La separación del “ámbito de protección” respecto de las “restricciones” de los derechos fundamentales. Una discusión de la dogmática alemana

Abstract

Fundamental rights are essential part of current constitutional democracies; however, the protection and guarantee of fundamental rights by the State is not an easy task, since the democratic bodies of the State and the legislators face every time more challenges. Therefore, the legal doctrine of the fundamental rights play an important role since they offer tools for a greater understanding of the function, structure and dynamics of rights. Among the diverse items to discuss, this text attempts to offer a small portrait of the discussion regarding the relationship between what protects a rights and those reasons justifying the restriction of said protection. This differentiation is necessary since by it not only is the role of the legislator as first drafter and guarantor of the fundamental rights set at the center of the discussion, but also, it is a necessary requirement for relevant legal concepts, such as the analysis of proportionality.