Latin American Legal Research Articles

Rights of nature, indigenous communities and land property: legal perspectives from Latin America

Abstract This article presents some dialogues between the recognition of rights of nature, indigenous communities and land property rights in the context of Latin American legal innovations in recent years. To do so this paper is framed within a socio-legal perspective that involves the analysis of a corpus of documents made up of regulatory texts at national and local level, including constitutions, laws, and ordinances related to the topics as well as relevant court rulings.

Contestation, Emulation, Reformation: Latin American Legal Thought at the Hague Academy of International Law

Contestation, Emulation, Reformation: Latin American Legal Thought at the Hague Academy of International Law

Housing and Patrimonial (Property) Violence against Women: The Reproduction of Gender Asset Inequalities in Brazil

AbstractAccessing and retaining adequate housing can be a major challenge for low-income city residents, particularly women trying to escape domestic abuse. Focusing on housing struggles amidst urban poverty, this article explores a specific kind of gender-based violence – violation of women's property rights – recognised by Latin American legal systems as ‘patrimonial violence against women’. Drawing on qualitative research in Brazil, this article shows how women are likely to experience gendered evictions and dispossession, and why patrimonial violence against women remains largely misunderstood and underreported, despite legal progress. The discussion expands current understandings of the interplay between gender, violence (explicit or otherwise) and the reproduction of asset inequalities.

Vulnerable witnesses in Chilean criminal proceedings: New developments

Common law countries have long been implementing legal reforms that recognise the special needs of vulnerable witnesses. While these issues have been the subject of considerable scrutiny and debate in evidence law scholarship, this is not the case across Latin American legal systems. This article intends to contribute to such a debate. Chile recently enacted two special laws that significantly amended the general evidentiary regime in an effort to account for the challenges facing children and victims of sex crimes. This article provides an account and analysis of these recent legal reforms. We contend that while both laws address critical issues impacting specific classes of victims, the lawgivers failed to recognise that there is conflict between the rights of the victims and the rights of the accused, generating legal reforms that have unreasonably restricted the right of defendants to confront witnesses.

Latin American Legal Pluralism

This article surveys the antecedents of present- day Latin American legal pluralism, establishing what is old and what is new. It takes issue with why what currently transpires is identified as “pluralism” and asks questions regarding the way this pluralism operates, most particularly, how it is differently applied to indigenous and Afro-Latin American communities.

Trans Rights: The Ongoing Debate in Latin American Legal Agendas

This article offers an overview of the Trans people's rights agenda in Latin America. It focuses on various Latin American countries to reveal how the route towards rights has been marked by a binary and medicalizing approach to non-normative identities, directly influenced by the traditional and conservative moral projects prevalent in the region. It also accounts for some recent normative and case-law developments, which however coexist with restrictive norms that criminalize the rights of gender-diverse people. It concludes that the recognition of Trans people’s rights is often insufficient, that it contributes to rendering Trans diverse realities invisible, thus reinforcing discrimination.

Criminalization of femicide in Latin America: Challenges of legal conceptualization

The concept of femicide was created within the feminist theoretical field of studies influencing Law reform in Latin America. Eighteen countries throughout the region have criminalized femicide based on different legal provisions, in intimate and nonintimate relations. This article aims to provide a comparison of legal definitions of femicide as adopted in Latin American legal frameworks and to analyze the challenges of using law to give a name to the gender-based killings of women. The transition of the concept to law may partially impact its potential since other forms of gender-based violence may be hidden in a general clause of ‘gender prejudice’. It may also lead to restricted recognition in the legal system since traditionally this system operates in a conservative way wherein individual criminal liability has limitations in addressing institutional discrimination. Despite regional challenges, criminalization has contributed to raising social awareness on gendered killings. It has induced improvements in statistics and pushed for more attention on prevention policies and support for survivors and relatives. Nevertheless, current conservative movements tend to stress only the punitive approach and entail backlash on gender equality policies. This comparative study aims to contribute to a better understanding of the concept in the region.

