merit is not affected, because the most important is that there be
no inequalities in merit, and the obligation imposed by the Constitution to guarantee a different treatment in benefit
of the least favored in society to realize an effective and real equality with the same opportunities for everyone,
which is a definition of the fundamental right to material equality.
Now, according to the methodology of jurisprudential analysis proposed by the Critical Legal Studies,157 such notion
of distributive justice applied in this judgment allows to identify that the ideology on which Justice Vladimiro Naranjo
decided this case is framed within the Natural Law, specifically in the Aristotelian-Thomist tradition. In the Middle
Ages, Thomas Aquinas, by introducing Aristotle into the European political philosophy, conditioned the interpretation
of the former in the centuries to come, which can be seen in Judgment C-171 of 1993 both in the permanence of
the use of the adjective "commutative" when describing Aristotelian corrective justice, and in the addition of “the
achievement of the common good" as a goal of distributive justice and corrective justice,158 something that is not
originally expressed in Aristotle’s theory of justice, since he only referred to that goal as a characteristic of a good
constitution or form of government.159 Justice Naranjo’s Aristotelian-Thomist ideology has also been noticed by
professor Cristina Motta who has shown, in his judgments, the recurring use of the "common good" as an axiological
category by which Law and justice in the Colombian Social Rule of Law should be guided.160 Also, it is important to
notice that, recently, the Court has revived the debate on the validity of Natural Law in the Colombian Social Rule
of Law by declaring constitutional the use of "the principles of Natural Law" to interpret the Constitution in penumbra
cases, against what was requested in an unconstitutionality action that sought to repeal this possibility enshrined in
157 DUNCAN KENNEDY, LIBERTAD Y RESTRICCIÓN EN LA DECISIÓN JUDICIAL (Bogotá: Universidad de los Andes, 1999).
158 Jorge Martínez, Santo Tomás de Aquino y la teoría de la justicia, DERECHO Y HUMANIDADES, n.° 12, 109 (2006).
159 ARISTOTLE, P., supra note 28 at 1279a8-1283b27.
160 CRISTINA MOTTA, ÉTICA Y CONFLICTO 226-229 (Bogotá: Universidad de los Andes).35
an article of the centennial Civil Code; however, currently, it is difficult to predict the use and effects that this
judgment can have in the long term.161
Finally, it must be said that, although the Court would not have modified the declaration of unenforceability of Decree
264 in Judgment C-171 of 1993, even if a modern notion of distributive justice had been applied, since there was
another reason to declare it unconstitutional as explained above, it is important to notice that a correct interpretation
in that judgment regarding distributive justice would have allowed a better protection of rights, since: i) the type of
justice applicable to the case was corrective, not distributive; ii) corrective justice is not based on merit, but on the
restoration of broken equality, therefore, the Court violated human dignity by considering a group of people less
deserving to receive the benefits of the Decree, iii) the majority of the justices did not understand that, in this case,
there was no discrimination between the defendants/condemned who profited from the Decree and those who did
not, since, precisely, the State of exception was an exceptional situation in which the measures to be taken to stop
violence had to be different to those envisaged in ordinary situations; and iv) a rule with a constitutional legitimate
purpose was drawn from the legal system, even though it aimed to achieve peace and, through it, to guarantee the
validity of all those purposes, principles, and rights of the Social Rule of Law that a war limits.162 Thus, an analysis
such as that of the Court in this Judgment C-171 of 1993 and the other five, would mean now, for example, that it
is legitimate to deny members of the FARC-EP and ELN guerrillas exceptional benefits for making peace, with the
argument that they are persons who do not deserve them because of their low level of contribution to the common
good and that the same treatment should be given to the other offenders, just as proposed by the Court in the
judgments discussed here.
d. ACHIEVING SOCIAL JUSTICE THROUGH LAW
The application of this modern notion of distributive justice or social justice, based on the principles and the right
mentioned above, can serve to empower the Constitutional Court, other authorities of the public power, and the rest
of Colombians, to materialize the aspirations of the Social Rule of Law itself; in fact, the Court has already implicitly
applied this notion of distributive justice to defend and extend the social rights initially enshrined by the Constitution,
thus guaranteeing its validity as full rights.163 Thus, both the Court and other public authorities can continue or, if
they have not done it yet, begin to materialize the Social Rule of Law, by applying the notion of social justice
proposed here, either i) in cases among individuals, in which the persons or groups may be in a condition of
vulnerability or marginality (the displaced ones before the measures of eviction without alternatives of relocation by
the public administration, the child or elder before the adult, the woman before the man, the afro-descendants or
indigenous people before the whites or mestizos, the homosexual before the heterosexual, etc.), ii) in cases where
the other branches and agencies of the public power try to restrict the progression of social rights, for example, by
161 Corte Constitucional [C.C.] [Constitutional Court], Judgment C-284 of 2015. In opinion of the author (who also
was the plaintiff in this judgment), it is curious to see how the drafter Justice studied his LL.B. at the same university
in which Justice Vladimiro Narajo Mesa studied (Universidad del Rosario).
162 These arguments would be shared by the two justices who presented dissenting opinions in Judgment C-171 of
1993.
