The social market economy and some limitations to economic freedom in the 1991 Constitution

Abstract

The 1991 Constitution introduced into the Colombian legal system a significant transformation in the economic constitutional system by recognizing - not expressly - the social market economy as the foundation of the so-called economic constitutional subsystem. This change entailed a resizing of the freedoms and rights of economic content, and in particular economic freedom, freedom of enterprise and free competition, guided by mandates of economic efficiency, social equity and solidarity. In this new system, the market retains its role as a basic institution in the allocation of resources, but it is subordinated to the satisfaction of the aims and objectives of the social rule of law. Thus, two essential principles converge between which the market will move: private autonomy and public management of the economy. The article analyzes, from a legal and economic perspective, the constitutional foundations of this system, the configuration of economic freedoms as rights of a complex nature and the jurisprudential evolution that has consolidated their relational, limited and functional nature. Through a qualitative approach and with the support of doctrinal and jurisprudential sources, it identifies how the Constitution overcame the nineteenth-century liberal paradigm to give way to a normative system with pretensions of renewal in which the economic order responds to different dynamics with the pretension of achieving economic efficiency articulated with social equity. The research is structured on the basis of an inductive and hermeneutic methodology, which allows an integral reading of the constitutional text and its practical development in the Colombian context.