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Language Cuadernos electrónicos de Filosofía del Derecho. No 36
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- En torno a la igualdad en la fundamentación de los derechos sociales | On the Subject of Equality as a Foundation of Social Rights(2017) Dalli Almiñana, MaríaThis paper addresses some questions on the foundation of social rights from an egalitarian perspective. As universal human rights, social rights are assigned to all people. However, it cannot be inferred that social rights are, by definition, equality rights. Regarding the different kinds of egalitarianism, it is concluded that the relevance of needs and capabilities refers to the sufficientist variant.
- Hierro, Liborio L. Los derechos humanos. Una concepción de la justicia, Madrid : Marcial Pons, 2016(2017) García Manrique, Ricardo
- Los poderes probatorios del juez y el modelo de proceso | Evidential Powers of the Judges and the Procedural Models(2017) Ferrer Beltrán, JordiThe paper analyzes the debate on the convenience of attributing evidential powers to the judge. Ii is argued, on the one hand, that any response for this debate depends necessarily upon 1) the features of two models to be implemented: the model of the judicial process and that of the judge; as well as upon 2) the need to assume the search for truth as the aim in every judicial process. On the other hand, a correct answer to the problem needs a careful analysis of the different -and differently distributed- evidential powers the judge and the parties have.
- Defendiendo la igualdad de la objeción de nivelar a la baja | Defending the Equality from the Levelling Down Objection(2017) Ribotta, SilvinaThe Levelling Down Objection is one of the main complaints against equality, specially against egalitarianism as a distributive principle. How this objection is responded depends on what version of egalitarianism is assumed, and therefore on which kind of equality is pursued. This article examines the concept of equality and the different egalitarian approaches as well as its main features. Then, the arguments and justifications given by the egalitarian authors to confront the levelling down objections are analyzed. The main goal is to analytically build a stronger more consistent idea of equality.
- ?El jorobado hombrecillo? Distorsiones del cuerpo y del espacio en el universo jurídico kafkiano | ?The Little Hunchback? Distortions of Body and Space in Kafka's Legal Universe(2017) Fersini, Maria PinaIn Kafka's work there is no figure more frequent than that of a man bent over himself, under the weight of primitive forces, which Benjamin defines the archetype of deformity. Starting from this suggestive Benjamin's image and analyzing the progressive bending of forms that affects not only the protagonists of Kafkaesque fiction but also their environments, this essay wants to offer an aesthetic-juridical reading of The Trial, which proves as the curvilinear geometry that structures the novel conceals a genealogy of modern law distinct from that visible in official legal discourse.
- La imprecisión del lenguaje legislativo, expuesta en el artículo 18 LRJSP | The Imprecision Of Statutory Language, Exposed In Section 18 Of The Spanish Act On Legal Status Of The Public Sector (LRJSP)(2017) Rodríguez-Toubes Muñiz, JoaquínLinguistic imprecision is one of the main reasons why interpreting statutes is necessary, besides the perception of incongruence between their meaning and the practical reason that explains or justifies them. Causes or imprecision of statutory language are vagueness, semantic ambiguity, pragmatic ambiguity and some others, such as redundancy, repetition, infraspecification, inconsistence and anomalies. All of them are present in section 18 of the Spanish Law 40/2015, of 1 October, of Legal Regime of the Public Sector [Ley de Régimen Jurídico del Sector Público]. The paper analyses the linguistic imprecision of statutes with a systematic and comprehensive classification of problems, and taking that section 18 as a study case.
- La readmisión de extranjeros en situación irregular entre Estados miembros : consecuencias empírico-jurídicas de la gestión policial de las fronteras internas | The Readmission of Irregular Foreigner Within European Member States: Socio-Legal Consequences of a Police Management of The Internal Borders(2017) Barbero González, IkerThe police station in Irun, a town on the border between the Spanish and French States compared to other police stations in the Basque Country has the highest data of arrests of foreigners in irregular situation is concerned. It is normal, since it is common to find identity police controls near the border surroundings. The place where the border barrier was once was occupied by a car toll constructed with a very particular structure: as a border, with cabins for police men. In addition, the data of border readmission between these two states, under an agreement signed in 2002, is something to look at with special attention: 6.000 people deportaed along the Northen border. 70% of the people detained in the French Detention Centre of Hendaia in 2015 were caught at the border. This case study of the Spanish-French border will put some light in a disregarded topic and object: the internal borders. Regulation in these areas is diverse. Many exceptions and specificities apply, parallel or alternatively to the ordinary immigration rules, as a matter of exception of the Law. Considering all this we need to rethink the imaginary of a borderless Europe stated by the Schengen agreement. Following Balibar in ?What is a border?? (2005) the controls multiplied all along the territory as a kaleidoscopic vision. The EU internal borders never disappeared but mutated into a police managed modelo of internal borders.
