Contemporary Latin American Constitutionalism: an intellectual map

 

Contemporary Latin American Constitutionalism: an intellectual map * Alberto Coddou Mc Manus (abogado, Universidad de Chile; Master en Derecho, LLM, New York University; PhD candidate, University College of London). El presente trabajo es una primera version de un capítulo que forma parte de mi tesis de doctorado. Se pide a los lectores no difundir ni citar el texto sin mi permiso. Cualquier comentario adicional pueden enviarlo al correo electrónico [email protected] I.

Introduction

In the context of Latin America, as we have seen in previous chapters, discrimination stands as one of the main social evils, and it has been considered as one of the main problems that constitutional arrangements should address. Indeed, one of the most salient and common patterns of recent constitutional transformations is the commitment to overcome the social and political exclusion accumulated by a history of discrimination against vulnerable or marginalized groups. With the ‘third wave’ of democracy, Latin American countries created new constitutions or substantially amended their fundamental charts as an attempt to bridge the gap that exists between democratic promises and social realities, with a special emphasis on tackling discriminatory behaviours or practices. Moreover, according to recent surveys, a great majority of Latin Americans consider themselves part of a discriminated group, that is, as victims of discrimination, either directly or indirectly.1 Discrimination, then, is a constitutional problem for Latin America. Paraphrasing Jack Balkin, we could say that to the extent that discrimination is directly or indirectly attributed to the constitution, we may gradually lose fidelity to our recently launched constitutional projects.2 To understand the place of anti-discrimination commitments in Latin American constitutionalism, we need to give an overview of its current debates, focused on the way in which domestic constitutional projects are addressing the main challenges of the region, namely, poverty, inequality, social/ethnic exclusion, violence and the still ongoing quest for democratic consolidation. The present chapter will provide the reader with an overview of Latin American constitutionalism, focusing specially on the defining features of constitutional projects of the ‘third wave’ of democracy. According to the periodization proposed by Roberto Gargarella, it is focused on the fifth period of Latin American constitutionalism, which goes from the end of the twentieth century into the present days, a period that has witnessed historical records of stability and democratic transitions.3 Beyond common patterns, this period has also been characterized for intense constitutional experimentation, as pointed out by the comprehensive study of Gabriel Negretto.4 In the words of Matthew Mirow, ‘difference in design and structure in modern constitutions of the region is not necessarily a bad thing; countries have increasingly sought their                                                                                                                         1

Latinobarómetro, Annual Report (2006); for an overview of different surveys, see A Chong and H Ñopo, ‘Discrimination in Latin America: An Elephant in the Room?’, Working Paper #614, Inter-American Development Bank. 2 J Balkin, Constitutional Redemption (Harvard University Press, 2011). 3 R Gargarella, Latin American Constitutionalism 1810-2010 (Oxford University Press, 2014). 4 G Negretto, Making Constitutions: Presidents, Parties, and Institutional Choice in Latin America (Cambridge University Press, 2013).

 

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own solutions to their own challenges, and in light of this, one might expect varying structures and designs’.5 Moreover, constitutional experimentation has derived in internal or external tensions, which have been expressed in different ways: simultaneous expansion of forms of political participation and centralization or concentration of power in the hands of the Executive;6 greater democratic or institutional stability combined with electoral volatility, fragile party systems, and low public trust in representative institutions;7 and tensions between generous agendas of social rights, with special emphasis on vulnerable minorities, and strong protection of property or investment rights, favourable to neoliberal developments.8 These constitutional experiments do not preclude us to map or outline common strands of constitutional ideas that allows us to set the debate around three main schools of Latin American constitutionalism: Latin American Neo-constitutionalism, New Latin American constitutionalism; and Egalitarian-Dialogic Constitutionalism. Indeed, this chapter attempts to make a contribution to our ‘intellectual maps of constitutionalism’, that ‘tend to marginalize the experience of the developing world’.9 These schools of thought, I claim, have in common a transformative ethos that appears as an organizing principle for their main features, although in different forms. However, their differences will be of utmost importance when arguing for a Latin American conception of ADL. As has been recognized by O’Regan and Friedman, ‘the right to equality presents particular challenges for comparative constitutional analysis as each jurisdiction’s response to equality is in significant ways dependent on the constitutional text in question (and the legislative framework) as well as each jurisdiction’s social and political history’.10 If Latin American ADL is grounded in constitutional equality clauses, then it is crucial to delve in contemporary constitutional debates. This chapter addresses those challenges by creating an intellectual map of Latin American constitutionalism, considering that legal cultures are not only generated ‘within the formal state justice systems’, but are also ‘produced within a huge range of nonformal, subnational, and                                                                                                                         5

