Anales de la Cátedra Francisco Suárez

Autorías

2025-02-01T12:42:53+00:00

CV de las autorías

Issue 59 (and 58 and 57): by way of presentation and balance sheet

2025-02-19T12:29:25+00:00

This is the 59th issue of the journal Anales de la Cátedra Francisco Suárez. It is also the third and last issue for the moment for which I have been responsible as editor. With these issues we have tried to offer a journey through current issues and problems through the reflections and analysis of researchers on national and international legal thought. This has made it possible to bring together a wide variety of theoretical frameworks, methodologies of knowledge and approaches to specific legal systems.

The toolbox of cosmopolitan legal culture in the age of technological innovation

2024-07-26T12:15:55+00:00

Instrucciones para fugarse de la ciudadanía

2024-09-19T16:31:24+00:00

Del aula al algoritmo: derecho a la educación en la era de la IA

2024-09-23T09:43:29+00:00

Book Review

Un lugar de habla para los feminismos jurídicos

2024-09-15T11:07:36+00:00

Is it possible to speak about social rights in post-democracy?

2024-09-03T15:05:11+00:00

This article begins by analyzing the link between social rights and democracy in terms of the role that these rights play, adapting them to the reality in which they are to be implemented. Therefore, the transition from democracy to a post-democracy poses difficulties from the outset by creating obstacles to the genuine development of the principles that must govern the operability of social rights. So much so that we must ask ourselves whether it is possible for them to survive in this context. This being the case, a series of remarks and proposals from a perspective of citizen participation and a human rights approach are presented to save social rights. Finally, it is concluded that the main issue is overcoming those obstacles preventing the adequate justiciability and effectiveness of social rights.

Democracy, Citizenship and Promotion and Protection of economic, social and cultural Rights

2024-09-03T16:26:25+00:00

The approach based on human rights makes it possible to carry out a diagnosis of the main problems that democracies face today and in the future. Given the close connection between democracy and the achievement of human rights, particularly economic, social and cultural rights, addressing these difficulties seems decisive to guarantee them to the entitled subjects. The condition of citizenship is decisive to be able to achieve such rights, hence the definition of citizenship is, once again, a cause for important reflection. To a large extent, participation is a key component of citizenship, especially to participate in all those processes, not only electoral, but also legislative, including budgetary, that may affect the protection and guarantee of human rights.

One step forward, two steps backwards.

2024-06-17T15:29:49+00:00

The modern concept of solidarity stands out for its dynamic character based on a dialectic tension between individualization processes of a pluralistic society on the one hand and the integrative functionality of a limited community on the other. But the immersion of the subjects into institutions which intermediate their individual interests by the “abstract reliability” requires us to revise the relation between the modern state and national identity from a critical perspective inspired by the theory of Nicos Poulantzas. This leads us to a new concept of solidarity where the national homogenization is substituted by a new form of equality founded on autonomous and independent individuals. By reasoning a model of solidarity in this way we are able to resolve the deficiencies of sociological theorists onto the normative fundament of the social welfare state.

Law for the End of the World

2024-10-07T18:04:53+00:00

Law for the end of the world is an emergent epistemic category to raise awareness of a philosophical stance that is gaining more and more weight every day and that is based on a hyper-individualism that exacerbates all the negatives of modernity, based on fear and fostering a selfish and highly elitist stance

Social Rights in the Spanish Constitution: on the Importance of the Letter of the Law When Its Spirit Is Indecisive

2024-06-21T12:33:41+00:00

Whether due to a lack of rigor, or as a response to a doubtful or unclear attitude on the part of the constituent, what seems certain is that the Constitution would have established a system of balances. A system that, by virtue of what is deduced from subsequent legislation and jurisprudence, should not be interpreted solely in light of the declaration as a social State of Law, but the detailed provisions of the articles must be taken into equal consideration. A system of balances that, one might say, tries to find an intermediate point between the two paradigms that it seems to embrace: the liberal and the social. Paradigms that are not only observed in the solidity of the guarantees granted to civil and political rights in the face of the weakness of social rights, but are also observed in the constitutionality block and in an important sector of doctrine.

THE INEFFECTIVENESS OF SOCIAL RIGHTS IN THE FRAMEWORK OF POST-DEMOCRATIC GOVERNANCE

2024-06-14T18:24:59+00:00

Based on an analysis of the cycle of public housing policies that began in Spain after the 2008-2014 crisis and analyzing its results ten years after the beginning of its implementation, we come to the conclusion that, despite the good will and efforts of many regional and municipal administrations, the fruits are very limited. Why?

The thesis that this work defends is that the replacement of the old government paradigm of democratic leadership with the current neoliberal paradigm of post-democratic governance, fruit of the change in the phase of development of capitalism during the last four decades, leads us to a scenario where any legislative initiative that guarantees social rights is neutralized by the game of functional interdependencies between a plural constellation of multi-scalar actors that, through their interactions, surpass the State and determine its internal policies. This breaks the direct relationship between government action and results.

Faced with this, the only option to guarantee a future of economic and social well-being for the majority of the population lies in the field of the right to housing and other social rights, because the type of State intervention in the guarantee of social rights It stops being done through the “regulation of self-regulation” and begins to be done through management, planning and the imposition of the public over the private.

