e-Repositori UPF :: Llibres (Departament de Dret)

Recent Submissions

The impact of Google AI summaries and Google AI overviews on publishers' revenue and media freedom: implications for the information ecosystem and democratic resilience in the European Union
(Publications Office of the European Union, 2026) Directorate-General for Citizens’ Rights, Justice and Institutional Affairs; Lucchi, Nicola
Normentheorie und materielle Fundierung des Strafrechts
(Duncker & Humblot, 2026) Robles Planas, Ricardo
Legal validity and other properties of legal norms
(Oxford University Press, 2024) Moreso, Josep Joan; Ródenas, Ángeles
In Kelsen's very influential account, legal validity is the specific mode of existence of legal norms. For this reason, legal validity entails legal applicability and legal bindingness. The chapter intends to show that these notions should be distinguished. It starts with the notion of membership to a legal system: which are the criteria to identify certain norms as belonging to a legal system? Several issues are relevant here, for instance, is the efficacy a necessary condition of membership of legal norms to legal systems? In which sense the authorization of another legal norm N2, also a member to the legal system LS, is a criterion of membership of a legal norm N1 to a legal system LS? And, is this authorization only a formal authorization or a material authorization too? Secondly, the notion of applicability is introduced: in legal practice there are applicable norms that are not members of a legal system, we can think on foreign legal norms, which are not part of the domestic legal system, but applicable in virtue of conflict of laws rules. Finally, the notion of bindingness of legal norms is presented. This notion refers to the question of justified normativity. In which conditions are legal norms apt to provide us reasons for action? Moreover, is legal normativity linked in some sense to robust normativity?
A fortiori arguments
(Edward Elgar Publishing, 2025) Moreso, Josep Joan
This chapter is devoted to analysing the various uses of the a fortiori argument in legal reasoning. It argues that (i) while the a fortiori argument as usually presented in legal contexts is not logically valid, it is an enthymematic argument (and logically valid once its presupposed premises are all made explicit); (ii) there is reason to think that the nature of such presuppositions is pragmatic, and that expressions such as ‘a fortiori’, ‘all the more’, ‘with stronger reason’, ‘even less’, and so on, function as pragmatic presupposition triggers; and (iii) although the comparison between the source and the target of an a fortiori argument is sometimes drawn through a scalar property that allows for the introduction of relations of transitivity and asymmetry, this is not always the case; there are a range of non-scalar and possibly incommensurable properties that can validate the argument, all related to the normative relevance of the comparison.
Liberty, liability and contractualism
(Oxford University Press, 2006) Williams, Andrew
Most egalitarians accept that a just society would not only require its members to share fairly in each other¿s fortunes and misfortunes but also empower them to decide various aspects of their lives for themselves. Egalitarians face consequent questions about the relevant types of luck as well as the contours of the pertinent decision-making liberties. They also face questions about how to assign liability for the costs and benefits generated when individuals exercise those liberties. For illustration, consider some issues concerning luck, liberty, and liability raised by procreation. Egalitarians need to decide whether treatment for involuntarily infertile individuals should be publicly funded because of its impact on their welfare, or resources, or capabilities. They also need to decide whether there are any limits on parents¿ rights to decide the size of their families, and the extent to which the costs of reproductive choices should be borne by parents alone (Casal and Williams 2004).
Statutory interpretation and binding precedents in the Civil Law tradition
(Oxford University Press, 2023) Ramírez-Ludeña, Lorena
Vertically binding precedents are often rejected in the civil law tradition by reference to three interrelated arguments: (1) judges do not create the law, they merely apply it; (2) judges are bound by statutory law, not by the decisions of other judges; and (3) statutes, not the judicial decisions that interpret and apply them, are sources of law. This chapter addresses the three arguments and argues that precedents can have binding force even in countries where their very existence is highly contested. First, it is argued that judges of higher courts engage in important creative activity when they interpret the law, so that we can speak of genuine precedents governing the interpretation of the law, which add something new to the law. Secondly, it is shown that the binding force of these precedents in civil law countries can be quite robust, especially when compared to systems where their bindingness is generally accepted. The final section discusses the extent to which precedents that interpret the law can be considered sources of law.
Rational choice and behavioural approaches to consumer issues
(Edward Elgar Publishing, 2018) Gómez Pomar, Fernando; Artigot Golobardes, Mireia
Economics addresses choice and behaviour at the individual level, under assumptions relating to both information and rationality. Rational choice and behavioural models represent two different approaches to individual decision-making with respect to the parameters that shape individuals- decisions and the possibilities of reaching optimal outcomes based on individuals- preferences. Understanding how individuals take decisions is of crucial importance for contract design, particularly in the context of consumer contracts. This chapter argues that neither rational choice nor behavioural frameworks are entirely incompatible, neither contain the sole -right and general- answer to all the problems and challenges facing consumer contracting. Instead, a more nuanced approach, which is flexible enough to privilege one or the other model depending on the question to be answered, the dimension to be explained and the added value or the shortcomings of one model in a given setting, seems to be more enlightening, and in the end more desirable, at both the theoretical and the policy levels.
