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Papers by Santiago Legarre

This article suggests a new way of teaching legal concepts: the use of drawings by the students. ... more This article suggests a new way of teaching legal concepts: the use of drawings by the students. In order to promote creativity the instructor uses a system of contests and prizes. This model of teaching especially caters for visual students. A main conclusion of this article is that law can be adequately understood and studied through visual tools.

This paper will illustrate how U.S. law on the “Establishment Clause” of the First Amendment to t... more This paper will illustrate how U.S. law on the “Establishment Clause” of the First Amendment to the United States Constitution is negatively influencing the religious culture and practices of Argentina. It will do so through the example of a dramatic real life situation which led to a momentous judicial decision. While drawing some conclusions from the affair, the paper will consider whether and how some elements of religious law can be integrated into the fabric of law in a Western society with mixed legal elements, such as Argentina, and whether and how comparative constitutional law can in effect thwart that integration.

In the Simón case, decided in June 2005, the Argentine Supreme Court held unlawful the applicatio... more In the Simón case, decided in June 2005, the Argentine Supreme Court held unlawful the application of amnesties to crimes against humanity. The Court relied heavily on the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, ratiﬁed in 2003 by Argentina. In so doing, however, it ignored signiﬁcant constitutional constraints that give priority to the right not to be judged by an ex post facto law. The other arguments provided by the Court also fail to respect the Argentine constitutional order. Thus, notwithstanding the laudable aim of preventing and punishing all crimes against humanity, this decision is regrettable.

This short article hast two parts. The first one consists of biographical considerations about th... more This short article hast two parts. The first one consists of biographical considerations about the life of the remarkable, late Saul Litvinoff, formerly a professor of law at Paul M. Hebert Law Center, Louisiana State University. The bulk of the article explores the challenge posed by federalism for civil law jurisdictions. The argument is made that the diversity of legislations in a federal country belonging to the civil law world (such as Argentina) conspires against a desirable uniformity in the law.

This article first explains where Argentina fits in the common law-civil law divide of legal fami... more This article first explains where Argentina fits in the common law-civil law divide of legal families. A proper understanding of the Argentine legal system regarding precedent makes it necessary to next elaborate on the distinction between the horizontal and the vertical dimensions of stare decisis. In a final section I examine the relevance of political interferences for compliance by other courts both in the horizontal and in the vertical dimensions just alluded.

This paper tries to explain what comparative constitutional law is and takes the US legal practic... more This paper tries to explain what comparative constitutional law is and takes the US legal practice as an example. The presence of comparative analysis is considered both in the academic arena and in the case law of the US Supreme Court. The conclusion of this part of the article is that for comparative constitutional law to be valid its role ought to be restricted by several constraints. The article also suggests that the comparative enterprise only makes sense if the universality of human rights is first acknowledged. The paper next delves into such universality and connects it with notions of new classical natural law that are considered essential in order to adequately understand the problem. Finally, it provides an example of the misuse of comparative constitutionalism.

In this article I explore the presence of natural law in the Old Testament. I stress that natural... more In this article I explore the presence of natural law in the Old Testament. I stress that natural law is present in that part of the Bible but under other names. With the guidance provided by Rabbi David Novak’s work on natural law in Judaism, I identify the relevant passages (most of which are in the book of Genesis). I apply Thomas Aquinas’s distinction between two modes of derivation of positive from natural law to the normative content of the old covenant. The thesis (present too in the work of Aquinas himself) is that the positive law of God includes both “conclusions” and “determinations” of natural law. I explain, finally, how the latter circumstance throws light on the different types of contents of the law of God – some universal; some domestic.

The police power consists of the authority of the state to regulate in the interests of public he... more The police power consists of the authority of the state to regulate in the interests of public health, safety, and morals. As American society continues to grow more diverse and pluralistic, courts and commentators have raised concerns that the last of these, public morality, cannot serve as an acceptable justification for regulatory action. Indeed, if appeals to public morality cannot be evaluated on an objective basis, then regulators might invoke them to conceal unlawful motives. The ability of moral reasoning to provide a legitimate basis for regulation is thrown into doubt.

In this Article, we examine a peculiar line of Supreme Court cases in the free speech context that bring the problem into focus. In the so-called secondary effects cases, the Justices gradually moved away from accepting public morality arguments in support of state restrictions on adult businesses. In place of public morality, the Court began to retrain its focus on the social ills attendant to the activity in question, or what it termed the “secondary effects” of such conduct. Rather than decide whether the regulated activity is immoral, and thus within the legitimate regulatory sweep of the police power as traditionally conceived, the Court instead looked to whether the state could show that its restriction reduced deleterious secondary effects associated with the activity.

This development might have appeared desirable insofar as it would permit courts to rest their rulings on objective facts rather than wrestle with matters of opinion and moral sentiment. To the contrary, we argue, secondary effects arguments rely on moral reasoning — whether articulated or not — to the same extent as public morality arguments. The Court’s attempt in the secondary effects cases to avoid engaging in moral reasoning in reality demonstrates its indispensability.