M Mirow, Latin American Constitutions: The Constitution of Cádiz and its Legacy in Spanish America (Cambridge University Press, 2016), 240. 6 Gargarella, Latin American Constititutionalism, 155-165. 7 K Roberts, ‘Parties, Party Systems, and Political Representation’, in P Kingstone and D Yahsar (eds.), Routledge Handbook of Latin American Politics (Routledge, 2012), 48. 8 M P Saffón, ‘Can Constitutional Courts be Counterhegemonic Powers vis-à-vis Neoliberalism? The Case of the Colombian Constitutional Court’, Seattle Journal for Social Justice 5:2. 9 M Schor, ‘An Essay on the Emergence of Constitutional Courts: The cases of Mexico and Colombia’, Indiana Journal of Global Legal Studies 16:1, 174. In a recent review of Ran Hirschl’s recent comprehensive study of the state of the art of comparative constitutional law, Armin von Bogdandy criticizes that ‘[i]rrespective of the book’s global claims, Hirschl considers only English-speaking texts, accepted by “Ivy League” publishers. This is specially noteworthy because Hirschl succinctly and affirmatively expresses the critique of the “global south” in comparative constitutional law as elaborated by the “global north” (205). The book considers materials from all over the world, ‘but the interpretive authority remains in the global north, or more particularly in the Anglo-American north. Interpretive attempts from outside are hardly considered. This way, a dialectic emerges wherein every universalism is always a kind of particularism’. ‘Comparative constitutional law as social science? A Hegelian reaction to Ran Hirschl’s Comparative Matters’, MPIL Research Paper Series 2016-09, 9. This chapter, as the reader will note, shares von Bogdandy’s critique, and constitutes an attempt to draw on Latin American legal academia in order to elaborate on a domestic constitutional conception of anti-discrimination law, that will be further developed in the following chapters. 10 K O`Regan and N Friedman, ‘Equality’, in T Ginsburg and R Dixon (eds.) Comparative Constitutional Law (Edward Elgar, 2013), 473.

 

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transnational spheres, spheres that are invariably interconnected’.11 One of these latter spheres is the emergent Latin American legal academia, where constitutional cultures are intensely developed, and acts as an ‘intervening variable in the process of producing legal stasis or change’.12 An intellectual map of Latin American constitutionalism would allow us to understand the recent problems of predicting the outcome of recent ‘constitutional engineering’, as institutional design is ‘mediated by non-institutional variables’, or by the ‘importance of informal institutions’.13 Legal scholars have become crucial in the development of a new constitutional legal culture, in some cases as actors before national or international legal venues, in providing resources or being resonance boxes for legal mobilization processes or, in some cases, becoming adjudicators themselves.14 The chapter is structured in the following way: the following section will introduce the importance of the contemporary constitutional debate in Latin America, its main elements and common concerns (II); then, I will explain each of the abovementioned currents or schools of thought (III, IV and V); finally, I will end with some concluding remarks, preparing the terrain for the following chapters. II. The Latin American constitutional debate In the words of the Director of the Max Planck Institute for Comparative Constitutional Law, ‘Latin America is the region where the debate on the future of constitutionalism is debated with more intensity and urgency’.15 The importance of Latin America for the constitutional academia may seem at odds with the poor records of this region with basic standards of rule of law.16                                                                                                                         11

