Kelsen has been one of the main representatives of legal positivism. Within his theory of law, he analyzed issues such as the role of the constitutional court, the interpretation of judges, the character and hierarchy of the rules, among other aspects. The paper will analyze the influence that Kelsen's thinking had in Colombia, mainly in the analysis of the Constitutional Court rulings. However, the reception that Kelsen's thinking had on authors and its impact on the analysis of public law in Colombia will be taken into account.
The influence of Hart (1907-1994) on contemporary legal thought is out of question. Some of his ideas are already in common use among jurists, both theoretical and practical, such as the ideas of open texture, rule of recognition, and the distinction between primary and secondary rules. On this paper I want to show the influence of Hart on some judicial opinions in Mexico, particularly some of the opinions of the Mexican Supreme Court of Justice. I have chosen a judicial case, namely the writ of Amparo 186/2008 resolved by the Plenary of the Mexican Supreme Court. In relation to the question of whether the constitution can be subject to judicial control, in said matter it was determined that it was not possible to admit that the inadmissibility of the writ of amparo against a reform of the Constitution was “notorious and clear”.
The concept of claim to correctness has been progressively elaborated by Alexy, who in the 1970s analyzed it within the procedural (formal) framework of discourse theory. The claim to correctness is the validity claim necessarily connected to practical discourse (Habermas). Since legal discourse is a special case of general practical discourse (Alexy), it also necessarily raises this claim.
In the 1990s Alexy addressed the substantial (material) dimension of the claim to correctness by connecting it to the claim to justice. The necessary connection between Law and Morality is clear in hard cases, in the event of a legal gap. Judges must make decisions even when positive law is omissive and must justify their decisions. As a special case, legal discourse is based on general practical discourse – which comprises moral arguments (besides ethical and pragmatic arguments). These arguments must fill the legal gap, which again demonstrates the necessary connection between Law and Morality.
What do we mean by “disagreements between legal theorists”? A simple answer: disagreements among legal theorists occur when two (or more) agents have rival theories to explain a matter within the same field —in the specific case, the study of law. One of these cases is the debate between H. Kelsen and H. L. A. Hart. Remember, for example, that Carlos S. Nino tried to explain the differences between the theorists in the frame of legal positivism.
These disagreements, in order to be not trivial, must be in the same heuristic field. It follows indirectly from the condition that the problem does not lie in the disagreements that may exist between legal practitioners or between these and legal theorists.
I assume that the conceptual schemes used by the theorists in the construction of their explanations were seen as static and abstracting from the linguistic dynamics of interaction in language games.
The contribution of professor Catharine Mackinnon to the field of Feminist Legal Theory is undeniable. In this session, I will discuss Mackinnon’s impact on the growing field of Feminism constitutionalism and her influence in Latin America. Analyzing the ways in which her work on feminist jurisprudence shaped our understanding of the potential of constitutional law to create a positive impact on women’s lives. Her recent work ‘Butterfly politics’ (2017) is an invitation to engage in collective and transformative actions, no matter how small, have the potential to lead toward a radical change of the legal landscape in favor of a more equal society. Questions on how constitutions can be interpreted and what changes can be made to transform women's lives using the tools provided by constitutional law aims to promote Mackinnon’s message on finding new ways that create shockwaves that transform our societies.
Globalization is considered to have made nation-states lose, or are losing their “sovereign” character in national and international politics, due to the emergence of administrative political entities that are disputing this political power such as large companies (multinationals) or private corporations, or even “global cities” as global economic agents. This new type of sovereign entities is impacting the model of Rule of Law, by competing with the legal systems in the national-states framework, in how these protects persons, rights, and fills some duties of the states.
In this sense, ¿how can be building a theoretical possibility of a global constitutionalism in non-state legal scenarios, based on the construction of a proposal for a mandatory protection, within the framework of Globalization? This paper aims to reflect on the possibilities of building this theory, having in account the relationship between democracy and constitutionalism.