FIRST PRINCIPLES
are outside the player’s control. This classification is important when it comes to limiting participation in certain games to persons whose own actions may influence the outcome of a game. For example, players or referees in a soccer game. Human rights involved in betting games When designing a public policy on betting games, governments often make mistakes due to paternalism, lack of technical knowledge, cognitive biases or a lack of equal treatment. Nevertheless, the most grievous one relates to the protection of human rights and the principle of proportionality: when States implement unnecessary, inadequate and unreasonable measures allegedly to protect human rights or other constitutional purposes. There are too many instances where the degree to which human rights are affected by the legislative measures that are implemented is not justified by the level of satisfaction that is intended to be achieved with respect to those human rights or other constitutional purposes. This is the cause of lawsuits between the State and the holders of the human rights affected by the unreasonable and unduly restrictive regulation of betting games. But, which human rights are usually impacted by betting games’ regulations? Basically, there are 7: the right to the free development of personality, the right to equality before the law, the right to free enterprise, the right to work, the right to leisure, freedom of contract and the right to property (the latter due to the exercise of the State’s fiscal power through the taxation of gambling). In conclusion, we will only address the first one: the right to the free development of personality. Human beings are unique, each individual has a particular value and orientation in life and sets goals on those bases. In other words, everyone
has a unique life plan. The right to the free development of personality seeks to protect that very personal life plan. It consists of the right to do what one wants with one’s life. It is the right to decide what to do and what not to do in order to realize the personal project that each person has for his or her life. Not all people are motivated or amused by the same things. This right is exercised in the decision to get a tattoo, to smoke, to marry and divorce, to gamble and make any decision that arises from the most intimate conviction of each person and is limited by any harm that its exercise could bring upon others. Dignity is a value, but it can also be constituted as a right. Dignity is the right to entitlements by the mere fact of being human. The free development of personality is closely related to dignity since the latter is its foundation and the former is a realization of the latter in the field of constitutional rights. There are many rights where dignity is obvious and clear; this is one of them. In comparative law, it is sometimes considered a residual right of freedom and at other times an autonomous right. In some cases, it is an explicit and formal right, expressly enshrined in a written Constitution, and in other cases, it is an implicit right created by court rulings. But even if it is not specifically recognized in a constitutional text, this does not mean that it does not exist or that it cannot be protected. It is so closely linked to human dignity that there is no need to spell it out in a legal standard in order to defend it. When a State decides to regulate betting games, it is necessary to evaluate to what extent its legislative measures may affect the free development of personality. As can be seen, constructing a legal theory of betting games is a cumbersome path. Betting games are businesses, contracts, jobs, manifestations of leisure, and a motive for creating taxes. All these approaches give rise to legal problems that can only be solved correctly under a comprehensive vision.
CARLOS ALBERTO FONSECA-SARMIENTO Partner, Fonseca Abogados LLC and Gaming Law S.A.C. For information contact carlos@fonseca.pe
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IMGL MAGAZINE | APRIL 2023
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