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comparative constitutionalism » cooperative constitutional (Expander búsqueda), democratic constitutionalism (Expander búsqueda), abusive constitutionalism (Expander búsqueda)
comparative constitutionalism » cooperative constitutional (Expander búsqueda), democratic constitutionalism (Expander búsqueda), abusive constitutionalism (Expander búsqueda)
1
artículo
Publicado 2021
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This paper addresses a particular scenario of the classic tension between constitutionalism and democracy, one that poses the existence of material limits to the power of constitutional reform. The subject undoubtedly raises a series of perplexities around some aspects such as the legal nature of the constitutional reform power. The essay analizes the defense of implicit material limits when the constitutional text has not explicitly recognized them, the competence and legitimacy of the courts, the normative parameter in merit to which this control would be carried out, among others. In this context, this article proposes to provide an analysis of these issues based on comparative law, exposing the cases of Germany, the United States and Colombia, countries that have provided different answers to the issue of material limits in function of their own constitutional texts and systems, and ...
2
artículo
Publicado 2015
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From the process of globalization of law, the comparative constitutional law has gained a leading role for a better understanding and solving old and new constitutional national and international challenges. Therefore, some assumptions and considerations to take into account are presented for the development of the national constitutional order within the framework of the comparative constitutional law, such as universality and relativism of human rights; the concept of power and constitutional democracy; standards of free elections and judicial independence; freedom of expression, media pluralism and access to public information; the economic,social and cultural rights; the new fundamental rights.
3
artículo
Publicado 2015
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From the process of globalization of law, the comparative constitutional law has gained a leading role for a better understanding and solving old and new constitutional national and international challenges. Therefore, some assumptions and considerations to take into account are presented for the development of the national constitutional order within the framework of the comparative constitutional law, such as universality and relativism of human rights; the concept of power and constitutional democracy; standards of free elections and judicial independence; freedom of expression, media pluralism and access to public information; the economic,social and cultural rights; the new fundamental rights.
4
artículo
As is known from the 80s of last century wave of democratization swept Latin America. The various dictatorships that time concluded. In most cases because the military government left power in International convened a constituent assembly as in Ecuador, Peru, Brazil and Chile, or are returned to the previous constitution as happened in the Uruguay reestablished the presidential Cons.. titution of 1966. Mexico and Argentina also did the same. Instead Venezuela and Colombia, who suffered no coups kept their constitutions. However they would be modified. In the case of Venezuela when Chavez was elected President and the Colombian government's decision then. The change of the Colombian Constitution was exemplary because it was linked to the use of direct democracy with double effect. First, a referendum was held to ask the people whether he was in favor of a new constitution and, after the p...
5
artículo
Publicado 2016
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Peruvian community justice is analyzed and also of the region, like countries which recognize constitutionality the legal pluralism, and provide similar standard treatment to the so-called special jurisdiction.
6
artículo
Publicado 2016
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Peruvian community justice is analyzed and also of the region, like countries which recognize constitutionality the legal pluralism, and provide similar standard treatment to the so-called special jurisdiction.
7
artículo
Publicado 2011
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A theoretical reflection on the nature and future of the entire system of guarantees in the face of the expansion of the scope of the jurisdiction as compared to the development of the system of legal limits and obligations granted to the public power structures. For every expansion in legality an expansion in jurisdiction should follow and hence, a growth of judicial power which, at the same time, requires the reinforcement of its legitimacy. Thus, the expression of the jurisdiction in line with the expansion of the legality established by the Constitution, allows us to rethink the sources for the legitimization of the Judiciary and its separation from the other public powers. The referred expansion process is not exhausted and expresses a clear tendency towards its ulterior development; a growth that evidences that the guarantees and the role of the jurisdiction are presently insuffici...