Interpretation of the Concept of “Enterprise” in the Context of Latin American Legal Scholars’ Contemporary Ideas on the Tasks of Civil and Commercial Codifications

The relevance of the study is connected with its complex nature, giving an understanding of the vector of development of civil and commercial codifications in some Latin American countries, based on recent statutory regulations, which were not previously adequately reflected in the doctrine. From this perspective, therefore, this study fills the gap in the relevant knowledge. The author examines the features of the legal regime in certain Latin American countries to comprehend and show which trends prevail in a particular country and how this is reflected in the tasks of civil and commercial codifications. Thereby, the results obtained by the author are given in a comparative aspect in the context of Latin American legal experts’ ideas on the tasks of civil and commercial codifications concerning the legal recognition of the interpretation of the concept of “enterprise”.

Regional patterns of multilateral treaty cooperation: Is there a Latin American ‘commitment gap’?

Latin American states have long been active participants in multilateral treaty making. However, the rich history of Latin American legal activism contrasts with debates about the degree to which these states commit to international agreements. We probe the existence of this purported ‘commitment gap’ by analyzing the signing and ratification of multilateral treaties. Are Latin American states less likely to ratify agreements they have signed than states from other world regions? Using survival analysis of an original dataset on multilateral treaties deposited with the UN Secretary-General, we find no difference between Latin America and North America/Europe in terms of ratification. If a commitment gap exists, it appears to be more evident in other regions, particularly East Asia, Africa, and the Anglo-Caribbean. To the extent that there is a ‘commitment gap’ at the regional level in Latin America, it is unlikely to be due to country-level factors such as domestic institutions.

THE IDENTIFICATION AND USE OF METADATA IN AUDIOVISUAL WORKS. Part 5 of STUDY ON THE AUDIOVISUAL LEGAL FRAMEWORK IN LATIN AMERICA

This report is part of the Study on the Latin American Legal Framework and the Distribution of Audiovisual Content in the Digital Environment, a key part of the Pilot Project on Copyright and the Distribution of Content in the Digital Environment, presented by Brazil to the Committee on Development and Intellectual Property (CDIP) of the World Intellectual Property Organization (WIPO) (CDIP/22/15 Rev.), hereafter referred to as “the Project”. In particular, the Project is intended to increase awareness of existing national standards among creators and stakeholders, and to consider the questions currently being raised about copyright and related rights in the digital audiovisual market in the participating countries: Argentina, Brazil, Costa Rica, Ecuador, Peru and Uruguay. Once the audiovisual work has been produced and it begins to be exploited, in any format and through any distribution channel, it is important to be able to identify it at different times and for various purposes; for example, so that holders can exercise their rights. In a global digital environment that enables audiovisual works to be used simultaneously on different platforms by distributors and users in any country, it is essential that such uses are monitored accurately. This report aims to understand and explore possible means of resolving the five basic problems relating to information and metadata: a) delays in compiling and uploading data; b) lack of data; c) loss of data; d) contamination and inconsistency of data; and e) volume of data. In particular, we will focus on simplifying the management of information on audiovisual works in order to reduce the costs related to content distribution. Audience growth and an increase in quality products require the expansion of distribution channels, which can entail a loss of control and income. Moreover, distribution through multiple platforms requires information and databases to be interoperable. The absence of information on the movement of works is a more pressing problem for small producers in the countries in this Project. While the digital market can enable a work to be enjoyed worldwide, via dubbing or subtitling, in reality it is very difficult for the public to access it without adequate information. Where applicable, if the work was enjoyed in numerous jurisdictions, a lack of information would prevent the rights holders receiving due compensation for that use. This report will be focused on the data and metadata of audiovisual works that are professionally produced and distributed. This excludes user-generated content (UGC), even though such content can be considered audiovisual work, as it does not constitute a production in the technical commercial sense.

La conversión del negocio jurídico nulo en los principales sistemas jurídicos de Europa y América Latina (alcance teórico normativo de este remedio in extremis)

In this article, a presentation will be made of the legal institution of the conversion of the null legal business in the different European and Latin American legal systems, such as the civil legal systems of Germany, France and Italy for Europe and the civil legal systems of Argentina, Chile and Brazil for Latin America, the presentation of this institute in these systems will be theoretical-normative. The conversion of the null legal business is an institution that is not regulated in Peru, however, in other countries it has a wide doctrinal development, being regulated in different civil codes that we can classify as cutting edge. What is proposed in this article once this institution has been presented in different foreign realities, is the regulation of the conversion into the Peruvian civil code, based on the existence of yesterday's guidelines and intentions that today would protect this proposal.