J Couso, A Huneeus and R Sieder (eds.), Cultures of Legality: Judicialization and Political Activism in Latin America (Cambridge University Press, 2013), 7. 12 L Friedman, ‘The Concept of Legal Culture: A Reply’, in D Nelken (ed), Comparing Legal Cultures (Dartmouth Publishing, 1997), 34, quoted in Couso, Huneeus and Sieder, Cultures of Legality, 8. The role of constitutional scholarship in comparative constitutional law in Europe as been analysed by Armin von Bogdandy: ‘Legal scholarship develops and often even devises fundamental concepts and structures, elucidates and legitimates the current law in light of general principles, inspires and criticizes legal developments, and shapes the next generation of jurists. Many legal scholars, often on the basis of scholarly reputation, also act directly as legal practitioners, namely, as legal experts, advisers, as counselors, or, in consummation of an academic career, as judges. A thorough understanding of a legal order hardly is conceivable without a familiarity with its legal scholarship.’ ‘The past and promise of doctrinal constructivism: A strategy for responding to the challenges facing constitutional scholarship in Europe’, International Journal of Constitutional Law 7:3, 366. 13 A Pérez-Liñán and N Castañeda, ‘Institutionalism’, in Routledge Handbook of Latin American Politics, 402-404. In this chapter, I am not concerned with the different ‘constitutional identities’ in Latin America, but on the diffusion of common constitutional ideas that have spread throughout different jurisdictions, which have strikingly different features, but share overall common concerns. 14 C Rodríguez-Garavito, ‘Navegando la globalización: un mapamundi para el estudio y la práctica del derecho en América Latina’, in El Derecho en América Latina (Siglo XXI, 2011), 71. The example of the composition of the Constitutional Court of Colombia in the early 1990s, and the recent changes in the appointment of judges for the Chilean Constitutional Court are interesting cases in point. For the case of Colombia, see R Nunes, ‘Ideational Origins of Progressive Judicial Activism: The Colombian Constitutional Court and the Right to Health.’, Latin American Politics and Society 52:3, 67–97. For the case of Chile, see R Pardow and S Verdugo, ‘El Tribunal Constitucional chileno y la reforma de 2005. Un enroque entre jueces de carrera y académicos’, Revista Chilena de Derecho 28:1, 123-144. 15 A von Bogdandy, ‘Ius Constitutionale Commune en América Latina: una mirada a un constitucionalismo transformador’, Revista Derecho del Estado 34 (2015), 6. 16 In the words of Daniel Bonilla, reflecting on the importance of the ‘Global South’ legal academic production for the ‘Global North’: ‘It does not seem very useful (…) to study this weak academic production, which reflects on a set of norms that are merely rules on paper and sub-products of other legal traditions. At most, the law of the Global

 

