Latin American Legal Studies

Editors’ Note: Law and…? Interdisciplinary Studies in the Law

Irina Domurath, Sergio Gamonal C., Javier Wilenmann — Thu, 29 Dec 2022 00:00:00 +0000

Editor's Note on the Special Issue on interdisciplinary studies in the law

Legal History in the US and Latin America: Explaining a Methodological Divide

Juan I. Wilson — Thu, 29 Dec 2022 00:00:00 +0000

Legal history is practiced differently in Latin America and the United States. While US legal history strives to be a form of social critique, questioning the role of law in producing and legitimizing social hierarchies, legal history in Latin America has mostly been developed as a form of antiquarianism. This paper attempts to describe the historical and theoretical reasons that explain this methodological divide, including the role that lawyers have played in either opening the field of law to the social sciences or insulating it from other disciplines.

Marital Home. Law, Divorce and Intimate Violence in Nineteenth Century

Francisca Rengifo — Sat, 31 Dec 2022 00:00:00 +0000

This article analyzes the divorce cases processed in Chile in the 19th century during the period in which the foundations of the republican legal order were laid. Its objective is to identify the specific meanings of home as a private space and family environment in relation to the fundamental rights of men and women united in marriage. In this line, this paper investigates the tensions between these rights and the prerogatives of the husband – family man – in the liberal context and the secularization of marriage. Methodologically, divorce lawsuits allow us to immerse ourselves in marital homes given that they comprise several issues that include women’s rights, the defense of marital power, the voices of jurists and judges regarding marriage, as well as the understanding of power in the family, its abuse, and the intervention power of the State in said circumstances. This analysis reveals that divorce was a female protection resource against the mistreatment suffered at the hands of their husbands; this paper sustains that while the male prerogative to correct women was discredited, the notion of home as an inviolable space was a powerful defense for exercising marital power. Paradoxically, this discourse, although it could have overshadowed female rights, also acquired a positive meaning as a space from which to invoke rights and demand public action.

Utopia, Dystopia and Labor Law

Sergio Gamonal C. — Thu, 29 Dec 2022 00:00:00 +0000

In this article we will analyze how work is described by some of the most classic utopias, including utopian socialism. We believe that authors such as More, Campanella, Bacon, Andrae, Saint-Simon, Owen, and Fourier, inter alia, when building their utopias must have necessarily referred to work in those non-existent worlds. Accordingly, those dreams can help illustrate the scope and perspectives of current labor law. In this paper, we take a look at the possible utopian nature of labor law, especially in the unwanted but socially necessary tasks, which are generally invisible.

The Chilean Institutional Crisis and the Estrangement of Law

Javier Wilenmann, Mayra Feddersen, Maite Gambardella, Julia Cavieres — Thu, 29 Dec 2022 00:00:00 +0000

This article provides a comparative reconstruction of the debate on the Chilean institutional crisis in the national social sciences and in legal scholarship. In this regard, even though the critical effects of the transition to democracy (as well as the multiple indicators of social unrest) have been studied in the social sciences since the return of democracy, the Chilean institutional crisis has only been subject to sporadic analyses in the field of law. Accordingly, this article shows the evolution of the central characteristics of the debate in two areas and urges for greater debate and dialogue in the legal sciences. In their absence, their transdisciplinary effects will become unnoticed, and the same will occur regarding the content and functioning of other social science disciplines.

The Struggle for the Soul of the Contract: From Contractual Literalism, through the Law of Remedies, to the Confrontation between Contractual Equity and the Economic Analysis of Law

Rodrigo Barcia Lehmann, José Maximiliano Rivera Restrepo — Thu, 29 Dec 2022 00:00:00 +0000

The Exegetical School of Law, which postulated the defense of legal literalism, meant that in matters of obligations, forced fulfilment or specific performance of obligations was central to the system of contractual remedies. Furthermore, contractual literalism prevents the judge from revising the contract, unless the requisites of existence and validity are affected. The objective theory of contracts would change this maxim, allowing the judge to intervene the contract and alter how its specific performance operates. The most significant expression of the objective paradigm –which allows for limited intervention of the contract by the judge– is the European law of remedies. The objective theory has been developed fundamentally through the principle of good faith. The present work highlights the theories that are based on contractual equity in order to contrast it with the economic analysis of contracts.

The Hyper Vulnerable Consumer as a Weak Party in Chilean Law: A Taxonomy and Scope of the Applicable Legal Protection

Patricia Verónica López Díaz — Thu, 29 Dec 2022 00:00:00 +0000

The purpose of this paper is to address the hyper vulnerable consumer as a weak party in Chilean law from a theoretical and legal perspective. For this purpose, the author examines the laws and regulations that directly or indirectly address this situation, for later formulating a taxonomy of this weakness in our legal system. The taxonomy is elaborated based on criteria shown in comparative regulations and in standards recently incorporated by the National Consumer Service (SERNAC) in the Interpretative Directive on the notion of vulnerable consumer of December 31^st, 2021. Likewise, this work gives an account of the legal protection that must be delivered and its scope, supplementing the provision contained in the Directive described above and specifying the areas in which it should be intensified.

The technocrats and their monopoly on antitrust

Ignacio Agustín Peralta Fierro — Thu, 29 Dec 2022 00:00:00 +0000

In this article I seek to do three things. First, to vindicate the political character of the aplication of antitrust normas. Segundo, as a counterpart of the former, I seek to rebut the claim that antitrust is a completely technical discipline where there is no space for substantive considerations. Third, I seek to highlight the risks of acepting the idea that it is even possible for antitrust to be merely technical.

Transitional Justice in Established Democracies: Analysis of the Canadian, South African, and Chilean experiences

Hugo Rojas, Salvador Millaleo, Miriam Shaftoe — Thu, 29 Dec 2022 00:00:00 +0000

In the last four decades, theories and mechanisms of transitional justice have been formulated and implemented in numerous countries, forming an interdisciplinary theoretical and practical corpus. This paper proposes to expand the scope of transitional justice so that it can be applied in stable democracies. The proposed reformulation could be useful to address structural injustices affecting indigenous peoples, that are a legacy of colonialism and assimilationist policies, and to address acts of state repression that constitute serious human rights violations. These reflections are formulated on the basis of three recent case studies: 1) from the Canadian experience, the Royal Commission on Indigenous Peoples, the Truth and Reconciliation Commission, and the National Inquiry into Missing and Murdered Indigenous Women and Girls are analyzed; 2) from South Africa, the Truth and Reconciliation Commission, the Constituent Process and the Land Reform are discussed; and 3) from the Chilean case, the link between social unrest and transitional justice, as well as the Constituent Process, are explained.