Mapping Public Law: a critical account of Ius Commune Constitutionale in Latin America

Public law is obsessed with mapping. However, without a critical account of how mapping is produced, pathologies emerge. Global Constitutionalism´s editors, commenting on the end of the ‘West’, stated that ‘we should give up to the idea of a deep connection between constitutionalist ideas and geographical regions, countries or power constellations’. In this scenario, several scholars focus on Latin America, ‘the region where the debate on the future of constitutionalism is debated with more intensity and urgency’, and advocate for a concept with the ability to address ‘a new legal phenomena’: Ius Commune Constitutionale in Latin America. This endeavour attempts to give an account of the ‘original Latin American path of transformative constitutionalism’. Here, I critically address the main postulates of ICCAL and present a more precise intellectual map of Latin American constitutionalism.

The social and the individual in disability juridification.

This paper analyses the way in which models of disability in social theory are incorporated in the process of legal regulation. It focuses on the late process of juridification of disability that has followed the CRPD (2011) which adopts the social model of disability. Most developing countries have recently undertaken the task of giving legal regulation to disability and for that they have had to face the need for a conceptual framework. It is affirmed that despite the relevance of the discussion on disability models, juridification limitations make impossible to capture the social complexity involved in the exclusion processes affecting people with disabilities. That results in that, even where regulation attempts to capture the social model, individual intervention (i.e. through an antidiscrimination law regime) takes precedence over social transformation (i.e. welfarist mechanisms of support for independent living).

Do public legal institutions need to show moral integrity? The case of hypocrisy.

Does the state need to have a moral standing to exercise public authority? Is this standing vulnerable to the charge of hypocrisy? The paper explores these issues, arguing that it is at times necessary for the state to claim a sort of moral standing in order to exercise its public authority, particularly where it engages in blaming practices such as punishment. However, the required standing is not equivalent to the moral standing that individuals need to blame or claim authority over others. Certain objections may not apply to the political relationship. Hypocrisy seems to be a kind of objection that is not appropriate for the political relationship as it is not based on reciprocity. Yet there is a strong intuition that suggests that when public authority is inconsistent and thus acts hypocritically, its actions may not be legitimate. How can we make sense of both the nature of the political relationship and the expectations we may have over the integrity of law and public agencies?

The Public Law Vice of Hypocrisy

Let me answer like the man in the story, “I must decline the soft impeachment.” Randall Jarrell, A Note on Poetry, 1940.

Assumptions about human nature undergird public law values, like equality, liberty, and dignity. Setting these assumptions to light exposes public law values to various forms of political critique, some of which fall under the broad heading of hypocrisy (where a good is publically claimed, though perniciously, even purposely, unrealized). This paper analyzes the various argumentative forms of the charge of hypocrisy that are raised against invocations, and interpretations of public law values. In describing one form of hypocrisy, the paper draws upon the work of C.B. Macpherson and the relation between theoretical justifications for political rule and claims about human nature. The paper argues that while some forms of the hypocrisy charge might apply to any speaker, there is a particular iteration that is uniquely applicable to the structure of public law values.