Revista Cátedra, 8(2), pp. 38-54, July-December 2025. e-ISSN: 2631-2875
https://doi.org/10.29166/catedra.v8i2.7911
In Ecuador, there are four pillars that define the legal nature of an institution, which may be
a public, municipal, fiscomisional, or private educational establishment. Beyond the legal
nature of the educational institution, the LOEI mandates that no establishment shall be for-
profit. However, this provision is far from being fulfilled and is therefore an open discussion
that leads us to the commercialization of education and its privatization, but which is not
the subject of this work.
2.4 State duties and the right to education
From a normative perspective, Ecuador is a constitutional state with duties, not rights
(Judgment No. 282-13-JP/19, 2019). The state's duties can be "positive or negative
obligations" (Ferrajoli, 2013, p. 558). The Ecuadorian state's highest duty is to "guarantee,
without any discrimination, the effective enjoyment of the rights established in the
Constitution and in international instruments, particularly education" (Constitution of the
Republic of Ecuador, 2008, Art. 3, No. 1). The reasons that give meaning to the Constitution's
prescriptions for the state are rooted in philosophical and political foundations. For
Professor Cortés, the constitutional state rests on the theses of social liberalism, which is
characterized by endowing the state with the function of "protecting the vital needs of
people through their recognition as fundamental human rights and by establishing a system
of guarantees that includes prohibitions of harm (negative) and obligations to provide
services (positive)" (2012, p. 191). In contrast, for Ramiro Ávila, the foundation of the
constitutional state is distributive egalitarianism, which is characterized by its emphasis on
a collective and supportive human being, entitled to multiple rights necessary for individual
and social life, particularly economic and social rights (2025, p. 6). Both positions are
complementary. They recognize that the role of the constitutional state is to guarantee
rights; however, to achieve this goal, the state has a set of positive obligations that it must
fulfill.
Professor Luigi Ferrajoli (2013), based on a formal legal systematization, indicates that all
rights are expectations, although not all expectations contemplate the same correlations
and obligations. For example, following the liberal classification of rights, freedom rights
such as privacy entail negative expectations of non-injury, consisting of no impediment or
disturbance to the exercise of the right. Meanwhile, economic, social, and cultural rights
such as education entail positive expectations of provision, consisting of the action of the
obligated party to guarantee the right (pp. 144-145). However, each right requires, to a
different extent, both negative and positive expectations for its fulfillment.
For the right to education to be effective, the State must develop a complex system of
negative and positive guarantees. Positive guarantees are "the obligations corresponding to
positive expectations" (Ferrajoli, 2006, p. 25). In this case, they are the actions that the State
must adopt to make the right to education effective. But we must remember that guarantees
are not implemented in the abstract, but rather are materialized through public goods and
services, whether their own or improper.
According to our Constitution (2008), the State promotes and guarantees the right to
education through the National Education System and the Higher Education System (Art.
343 and 350). It is interesting how the constituent, when drafting the regulations relating
to the S.N.E. and S.E.S., appears to have done so under the conception of Niklas Luhmann's
systems theory, which understands society as a complex social system that, given its
complexity, requires subsystems, each of which "observes society from its own function"
(Urteaga, 2009, p. 308). If we analyze the purposes that the constituent attributed to each