Cause Lawyering and Compassionate Lawyering in Clinical Legal Education: The Case of Chile

Cause Lawyering and Compassionate Lawyering in Clinical Legal Education: The Case of Chile Fernando Muñoz L. (bio) Introduction: Cause Lawyering and Compassionate Lawyering as Ideologies of Clinical Legal Education In many parts of the world, there is a historically constructed social expectation that, in the face of poverty and the unequal access to justice that follows from it, the legal profession will provide legal aid for free to individuals and groups in need. This paper explores the ideological paradigms that can guide law school clinics in their efforts to satisfy this expectation. Taking clinical legal education in Chile as a case study, I will distinguish between two different ideological paradigms: compassionate lawyering and cause lawyering. Each of these paradigms offer a distinct ideological understanding of the public or social roles of a law clinic and, arguably, of the legal profession itself. As a result, each paradigm presents its own unique set of challenges and opportunities. Some people might object to this kind of open discussion of the ideologies that vie for control of our imagination, due to a fear that ideological discussion could encourage a deviation from the pedagogic objectives of legal education. To satisfy their concerns, however, we must do the opposite of what they suggest. To avoid illicit ideological operations that distort our cognition, and to repair the effects of these operations, we must explicitly theorize and discuss the ideologies that inhabit the legal world at large, and law schools in particular. Ideologies about power, its distribution in society, and its legitimate uses always [End Page 231] inform and shape educational theories and practices, even when these ideologies remain unexamined and uncontested. Nonetheless, concerned individuals are right about the fact that any discussion of the ideologies that guide clinical legal education must begin by recognizing that the primary objective of any educational initiative is to enrich the learning experience of students. Since legal clinics form part of an institutional program of studies, these individuals argue, the primary raison d’être of any law school clinic cannot lie outside the walls of its law school. However, in the case of law students, the practical orientation of their future professional work makes it crucial that their education equips them with an understanding of the legal reality that lies beyond those same walls through preparatory training (moot courts), and direct experience (law clinics). Throughout the centuries, many people have argued that the best methodology for understanding legal practice is to be exposed to it. In the words of Valentín Letelier, a Chilean positivist sociolegal theorist and progressive reformer of the late nineteenth and early twentieth centuries, knowledge of the practices of the legal profession “cannot be acquired but through direct interaction with lawyers and courts; for in one single day visiting the courts, one learns more than in a whole month of academic exercises.”1 In order to understand legal reality, one must understand its social context; poverty, after all, often translates into unequal access to justice. This disparity is prevalent in Latin America, which is characterized by a significant gap between the high prose of constitutional clauses and the hard facts of social life. Here, to understand the market inequalities that shape and distort access to justice, one must understand the many inequalities that form social reality. Eduardo Novoa, a critical legal scholar who served as legal advisor to Chilean President Salvador Allende, raised this point, arguing that legal education “ought to present not only the theoretical and normative aspects of the law, but must also teach the student the way that its rules and principles are put into practice in our society, taking pains in explaining all the points where that practical application departs from those norms.”2 Novoa believed that legal education must go beyond the study of law in action in order to pay attention to the specific legal inequalities that emerge through the gap between law in books and law in action.3 In recent decades, many Latin American legal thinkers have called attention to the significance of material, social, and political inequality [End Page 232] in the (dis)organization and (dis)function of the...

Hacia un orden legal regional: Vicente Quesada y la construcción del derecho internacional latinoamericano

Aunque fue un diplomático de carrera y se vio implicado en el armado de los objetivos de la delegación argentina en la Primera Conferencia Panamericana (1889-1890), Vicente Quesada fue un precursor del antiimperialismo latinoamericano y de las teorías que postularon la existencia de un derecho internacional regional para América Latina. Antes de que el antiimperialismo latinoamericano comenzara a calar profundamente en el imaginario intelectual, diplomático y político latinoamericano, Quesada esbozó una serie de críticas contundentes a la Doctrina de Monroe como garante de la paz en América y al emergente panamericanismo promovido por James Blaine en el contexto de la Primera Conferencia Panamericana. Asimismo, precediendo a la institucionalización del derecho internacional como disciplina moderna en la Argentina y la construcción de una tradición legalista continental asociada al panamericanismo, Quesada publicó una serie de trabajos influyentes en los que intentó demostrar que la paz regional era producto de principios legales auténticamente latinoamericanos y no de la Doctrina de Monroe. Este artículo se funda en el estudio de estos trabajos de Quesada y argumenta, entonces, que Quesada fue pionero en la postulación de una tradición latinoamericana del derecho internacional, abogando por la construcción de un orden legal regional latinoamericano resguardado del expansionismo estadounidense.