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However, as put by one of the volumes of The Cambridge History of Latin America, ‘[a]lthough constitutions have often been violated, most countries in the region are highly legalistic and take seriously constitutional precepts, even when they do not adhere to them’.17 Nowadays, and even when the gap between constitutional commitments and political realities seems to be narrowing, the scope of constitutional challenges is expanding.18 In this scenario, the constitutional debate in the region has acquired new shapes. A good way to introduce these discussions is to make an overview of the contrast between the traditional constitutional debate of the nineteenth century and the contemporary one. As I said in the first chapter, the dominance of fusion constitutionalism, that is, the alliance between conservatives and liberals, shaped the way in which the traditional debate during the nineteenth century took place. In contrast, with only a few examples of institutional realisation, the republican/radical tradition merely survived as a critical stance against fusion constitutionalism. Fusion constitutionalism determined the way in which constitutional law was considered as an arrangement for the interaction of political elites (liberals pushing for economic development, conservatives for order).19 Moreover, the material basis of constitutions coupled the traditional debate with political economy and development. Hence, constitutional scholars had to address the relationship between constitutional thought and economic development.20 During the twentieth century, and especially since the Mexican Constitution of 1917, several republican commitments with the social question were incorporated to Latin American constitutions, but the basic arrangement of powers, as expressed in the organic parts of fundamental charts, remained basically the same.21 During the last two centuries, the conservative-liberal alliance has survived different dynamics (like the social question or                                                                                                                                                                                                                                                                                                                                                                                               South, or rather its inefficiency and lack of originality, can be of interest to sociologists, anthropologists and law professors interested in issues of social justice and the reforms needed to achieve it.’ D Bonilla, ‘Introduction: toward a constitutionalism of the Global South’, in D Bonilla (ed.), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (Cambridge University Press, 2014), page. 17 J Hartlyn and A Valenzuela, ‘Democracy in Latin America since 1930s’, in L Bethell (ed), The Cambridge History of Latin America VI (Cambridge University Press 1994) p 158. In general, I will follow Jeremy Waldron´s idea on constitutionalism, when explaining the definition of ‘constitutionalism’ included in the Oxford English Dictionary (‘adherence to constitutional principles’): ‘A constitutionalist is one who takes constitutions very seriously and who is not disposed to allow deviations from them even when other important values are involved. “Constitutionalism” therefore refers to the sort of ideology that makes this attitude seem sensible. So I suppose this includes the claim that a society´s constitution matters, that it is not just decoration’. Political Political Theory: Essays on Institutions (Harvard University Press, 2016), page. I guess my whole project points towards asking what does it mean for Latin American constitutions to take seriously their anti-discrimination commitments, rather than strict compliance with constitutional legal frameworks. In that sense, Latin American constitutional scholarship constitutes an exception to the idea ‘that constitutional scholarship only flourishes when the law in question binds the authorities’. A von Bogdandy, ‘The past and promise of doctrinal constructivism’, 370. 18 As put by a recent comparative study on the non-compliance of constitutional law, ‘Latin America has exhibited a tendency toward either strong constitutionalism or sham constitutionalism that reflects a combination of ambitious constitution-writing and inconsistent implementation. Since the early 1990s, however, the trend has been in favor of strong constitutionalism, which suggests that Latin American countries are on the whole making considerable strides toward fulfilling their constitutional promises’. D Law and M Versteeg, ‘Sham Constitutions’, California Law Review 101:4, 911. 19 R Gargarella, Latin American Constitutionalsim 1810-2010 (Oxford University Press, 2013); M Schor, ‘Constitutionalism Through the Looking Glass of Latin America’, Texas International Law Journal 41:1, 1-38. 20 Gargarella, Latin American Constitutionalsim 1810-2010, ch 3 21 Gargarella, Latin American Constitutionalsim 1810-2010, ch 6

 

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movements like indigenismo), endorsing discourses or order, stability and economic development. Nowadays, and despite the fact that constitutions still do not provide an accurate description of how power is distributed or exercised,22 constitutional commitments are taken seriously, but have acquired a different mood in the end of the twentieth and beginning of the twenty-first century. Indeed, we could fairly say that constitutional projects of the ‘third wave’, especially beginning with the Constitution of Colombia in 1991, have endorsed different forms of ‘aspirational constitutionalism’, that is, ‘the idea that the destiny of our societies depends in large part on having good constitutions’.23 In contrast with the traditional debate, focused still on the legacies of the past (colonial era), nation-building processes, and material or economic interests, the contemporary is based on a productive and instrumental relationship between law and social change, that is, on how could law become the cornerstone of social progress.24 Within this relationship, law could be seen as constitutive (that is, ‘that legal knowledges to some degree shape, or prefigure, the identities and practical activities of subjects in society’), reflective (of ‘broader ideological formations within society’ and of our social and behavioural expectations) or instrumental (offering a ‘resource that citizens utilize to structure relations with others, to advance goals in social life, to formulate rightful claims, and to negotiate disputes where interests, wants or principles collide’).25 Although the constitutive and reflective dimensions of law have been always present in the history of Latin American constitutionalism, it is only during the recent decades that we have witnessed law as a means of action. It was only when progressive social movements realized the emancipatory or resistance dimensions of law that a new path of constitutionalism was opened. The modern debate highlights the constitutive and instrumental dimensions of law: rather than merely providing normative principles that institutionalize expectations and interactions in the social sphere, law also ‘shapes our very imagination about social possibilities’ and ‘provides strategic resources for the conduct of social struggle’.26 Rather than a process, where the material basis of constitutions and dealings with the past shaped constitutional understanding, current constitutional debates in the region seem focused on instrumentalists views of law, treating it ‘almost entirely as a means of implementing policy’.27 However, as said by critical assessments of the literature on law and social change, ‘how law matters depends on the complex, often changing dynamics of context in which struggles occur’.28 The following sections constitute an attempt to go beyond assessments of the efficiency                                                                                                                         22

