This paper deals with the ways in which jurists and law professors applied transnational systems of public law, in particular US constitutionalism and French droit administratif, in their approaches to the state building process in late nineteenth century Argentina. In covering these movements of adaptation of a nascent legal culture to changing ideological and political circumstances, this article attempts to illuminate the strong links between the process of institutionalization of certain academic disciplines or forms of social knowledge, and modern state (...) building in Latin America. (shrink)

Drawing upon Hannah Arendt's and Carl Schmitt's theories on the relationship between nomos and boundary, this paper revisits how constitutionalism and political power are reconciled as constitutional ordering. It first analyzes constitutionalism in the light of political modernity. Indicating that political power grounded by constitutions is omnipotent, complementing and completing constitutionalism, the paper contends that an omnipotent constitutional ordering is anything but an unleashed Leviathan. It is argued that constitutional omnipotence is framed and thus constrained by a constitutional nomos, the (...) matrix of which is a dual delimitation of boundaries, generational, and jurisdictional. (shrink)

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial (...) decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

Drawing upon Hannah Arendt's and Carl Schmitt's theories on the relationship between nomos and boundary, this paper revisits how constitutionalism and political power are reconciled as constitutional ordering. It first analyzes constitutionalism in the light of political modernity. Indicating that political power grounded by constitutions is omnipotent, complementing and completing constitutionalism, the paper contends that an omnipotent constitutional ordering is anything but an unleashed Leviathan. It is argued that constitutional omnipotence is framed and thus constrained by a constitutional nomos, the (...) matrix of which is a dual delimitation of boundaries, generational, and jurisdictional. (shrink)

Abstract. To understand the problem of torture in a democratic society, we have to take up a political-theological perspective. We must ask how violence creates political meaning. Torture is no more destructive and no more illiberal than other forms of political violence. The turn away from torture was not a turn away from violence, but a change in the locus of sacrifice: from scaffold to battlefield. Torture had been a ritual of mediation between sovereign and subject. Once sovereignty is located (...) in the people, it no longer makes sense to speak of being sacrificed for the sovereign. Instead, sovereign presence is now realized in an act of self-sacrifice. The wars of modern nation-states have been acts of reciprocal self-sacrifice. Terror invokes torture in response because both speak a primitive language of political sacrifice, denying the enemy the privilege of self-sacrifice. (shrink)

El texto busca ofrecer un marco analítico y comparativo para estudiar en detalle un fenómeno que hasta hoy ha pasado prácticamente inadvertido: los costos constitucionales de la guerra contra las drogas. En las Américas, las políticas públicas adoptadas en un esfuerzo por suprimir los mercados de drogas ilícitas, han requerido o justificado reformas legales y transformaciones institucionales sustantivas. Estos escenarios son estudiados mediante una categoría que llamamos “costos constitucionales” y se ofrece, como punto de partida de una evaluación potencialmente más (...) amplia, un análisis de los casos de Colombia y México. (shrink)