Natalie Stoljar’s Wishful Thinking and One Step Beyond: What Should Conceptual Legal Analysis Become?

Praising wishful thinking is a serious risk that the author is willing to run not only in this article commenting of Natalie Stoljar’s work but also elsewhere in his scholarship. The author will analyze her claims and will agree mostly with them, he will also criticize her for stopping one step short adopting the desirability or weaker claim, when in it is not merely possible but necessary to go one step beyond arguing for the necessity or stronger claim. The author intends to present further grounds for endorsing “conceptual (legal) analysis pluralism” by distinguishing the three different inquiry or projects that are and must be integrated and stating the normative priority of one of them, i.e. the prescriptive, interpretive, and moral

Proportionality in Constitutional and Human Rights Interpretation

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer to such objections and to reject them, as well as to reinforce the importance of this development, the author: first, revisits the constitution of principles and of the principle of proportionality, which per definitio contradicts each one of this objections; and, then, restates the constitution of the principle of proportionality as a principle of principles not only in constitutional and human rights interpretation but also in legislation, including constitutional reformation, and adjudication

The Problem of Democracy in Contexts of Polarization

In this paper I argue that contemporary democracies all over the world are more polarized than ever and intend to analyze not only the conditions of possibility of a democracy, in general, and in contexts of polarization, in particular, but also the relationship between democracy and polarization. My claim is that polarization, if certain conditions are met, more than a problem it is a great opportunity to democracy and a greater democratization. Hence, I bring to mind that it was Ronald Dworkin, who recently asked about the conditions of possibility of a democracy and its relationship with polarization by developing a partnership conception of democracy in contraposition to the majoritarian conception. Besides, I call into attention the classics that have emphasized the relationship between democracy and polarization, since Robert A. Dahl coined the term ‘polyarchy’, such as Samuel P Huntington and Norberto Bobbio. Finally, I conclude that against all odds polarization is a great opportunity for democracy and a greater democratization

Reconstituting Constitutions—Institutions and Culture: The Mexican Constitution and NAFTA: Human Rights \u3ci\u3evis-à-vis\u3c/i\u3e Commerce

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by focusing the debate on whether the North American Trade Agreement (NAFTA), as an international treaty, regardless of its denomination, is constitutional. Furthermore, this debate will concentrate the discussion on the place of treaties in the hierarchy of norms, by critically analyzing a controversial jurisprudential criteria, according to which treaties are above federal laws. Third, this Essay will illustrate that in an eventual conflict between a treaty on commerce and another treaty on human rights, the later ought to prevail over the former

H. L. A. Hart’s Moderate Indeterminacy Thesis Reconsidered: In Between Scylla and Charybdis?

In this article, in the context of the fiftieth anniversary of H. L. A. Hart’s The Concept of Law, The author reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, the author intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases,” which resembles Aristotle’s “doctrine of the mean”; second, to criticize his thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; and, third, to reorganize an argument for a truly “mean” position, which requires a form of weak interpretative discretion, instead of a strong legislative discretion

Ronald Dworkin’s Justice for Hedgehogs and Partnership Conception of Democracy (With a Comment to Jeremy Waldron’s \u27A Majority in the Lifeboat\u27)

In this article the author focuses mainly in the last part of Ronald Dworkin´s Justice for Hedgehogs and in his argument for a partnership conception of democracy. For that purpose, first, he recalls some of the main features that Dworkin had advanced in previous but intrinsically related works, about political morality, equality and democracy; second, he reassess the arguments for a partnership conception of democracy; third, he reconsiders the resistance produced by Jeremy Waldron in his “A Majority in the Lifeboat” and the response provided by Dworkin, but since it may appear insufficient, he intends to present an alternative—or complementary—riposte in order to meet Waldron’s challenge; and, finally, he insists in the importance of taking Ronald Dworkin seriously

The Legacy of Ronald Dworkin (1931-2013): A Legal Theory and Methodology for Hedgehogs, Hercules, and One Right Answers

In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy (or philosophy of law) and legal theory (or theory of law), on the one hand, and its relationship to methodology, on the other hand; later by pointing out the main methodologies available to legal theories, following the distinctions between descriptive and prescriptive or normative, on one side, and, general and particular, on the other; then by revisiting Dworkin’s model, which he characterizes as constructive, interpretive (and even argumentative), evaluative and integrative; and, concludes by reconsidering in this light the one right answer thesis

H.L.A. Hart’s "The concept of law" and the moderate indeterminacy thesis reconsidered

In this article the author, in the context of the fiftieth anniversary of H.L.A. Hart’s “The Concept of Law”, reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, he intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases”, which resembles Aristotle’s "doctrine of the mean"; second, to criticize his moderate indeterminacy thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; and, third, to reorganize an argument for a truly “mean” position, which requires a form of weak interpretative discretion, instead of a strong legislative discretion

Economic Aspect of the Electricity Production in Subsidiary MPC Oslomej

The need to increase the production of electricity in the Subsidiary MPC Oslomej (Mining Power Complex-Oslomej), which operates as part of JSC ELEM (Macedonian Power Plants), 100% state owned company, represents a significant economic activity. Therefore, the analysis in this paper focuses and aims at the economic aspect of the current electricity production, that is, the impact of the expenditures of the Subsidiary on the price of electricity produced by ELEM JSC, a price also regulated by the Energy Regulatory Commission of the Republic of Macedonia (ERC). This shall draw attention to the necessity to timely prepare and adjust the industrial complex for operation in conditions of achieving and maintaining company competitiveness advantage in a fully liberalized electricity market in the Republic of Macedonia, expected in the year 2020. In this context, the development of the Subsidiary and the extension of the operational life of TPP Oslomej (Thermo Power Plants-Oslomej) stand as the top priority of ELEM JSC, and support the general orientation of the Republic of Macedonia towards the European trends

Le mariage d'un interné militaire ou d'un réfugié civil étranger en Suisse est-il possible?

La <<Revue internationale de la Croix-Rouge<< a publié en mai 19421 sur la question du mariage d'un interné en Suisse, un article dont l'auteur, le regretté Paul Des Gouttes, se basant sur l'arrêt du Tribunal fédéral du 2 mars 1942, en la cause Slubicki (ATF. 68.1.73), concluait, avec regret, à la négative. Depuis lors, cependant, par suite d'un nouvel afflux en Suisse de réfugiés, tant civils que militaires, de toutes catégories, des exceptions ont été tolérées et des mariages d'internés et de réfugiés avec des Suissesses ont été autorisés par les instances compétente