The fundamental rights of the person. Reflections on the clause of rights not enumerated in the 1993 Constitution

Abstract

This article reflects on the nomenclature of the rights of the person, reviewing their incorporation in English constitutionalism, their reception in the French Declaration of 1789 and finally their positivization in the American constitutional text of 1787, expressing in this text the synthesis of the two great traditions of rights such as iusnaturalism and iuspositivism, where we find in the formula of the non-enumerated rights of article IX of the first Constitution of the world the harmonization of the written rights and the non-enumerated rights. In Peru, the tradition of iuspositivism was followed and was complemented with the clause of enumerated rights currently contained in article 3 of the Constitution of Peru of 1993. The research reflects on the controversy as to whether the rights of the individual, in order to be recognized and guaranteed, need to be positivized or only be inherent attributes. In this sense, the following lines analyze the clause of non-enumerated rights as a limit of positivism and the guarantee of iusnaturalism that converge in a text to recognize the rights of the person, but that such recognition does not end with the written rights but also includes the rights that are based on the basilar principles of the person, society and the State, and how the jurisprudence of the Peruvian Constitutional Court has been based on the principles of the State.