Ex-post fairness controls and contract design: the Spanish experience
(SpringerNature, 2021) Gómez Pomar, Fernando; Artigot Golobardes, Mireia
The application of the ex post unfairness controls of the Directive 93/13 in consumer financial contracts in Spain has resulted in a litigation wave that has had a significant impact in terms of financial as well as judicial costs. The terms involved in this litigation range from those allocating risks among the contracting parties to terms setting between the parties their share of the mandatory taxes and fees accompanying a mortgage loan. Spanish courts and the Court of Justice of the European Union (CJEU) have held many of these standard terms as unfair and hence, non-binding on consumers. A collateral effect of this litigation has touched contract design. Some of the cost impact of these terms are now included -without specification- as part of the overall contract price. Directive 93/13 on unfair contract terms arguably aimed at maximizing consumer welfare through, among others, enhancing transparency in consumer contracts. This chapter analyzes whether the litigation on consumer mortgage contracts and its impact in contract design has resulted in an increase of contract transparency and discusses whether the resulting contract design regarding some contract dimensions -such as exogenous costs in mortgage financing- has actually served the interests of consumers.
La protección del consumidor en el marco de la Carta de Derechos Fundamentales de la UE
(Marcial Pons, 2022) Artigot Golobardes, Mireia
Understanding the creative processes, musical borrowing and copyright protection of the electronic dance music industry
(Hart Publishing, 2023) Nicola, Lucchi
This chapter aims to enhance an understanding of the practice of music borrowing in the field of electronic dance music (EDM) a creative form of electronic music intended for dancing, often in nightclubs, discotheques, or at parties. After explaining the creative practices common in the EDM community (such as mash-ups, samplings, bootleg remixes, and DJ mixes), the chapter discusses the critical arguments for and against copyright protection for this controversial genre of music. The chapter concludes with a series of open questions and some arguments in support of solutions for adapting current copyright laws to ensure the survival of new genres of music and to encourage the creative practices and original expression of electronic music creators.
Rights and challenges in the technological domain: navigating the transformations of digital property
(Edward Elgar Publishing Limited, 2024) Lucchi, Nicola
This chapter examines the profound transformations brought about by the digital domain in the context of digital property. It explores the challenges and implications of digital content dissemination, intellectual property rights, and regulatory frameworks. The shift from traditional tangible property to intangible digital assets raises complex legal and philosophical questions. The chapter is structured into four sections: the challenges of digital property rights, the evolution of intellectual property in the digital age, the regulatory discourse surrounding digital technologies, and a synthesis of insights on the current and future state of digital property rights. Key themes include the impact of technological advancements on property concepts, the interplay between control and freedom in the digital sphere, and the necessity for adaptive regulatory approaches to balance the interests of stakeholders in a rapidly evolving digital landscape.
The right to protest and contestation in a deliberative democracy
(Taylor & Francis (Routledge), 2021) Martí, José Luis
This chapter explores and analyses the scope and the role that contestation and the right to protest may play in a legitimate, constitutional, deliberative democracy. It develops a normative argument to show that the right to protest is not only linked with personal wellbeing, but also crucial for the legitimacy of a republican deliberative democracy. The chapter argues that the right to protest should be constitutionally recognised in a direct, explicit form, not as a derivative right covered by other fundamental rights. It attempts to provide a reason why the rights of contestation or to protest should be recognised and protected constitutionally as specific rights. The chapter concludes by to have showing why constitutional systems should explicitly recognise that the right to protest should be a fundamental democratic right for all citizens. Democratic constitutions do not usually recognise a right to political protest as a fundamental right.
The role of new technologies in deliberative democracy
(Hart Publishing , 2021) Martí, José Luis
Cities as democratic representatives in international law-making
(Edward Elgar Publishing , 2021) Besson, Samantha; Marti José Luis
Cities increasingly contribute to international law-making. There are several reasons why this should be considered a positive development. First, states are unable to take sufficient action to address many pressing global challenges and are not representing all their citizens effectively in international law-making. Second, cities are particularly well suited to address those challenges - due to, for example, their proximity to their citizens or their ability to coordinate transnational action - and are especially able to act as legitimate representatives of their citizens in international law-making. In this chapter, we argue for the normative view that cities should be regarded as democratic representatives in international law-making, operating within a larger system of multiple (public and private) representation. Cities may not claim to exert exclusive international democratic representation - no single type of public institution may nowadays ¿, but they are legitimate to participate in international democratic law-making together with other public and private representatives.
