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Derecho transnacional o la necesidad de superar el monismo y el dualismo en la teoría jurídica
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Turégano Mansilla, Isabel
Law in a transnational context loses the features with which it has been configured since modernity. Classic distinctions between national and international, public and private, substantive and procedural, legal and political, social and legal lose their rigidity in a context of norms, orders, institutions and agents that interact and overlap in diverse and changing ways. A legal theory capable of explaining and evaluating this overflowing legal reality is lacking. A theoretical reflection on international law is not enough. Transnationalism appeals to a plurality of legal actors and spaces that interact to create, interpret and enforce rules which they mutually identify with. Transnationalism does not only refer to the global or the supranational, but to the interdependence of both with the local and transit spaces. And this translates into a change of focus or perspective that is required of each legal agent: management of the interrelation between diverse orders aimed to create spaces for approach, contestation and innovation is a normative requirement and it must be weighed against other legal values. Concepts to which legal theory must focus its attention change their meaning. The work refers to four of those concepts that I consider essential: social group or community, relations between orders and interlegality, coercion and normative diversity. The last part of the paper addresses the way in which these necessary changes have a place in our theories elaborated from the perspective of the great traditions of legal philosophy. What legal positivism, socio-legal theory and legal realism have in common might be an appropriate approach to the review of our discipline.
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Sobre la pobreza cultural de una práctica (judicial) sin teoría
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Ibáñez, Perfecto Andrés
The traditional model of initial training of judges in Spain and in other countries has been focused, and is still focused, on the mechanical digestion of a pile of stereotyped notions related to several legal subjects.This knowledge is presented with no references to specific legal disputes and does not meet at all, neither the profile of modern complex constitutional legal systems consisting of several levels, internally changing and conflicting; nor the practice of those systems. It does correspond, however, the historical model of the Napoleonic judge, who tends to act as a mechanical enforcer of the law and the longa manu of the real power rather than guardian of the citizens’ basic rights. The alternative to this kind of judicial training would be a system of training incorporating a high quality operative knowledge of the positive law actually in force, together with a theoretical-philosophical training in line with the suggestions made by Manuel Sacristán of «a level of exercise of thinking» based on the specific field and activity inherent to that group of legal practitioners.
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Emoción, racionalidad y argumentación en la decisión judicial
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Sotomayor Trelles, José Enrique
Based on the theory of the emotions proposed by Martha Nussbaum, the present paper proposes a theory of rationality and judicial reasonability that includes emotions as a necessary element. With this, it is possible to pass from a purely deliberative-abstract model of judicial argument to a narratively open one, in which empathy and literary imagination play a fundamental role. I will argue that emotions have a concrete manifestation in at least three relevant circumstances: the value of testimony, that of empathy, and that of literary imagination. However, the place of emotions for the project of judicial rationality is subject to institutional restrictions such as rules of law, procedures and precedents. With this in mind, a sketch of theory on the narrative rationality in judicial contexts is presented in the last section of this paper.
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Las presunciones hominis y las inferencias probatorias
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Aguiló Regla, Josep
The author challenges the terminology «legal presumptions» and «judicial presumptions», and rather refers to presumptions established by rules of presumption and to hominis presumptions. He argues that the best way to differentiate between them is by showing the contrast between «it shall be presumed» (syntagm proper to practical reasoning) and «it is presumable» (syntagm proper to theoretical reasoning). The text clarifies the relationship between the so-called hominis presumptions and the factual inferences or evidential inferences, in general. He answers the question of what the «it is presumed» syntagm (proper to the hominis presumptions) brings with respect to the «it is probable» syntagm (proper of all evidentiary inferences).
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Subsidiariedad y tribunales internacionales de derechos humanos: ¿deferencia hacia los estados o división cooperativa del trabajo?
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Iglesias Vila, Marisa
In this article I develop a normative theory of the subsidiarity principle in international adjudication, which seeks to offer a balanced answer to the question of to what extent is it legitimate for a body such as the European Court of Human Rights to interfere with the national criteria in the face of a complaint on conventional rights violation. In contrast with demands for greater deference to states in both Europe and Latin America, based on a statist idea of subsidiarity, I articulate a «cooperative» understanding of the ideas of human rights and the principle of subsidiarity, linking them to Buchanan’s notion of ecological legitimacy. The proposal I defend leads to a division of institutional labor within regional human rights systems that increases the legitimacy of all the institutions involved. At the same time, I devote the last part of the paper to implement such cooperative view, on the one hand, showing the importance of an incremental logic in the effective protection of human rights and, on the other hand, offering a rationalized version of the national margin of appreciation doctrine.
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Gracia y justicia: el lugar de la equidad
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Ruiz Miguel, Alfonso
The essay deals with the relationship between mercy and equity as a form of indulgent justice. Starting from the Aristotelian concept of equity, the essay studies the relationship between indulgency and normative overinclusion and underinclusion, considers the reach of equity in criminal law and concludes analysing the relation between judicial equity and legislation.
