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

The legal status of married women reveals the prevailing consideration of their nature and capacity, testifying, with the survival of certain provisions from Spanish historical law to the existence of a misogynist past, but also of a present which, if it does not exacerbate discrimination against women because of their sex, it perpetuates it. Proof of this can be found not only in the regulations in force, but also in the novels adhering to the realist and naturalist literary trend that emerged throughout the century. As a result, this study combines the analysis of both literary and legal knowledge to outline a more approximate historical reality of the position and circumstances surrounding nineteenth-century Spanish women with regard to their only legitimate destiny: marriage.

In Vicky Hernández et al. v. Honduras, the Inter-American Court of Human Rights declared that Vicky Hernández, a trans woman, was a victim of gender-based violence and intersectional violence because of her gender identity. However, the Court’s postmodern-influenced concept of gender should be questioned from a structural and asymmetric theory of gender. In this sense, we will study the theoretical debate around the concept and how it influences the case with the intention of providing some clues to unravel the current debate around gender identity.

Este artículo reseña: Hugo Aznar y Katia Esteve Mallent (Eds.), Crisis y revisión del liberalismo en el periodo de entreguerras. (2022) Tirant lo Blanch, Valencia, 455 pp.

Este articulo reseña: Natalia Torres Zúñiga, The Inter American Court of Human Rights. The Legitimacy of International Courts and Tribunals. (2022) Routledge, London-New York, 213 pp.

In the civil law tradition, vertically binding precedents are often rejected by reference to three interrelated arguments: (1) judges do not create the law, they merely apply it; (2) judges are bound by statutory law, not by the decisions of other judges; (3) statutes, not the judicial decisions that interpret and apply them, are sources of law. The paper addresses the three arguments separately, arguing that precedents can have binding force and be considered sources of law even in countries where their very existence is highly contested. First, it is argued that judges of higher courts engage in important creative activity when they interpret the law, so that we can speak of genuine precedents governing the interpretation of the law, which add something new to the law. Secondly, it is shown that the binding force of these precedents in civil law countries can be quite robust, especially when compared to systems where their bindingness is generally accepted. The final part discusses the extent to which precedents that interpret the law can be considered sources of law.

Este artículo reseña: Étienne Balibar, Passions du Concept. Épistémologie, théologie, politique1. (2020) La Découverte, París, 271 pp.

The violence that a man exercises against his female partner usually takes place at home where she is isolated in a specific social unit under his authority and control. Although for centuries this practice was located in the so-called «private sphere», feminist theories have been demonstrating that the phenomenon of violence in the sphere of the couple is the projection of a broad structure of domination that subordinates to women. Noting the influence of the European Court of Human Rights and the Inter-American Court, this paper seeks to analyze the way in which both systems have reconstructed this type of violence, as well as the relationships that have been identified between the two spheres that it involves.

Obstetric violence is an internationally recognized concept among which multiple abusive practices are perpetrated, ranging from physical aggression and verbal abuse to hospitalization and forced sterilization (WHO, 2014). Obstetric violence is defined as a form of gender-based violence that reproduces a situation of structural discrimination against women (Šimonović, 2019). It is difficult to understand why women with full capacity and recognition of rights, experience daily these abuses that, despite their heterogeneity, are exercised in virtually all gynecological-obstetric contexts in the world. Among these abuses, we must frame judicial interventions in childbirth as a complex practice of violence in which reproductive subjects are dismissed as subjects of knowledge and subjects of rights. Despite their scarcity, judicial intervention in childbirth entail a violation of multiple fundamental rights and limit women's ability to make decisions about their bodies and reproductive processes. This is the case of a recent Spanish Constitutional Court decision (STC 66/2022), popularly known as the "Oviedo Affair". The dismissal of this appeal for protection with an emphasis on the absence of fair hearing throughout the judicial process marks a palpable trend in which reproductive subjects are configured as subjects of dubious epistemic status. The silencing of women and the disavowal of their testimonies in reproductive health settings, as well as in the judicial and administrative system, should be considered as acts of testimonial epistemic injustice. At the root of these injustices lies a lack of recognition of women as epistemic subjects based on a constant credibility deficit that places them on the periphery of the production of knowledge on reproductive processes. This displacement must be understood as an act of oppression articulated by structural conditions that keep women out of the rhetorical spaces where both obstetric discipline and law hegemonically determine who knows and what knowledge counts.

This article analyzes the jurisprudential progress and the standards contributed by the Inter-American Court of Human Rights in introducing the concept of intersectionality when examining cases in which gender discrimination is presented in conjunction with another ground, such as race, social class, etc.; for this purpose, it proposes a classification of the cases in which that court has dealt with the concept of intersectional discrimination. The objective is to identify the way in which it carried out the corresponding examination and to advance in the proposal of an intersectionality examination that can be adopted by national courts.

The gender approach is a principle applicable to all the activities of the Special Jurisdiction for Peace in Colombia. Its inclusion as principle in the framework for peace generates high expectations concerning the protection of victims who claim the justice action. The recent actions of the Peace Jurisdiction demonstrate that there is an intention to correct the gender biases that have permeated the justice system and perpetuated discrimination against women. Notwithstanding, there are still many challenges that must be resolved in judicial practice concerning this issue. These challenges must be overcome if the integrated transitional justice system pretends to fulfill the international standards for the protection of women’s human rights and consolidate a real possibility to achieving peace.