Abstract
Autore:
Rampa Lorenzo
Titolo:
"L´economia dei diritti fondamentali"
The aim of this article is to derive the conditions under which the fundamental rights can be approved within a process of constitutional decision-making. A central hypothesis of Constitutional Economics is that the structure of such process is that of a prisoner dilemma and that the uncertainty about the post-constitutional positions provides a useful purpose to reach a unanimous decision. A simple two-person game-model shows that, if only liberty rights enforced by public goods are considered, such conclusion becomes difficult due to social asymmetry conditions. Indeed, these conditions reinforce the incentives for a private protection strategy that are created by the externality favouring those who adopt it. However, if social rights enforced through rival goods made non-excludable by the Constitution are considered as well (conventionally labelled here as merit goods), the possibility emerges for equilibria whereby there is at least a partial public protection of fundamental rights, if not a generalized public protection. Essentially, this depends on the fact that the incentives for a private protection of liberty rights stemming from the externality in its favour, are compensated in this case by the internalization of positive externalities in favour of those who adopt a strategy of public protection of social rights. This conclusion is in line with the justifications of social rights that emphasize their role for social cohesion and for the integration into society of disadvantaged classes by removing the asymmetric conditions limiting their capacity to fully exercise the other fundamental rights