Schor, ‘Constitutionalism Through the Looking Glass of Latin America’, 5 M García Villegas, ‘Law as Hope’, Eurozine Magazine 2004. 24 The idea of law in the cornerstone of social progress has been developed by legal mobilization scholars, who have rejected ‘conventional positivists understanding of law largely limited to discrete, determinate rules or policy actions’, and developed a focus not only on behavior (how law affects behavior), ‘but on the intersubjective power of legal discourses, conventions and practices in constructing meaning’. M McCann (ed.), Law and Social Movements (Ashgate, 2006) xii. 25 Ibid. 26 Ibid. 27 R Cotterrell, The Sociology of Law: An Introduction (Oxford University Press, 2005) 67. Discourse around the preservation of political order and economic development shaped the way in which constitutions were supposed to be crucial for nation-building projects, preventing also a retreat to the colonial era (cross-reference with chapter 2). 28 M McCann, ‘Law and Social Movements’, in A Sarat (ed.), The Blackwell Companion to Law and Society (Blackwell, 2008), 519. 23

 

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of law as an instrument of social change; instead, it is an effort to make a theoretical account of the place that constitutional law occupies in progressive political projects.29 Constitutional disputes are now much more focused on the current problems, with a view to the future rather than dealing with the past. As I said before, the contemporary constitutional debate is imbued with a transformative ethos. During the ‘third wave’ of democracy, the constitutional agenda acquired a certain re-foundational dimension, which resembles the debate on the role of constitutions during the founding era of Latin American republics. As put by Ruti Teitel, during transitional stages, countries look into constitutional law as an instrument to navigate into future challenges rather than as mere mirrors of past or current social, cultural or economic arrangements.30 One may plausibly claim that the main constitutional dispute is now concentrated on how to solve the persistent problems that still pervade the region after 200 years of interrupted republican forms of government. Moreover, even if the material basis of constitutions has been somehow displaced from constitutional discourse, the emphasis of the modern debate is on how to break the cycle of material inequality ‘bequeathed’ by a history of segregation and political exclusion; the material basis has rather shifted to aspirations, isolating the constitutional debate from political economy.31 All in all, constitutional law in LATAM is considered as the darling of social progressive thinking in the region and it has been coupled with several adjectives: ‘inclusive’, ‘transformative’, ‘egalitarian’, ‘new’, ‘aspirational’.32 Constitutional law, in this sense, has become the language of progressive social thinking, the favourite idiom of emancipatory projects. Indeed, almost every progressive social reform has endorsed different versions of constitutional thinking. Nevertheless, despite the different versions, some scholars argue that there is a common identity that allows us to speak of a ‘Ius Constitutionale Commune’.33 For Armin von Bogdandy, the concept of transformative constitutionalism could be applied to the current debate, ‘centred on overcoming social exclusion through the triad of human rights, democracy and the Rule of Law’.34 Another element of identity of this Ius Commune is ‘the rejection of the three traditional Latin American ideologies, that is, conservatism, liberalism and                                                                                                                         29

