Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

In recent decades there has been a phenomenon that reaches the constitutional jurisdiction of countries with large social inequalities. Part of this phenomenon is the use of a jurisprudentially created figure called a structural judgment. Since Brown vs. Board of Education in the United States due to issues of racial segregation; Grootboom vs. Republic of South Africa, for the right to decent housing and that of the People’s Union for Civil Liberties vs. Indian Union and others, for the right to basic food, until reaching the judgment T-025 of the Constitutional Court of Colombia on forced displacement of persons. In Peru, it has been the Constitutional Court that has issued more than a dozen occasions such judgments, which have fallen mainly on socio-economic rights. Despite this, its development in our environment is still incipient, so it is pertinent to analyze the path that is going.

The Court of Justice confirmed early that the principle of an effective remedy is a general principle of EU law. With the entry into force of the Lisbon Treaty and the EU Charter of Fundamental Rights, the foundation of case law turned to the Article 47 of the Charter, detecting progresses which suggest that the Court has assumed the task of conferring to said precept the effectiveness and the proper content that the protection of the rights recognized by EU law demands. In this paper we will expose the argumentative lines to which the Court has resorted to support the aforementioned fundamental right. Secondly, the common legal bases of these case law lines will be revealed, trying to show that there have not been qualitative differences that prevent to pose a unitary configuration of a same and unique right. Lastly, the intention is to define the content of this right with an integrative interpretation. This aim will show that the efficacy and content of the right have had an evolution that converges in similar fundamental parameters. Those parameters are materialized in levels of protection that, in general terms, are potentially more demanding than those derived from national constitutions.

This paper analyses Article VI of the Preliminary Title of the Civil Code for the purpose of determining its current usefulness. For this purpose it goes back to the origins and sense of the French maxim “interest is the measure of actions”, its reception in the Italian Procedural Code of 1865 and successive conceptual developments, going so far as to argue that article VI analyzed contains the parameters (legitimate, economic or moral usefulness) needed to establish the existence of what the Civil Procedural Code calls “interés para obrar”, that is, if the requested (or a substantive defense) is appropriate to receive a substantive decision.

This research analyzes the importance of the concept of permission in normative systems based on the idea that it does not only mean absence of prohibition, and that the notions of prohibition / obligation are not enough to explain these systems. In this sense, taking as main referent the classical theory of Carlos E. Alchourron and Eugenio Bulygin on the meanings of the deontic term “permitted” according to its prescriptive and descriptive use, as well as the distinction between the field of the normative systems and the field of legal reasoning, the author suggests that although a “non-prohibited conduct” can be interpreted as an “permitted conduct”, this interpretation is not sufficient to consider that such conduct is regulated and available to the subject. Regarding the practical analysis of permissive rules, mainly in the framework of constitutional states, the author explains the utility of these to close the legal systems, generate the obligation to facilitate or the prohibition of not interfering in the action referred in the permit, and delimit the normative powers when there are hierarchically ordered authorities.

Two mechanisms, covered by legality and widely used in conflicts of economic origin between employers and labor unions (such as arbitration and strikes), have a complex relationship. Here we propose a review of essential and incidental elements that configure both mechanisms for their legal-economic utility in union conflicts. To meet this purpose, we propose a review of relevant aspects of the pragmatics of strike and arbitration, comparing their similarities and differences, to recognize in them the institutions whose existence in economic conflicts surpasses any design or interpretation that intends to constrain it as a simple static or sequential resource.

The legal system introduces dramatic examples of unintended consequences and the consumer protection system. In this paper, the authors analyze the perverse incentives that a poor design of the rules on recalls to review defective products can generate. Thus, a genuine concern about the consequences advises introducing modifications aimed at achieving consumer welfare.

This article describes the discussion between Gaius and Hume regarding the correct definition of “natural law”. It concludes that all rules that regulate man, through which he has formed not only the Civil Law of each State but also the Law of Nations, are always conventional, being the correct natural laws only those that have not had any intervention by man for their creation but exist by themselves: physics, chemistry, and biology. Once this is defined, the investigation presents the conditions under which Private Law, which regulates the daily activities of the human being and has been created gradually by the conduct of ordinary actions and without the intervention of a superior being, needs to converge with these natural laws, which are immovable, non-transferable, and invariable. The conditions will be applied to the institutions of Private Law that are part of the universal features shared by all human beings as the essence of their existence: marriage, force, property, damage, and contract.

This investigation will carry out a study of the Principle of Legality in the Social State of Law, in which a criticism is made of the classic formulation of the same and a new understanding is proposed per the requirements that follow from the social clause and which affect the new Lending Public Administration. An understanding of the principle of legality is also raised based on the rule of law, but which responds to the new role played by the Lending Public Administration. It starts with a classic approach to it, a critique and finally a current approach to it.

The current round table gathers three renowned specialists: Beatriz Franciskovic, from the perspective of Constitutional Law; Enrique Varsi, from the perspective of Civil law; and Pierre Foy Valencia, from the perspective of Animal Law, in order to analyze the current state of animals in the legal system, considering the Law 30407 – Ley de Protección y Bienestar Animal, and the last judgment of the Constitutional Court about bullfights and cockfights. Thus, the guests address the implication of considering animals as a subject of law, and the limitation of legal system to establish and the adequate and effective regime in favor of animals.

This article will analyze the regulatory framework that regulates the coexistence of children with their mothers in the “Establecimiento Penitenciario Mujeres de Chorrillos” (Women of Chorrillos Penitentiary Establishment) from a Constitutional Law perspective. Currently, the Criminal Enforcement Code allows inmates to live in prison with their children under the age of three. The aforementioned establishment, following the requirements of national and international regulations, has implemented in its facilities various social programs of health, education and food to ensure a comprehensive development of the children who are in this establishment. This research aims to balance the positive and negative impact of the application of the regulatory framework, through the aforementioned social programs, in the enjoyment of children’s fundamental rights to the family, health, education and the food. The authors consider that the impact on each right are both positive and negative, with the exception of the right to food, which they believe is fully guaranteed. Finally, the authors conclude by proposing solutions to the negative impact caused by the regulatory deficiency.