The Struggle for a Right to Care

2024-10-29T11:08:51+00:00

The article examines how the right to care can be made effective in the Spanish context. It analyzes the possibilities of implementing and ensuring its effectiveness. The article outlines the ethical and political foundations of this right and discusses its relevance from the perspective of social rights. However, it acknowledges significant challenges in implementing this right due to the lack of political consensus on the definition of care and its social organization. This hinders the establishment of legislation and the deductive analysis of its content and effectiveness. Instead, the article suggests delimiting and studying this right through the analysis of cases where judicial protection is sought in professional care sectors, such as home assistance help, cleaning, or chambermaids. This is an initial step towards assessing the effectiveness of these rights for the various parties involved.

Adolescents' right to sexual and reproductive health: educational needs

2024-09-23T09:48:48+00:00

The year 2024 will mark 30 years since the UN introduced the concept of the right to sexual and reproductive health. Since then, under the leadership of the WHO, progress has been made in developing educational programs on this topic. The UN has emphasized the need for these educational programs to truly meet the needs of the target population. We analyze what are the current needs of adolescents and what should be the keys to a comprehensive sexuality education that enables them to maintain healthy interpersonal relationships. We propose a reformulation of this education to improve its effectiveness, following the recommendations of the WHO.

THE ABORTION DEBATE IN MEXICO. THE DIALOGICAL CONSTRUCTION OF A RIGHT TO DECIDE

2024-09-06T17:49:52+00:00

This article examines the process of judicialization of abortion in Mexico, in the context of a deep polarization between feminist activism and conservative movements. It explores how feminism has successfully used the strategy of judicialization, achieving that the Supreme Court of Justice of the Nation ruled in favor of the recognition of the right of women and pregnant people to decide about their bodies. The text is structured in three main sections. The first offers a theoretical framework to understand the growing role of constitutional courts in making decisions that used to be made by legislative bodies. The second section reviews some key milestones in the judicialization of abortion, highlighting the fundamental role of civil society, both for and against reproductive rights. The third and final section examines the argumentative framework of the two paradigmatic decisions of the Court on the legal right to abortion.

La evolución jurisprudencial del derecho a la salud en México y el rol de los precedentes del poder judicial de la Federación como una solución a la indeterminación de su contenido esencial

2024-06-27T10:43:19+00:00

Una de las problemáticas que acompañan a los derechos económicos, sociales y culturales en su desarrollo y aplicación, es la indeterminación de su contenido esencial en los textos constitucionales. En este supuesto normativo se ubica el derecho a la salud en México. Su formulación lingüística en nuestro orden constitucional está expuesta de forma general, lo cual produce un problema de vaguedad al momento de hacerlo exigible ante las instituciones encargadas de protegerlo. Este texto plantea la necesidad de la especificación y comprensión del núcleo esencial que configura el derecho a la salud. Esta problemática de la textura abierta del derecho a la salud se ha ido solventando gradualmente mediante la formulación y adopción de precedentes por parte del Poder Judicial de la Federación. La evolución del derecho a la salud y de su contenido se observa en las sentencias en materia de atención médica, de protección contra riesgos sanitarios y de acciones de salud pública, que en su conjunto reflejan una serie de líneas jurisprudenciales del derecho a la salud en México.

For a Socratic Legal Culture in the Age of the Commodification of Rights

2024-10-22T15:36:15+00:00

This paper, based on the emblematic case of the Italian context, shows how the European legal culture of recent years has largely shifted from a culture built on written-positive rules (rule-based) to a jurisdictional culture characterised by the ceaseless creation of new forms of legal protection (right-based). This transformation has resulted in a preference for the practical reasoning of a substitute jurisprudence, which sometimes confronts the legislator through decisions that produce new rights without guaranteeing any serious democratic control in parallel. This work proposes considering a new Socratic-based legal culture to bring the adversarial approach to the centre of legal experience and, specifically, the trial phenomenon. This approach allows for a democratic reconciliation of the general normative premises adopted by the parties involved, while ensuring the rationality and systematicity of jurisprudential decisions.

ARTIFICIAL INTELLIGENCE IN JUSTICE. CHALLENGES AND OPPORTUNITIES IN JUDICIAL DECISION-MAKING

2024-09-02T09:40:58+00:00

In recent decades, artificial intelligence has revolutionized the field of law, allowing it to be used to analyse case law and predict court decisions. Public administrations and legal firms use artificial intelligence tools to process legal data, draft contracts and advise on the interpretation of legal texts. Logic and the philosophy of law are fundamental to formalising knowledge in intelligent systems. The legal decision-making process is being optimised with AI tools that search and analyse case law, manage cases and perform predictive analytics. However, it is crucial to address ethical challenges, ensuring transparency, fairness and accountability in automated systems. Emerging technologies promise to perform more complex analysis and adapt to new legal situations, but their implementation must be regulated to ensure fair and accessible justice.

