Revista Cubana de Derecho

The ideal dimension of Law

Robert Alexy — 2024-04-05

The thesis that law has an ideal dimension is essentially based on the argument that law necessarily raises a claim to correctness that includes a claim to moral correctness. John Finnis has contested the necessity of this connection between law and a claim with moral content. One implication of the claim to correctness is the Radbruch Formula, which says that extreme injustice is no law. Finnis also criticizes this formula. In this chapter arguments against Finnis’s two critical points are presented. This is further elaborated into a system of the institutionalization of reason that comprises not only the Radbruch Formula but also the special case thesis, human rights, democracy, and principles theory.

Rules and principles

Juan Antonio García Amado — 2024-04-05

The distinction of Manuel Atienza and Juan Ruiz Manero between rules and principles is reviewed. His thesis is that both rules and principles have a conditional structure, but in the case of rules the antecedent and the consequent are closed, while the principles are norms that have the antecedent open (they have exceptions) and the consequent closed. It is criticized that this characterization is incongruent with the thesis of the same authors in the sense that all norms are defeasible, because if all are defeasible, they are all exceptionable and then all are principles. Additionally, it is shown that this typology of norms, added to the balancing methodology, implies the transition to a Law based on judgments of equity or justice of the specific case. That is why this theory of law is incompatible with the postulates of the democratic and social rule of law and has serious taints of unconstitutionality

Realism and cognitivism(s)

Éric Millard — 2024-04-05

It is very common to consider that Legal Realism as a legal theory defends a non-cognitivist position in ethics and linguistic matter. In this paper, I argue that the link is only of a pragmatic nature and therefore unnecessary. There may be good reasons, even when adhering to cognitivism, or one of its variations, to defend a realistic position in legal theory. On the other hand, adhesion to any form of cognitivism is insufficient to invalidate realism in legal theory.

A Few Fragments of a Theory of Constitutional Antinomies for the Use of Guarantorist Legal Operators

Pierluigi Chiassoni — 2024-04-05

The paper aims to provide seven fragments of a theory of constitutional antinomies for use by guarantorist legal operators. Namely: (1) the distinction between constitutional antinomies in the generic sense, in the proper sense, and in the improper sense; (2) the distinction between logical and ontological constitutional antinomies; (3) the notion of a well-constructed code for the identification of antinomies (identifying code); (4) the notion of a well-constructed code for the resolution of antinomies (resolutory code); (5) the outline of a guarantorist code for the identification of constitutionally relevant antinomies; (6) the outline of a guarantorist code for the resolution of constitutionally relevant antinomies; (7) the outline of a guarantorist code for the resolution of constitutional antinomies in the proper sense.

The judicial decision on the facts and the law. An argument by analogy

María Cristina Redondo — 2024-04-05

This essay proposes an analogy between the decision on the facts at issue in a court case (the quaestio facti) and the decision on the law applicable to those facts (the quaestio iuris). Firstly, it identifies a number of relevant features that both decisions have in common. Secondly, on the basis of these common features, it attempts to show that some theses that are considered peacefully applicable to the former type of decision should also be accepted in relation to the latter.

In particular, it could be admitted that, in the context of a state that accepts the principles of the rule of law, both decisions aim to truthfully record a pre-existing fact and that, in this sense, the requirement to justify them refers to a requirement of epistemic justification. In this way, it is argued, the truth-value sought is not only an epistemic value, but also a political-moral value. Moreover, on the basis of the proposed analogy, it is argued that certain principles and institutions that are generally recognised in relation to quaestio facti decisions (such as the possibility of regulating the admissibility, the evaluation or the conditions of sufficiency of the evidence/arguments presented) could legitimately be applicable to quaestio iuris decisions as well.

Archipelago law. On the three topological types of juristic thought

Daniel J. García López — 2024-04-05

This text presents three types of juristic thought in the cultural-historical context of Germany in the 1920s. The three models are represented by Hans Kelsen (continental model), Carl Schmitt (oceanic model), and Walter Benjamin (archipelago model). The proposal of this research is that Benjamin’s form of thinking about law could overcome the intrinsic relationship between law and violence found in Kelsen and Schmitt.

The invalidation of law through morality

Martin Borowski — 2024-04-05

This essay provides a detailed analysis of the positive and negative effects of morality on the legal validity. To accomplish this goal, the Radbruch formula and its two sub-formulas will be presented and compared with the argument from injustice. Likewise, the arguments for and against a necessary connection between morality and law will be outlined. The latter will be done by taking a brief look at the postulates of inclusive and exclusionary positivism. Finally, the “cassation” role of morality and its relation to the judicial review will be discussed.

