An analysis of the rulings issued by the Constitutional Court of Peru (TC) between 2024 and the present day reveals a shift in how state intervention in the economy is legitimized. Although the TC maintains the Economic Constitution and the social market economy model as its frame of reference, its members show a tendency to appeal to principles aimed at weighing state intervention in order to reconcile it with the protection of fundamental rights.
Before the current Court was formed, the justices’ oversight was more formal, using the principles of subsidiarity and exceptionality as parameters for state intervention in the economy. The current composition, however, seems to be shifting the basis of its decisions toward a neo-constitutionalist approach, more frequently grounding its rulings in principles. It is important to clarify that this does not necessarily imply an unconditional support for state intervention—although this can be observed, for example, in the ruling on financial usury—nor does it represent an unrestricted openness to future interventions under a constitutional guise. In this respect, the Constitutional Court’s ruling on the Law of Extinction of Ownership should be acknowledged as correct, reaffirming the unrestricted respect for property rights as one of the pillars of our economic model.
The issue that warrants deeper reflection is the type of reasoning—or, in legal terms, the argumentative methodology—that judges employ when they intensively invoke principles to justify state interventions that were previously unseen. This reasoning, with its marked neo-constitutionalist imprint, poses the risk of generating argumentative weakness when sufficient evidence is not offered to support the reasons for future interventions. For example, in the case of usury in the financial system, the Court alludes to the existence of “de facto powers” without identifying them or describing their specific impact.
Likewise, a dynamic is observed that could be described as an “à la carte menu” of principles, selected according to convenience, always invoking the “imperatives or requirements of the Constitutional State of Law.” This has entailed a displacement of the principle of subsidiarity in favor of other principles, expanding the margin of discretion of the constitutional judge and validating state interventions without the support of robust empirical parameters.
It is important to raise our voices against certain doctrinal currents that have been uncritically adopted and that, under the argumentative framework of neo-constitutionalism, tend to place judges in the role of a kind of “social justice vigilante.” In this vein, judicial reform is not simply about changing the people involved. It is also necessary to foster political and academic discussion about the role of constitutional justice in our country, confronting certain trends or paradigms that, while they may seem innovative or “attractive” in theory, generate harmful effects in practice.
