Libertad y virtud en el estado liberal. Análisis del matrimonio entre parejas del mismo sexo desde la filosofía política

Abstract

This dissertation presents a framework to understand the case of same-sex marriage from the perspective of the Anglo-Saxon political philosophy debate between liberalism and communitarianism. According to liberal theory, individual self-determination is what can be understood as freedom. From the perspective of communitarian philosophers, that criticizes theories of liberalism, the individual cannot create a life plan without the inescapable frameworks that ethical communities entail. This study claims that the classical liberal idea of freedom as self-determination can be complemented with freedom as recognition, which is fundamental in the dialogue between the minoritarian idea of good life and the idea of good life predominant in society. This text also deals with the principle of liberal neutrality and its primary understandings (perfectionist and anti-perfectionist) and claims, in a contemporary democratic constitutional state, that the constitutional judges are the ones in charge of defending the liberal neutrality. After this, the focus moves to the legal understanding of forms of virtue present in the community and how the normative legal positivism theory aims to divide the idea of virtue from the legal understanding and application. To show how these concepts work in concrete cases, four rulings are analyzed in which the constitutional judges separate the majoritarian idea of virtue of the community (the good) and the legal understanding of self-determination (the right) in same-sex marriage cases.