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El formalismo jurídico: un cotejo entre Jori y Schauer
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Pintore, Anna
This essay examines and juxtaposes Mario Jori’s and Frederick Schauer’s ideas on legal formalism. Although developed independently of each other, these ideas show remarkable similarities: both focus on the notion of norm or rule as a tool for clarifying the notion of legal formalism; both defend legal formalism from the criticisms routinely moved against it. The author maintains that Jori’s and Schauer’s theories may contribute to shed light on (and criticize) the controversial notion of defeasibility of legal rules; they may also contribute to scale down, from a legal-theoretical point of view, the novelties of contemporary constitutional orders; finally, it may help to better understand their working machinery.
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Desafíos para la filosofía del derecho del Siglo XXI
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Ródenas, Ángeles
This paper shows a mismatch between a real and pressing demand for a philosophical analysis that allows us to explain the emergence of new phenomena in law, and the limited supply of theoretical tools to satisfy this demand by the traditional model of positivistic science of law. After an initial diagnosis of a mismatch between supply and demand, the resistance of legal positivism to accept practical rationality stands out as a core problem of the traditional model of positivistic science of law and the viability of this way of rationality is defended. The paper concludes with a proposal for the reinvention of the philosophy of law of the 21st century that incorporates new objectives and rethinks its method.
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Derechos humanos en tiempos de inseguridad ciudadana: experiencia canadiense a la luz del derecho interamericano
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Provost, René
Canada’s experience in the war against terrorism goes back to the seventies, and continues to develop nowadays, with the last direct terrorist activity in 2017. The Canadian Government reacted to these terrorist attacks by enacting a number of statutes that reflect a changing international paradigm in relation to the fight against terrorism. Fundamental rights and liberties such as the freedom of expression, the right to private life and to personal freedom have been curtailed by these legislative measures. The practical consequences of these measures are analyzed via a comparative examination of the Inter-American System of Human Rights. In general terms, the war against terrorism produces significant impacts over the human rights.
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La violencia de las leyes: el uso de la fuerza y la criminalización de protestas socioambientales en el Perú
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Saldaña Cuba, José; Portocarrero Salcedo, Jorge
This paper does a profound description of the legal framework and its recent modifications related to the State’s use of force in socio-environmental conflicts. This analysis emphasizes in law’s violent nature as a theoretic approach that intends on showing the way that the legal system, instead of defending rights, violates them. The methodology is dogmatic when analyzing law and other legal documents, and interdisciplinary when comparing laws with evidence gathered in interviews, participant observation, documents and databases. The objective its to characterize critically the complex legal framework that articulates the politics that leads to the criminalization of social protests against extractive industries in Peru.
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Intuicionismo y razonamiento moral
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Lariguet, Guillermo
My goal for this paper can be presented as follows: I will attempt to show that objections to intuitionism, although they are serious, do not undermine entirely its fertility for knowledge and moral reasoning. This is probably the perception of contemporary philosophers like David Enoch, Robert Audi, Russ Shafer-Landau or John McDowell. In order to fulfill the objective mentioned above, I will do the following. First, I will outline broadly two of the paradigmatic features of moral intuitionism in order to identify it as a particular metaethics doctrine. Secondly, I will summarize some of the main objections that have been raised in order to discredit the value of moral intuitionism as a source both of moral knowledge and of valid support for moral reasoning. In third place, I will try, also briefly, to explain some of the possible (not all of course) answers to the objections previously mentioned in the paper. Fourth, I will recapitulate the more fruitful aspects of intuitionism, especially in regard to moral reasoning.
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Neoconstitucionalismo y argumentación jurídica
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) García Figueroa, Alfonso
This paper aims to explore the functions of the theory of legal argumentation (TLA) on Constitutional States and will especially focus on the political and self-reflective functions of the TLA within the framework of a neo-constitutionalistic legal theory. The first part of the paper includes a definition of the TAL and an analysis of its main functions. At the end of the paper the author provides the bases for the development of a neoconstitutionalistic legal theory.
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Exigibilidad de los derechos sociales: algunas aportaciones desde la teoría del derecho
(Pontificia Universidad Católica del Perú. Fondo Editorial, 2017-11-14) Pacheco Rodríguez, Miguel Ángel
This paper explores some of the main contributions developed bylegal theory in favour of social rights enforcement. The first part is devotedto the concept of subjective right and particularly to the conceptions due toRobert Alexy and Luigi Ferrajoli. The second part includes the analysis ofthe relationship between social rights and the principle of equality. Specialattention will be given to Luis Prieto’s theory. Finally, both post-positivisticand neo-constitutionalistic theories of Law will be evaluated in terms of theirdegree of recognition and defence of social rights.