For Helena Alviar, the belief in the instrumental uses of law persists despite its frequent frustrations, signalling the importance of expanding the analysis of law and societal change, addressing also what law leaves untouched, unsaid or out of reach. H Alviar, ‘The redistribution of property in Latin America: Should we lose our faith in law? Revista Internacional de Pensamiento Político 1:5, 91-121. 30 R Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’, Yale Law Journal 106:7, 2014. 31 M Garcia Villegas, ´Law as Hope´, 32 Garcia Villegas, ‘Law as Hope’; A Bogdandy, ‘Ius Constitutionale Commune en América Latina: una Mirada a un constitucionalismo transformador’; D Sarmiento, Por um constitucionalismo inclusivo: história Constitucional Brasileira, Teoria da Constituição e Direitos Fundamentais (Lumen Juris, 2010); M Alegre and R Gargarella (cords.) El Derecho a la Igualdad: Aportes para un constitucionalismo igualitario (Abeledo Perrot, 2007). Within the emergence of ‘adjectival constitutionalism’, that is, ‘the study of constitutionalisms with some modifier’, the current constitutional debate in Latin America is generating interesting debates for comparative constitutional law. See M Tushnet, ‘Varieties of Constitutionalism’, International Journal of Constitutional Law 14. 33 See the works included in A Bogdandy, H Fix-Fierro, M Morales Antoniazzi (cords.) Ius Constitutionale Commune en América Latina. Rasgos, Potencialidades y Desafíos (UNAM, 2014). 34 A Bogdandy, ‘Ius Constitutionale Commune en America Latina: una mirada a un constitucionalismo transformador’, page. However, as I will explain later, before importing a concept that was crafted in the context of the South African struggle against apartheid, it is important to set the crucial points of the current constitutional debate, what I plan to do in this chapter.

 

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republicanism’.35 Although later I will claim that EDC could be understood as a revival of the republican tradition, contemporary Latin American constitutionalism understands itself as an innovation from former constitutional scholarship. The three most popular ‘schools’ of the contemporary constitutional scene are concerned with the evils that political regimes of the region are trying to address.36 In a way, they navigate around the central idea that constitutions should be directly and explicitly concerned with the main social and economical challenges of Latin America. If these challenges are not addressed, then responsibility could be attributed directly or indirectly to the constitutional content or structure itself.37 Poverty, inequality, violence and discrimination rank high among constitutional problems; nevertheless, the institutional failure of recent legal reforms is also something of concern.38 Thus, substantive and institutional issues are among the evils that current constitutional trends are trying to redress. On the one hand, if poverty and inequality are unreasonably high, then we may ask whether we should consider them as constitutional problems. On the other hand, despite several constitutional clauses that are explicitly crafted to tackle them, if the institutional framework is not performing according to its dynamics, then we may have another constitutional challenge. In the following sections I will provide a description of contemporary constitutional trends in Latin America, highlighting its particular features. I will start by explaining its origins, aims and institutional implications. In concrete, each section will present a constitutional current or school of thought, within a taxonomy elaborated around different axis of debate: their particular concept of constitution, concern with external legitimacy, the organic distribution of powers and functions, the dynamics of democratic processes, the incorporation of international human rights law, and the endorsement of particular legal reasoning or interpretive theories.39 I do not intend to create this taxonomy in order to look for the ‘best practice’ or the ‘most effective’ solutions of a legal problem across different jurisdictions, nor to causally explain current constitutional arrangements.40 By contrast, I agree with Armin von Bogdandy that ‘there are other forms of deep knowledge beyond description and classification, and alongside causal explanations’, which he founds in Hegel’s concept of reciprocity, that ‘supports the aim of a hermeneutic procedure of comparative law which is not oriented towards isolatable relations of cause and effect, but rather

                                                                                                                        35

Bogdandy, ‘Ius Constitutionale Commune en America Latina: una mirada a un constitucionalismo transformador’,

6. 36

I will speak of schools, currents or trends, in order to express the idea that the contemporary debate takes place around a scholarly debate. In contrast with the traditional debate, which was leaded by influential political actors, the contemporary debate I am presenting here draws mainly on the work of academic actors. 37 This is an issue that has been raised frequently in the US, that is, whether socio-economic inequality should be considered as a constitutional problem? Balkin, Constitutional Redemption, ch 6. 38 Gargarella, Latin American Constitutionalism 1810-2010, page?; Schor, ‘Constitutionalism Through the Looking Glass of Latin America’. 39

In this chapter, I will not include the consideration of the place of indigenous peoples in contemporary Latin American constitutional debates. However, as a general thrust, one could say that the three current go beyond mere assimilation processes, and support forms of constitutional recognition with political power, or even the creation or re-foundation of the state as a multi-cultural, pluri-cultural or pluri-national state. 40 For an overview of different types of constitutional comparison from a political science perspective, see R Hirschl, Comparative Matters (Oxford University Press, 2014), ch 6.