In this introduction to the issue on New Trends in Latin American Constitutionalism, Santiago Leg... more In this introduction to the issue on New Trends in Latin American Constitutionalism, Santiago Legarre offers his remarks at the opening of the conference on New Trends in Latin American Constitutionalism held at Notre Dame Law School in 2013. After briefly recounting the origins of the conference, Legarre summarizes some of the key modern challenges in Latin America and the role of constitutionalism in addressing these challenges. Legarre pays particular attention to the rapid growth of income inequality in the region. He ultimately concludes that some of the major challenges to the region are rooted in a lack of consensus about the common good as well as a lack of respect for the law. Legarre argues that the solution to these problems lies in fostering conversations about the proper goals of Latin American societies and in the political and judicial leaders of Latin America displaying greater fidelity to the principles underlying their respective constitutions.

Elaborating on a previous article (‘The Historical Background of the Police Power’) this piece di... more Elaborating on a previous article (‘The Historical Background of the Police Power’) this piece digs deeper into the historical background of one of the most misunderstood concepts of constitutional law: the police power. It takes us into the history of the term (and the concept) ‘police’. Section I shows how the idea of police was shaped in the eighteenth century by several enlightened authors. It also keeps an eye open to the development of police (polizei) in Germany. Section II explains how in the United States there was as it were a tour from the police to the police power. It also examines the case law of the United States Supreme Court. Section III advances and defends the idea that the police power is present too in international law, sometimes under different names. It pays special attention to international investment law. The main conclusion is that police regulations feature both at the domestic and the international level, and that both levels have the same roots in eighteenth century concepts.

This article first explains what natural law is not; secondly, it explains what is natural law; f... more This article first explains what natural law is not; secondly, it explains what is natural law; finally, and hopefully more originally, the article explores two different ways in which natural law is relevant in constitutional interpretation (and indeed in the interpretation of any positive law). In so doing it criticizes originalist theories of interpretation insofar as they make of historical inquiry not the starting but the final point of the interpretative venture.

This piece is a response to some arguments presented by John Finnis in "Natural Law Theory: its P... more This piece is a response to some arguments presented by John Finnis in "Natural Law Theory: its Past and its Present" (American Journal of Jurisprudence 57 (1): 8 1-101 (2012)). First, I question Finnis’s interpretation of an example of Thomas Aquinas’s regarding the derivation of positive from natural law by way of conclusion. Second, I question Finnis’s terminology insofar as he calls ‘natural law’ something that in reality is part of positive law i.e., the so-called conclusiones. Third, I question Finnis’s apparent rejection of the coexisting of normative orders (natural and positive). Overall my three challenges are on minor points and of a friendly nature in that their starting point is sympathetic with Finnis’s natural law project. His rejoinder can be found in “Coexisting Normative Orders? Yes, but No” (American Journal of Jurisprudence 57 (1):111-117 (2012)).

This paper is an inquiry into the historical background of one of the most misunderstood concepts... more This paper is an inquiry into the historical background of one of the most misunderstood concepts of American constitutional law: the police power. It takes us into the history of the term (and the concept) ‘police’, a very slippery English noun. Section I shows how the idea of police was shaped in the eighteenth century by Pufendorf, Blackstone, Vattel, and Adam Smith, among others. Section II explains the meaning and scope of ‘police’ and argues that the doctrine of police is better understood in the context of an analogy between king (and kingdom) and father (and family). Section III sets out the philosophical underpinnings of the idea of police, arguing that it makes best sense when viewed in light of the classical tradition according to which politics is part of a wider concern for ethics. Section IV examines the development of police in the United States, focusing on the early stages of its constitutional history. Section V argues that from police there emerged naturally the police power, and explores the earlier formulations of the latter in the case law of the United States Supreme Court. Section VI attempts to prove that there remain broad and narrow definitions of the police power in American constitutional law, and explains each of them. Ultimately this article shows the interconnection of an important eighteenth-century concept (police) and a key notion of American constitutional law (the police power). The main conclusions are that understanding police throws light on the development of the police power, and that the mysteries which surround the latter vanish, or at least diminish, when one grasps that the term was original used to designate the sovereignty of the states, one of the cornerstones of American federalism.

This article considers HLA Hart’s influence in the making of John Finnis’s book Natural Law and N... more This article considers HLA Hart’s influence in the making of John Finnis’s book Natural Law and Natural Rights. In the style of an intellectual biography it traces the history of the interaction between the two Oxford legal philosophers using their correspondence as a starting point. It also delves into Finnis’s years in Africa —a period of his life both crucial for the writing of the book and utterly unknown. It argues that Hart’s role was significant not only insofar as he was behind the idea of the book but also (and this has been little known as of yet) because of the restrained way in which he freely chose to conduct his role as editor despite the extent of the reservations he had regarding Finnis’s work, fully revealed here. Given the importance of Natural Law and Natural Rights for what has been called the ‘new natural law theory’ the article concludes by awarding Hart his due credit in the making of one of that theory’s main sources of inspiration.