Law and Extreme Injustice in Hans Kelsen and Gustav Radbruch

Alejandro Nava Tovar — 2024-04-05

In this essay I offer a synthetic view of the postulates on law and justice outlined in Hans Kelsen's positivist theory of law and Gustav Radbruch's non-positivist legal philosophy. In order to carry out this task, I will explain the basic tenets of Kelsen's theory and his view of the relationship between law and justice, as well as the main tenets of Radbruch's view of law and his critique of extremely unjust law. Finally, I will offer a comprehensive and contrasting view of the importance of these two great philosophers of law for contemporary debates in legal philosophy.

Anti Essentialism and Hermeneutic Turn. Again on Hart’s Methodology

Francisco M. Mora-Sifuentes — 2024-04-05

This paper offers a reconstruction of H.L.A. Hart’s approach to the concept of law, especially on the centrality of a “hermeneutic method” to the analysis of legal phenomena. Thus, the first part deals with the “anti-essentialism” assumed by the author, the topics involved in the Nature of Law and its “definition” of legal systems as a union of primary and secondary rules. The so-called hartian internal point of view is the core of the second part of this paper. In order to get a broader picture, we return to the discussion between monism and dualism in social sciences, a later on focuses Hart’s presentation of the internal and the external point of view. Then, some discussion on the ambiguities and criticism of that distinction are presented. This paper concludes with some problems related with the incorporation of the internal point of view for the legal positivists approach advocated by Oxford’s legal philosopher.

About Eugenio Bulygin's (Antipsycho) logical Objection to Alf Ross’s Predictive Model of Legal Science

Diego — 2024-04-05

This paper presents a counterargument to Eugenio Bulygin’s (antipsycho) logical objection to Alf Ross’s iusphilosofical predictive thesis about legal science. From a prospective and psychological analytical perspective, Ross's thesis posits that the doctrine's statements about the existing law, the law in force, are predictions about which rules judges are likely to feel obliged to apply to solve legal controversies they encounter in the future. I intend to challenge Bulygin’s objection by considering it grounded on premises of questionable validity. To achieve this, I dissect it into two arguments: a logical argument questioning the prospective aspect of the predictive thesis and an antipsychological one criticizing its psychological nature. I show that the first argument raises a false problem, and the second one results from a pair of misinterpretations.

Decoding the communication of legal science

Carlos Manuel Villabella Armengol — 2024-04-05

The purpose of scientific research is to explain phenomena, solve problems, generate information, decant and review concepts and theories. The investigative process closes, in the strict sense, with the information of the results, with the communication of the new knowledge. Scientific communication has two recipients: the scientific guild and the public. When it is done before the first, it is called dissemination; when it occurs before the second, disclosure. It is carried out through two modalities: formal or written and informal or oral.

This article exposes the foundations of scientific communication, especially the dissemination of knowledge, essential for the falsification and reproducibility of science. The approach to the content is focused on legal science, an area in which the study of this content is rare. The purpose is to offer guidelines that contribute to the excellence of the scientific communication of law and that the new researcher does not perish in the attempt to do it.

Advance directives in Argentine law

Aída Kemelmajer de Carlucci — 2024-04-05

Advance directives are an expression of the person's autonomy. The legal system must respect the freedom of the person over their body and health. Argentine law recognizes this freedom in the civil and commercial code and in the patient's rights law.

Support, reasonable adjustments and safeguards in the dynamics of a new Law for people with disabilities

Leonardo B. Pérez Gallardo — 2024-04-05

The legal reform of the regime of the capacity of people with disabilities in Cuba is an unprecedented social challenge that concerns private entities, public servants, the State, communities, families and society, but above all the greatest challenge of this change of Paradigms entail a change in mentality, overcoming stereotypes, myths and taboos that humanity has been drawing for centuries to the detriment of them. The spirit that informs support, reasonable adjustments and safeguards as essential pillars of the social and human rights model that the CRPD introduced around disability and which this reform echoes today is precisely in enhancing the decision-making power of people. , the search for their will so that they can write their own biography in the first person singular and thereby enhance human dignity as a supreme value.