- Las clínicas jurídicas y la identidad del jurista : reflexiones filosófico-jurídicas a partir del debate italiano | Legal Clinics And The Identity Of The Jurist: A Legal-Philosophical Perspective From The Italian Landscape(2017) Bernardini, Maria GiuliaAlthough the Italian debate concerning legal clinics is at the beginning, a growing number of Law Schools is starting to explore this approach to legal education. As a consequence, new topics specifically concerning legal clinics arise, while others ? more ?traditional? for legal-philosophical experts ? need to be reconfigured and re-articulated. This essay aims at addressing some of the latter aspects: once the terms of the debate have been reconstructed, I will consider two of the main topics of the clinical experience, namely the jurist?s formation and the tension towards social justice outcomes.
- Los poderes probatorios del juez y el modelo de proceso | Evidential Powers of the Judges and the Procedural Models(2017) Ferrer Beltrán, JordiThe paper analyzes the debate on the convenience of attributing evidential powers to the judge. Ii is argued, on the one hand, that any response for this debate depends necessarily upon 1) the features of two models to be implemented: the model of the judicial process and that of the judge; as well as upon 2) the need to assume the search for truth as the aim in every judicial process. On the other hand, a correct answer to the problem needs a careful analysis of the different -and differently distributed- evidential powers the judge and the parties have.
- Contra la normalización de la ilegalidad : la protección judicial de los extranjeros frente a las expulsiones colectivas y las devoluciones ?en caliente? | Against the Normalization of Illegality: the Judicial Protection of Foreigners Facing Collective Expulsions and Police ?Push-Backs?(2017) Solanes Corella, ÁngelesThe collective expulsion of foreigners, although prohibited by International Law, is a practice that has been systematically applied in the field of control of migration flows. In the case of Spain, on its southern land border, the so-called police "push-backs" have become widespread. The violations of rights entailed by these measures are incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms, from which obligations derive for the States Parties. This paper proposes a critical analysis of the jurisprudence of the European Court of Human Rights to delimit when a collective expulsion occurs. This is intended to avoid the apparent normalization of a measure that is illegal and to insist on mechanisms that guarantee the rights of foreigners.
- Negar la política, negar sus sujetos y derechos (Las políticas migratorias y de asilo como emblemas de la necropolitica) | Deny the Politics, their Subjects and Rights (Migration and Asylum Policies as Emblems of Necropolitics)(2017) Lucas Martín, Francisco Javier deEuropean immigration and refuge policies have been criticized by those who see them as emblems of a conception that puts in serious risk basic elements of the Rule of Law and even of democracy. The epitome is the emergence of slave markets in Libya (at the gates of the EU), a failed state that, nevertheless, the EU and its Member States are determined to raise to the status of privileged partner of their outsourcing policies. Based on the analysis of Lochak, Agambem and Bauman and the conception of the proposed by the Cameroonian philosopher Mbembé who develops Foucault's thesis about biopolitics, this text will propose some alternatives that are leaded by the requirement of recognition and guarantee of rights of immigrants and refugees.
- Derecho, soberanía y Pluralismo constitucional en el contexto de la globalización. Un análisis de sus tensiones y complejidades | Law, Sovereignty and Legal Pluralism in The Context of Globalization. An Analysis of its Tensions and Complexities(2017) Martínez de Bringas, AsierIn this paper we will proceed with an analysis of trends in the globalization of law as a result of the transformations in the ways of understanding the meaning and nature of sovereignty, emphasizing the paradoxical dimension has the right in the EU in tension with the constitutional right of states. The legal relationships have become much more complex as a result of the inevitable emergence pluralism in the way of understanding the law. It is what we call as Constitutional Pluralism, which in its own ways of production, distribution and application operates as a network, making it more complex and interdisciplinary the interpretation of any legal practice. Some of the changes and transformations that occur as a result of this new paradigm of Legal Pluralism will be some of the scope of this writing.
- Defendiendo la igualdad de la objeción de nivelar a la baja | Defending the Equality from the Levelling Down Objection(2017) Ribotta, SilvinaThe Levelling Down Objection is one of the main complaints against equality, specially against egalitarianism as a distributive principle. How this objection is responded depends on what version of egalitarianism is assumed, and therefore on which kind of equality is pursued. This article examines the concept of equality and the different egalitarian approaches as well as its main features. Then, the arguments and justifications given by the egalitarian authors to confront the levelling down objections are analyzed. The main goal is to analytically build a stronger more consistent idea of equality.