 

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towards an understanding which arises from a synthesis of a multiplicity of elements in their manifold relationships’.41 With this taxonomy in mind, in the following sections I will provide reasons to conclude that ‘egalitarian-dialogic’ constitutionalism could overcome the failures and frustrations with Latin American neo-constitutionalism and New Latin American constitutionalism in bringing social change and democratic consolidation, and become a kind of ‘a synthesis of a multiplicity of elements in their manifold relationships’. That is why the different axis of debate will be dealt when explaining each constitutional school of thought in a dynamic way. Furthermore, as I will claim in a future chapter, EDC is the best embodiment of a constitutional conception for a transformative approach to ADL. Although each current has different sources and benchmarks, they have been presented under an overarching idea of Latin American constitutionalism, either because of the regional diffusion of common constitutional ideas,42 or for its broader transformative ethos.43 Some scholars have attempted to classify different models or schools of Latin American constitutionalism according to foreign constitutional models, or without a specific consideration of the context where they arise. For example, Ana Micaela Alterio proposed a system of classification of contemporary constitutional currents that could be applied to the Latin American Context: neoconstitutionalism; popular constitutionalism; and new Latin American constitutionalism.44 The main weakness of this classification is the intermingling of foreign and native models in the same system, and the inadequate consideration of different regional strands. For example, Alterio´s classification distinguishes between neo-constitutionalism and popular constitutionalism as abstract models, and then suggests applying them to the Latin American context; or, her blending of all progressive currents of Latin American constitutionalism under the same label ‘New’ does not consider the radical differences that may exist between New Latin American Constitutionalism and Latin American Neo-Constitutionalism. The taxonomy presented here hopes to overcome these problems. The three constitutional currents have some common features that should be highlighted before proceeding to explain its differences. The first common point is their historical origin: the three were born with the ‘third wave’ of democracies, after electoral democracies were regained in most countries of the region.45 A second familiar point is the diagnosis from where they start: dissatisfaction with the performance of democratic regimes in achieving socio-economic                                                                                                                         41

A von Bogdandy, ‘Comparative constitutional law as social science? A Hegelian reaction to Ran Hirschl’s Comparative Matters’, 10. Reciprocity of knowledge from different academic backgrounds, and reciprocity of legal practices that diverge domestically but converge regionally, for example, in the Inter-American Human Rights Systems. 42 M Tushnet, ‘Varieties of Constitutionalism’. For Matther Mirow, what unites Latin American constitutionalism are the challenges of the legacy of the Constitution of Cadiz (1812), which highlighted the ‘politicization of constitutional law’. When he addresses the contemporary debate, he does not distinguish different constitutional currents or schools of thought. M Mirow, Latin American Constitutions: The Constitution of Cádiz and its Legacy in Spanish America, ch 6. 43 A Bogdandy, ‘Ius Constitutionale Commune en America Latina: una mirada a un constitucionalismo transformador’. 44 A Alterio, ‘Corrientes del Constitucionalismo Contemporáneo a Debate’, Problema, Anuario de Filosofía y Teoría del Derecho 8 45 R Uprimny, ‘Recent Transformations in Constitutional Law in Latin America’, Texas Law Review 89:1587.