8
artículo
Publicado 2011
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A theoretical reflection on the nature and future of the entire system of guarantees in the face of the expansion of the scope of the jurisdiction as compared to the development of the system of legal limits and obligations granted to the public power structures. For every expansion in legality an expansion in jurisdiction should follow and hence, a growth of judicial power which, at the same time, requires the reinforcement of its legitimacy. Thus, the expression of the jurisdiction in line with the expansion of the legality established by the Constitution, allows us to rethink the sources for the legitimization of the Judiciary and its separation from the other public powers. The referred expansion process is not exhausted and expresses a clear tendency towards its ulterior development; a growth that evidences that the guarantees and the role of the jurisdiction are presently insuffici...
9
artículo
Publicado 2024
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The Preliminary Title of Civil Codes is a cornerstone in comparative law, as it provides essential guidelines for the interpretation and application of legal norms. Although its classical regulation has demonstrated a degree of effectiveness in addressing new legal, economic, and technological realities, it remains crucial for maintaining the coherence of the legal system. This article aims to propose a comprehensive theoretical framework for analyzing the Preliminary Title of the Peruvian Civil Code, addressing a gap identified in national legal doctrine and highlighting its structural and normative role within the legal system by establishing the guiding principles for interpreting and applying civil law. Through a detailed analysis and a comparative approach, the article underscores the importance of the Preliminary Title in preventing and resolving social conflicts, promoting justice...
10
artículo
Publicado 2024
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The Preliminary Title of Civil Codes is a cornerstone in comparative law, as it provides essential guidelines for the interpretation and application of legal norms. Although its classical regulation has demonstrated a degree of effectiveness in addressing new legal, economic, and technological realities, it remains crucial for maintaining the coherence of the legal system. This article aims to propose a comprehensive theoretical framework for analyzing the Preliminary Title of the Peruvian Civil Code, addressing a gap identified in national legal doctrine and highlighting its structural and normative role within the legal system by establishing the guiding principles for interpreting and applying civil law. Through a detailed analysis and a comparative approach, the article underscores the importance of the Preliminary Title in preventing and resolving social conflicts, promoting justice...
11
artículo
Publicado 2021
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The virtues of arbitration depend on the principle of judicial non-interference in its proceedings and on a limited regime of subsequent judicial control of arbitrations. However, there is a lot of confusion about the articulation of the different procedural control channels applicable to arbitrations, the timing of their activation and their scope. Article 3 of the Arbitration Act establishes the principle of judicial non-interference, but it needs to be understood within the entire framework of existing procedural defenses. For these purposes, the history of national and comparative jurisprudence plays an extremely relevant role.
12
artículo
Publicado 2021
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The virtues of arbitration depend on the principle of judicial non-interference in its proceedings and on a limited regime of subsequent judicial control of arbitrations. However, there is a lot of confusion about the articulation of the different procedural control channels applicable to arbitrations, the timing of their activation and their scope. Article 3 of the Arbitration Act establishes the principle of judicial non-interference, but it needs to be understood within the entire framework of existing procedural defenses. For these purposes, the history of national and comparative jurisprudence plays an extremely relevant role.
13
artículo
In comparative law, frictions between the Judiciary and the Constitutional Tribunal are not new. As Garcia Belaunde recalls they have existed since the 60’s in Italy, from where the name «Battle of the Courts» originated, because the maximum judicial body in said country is the Court of Cassation and the concentrated body for constitutional control is the Constitutional Tribunal. The aforementioned phenomenon is replicated in Spain and in Colombia, where the incident is known as a «train crash». In our country, to debate whether the Constitutional Tribunal is hierarchically superior to the Judiciary is to mention the scope of Article 201 of the Constitution in force that defines the Constitutional Tribunal as the autonomous and independent «controlling body of the Constitution». However and strictly in relation to the foregoing, this article also tackles the binding precedent, a ...
14
artículo
In comparative law, frictions between the Judiciary and the Constitutional Tribunal are not new. As Garcia Belaunde recalls they have existed since the 60’s in Italy, from where the name «Battle of the Courts» originated, because the maximum judicial body in said country is the Court of Cassation and the concentrated body for constitutional control is the Constitutional Tribunal. The aforementioned phenomenon is replicated in Spain and in Colombia, where the incident is known as a «train crash». In our country, to debate whether the Constitutional Tribunal is hierarchically superior to the Judiciary is to mention the scope of Article 201 of the Constitution in force that defines the Constitutional Tribunal as the autonomous and independent «controlling body of the Constitution». However and strictly in relation to the foregoing, this article also tackles the binding precedent, a ...