Obstetric violence: a Latin American legal response to mistreatment during childbirth.

Obstetric violence: a Latin American legal response to mistreatment during childbirth.

Fuerza obligatoria y función social del contrato: Un estado de la cuestión en Brasil y Chile

This work presents contract law’s transit in the Latin American legal context. Despite the nineteenth-century codifications which ostensibly subscribed to individualistic parameters, with which our modern contract law was designed, the region’s contemporary codification has distanced itself from this manner of comprehending the contract, its legal bases and purposes, consolidating itself with exigencies of sociability and other social principles This is particularly analyzed from the standpoint of the embodiment of the social role that contracts have in today’s Brazilian legislation, which poses difficulties to the effectiveness of contracts’ binding force, and other contractual principles. How this phenomenon reveals the complexity of contract law is presented herein, posing an immediate challenge for the efforts towards harmonization of contract law in Latin America, considering a common basis.

The Anglo American Origin of the Latin American Fideicomiso (Trust): Reasons and Implications

The Latin American fideicomiso (trust) is a very important legal institution in the region, since most commercial and financial transactions are entered into through this legal device. Two countries that provide strong evidence about the importance of this mechanism are Mexico and Colombia. By the end of 2015, the total value of assets managed under this legal device in Mexico and Colombia was about 55% and 47% of the GDP of these countries, respectively. Based on a comparative analysis of the Latin American fideicomiso, with particular focus on the Colombia experience, this paper argues that, unlike it has been traditional assumed, the Latin American fideicomiso does not have civil law origins. Indeed, we will provide arguments to support the Anglo American origin of this legal decide, despite the fact that Colombia (and most Latin American countries) has civil law origins. We support our statement on various relevant facts that shows that the features of the Latin American fideicomiso differ from those existing in civil law sources. First, the Anglo American notion of trust recognizes that the assets managed under this legal device are not part of the Trustee’s patrimony. They are independent. And this feature is not found in the fideicomiso existing in the civil law tradition. Second, most Latin American countries derive from the Napoleon Code. However, this institution is not found in this Code. Third, after analyzing the particular features of the trust, we find that, in addition to the notion of trust, other elements of this Anglo American institution are found in the Latin American fideicomiso, such as the structure of the agreement, the parties and the trustee’s duties. These findings may have two primary implications. First, even though most Latin American countries have always been classified as “civil law countries”, a deeper understanding of some Latin American legal institutions –such as the fideicomiso– may show that, in practice, these origins may be closer to the Anglo Saxon tradition than it seems. Second, if, as we argue, the Latin American fideicomiso has Anglo Saxon origins (rather than civil law origins), it could be changed the way courts and legal scholars have traditionally interpreted the Latin American trust. Therefore, when interpreting the features and origins of this legal device, instead of looking at the Roman-German tradition, Latin American courts and legal scholars should look at the Anglo Saxon trust.

Twenty-One Theses on the Legal Legacy of the French Revolution in Latin America

The Article presents twenty-one theses involving the negative influences, in the view of the author, that the French Revolution has had on Latin American legal systems since the time of their independence. The article asserts that many of the chaotic consequences that plague Latin American legal systems in the eyes of common law observers were avoided in England, since England “steadfastly steered its traditional course,” that is, England did not have an event equivalent to the French Revolution.

Veintiuna Tesis Sobre el Legado Jurídico de la Revolución Francesa en Latinoamérica (Twenty-One Theses on the Legal Legacy of the French Revolution in Latin America)

This Article presents twenty-one theses involving the negative, in the view of the author, influences that the French Revolution has had on Latin American legal systems since their independence. The propositions do not exhaust the respective topics, since each of them could be the object of a standalone tractatus. Instead, these propositions aim at motivating further academic discussion on the positions presented. The theses revolve around five areas of impact: the ethical and philosophical substratum of the political system, the fundamentals of the democratic regime, the organization of the branches of government, the paradigms of fairness, justice, and axiology, and the shaping of family life, public morals and the legal profession.

