Hevia and Colon-Rios on The (Un)Rule of Law in Puerto Rico: A Republican Approach

The (Un)Rule of Law in Puerto Rico: A Republican Approach, has just been posted on SSRN by Martin Hevia, School of Law, Universidad Torcuato Di Tella, and Joel I. Colon-Rios, York University - Osgoode Hall Law School. Here's the abstract:

It is clear that the relationship between Puerto Rico and the United States is problematic from the point of view of representative democracy. It is difficult to understand how a juridical arrangement in which a non-elected legislative assembly routinely creates civil and criminal laws that are applied by a non-elected executive may be justified from a democratic perspective. In light of this, it is striking that Puerto Rico's juridical order receives little if any attention in contemporary constitutional theory. With the exception of a few essays, American constitutional theorists have treated the case of Puerto Rico as a curious but unimportant anomaly in an otherwise democratic polity, therefore undeserving serious academic consideration.

In this paper, we'd like to start changing this attitude. We want to suggest that there is a deep problem with this juridical arrangement and we propose to address it from the perspective of an old tradition in political philosophy: republicanism.In this paper we will consider the juridical relationship between Puerto Rico and the United States from a republican perspective. In the first part of the essay, we provide a historical background of the juridical relationship at issue. With this historical background, we intend to show how the relationship actually works, and not merely to provide an account of what courts and politicians have said about it. We will then discuss some of the main themes in contemporary republicanism, and, finally, we will analyze Puerto Rico's current relationship with the United States in light of the insights provided by republican theory.