From equal state consent to equal public participation in international organizations: institutionalizing multiple International representation
(Cambridge University Press, 2023) Besson, Samantha; Martí, José Luis
The authors begin by observing that most obligations of international law are still regarded as `based¿ on State consent. There are good reasons for this, especially from a democratic legitimacy perspective. Still, the principle of State consent, even in its qualified version of `democratic State¿ consent, suffers from important shortcomings that call for correctives. The chapter starts by accounting for the democratic value of State consent in International Organizations (hereafter IOs) before addressing some of its democratic deficits. It then articulates several institutional proposals to correct or, at least, complement the role of equal State consent in the institution, the operation and the control of IOs. The authors develop a non-ideal normative argument for the latter¿s political re-institution. That re-institution has to start with the replacement of the principle of equal State consent by that of equal public participation in IOs: this does not only avoid reducing State consent in IOs to State veto or refusal rights, but it also extends the personal scope of those participatory rights to other non-State public institutions.
Control de constitucionalidad deliberativo: el ciudadano ante la justicia constitucional, la acción pública de inconstitucionalidad y la legitimidad democrática del control judicial al legislador
(Universidad Externado de Colombia, 2019) Roa Roa, Jorge Ernesto
Control de Constitucionalidad Deliberativo es una defensa de la legitimidad democrática del control de constitucionalidad a partir de las credenciales deliberativas del mecanismo que habilita el acceso directo de los ciudadanos al control abstracto de constitucionalidad. En el libro se demuestra que la apertura de los tribunales a los ciudadanos no causa problemas estructurales para el funcionamiento de la Corte Constitucional. Por el contrario, la existencia de una acción pública de constitucionalidad: i) favorece el rol de la Corte Constitucional como representante argumentativa y como generadora de deliberación pública de calidad; ii) permite la construcción de una ciudadanía constitucionalmente militante; iii) fomenta el control de los poderes excesivos del presidente; iv) contiene las manifestaciones del constitucionalismo abusivo y v) consolida al proceso judicial de constitucionalidad como un genuino diálogo público. En el libro se concluye que el acceso directo de los ciudadanos a la justicia constitucional es una transformación relevante del orden constitucional que fortalece la democracia constitucional. En el caso de Colombia, esa transformación ocurre en el contexto de un modelo de constitucionalismo fuerte que deja un espacio razonable para manifestaciones concretas, bien localizadas y justificadamente limitadas del constitucionalismo dialógico o cooperativo. Por esas razones, la práctica constitucional concreta de Colombia merece ser valorada por los demás países del sur global y por la teoría constitucional europea y norteamericana sobre el control de constitucionalidad. Por último, el libro sugiere la necesidad de profundizar en el estudio sobre la relación entre el diseño institucional del control de constitucionalidad a nivel nacional y los mecanismos de protección internacional de los derechos humanos con el fin de obtener la plena coordinación entre ambos sistemas en el marco del constitucionalismo global y trasnacional.
La función consultiva de la Corte Interamericana de derechos humanos
(Universidad Externado de Colombia. Instituto de Estudios Constitucionales Carlos Restrepo Piedrahita, 2015) Roa Roa, Jorge Ernesto
Comportamiento judicial estratégico en la Corte Interamericana de Derechos Humanos: la protección del derecho a la salud mediante el artículo 26 de la Convención Americana sobre Derechos Humanos
(Centro de Estudios Políticos y Constitucionales, 2021) Roa Roa, Jorge Ernesto
Conventionalism and the causal theory of reference
(SpringerNature, 2019) Ramírez-Ludeña, Lorena
An intuitive view of language is frequently assumed: words are related by competent speakers to descriptions that determine reference. Such a view is generally understood as convention-based in the sense that it emphasises the existence of conventions that determine what descriptions are relevant. However, this descriptivist approach has been shown to be problematic in reconstructing our linguistic practices. In contrast, the Causal Theory of Reference (CTR) provides a plausible account of our use of words. CTR has been understood to be a theory that provides a non-conventionalist approach to language and one that is committed to an implausible version of essentialism. In this chapter, Ramírez-Ludeña presents a version of CTR that addresses the criticisms it has normally received. She also shows the advantages of this version of CTR when compared to the traditional descriptivist model. In the legal field, CTR has been associated with non-positivistic conceptions about law. However, since CTR is not committed to essentialism but rather takes account of the way in which the community uses words, Ramírez-Ludeña also shows how the proposed model is compatible with conceptions in legal philosophy such as that of Hart, which emphasises the conventional character of law.
Osservazioni sull'illuminazione nella letteratura di viaggio americana del XIX secolo sul Museo del Prado di Madrid
(Società Dante Alighieri, 2022) Gifra i Adroher, Pere

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