163 See, e.g., the judgments of the Table 1. See also, Corte Constitucional [C.C.] [Constitutional Court], Judgment
C-209 of 2016; VÍCTOR ABRAMOVICH & CHRISTIAN COURTIS, LOS DERECHOS SOCIALES COMO DERECHOS EXIGIBLES 37-
47 (Madrid: Trotta, 2002);36
implementing a specific economic model that is not in accordance with the distributive justice of the Social Rule of
Law, or iii) when making an act, e.g., by enacting a tax reform on income with a progressive tax that allows a
redistribution of wealth to social programs that promote the general welfare, especially of the poorest, one of the
verifiable achievements of the Social Rule of Law in last century to overcome inequality, and from which very
relevant lessons for today can be drawn.164 Finally, by knowing the meaning of social justice and what is necessary
to achieve it through Law, individuals and civil society in general, can demand from the State, with legal arguments,
a broader warranty of their constitutional rights, without forgetting that they are also responsible for the
materialization of the same justice, e.g., through the respect for the human dignity of their peers, the elimination of
behaviors that encourage discrimination and marginality, the execution of practices to increase the efficient expense
of the limited resources that the State assigns to the fulfillment of social rights without corruption, among other
aspects.
So, it is clear that also from the family, the school, the university, the political arena, the policy making, etc., it is
necessary to promote the constitutional meaning of social justice and to avoid using the common idea that social
or distributive justice is “to give everyone what they deserve”, an idea of a slave and a non-egalitarian society in
which Aristotle lived, that does not materialize the purposes, principles, and rights that govern the Colombian Social
Rule of Law.
Finally, it is important to notice that, currently in Colombia, many people in academia, in politics, and the media are
talking about the need to materialize social justice as the requirement for a stable and durable peace in the country.
For example, as mentioned before, the former guerrilla FARC-EP, based on its motto, will be very committed to
social justice as its slogan in the coming years as a Marxist or communist party; nevertheless, social justice must
not be demonized by the FARC-EP’s opponents or ultra-right parties as an expression that summarizes a
supposedly “Castro-chavista political program” for Colombia by the possible FARC-EP political party in the post-
conflict. In any case, materializing social justice requires a balance among the principles of Social Rule of Law and
human dignity, and the right to material equality, and there is no excuse to privilege, for example, the realization of
material equality if the principle of human dignity is violated. Thus, social justice is not an expression neither of the
domain of Marxists or communists,165 the left-wing supporters, nor the conservative religious sectors, but of all the
persons who believe that material equality can be achieved without sacrificing the Rule of Law and the human
dignity in all its forms.166
164 MARQUARDT, HISTORIA, supra note 56 at 291-296; THOMAS PIKETTY, EL CAPITAL EN EL SIGLO XXI 525-528 (México:
Fondo de Cultura Económica, 2014).
165 Actually, Karl Marx himself never based his ideas on the purpose of achieving justice or “social justice” in its
current popular meaning of the third stage.
166 As seen, according to its constitution, the Cuban communist regime aims to achieve social justice as its main
purpose; nevertheless, this paper argues that this is not possible if it violates human dignity with the excuse of
providing a full material equality; the same observation can be applied in the case of current Venezuela. It is
necessary to remember that social justice is, in fact, a third way to communism and savage capitalism, so civil
society must avoid misunderstanding social justice as the ultimate political purpose of communism, because
communism violates the principle of human dignity by the strong limitation of rights such as freedom of speech,
freedom of enterprise, freedom of association, freedom of expression, private property, among many others, e.g.,
by turning human beings into an instrument of the State.37
IV. CONCLUSION
Summarizing, even though social justice is not a purpose or principle enshrined by the Constitution, it is an implicit
idea in the Constitution because the latter enshrined its three main elements which were available in the global
constitutional discourse of the years in which the Constitution was promulgated, i.e., the principles of Social Rule of
Law and human dignity, and the right to material equality. So, social justice is a duty of the State to guarantee a
certain minimum means, based on human dignity and a different treatment in benefit of the poorest, discriminated,
vulnerable, and marginalized people in society. In contrast, an Aristotelian interpretation of distributive or social
justice would disregard, even violate, the two principles and the right mentioned above. This is why, the achievement
of social justice in the Colombian State requires, essentially, the fulfillment of the principles of Social Rule of Law
and human dignity, and the right to material equality, which are mandatory rules to the branches of power and the
civil society. However, this does not mean that the meaning of social justice is static; on the contrary, it is necessary
that progress be made to complement it with new characteristics and spheres of protection (e.g., the environmental
justice sphere).
A final reflection that can be mentioned is that this article, even though it was not among its objectives, demonstrated
the lack of academic research that shows the ways in which social or distributive justice has been interpreted both
in Colombia and Latin America throughout their history and the effects it has had on the construction of
constitutionalism in the region, among other phenomena. The history of the influence of classical or socio-legal
thinking on the configuration of Law in Latin America has been told in extenso, for instance, but not the history of
how elites’ conceptions about the meaning of social or distributive justice have influenced the way in which
institutions, relations between the people and the State, economic and public policy, etc., have been constructed,
which would allow us to discover, from another angle, the causes of some current problems of the region in order
to generate some contextualized proposals and, perhaps, own ones to solve them without resorting to the
application of “fashion theories” on social or distributive justice, which, by the way, may be loaded with a political
content that privileges, consciously or unconsciously for their own benefit, the worldview and the interests of the
countries in which they are produced. Thus, narrating the history of social or distributive justice in Colombia and
Latin America with such purpose is a pending task.