15
artículo
Publicado 2025
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The purpose of this research is to critically analyze the position adopted by the 2023 National Jurisdictional Plenary on Constitutional and Procedural Constitutional Law, which suggests that judges resolve appeals even when the procedural party has failed to present specific grievances. To this end, the dogmatic method will be used to analyze the concept of appeal, its purpose, its requirements, and the nature and significance of the grievance. Additionally, the exegetical method will be employed to engage with the various contradictory case laws regarding the requirement of the grievance. Finally, through the comparative method, the Colombian experience on the matter will be explored.
16
artículo
Publicado 2025
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The purpose of this research is to critically analyze the position adopted by the 2023 National Jurisdictional Plenary on Constitutional and Procedural Constitutional Law, which suggests that judges resolve appeals even when the procedural party has failed to present specific grievances. To this end, the dogmatic method will be used to analyze the concept of appeal, its purpose, its requirements, and the nature and significance of the grievance. Additionally, the exegetical method will be employed to engage with the various contradictory case laws regarding the requirement of the grievance. Finally, through the comparative method, the Colombian experience on the matter will be explored.
17
artículo
Publicado 2019
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In this article, the author performs an analysis of the constitutionality of the relative strict liability in the sanctioning administrative law, because although at the legal level the LPAG has enshrined the exceptionality of strict liability, however our Constitutional Court has always enshrined the prohibition of strict liability for being incompatible with the principle of culpability. In that sense, various points such as the Philosophy of Law, General Theory of Law, Range of Guilt Principle, Comparative Law, among other aspects, will be analyzed in order to be able to propose a constitutional reform in order to specify the sanctioning authority of the Administration Public and constitutionalize the exceptionality of the relative strict responsibility with its respective law of constitutional development.
18
artículo
Publicado 2003
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The attitudes of the parents are evaluated towards the children with Mental Retardation, through a comparative descriptive study. The sample was conformed by the parents, of 54 children with I diagnose of Mental Retardation selected of the Educative Centers of Special Education of the Callao, for it was used like instrument a Scale type Likert de Actitudes of the mother towards the son with Mental Retardation, as much in its version for the son like for the daughter. The results indicated that significant differences between the parents and the mothers as far as the general attitudes were not reached, and in the areas of Well taken care of Protection, Perception and Acceptance of the Problem Interpersonal Prejudices, Discipline, Relations, Expectations of Profit and Familiar Integration, according to the sex of the son separately. Significant differences were not reached either when sing...
19
artículo
Publicado 2020
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The authors, on the basis of the importance of the activities of constitutional courts in the system of separation of powers in most countries, propose a comparative legal analysis of the normative and legal acts governing the procedure for the adoption and legal nature of decisions of these bodies. On the basis of the study of the legal consolidation of the activities of the constitutional courts, it was concluded that the decisions of the constitutional courts, possessing such characteristics as the possibility of abolishing the legal norm; the final character; the obligation of execution for all state authorities, organizations and citizens; and the moral authority, perform a law-making function, establish rules governing important relations in society and play a special role in ensuring and protecting fundamental human and civil rights and freedoms plays an important role in ensuring...
20
artículo
Publicado 2019
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In this article I refer to the questionable points of the order for the admissibility of the competence filed before the Constitutional Court by the President of the Permanent Commission of the Congress of the Republic, which questions the dissolution of the Congress of the Republic, such as the arguments of the courts regarding Said Auto Admissive. Likewise, I refer to what is stated in Order by the Constitutional Court in response to the motion for replacement or clarification of the Order admissible raised by the Permanent Commission; also the Ombudsman's arguments regarding the dissolution of the Congress of the Republic, contained in the Ombudsman's Report on the political crisis, a matter of trust and dissolution of the congress. I show the limits of the Peruvian constitutional law that regarding the dissolution of the Congress of the Republic rejects the precautionary measure of t...
