La judicialización de la política y el problema de su indeterminación conceptual.

Judicialization of politics implies, as a general feature, the social propensity to submit various private and public matters to the decision of the magistrates and, correlative to said collective dynamics, the institutional vocation of the judges to assume themselves as deciding subjects of those matters. However, a correct approach to the notion of the judicialization of politics, leads us to warn in a preliminary, that such phenomenon suffers a constant vagueness in its use in academic settings and in public discourse. Even, in certain occasions, the concept is used to identify undue interventions of the courts in matters traditionally assigned to the political powers. Indeed, the difficulty in determining the contours of the phenomenon is based on the fact that the judicialization of politics refers to several interdependent processes with asymmetric characteristics that developing in juxtaposed planes, which require their differentiation and particular analysis.

Ámbitos excluidos de la reforma constitucional en el Perú

The unamendable provisions, as an explicit material boundarie to the power of amendment, are not configured in the Peruvian Constitution. However, in the Peruvian legal system is possible to control any constitutional amendments by judicial review. The Peruvian Constitutional Court carries out this exercise using the “basic structure” of the Constitution, referring to the elementary precepts that confer identity to the Peruvian Constitution and that, therefore, are devoid of any modification in their content.

In this sense, in this article, based on a theoretical and casuistic analysis, we will try to answer, on the one hand, to: i) what are the criteria that allow to justifiably control the content of the amendments and, on the other, ii) how can we establish that these criteria are sufficient so that the result of the control is not subject to democratic objection.

Origen y legitimidad de la Constitución de Chile: notas de teoría política y legal

The year 2019 will mark the 40th anniversary of the Chilean Constitution, approved under the dictatorship of Augusto Pinochet. With multiple and relevant amendments, this Constitution remains in force. However, those who criticize its legitimacy continue to do so on the grounds of its origin. The aim of this paper is to explore, from the standpoint of political and legal theory (John Finnis, Eric Voegelin), why a Constitution’s origin does not necessarily determine its legitimacy. In addition, all of this refers to a deeper and more relevant problem for constitutionalism: its relationship with contractualism. We will argue that reflecting on this is fundamental for public law in modern times.

El Estado y su supervivencia desde el Renacimiento: una categoría histórica o absoluta?

The State, from its origin, experienced tensions of different intensity, which in certain cases seemed to compromise its subsistence, but overcame them through transformations.
The last century was prototypical: Nazi totalitarianism and the universal state; Marxism with its failed conception of state extinction; the so-called failed states; the migrations that blur the borders; the attempt to restore the EI Caliphate.
At present the population of the world are subject to states, although the majority of the people does not integrate states in which the rule of law and democracy prevails.
There is a new Public Law, product of the overcoming of the borders between internal and international law and of the confluence of Constitutional and International Law in all its facets (fundamental human rights, humanitarian law, etc.).
That globalizaed Public Law, founded on the principles of civilized nations, it will be instrument with which the state can reaffirm itself as a permanent category.

Igualdad política: implicancias para el diseño institucional y los derechos fundamentales

This paper explores the relationship between political equality and other types of equality, as well as its implications on the design of key public institutions and fundamental rights. In particular, it evaluates the configuration of civil and political rights (freedoms of expression, assembly and association), and certain political institutions. The paper concludes that Chilean constitution double structure -elitist democracy on the one hand, and neoliberal civil society, on the other-, does not promote voting equality, effective political participation and control of the political agenda, which are Robert Dahl’s conditions for a full democracy. In other words, it is worth asking, in this context, whether citizens have the discursive means and the participation channels to effectively carry out the making of collective decisions. Restated, given the conditions stated above, can the people be considered as “free and equal” in political matters?

Constitución y clientelismo

Clientelism, or machine politics, is a widely known phenomenon in the world. The distribution of benefits to individuals and the attempt to hold them accountable for their votes (Stokes et al., 2005) is practiced in both developed and developing countries, in both presidential and parliamentary systems. Clientelism is contrary to political equality and a distortion of basic ideals of democratic governance, including the “representative ideal” and the “deliberative ideal”. Constitutional law can react to, or interact with, clientelism, in various ways. The Colombian Constitution attempted to outlaw clientelistic practices with little success. In turn, its Constitutional Court has so far ignored clientelism when exercising judicial review of legislation and administrative decisions. Building from the Colombian example, this paper attempts to lay out a foundation on how to incorporate distortions of democratic governance, such as clientelism, in reflections about constitutional law.

Los Tratados comerciales y la privatización del derecho: amenazas para la soberanía y la democracia.

The deepening of the neoliberal or ordoliberal globalization that has taken place in recent decades has radically modified the relationship between the State and the market. The autonomization of the regulation of markets, removing it from the legislative power and even from the executive power itself, has transferred a large part of the regulatory power to agencies called independent. The example of the “independence” of the Central Banks allows us to see the consequences but the extension of this model to many other fields, granting the capacity to make decisions, self-regulating to create “private law” is a step of incalculable scope for the future of democracy. A further step is the creation of “international tribunals” of a private nature. The TTIP and other bilateral treaties show the extent of the flight from the law by the great global economic powers and the threats hanging over the sovereign legislative capacity and over the jurisdiction of the judiciary itself.