This presentation explores the extent to which bureaucracy can be a site of resistance to authoritarianism in contemporary public law. Liberal legal thought has traditionally viewed administrative agencies and the executive branch as a source of threats to public liberties and rights. While legislatures and courts are equated to democracy and law, administrative institutions are sometimes linked to technocracy and authoritarianism. When we think in terms of checks on arbitrary power we usually imagine judges and courts. In contrast to these ideas, however, this presentation examines bureaucracy as a tool to resist populist authoritarianism. I suggest that bureaucratic organisations are a key component of the rule of law ideal. Well understood they serve ideals of deliberation, rationality and incremental change. I claim that the erosion of bureaucracy in contemporary neoliberal governance has facilitated the emergence of authoritarian populism.
In the current context, where more and more authoritarian governments in the world, it is urgent to have an Administrative Law that can control these governments. From the theoretical perspective, this task seems urgent, inasmuch as, for the most part, theories on the control of state administration tend to be at one of the following extremes. One theory is that the administration should be as bound as possible, in such a way that it does not threaten this freedom. A second theory conceives the administration as a space to advance in the satisfaction of society's demands, where the administration should be left with the greatest possible margin of action, so that it is effective in the satisfaction of these demands. The question that arises then, is how to achieve a theory that recognizing the administration's margin of action necessary to implement the law and be sensitive to social demands, allows in turn to control the eventual outbursts it commits?
Financial Stability and Risk Regulation. A Normative Analysis of a Neglected Regulation in Developing Countries
There is a paradoxical nature in financial regulation. The same institutions and activities that allow the possibility of development of markets are those that generate the conditions for the instability and inherent fragility that would produce the next global crisis.
I will argue that legal systems and the theory of public law have not provided a proper response especially when financial regulation abnegates its role in controlling markets. It is by renouncing to provide a normative account that financial regulation, especially in developing countries, are left with a fragile institutional answer for these threats. Such a diagnosis would also help to critically approach to pressing concerns for the public law and for the role that risk and instability play in similar areas such environmental regulation, immigration, and energy regulation, all critical to the Global South.
The presentation will examine the level of autonomy and democratic subordination of the Armed Forces under Chilean law. To this end, it will review the constitutional evolution of the obedience and non-deliberation clause with respect to the Armed Forces. Considering those changes, the presentation will conceptualize the obedience and non-deliberation clause, in a compatible interpretation under the Chilean constitutional and democratic regime. Based on this, the normative and functional autonomy of the Armed Forces will be analyzed under the legal system.
The presentation will examine the tension produced by the encounter between constitutionalism and social protest, and how this tension appears upon problematizing the recent doctrine of social protest. There is an irreducible distance between these two phenomenons, due to the fact that social protest exists outside of the borders of legal normativity, hence, the legal system appears insufficient to process social protest as a socio-political phenomenon. In order to illustrate this main argument, it will expose the frailty of free speech clause as a cornerstone for social protest, as well as the tensions between both the individual and collective elements that constitute acts of social protest.