The question entitling these notes hints at a misunderstanding of the roots of current autocratic regimes. The “systems” of capitalism and communism have been considered by the political theory of the past century as abstractions that fail to address the fundamental problem. This difficulty is said to lie in building institutions or orderly and peaceful means for political, economic and social exchange. But, such construction was deemed to be moral in nature by the same political theory.
Two keys may provide the grounds for a straightforward solution in a context where the challenge of new institutions starts with grasping the task. First, there is a reasoning on morality based on conscious individuals instead of a herd or its political equivalent of an omnipotent Volk. The ramifications of a moral focus on individuals, as opposed to an appreciation of good and evil for the community, may be spared for purposes of these notes. In the second place, lessons on the effectiveness and function of fundamental rights should be learned from by their transformation of the absolute State. The “classic” limiting function of these rights can be coupled with a moral approach to minorities to craft a twofold criterion.
This criterion may replace mass-related protections for minorities not to be subdued by a supermajority or other voting exercises. At the same time the contents and scope of fundamental rights in the modern State organization may be set out generally for groups of individuals beyond the case-by-case rule of such rights’ proportionality.
In conclusion, a different concept of morality enhanced with a content-providing function of fundamental rights may result in small sets of rules, especially at a non-constitutional level. The effective enforcement of these rules through prohibitions of certain governmental action may transform merely electoral democracies into an authentic legitimacy.
About the Author
Stephan H. Tribukait Vasconcelos, Founding Partner, Tribukait Vasconcelos, S.C.
Stephan Tribukait is the founder of Tribukait Vasconcelos, S.C., established in Mexico City in 2010. With nearly 30 years of experience, he specializes in complex transactions, mergers and acquisitions, finance, and competition law. A graduate with honors from Escuela Libre de Derecho, he earned an LL.M. in International Trade Law in England in 2000. Fluent in English, German, and Spanish, Stephan advises multinational companies on cross-border transactions. He is a non-governmental advisor to the International Competition Network (ICN), a long-time member of the American Bar Association, and has taught competition law for nearly three decades while publishing extensively on competition and international trade law.