The Cuban Family Code: approaches from feminism

Alie Pérez Véliz — 2024-04-05

This science paper aims to analyze, from a qualitative perspective, the power relations in the family from feminisms, and the repositioning of the condition of women based on the legislative changes experienced in Cuba in 2022; starting from the regulatory background in the reference matter, for which legal historical, doctrinal theoretical and legal comparison methods are used. Feminism, as a response to the patriarchal society, has criticized the Law in its role of normalizing discrimination and exploitation of women. First, from laws that privileged men; and then, through egalitarian norms, which, starting from a de facto inequality, continued to reinforce those inequalities. Cuba has not been immune to this evolution of the Law, but with the 2019 Constitution and the Family Code, this reality has begun to change from a formal legal point of view.

The tension between the rights to free information and self-image in the internet age

Silvia Díaz Alabart — 2024-04-05

The tension between the right to one's own image and the right to free information derives from the essential opposition between the interests protected by each of them. In Spain, there is already extensive case law from both the Supreme Court and the Constitutional Court that deals with which of the two should prevail in the event of conflict. However, the introduction of new technologies, in particular the widespread use of social networks in which it is the users themselves who post all kinds of images on them, makes it necessary to reconsider whether or not the current rules for the protection of these fundamental rights are adequate. A relatively recent judgment of the Constitutional Court of 24 February 2020 provides the answer to this question.

The building flight transmission contract in Cuba. The euphemistic term assignment of roof use in technical duel with the real right of flight

Marta Fernández Martínez — 2024-04-05

In Cuba, the Right to Fly has been misnamed since the special housing legislation in 1984, Transfer of Use of Rooftop. Without a doubt, the nomen or the content and effects do not respond to the legal nature of the real right of use. The free or onerous transfer of a roof terrace is nothing more than the transfer of ownership of the building flight as a typical real right, since what is built becomes the real property of the person who exercises it. This real right, atypical by name, but typical by content in Cuba, involves two moments or phases: it arises from a contract that generates a ius edificandi and at the same time it is extinguished by building and describing what was built in full ownership. Each phase involves a notarial action that coherently outlines the content of the relationship and the real estate rights that are generated

A look at the incident of nullity of actions in the Cuban process code

Joaquín Ángel Collado Barbán — 2024-04-05

The present work addresses the reconfiguration of the incident of nullity of actions in the Process Code, based on the introduction in its organization of constitutional values as standards of invalidity of the procedural act: the violation of due process, the breach of legal formalities, helplessness and irreparable harm. The study of the new regulation of the nullity of actions shows the validity of the principle of transcendence, the elimination of differentiating criteria of nullity, the abandonment of the principle of legality, purpose of the act, and the criterion of essentiality in the qualification of the norms procedural forms subject to annulment, as well as the attribution of functions superior to the procedural forms in the system of guarantees that it protects. It allows us to understand the conception of nullity as a residual clause in the confrontation of defective procedural activity, and the need to expand the scope of protection of nullity of actions with the inclusion of other aspects that are framed within the effective judicial protection contained in the Article 92 of the Constitution, which would allow us to understand its role in the protection and defense of the fundamental substantive and procedural rights of the parties in the civil process in the context of the constitutionalization of the process that our country is experiencing after the promulgation of the Magna Carta in 2019.

The Cuban criminal process. Pending subjects

Juan Mendoza Díaz — 2024-04-05

On October 28, 2021, Law No. 143, “Law of Criminal Procedure,” was promulgated, which meant a profound reform of the prosecution model in the country, in correspondence with the catalog of guarantees contained in the 2019 Constitution. The strengthening of the right to defense, judicial control of provisional detention, the introduction of the principle of opportunity, the recognition of the rights of victims, among many other aspects, meant a great step forward in Cuban regulations. However, the reform left a group of aspects pending that are assessed in this article.

Comments regarding the new Cuban criminal Code of 2022: special reference to the sentence system and its adequacy

Mayda Goite Pierre — 2024-04-05

The study is presented for the consideration of the readers of the Cuban Law Review in its 100th Anniversary, with the purpose of highlighting the advances of the Cuban criminal reform of 2022, which gives continuity to the legislative process that has been carried out in the country after the proclamation of the new Cuban Constitution of 2019. A comparative analysis is carried out with the preceding legislation and the novelties of the general part are highlighted, among which the inclusion of new alternatives and accessory penalties and the adoption of adaptation rules, which contribute to promoting a reduction in the application of custodial sentences and a criminal and penitentiary policy that transforms previous conceptions, to which is added the elimination of pre-criminal security measures, all in correspondence with the research carried out on the subject.

Legal News

Colectivo de autores — 2024-04-05

Letter from the Director

Juan Mendoza Díaz — 2024-04-05

Reviews

Collective of authors — 2024-04-05