Choice of Law in International Contracts in Latin American Legal Systems

(2010). Choice of Law in International Contracts in Latin American Legal Systems. Journal of Private International Law: Vol. 6, No. 1, pp. 23-58.

Justicia y gobierno: La Audiencia de Puerto Rico (1831–1861)

The Audiencia was an appellate high court established after 1511 by the Spanish monarchs in their American territories, where it became a powerful and influential institution. It had from three to six oidores (judges) whose main duty was to oversee all legal cases brought to them by minor courts or local officials. However, these Audiencias also had administrative and legislative powers whenever a viceroy, a captain general, or governor was absent from the territory or when these officials came in conflict with the crown. These officials, advised by counsel, presided over the Audiencias in their territories.Eighteen Audiencias were created in the Americas over 300 years. The last one was decreed for Puerto Rico in 1831 by King Ferdinand VII. Gerardo Carlo Altieri postulates that its creation was forced by the island’s increasing population and growing wealth and was due to Spain’s fear of losing Puerto Rico. Before 1831, all Puerto Rican legal problems and cases had been sent to be resolved by the Audiencias of Santo Domingo, Puerto Principe, Cuba, and Caracas.The Audiencia’s importance has been brilliantly studied in the general institutional histories of Charles Gibson, Clarence Henry Haring, and J. M. Ots y Capdequí. Other authors such as Alfonso García Gallo, Mark A. Burkholder and D. S. Chandler, J. H. Parry, Pilar Arregui Zamorano, Juan Matienzo, Feliciano Barrios Pintado, and Tomás Polanco Alcántara have written on specific Audiencias, and various other authors have written articles on those created in their countries. The themes researched are diverse: from the art of the Royal Audiencia at Quito to the government of the Audiencia in New Galicia or New Granada. It is accepted that the jurisdiction of each of the Audiencias in the continental lands served to delimit the territorial boundaries of the new independent countries of Spanish America. The Audiencia as the foremost legal institution in the New World has not been studied in the richness of its legal activities since the foundation of the first one.This useful book, originally created as Carlo’s doctoral dissertation at the University of Seville, presents ample research on the Audiencia of Puerto Rico. An introduction, nine chapters, conclusions, a comparative chronology, and a most valuable bibliography fill its 493 pages. It is a notable contribution to Puerto Rican, Caribbean, and Latin American legal and institutional history.Carlo analyses the importance that the Audiencia had for Puerto Rico and how it became more modernized and more localized than its older sisters in Spanish America. He examines the role of the captain general of the island and his relation to the court. He also studies how the new acuerdo (agreement) decreed by the crown in 1832 gave the presidency of the Audiencia to an official called regente, an act that impinged on the captain general’s power.Carlo discusses the new bureaucracy of oidores — judges brought to Puerto Rico from the lost Audiencias — and the numerous new officials and judges (alcaldes mayores) who were part of the new legal network in the island. He includes cases and decisions of the court on such issues as municipal relations, taxes, commerce, military cases, servitude, and slavery. Carlo uses excellent documentary evidence from major archives in Puerto Rico and Spain, which is supported by fine secondary material. This book helps the reader see the manifold actions carried out by the Puerto Rican Audiencia during its first 30 years, when a body of decisions and legal interpretations were made solely for the island. Law has been given scant attention in the study of colonial Latin America, and this work contributes to that knowledge.This valuable work, however, needed to lose its dissertation format and explain in a good glossary many legal terms taken from royal decrees and Spanish courts of previous centuries. It is a book readable mainly by legal historians of Spanish America but not by the general public. The writing is repetitive and confusing in many places (pp. 175–76) in the author’s effort to cover as many aspects as possible of the Audiencia’s activities. There are also long discussions on topics not specifically related to the Audiencia in an effort to bring out the “origins” of the cases seen or decisions by the court.Nonetheless, with his treatise, Gerardo Carlo Altieri opens anew a path for legal and institutional research of Spanish America’s colonial history and of Puerto Rico’s Spanish history.