Abstract
Basic food must be guaranteed by States as a fundamental right of all people. In this article we defend the hypothesis that the path of justiciability is insufficient to achieve full recognition of the right to food as a fundamental social right. A strong and active public sphere is needed to address the obstacles to this recognition today. Some of them are actually related to the inherited legal culture. And, on the other hand, that promotes the creation of new institutions to guarantee social rights. The constitutional State needs a "fourth estate" that guarantees fundamental rights and protects the common good from private powers.
Highlights
Basic food must be guaranteed by States as a fundamental right of all people
Enacting and further developing the principle of justiciability is important in order to guarantee the right to food and, the CESCR must urge states to respect and abide by this principle
Belong to everybody in general and to nobody in particular. This is where it becomes clear that, as Ferrajoli writes, the individualist model of rights as presented in the modern constitutional states is highly inadequate and insufficient to “ensure observance of the bonds imposed on the public sphere by social rights, fundamental goods and collective interests stipulated in the Constitution” (2014, 227)
Summary
In the debate on the constitutional state, the Italian jurist Luigi Ferrajoli defends the introduction in the legal lexicon of a new category of goods: the “fundamentals” (Ferrajoli 2014, 207; 2019). “the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear”3 This requires ensuring that all people can feed themselves with food that is available—and that there is sufficient produce for the whole of the population—accessible—so, every household must have sufficient means to obtain or produce the food they require— and in addition, adequate, in the sense that the food must be suitable to satisfy the needs of each person, taking into account their age, living conditions, health, occupation, sex, culture, etc. This right cannot be understood unless other principles and rights provided under a constitutional state are respected such as, for example: respect for the dignity of the person and cultural diversity, the principle of not discriminating unfairly, the right to free personal development, autonomy, integrity and the inviolability of the person, and the principles of cooperation and decency
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