Laclau versus Agamben: a dialogue between the postfoundational and the impolitical

2024-05-16T11:57:34+00:00

Postfoundational political thought and impolitical thought constitute two of the most relevant horizons of contemporary political philosophy. However, the literature does not always account for the differences between both approaches: the numerous assumptions they share have led to the implications that distinguish each of them being frequently confused. To delimit the concepts of the impolitical and the postfoundational, this article will propose the benjaminian distinction between the mythical and the divine as a hermeneutic key. Likewise, a dialogue will be established between two thinkers who will illustrate the difference between the postfoundational —Ernesto Laclau— and the impolitical —Giorgio Agamben—, while demonstrating the relevance of thinking about this difference based on Benjamin's categories.

BETWEEN FICTIO AND AGENCY.

2024-09-05T17:08:55+00:00

Contemporary governance requires a revision of the legal-political categories of modernity. The complex and mutable institutional framework of contemporaneity is characterized by an intensification and polarization of confrontation, which is exercised in heterogeneous ways and with heterogeneous instruments and on different levels. This transforms the role and structure of the normative, re-emerging its performative and fluctuating character as a strategic instrument of apprehension of the real, interlaced and traversed by elements of an extra-legal nature that are anything but objective. An image that well summarizes the paradigm of fictio legis, reconstructed by Yan Thomas from the ius-romanist tradition.

Análisis crítico de algunas definiciones comunes del concepto de soft law

2024-09-04T18:09:37+00:00

The aim of this paper is to critically analyze the dominant concept of soft law in the literature. To do so, first, I will present some problems related to the attempts of an extensive definition of the term "soft law". Then, I will present the definition of soft law most widely shared by the literature. I will then divide this definition for analysis into three parts: soft law is a set of rules of conduct; soft law is not legally binding; and soft law can produce practical and legal effects (the latter only indirect). I will end with a brief conclusion in which I will reconstruct a concept of soft law on the basis of the criticisms presented above.

JUDICIAL POWER FACING THE PROBLEM OF THE ONLY CORRECT ANSWER.

2024-06-03T10:59:55+00:00

Citizens need security and certainty in their social relationships and the powers of the State must provide them. However, today this is not the case. The principle of separation of powers threatens bankruptcy. The power of the State is weakened, and citizens no longer trust in the independence or transparency of its actions. In this situation, the judicial power appears to be the last bastion of trust for citizens. However, his performance also poses problems. Citizen’s ask themselves: ¿Is there or not a single judicial response for each specific case? This work deals with addressing this issue by defending judicial discretion and condemning, on the contrary, the arbitrariness that the use of lawfare would entail.

CONSTITUTION AS LIMIT, CONSTITUTION AS FOUNDATION, CONSTITUTION AS AXIOLOGY

2024-10-07T17:57:08+00:00

This paper reconstructs three conceptions of the constitution, labelled ‘constitution as limit’ (or ‘rule-based’ model of the constitution), ‘constitution as foundation’ (or ‘principle-based’ model of the constitution), and ‘constitution as axiology’ (or ‘value-based’ model of the constitution), and highlights their implications for the interpretative and argumentative techniques used by jurists associated with contemporary constitutional orders. It ends by exploring their mostly normative, but also partly descriptive, nature and analysing their reciprocal relationships, in order to verify that they coexist in overlapping and combined, but that they have, as such, a certain explanatory potential for the interpretative and argumentative practices that exist in recent legal culture. Finally, the degree to which they favour the normativity of the constitution is assessed, concluding that the model of principles guarantees a flexible projection of the constitution on the rest of the legal system, open to the participation of various institutional actors, which is why it is preferable to the model of limits, which is too narrow and circumscribed, and the model of values, which is diffuse and casuistic

Traces of Rousseau in Rawls. The collective construction of justice.

2024-07-22T16:24:02+00:00

Rousseau and Rawls are two of the most relevant political philosophers of the modern Western tradition, both for their innovative works and for the debates they have generated with their complex reflections on the fairest way to organize our societies. With marked differences, they have had clear similarities that connect them as singular and attractive thinkers who have bequeathed two of the most relevant works of political philosophy of all times. Reflecting in very different contexts, both have been deeply admired and profusely criticized. They are essential protagonists to understand and comprehend ourselves as political subjects who shared the persistent intellectual concern of thinking the best way to organize social institutions to allow fairer societies. This article aims to make visible the traces and impact of Rousseau in Rawls’s reflections, trying to understand how much Rousseau may have influenced Rawls’s ideas.

Philosophy of Evil, Criminal Justice and Punishment

2024-08-18T17:27:06+00:00

This paper argues for the need to include the issue of evil in concerns about legal punishment and criminal justice. To develop this, (1) it explores the possible reasons why this discussion has been overlooked by contemporary philosophy, arguing that the main ones are (a) the idea that evil is an exclusively religious reflection or that it only makes sense as a theological concern, and (b) the idea that concern with evil necessarily leads us down anti-liberal paths. Then, (2) some of the basic approaches of the philosophical reflection on evil developed during the 20th century, when it was rehabilitated as a consequence of the atrocities that took place during the world wars. (3) Finally, it shows the potential of this literature in the reflection on punishment, especially in the awareness of the experiences of evil in our time and the need to confront it and provide an response.