The Powers of Application

This paper studies the formality of law and legal reasoning. It argues that, though the law (and its application) is indeed formal in that it does not take into account a significant number of considerations that should in principle be relevant for an all–things–considered decision, this is not to be explained on the basis of some ontology of rules (i.e., rules as exclusionary reasons), but upon the nature of legal discourse when viewed as a social practice. How the law is applied to particular cases, when substantive considerations not referred to by the rules are important enough to defeat their application to the case and questions of this kind are not answered by the legal material (which includes or might include rules, principles etc.), but by beliefs that underlie legal practice, beliefs about the world and its relation to human beings and society. Insofar as these beliefs have impact upon practices we recognise as legal they are termed "images of law." Legal reasoning cannot be understood without paying due attention to the nature and evolution of images of law.     

Constituent Moment,Constituted Powers in Chile

Law and Critique - This article discusses the concept of constituent power and its application to the situation in Chile after the 18th October 2019. In particular, it discusses the relation...     

Risk Exposure,Humanitarianism and Willingness to Pay for Universal Healthcare: A Cross-National Analysis of 28 Countries

Social Justice Research - In this article, we explore the associations of people’s valuations of universal healthcare with risk exposure and humanitarianism across diverse institutional...     

Election through complaint and controversy for political power in Chile, 1874–1925

SUMMARY

This article offers reflections on the power relations between the executive and legislative branches of the Chilean state by examining the way political parties leveraged the electoral system to balance the weight of each branch in the configuration of government. The period from 1874 to 1924 is framed by a cycle of reforms to Chile’s 1833 constitution that were pushed through by liberal sectors to limit the power of the executive under the country’s presidential regime, efforts that contributed to a final breakdown of the presidential regime following civil war in 1891. That year the victorious revolutionary forces implemented a parliamentarian system that remained in place until it was overthrown by a military coup. The literature on this process has studied the use of legislative manoeuvres such as obstruction, accusation and filibuster by political parties to weaken the executive power. Little has been written, however, about the way parties exploited the rules and procedures of the electoral system and, specifically, the use of official complaints and the process known as calificación (qualification) by which congress audited final election results. This article will help fill that void, focusing on understanding how both practices worked and the effects that the election reforms of 1874, 1884 and 1890 had on them.     

Legal Reasoning and Legal Theory Revisited

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them.