Fragmentation and Innovation

Properties at different levels or “strata” have a degree of autonomy from each other, such process is understood as Emergent Properties according to Margaret Archer (1995). These Emergent Properties are real, causally powerful and have ontological status. The analysis of the main issues that Public institutions are currently facing in modern societies might constitute an example to illustrate how Emergent Properties interact in different strata.

At the Judiciary level, particularly in jurisdictions were the rules of standing are very relax, such as in Colombia, and where the number of claims is massive the Judiciary has not been able to promote Structural Institutional Reforms to reduce the high levels of indicators of systematic violations of social rights. In Colombia, for instance in the last 5 years the number of Tutela actions has increased as a consequence of the massive violations of accessibility to public goods and services. This situation is also repeated in another strata at the level of institutions at the Executive branch of governments where ministries and administrative departments are constantly denying accessibility to citizens despite the large amount of jurisprudence and remedies that protect Social Rights.

Fragmentation might also occur at the Constitutional level. Despite Constitutional Courts have been able to recognise Social Rights in the last 20 years, however, lower courts have not been able to transform their interpretative practices and continue denying the protection of Social Rights.  Unfortunately, the remedies ordered by Courts only try to protect the specific right in question without promoting a substantial transformation of their practices. Despite all the judicial innovation developed through neoconstitutionalist practices, lower courts are not fully interpreting principles of morality in their decisions that might allow claimants to fulfill their rights. Roberto Gargarella, a sociologist from the University of Buenos Aires, Argentina argues that societies have experienced changes in their Constitutions in the last century, however, these Constitutional Reforms did not go far enough in advancing Social Rights because it has not included a reform of the “Engine Room of the Constitution”. Constitutions have two parts the Organic part related to how Power is organised and distributed through democratic processes and the Dogmatic part related to how Rights are distributed, however, it is precisely the Organic part that has not been modified. The failure to reform the Engine Room has allowed power to concentrate generating conflicts and reactions in the social system. As a result of that we have not seen a radical change in the protection of Social Rights. In order to fulfil the spirit, the values and principles of Constitutions, the State should undertake a strong institutional reform that might allow them to achieve a radical reform in democratic societies. Such Institutional Reform could promote reflexive institutions able to adapt themselves to their current circunstances in order to deal with change and new risks. 

Finally, in the field of law, Ronald Dworkin considered one of the most original and powerful philosophers of the English-speaking world was well aware of Fragmentation processes. As one of the fiercest critics of legal positivism, his legacy includes the study of the interrelationships of two complex and fragmented dichotonomies: Law and Morality. For Dworkin, Law includes not only the rules but also the principles that supplies the best justification. Therefore, his main legacy tries to overcome two different traditions of interpretation in the field of Law. On the one hand, Legal Positivism (realism) which argues that there is no connection between Law and Morality. Legal Positivism is oriented towards the past while maintaining that controversies should be settled by looking only at the Law, and on the other hand, the natural tradition which argues that an immoral law is not a law at all. Dworkin, to overcome fragmentation processes is not only looking at recursive process or processes of integration and combination of bodies of knowledge for interpretative proceses but he also sees Law and Morality as independent units and invites us to understand Law as a starting point of Morality.

This entails that Fragmentation processes are taking place at different levels of social structures and are affecting not only the processes of structural reflexivity and interpretation of institutions but also crucially their innovation.When the process of interpretation of the world is fragmented a division of actions and results takes place. This is what creates the imbalance in the system.The lack of improvement through reflection processes that might strengthen their innovation are affecting State institutions. Therefore, recursive processes or processes of integration or combination leading to a equilibrium in the natural, practical and social world might provide a solution to the issue of Fragmentation. The Remedies of Courts should have a greater impact in the operations of lower courts and the practices of public institutions. Such outcome would reduce not only the number of claims of Social Rights but also will help to improve the highest levels of indicators of systemic and structural violations. It wil certainly make institutions more reflexive.




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