 

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equality, social inclusion and democratic consolidation.46 Another relevant point is their transformative ethos. Each current reserves as special place for constitutional law in the project of social transformation, a promise to perform better than alternative projects in bringing change to the life of people living under certain constitutional arrangements. Finally, we should recall the basic idea that constitutionalism has always emerged from a certain trauma, with an obsession to tackle certain problems that seem urgent and pressing to resolve.47 In the case of Latin America, each current is promising to end with social exclusion and marginalisation, and bring about better performances in socio-economic terms. Although each has different stances about neo-liberal impacts on the region, they all have critically assessed the impacts of the economic system on fundamental rights. In what follows, I will describe the three most popular constitutional currents that propose different ways of achieving social transformation. III. Latin American Neo-Constitutionalism Neo-constitutionalism has been dominant in parts of Europe and Latin America,48 and it could be plausibly labelled as ‘a well-consolidated constitutional current’,49 or, even more, as the ‘end of history’ of constitutional law.50 It has been considered both a constitutional model and a theory of legal analysis and interpretation.51 For its critics, it has been a term coined in specific academic circles (then, with no universal validity), grouping authors and ideas from different traditions (from Dworkin to Ferrajoli, a self-declared positivist), and with an uncritical and positive assessment of the current constitutional scenario: courts enforcing rights and values                                                                                                                         46

L Whitehead, Latin America: A New Interpretation (Palgrave, 2006) see chapter 6. Gargarella, Latin American constitutionalism 1810-2010, page. In the words of Laurence Whitehead, ‘[i]nstead of a veil of ignorance which allows all to establish new rules disconnected from prior distributions and exclusions, Latin American constitutions are typically pictured as repudiations of the exorbitant privileges previously enjoyed by an exclusive minority, and as involving the empowerment of hitherto excluded social groups’. ‘Latin American Constitutionalism: Historical Development and Distinctive Traits’, in D Nolte and A Schilling-Vacaflor (eds.), New Constitutionalism in Latin America : Promises and Practices (Ashgate, 2012), 131 48 For a critical account of the extensional scope of the term neo-constitutionalism, and thus questioning its global scope, see J Fabra, ‘Una nota sobre el neoconstitucionalismo’, in J Fabra and L García Jaramillo (eds.), Filosofía del Derecho Constitucional: Cuestiones Fundamentales (UNAM, 2015), 522. He claims that the distinction between constitutionalism and neo-constitutionalism only makes sense within Italo-Ibero-Latin American circles of the legal academia. 49 R Viciano Pastor and R Martinez Dalmau, ‘¿Se puede hablar del nuevo constitucionalismo latinoamericano como corriente doctrinal sistematizada?’, available at http://www.juridicas.unam.mx/wccl/ponencias/13/245.pdf 50 The idea is taken from Hansmann and Kraakman, who argue that developed markets have achieved an unprecedented degree of uniformity on corporate law. This state of affairs will gradually converge into a single model of regulating corporations that will hardly be challenged by any alternative. Here, I use the idea to claim that the basic features developed by neo-constitutional scholarship during the post-war period are now considered as a mandatory checklist for many constitutions. H Hansmann and R Kraakman, ‘The end of history of corporate law’, Georgetown Law Journal 89:439. 51 For Paolo Commanducci, it is a model that attributes value to the constitution itself (as an axiological normative framework), with certain concrete institutional features. ‘Modelos e Interpretación de la Constitución’, en M Carbonell, Teoría del Neoconstitucionalismo (Trotta, 2007) 52-53. To the contrary, for Susanna Pozzolo, the determinant criterion is a neoconstitutional conception of the constitution rather than a specific institutional model. It is through this conception, diffuminated as a constitutional practice, that certain model of constitution could emerge. ‘Reflexiones sobre la concepción neoconstitucionalista de la constitución’, en M Carbonell and L García Jaramillo (eds.), El Canon neoconstitucional (Trotta, 2010) 166-167. 47

 

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included in constitutions.52 Originally, it was considered as a reaction against the failure of positivism in protecting rights, but later it adapted itself to ‘inclusive positivism’, once it realized that most of the values, principles and fundamental rights were incorporated formally in the constitutional rule of recognition.53 However, methodological commitments of neoconstitutionalism are closer to a clear rejection of positivist approaches to the study of law.54 All in all, within the family of neoconstitutionalism, there are different understandings of the thesis of the necessary connection between law and morals.55 From its different sources, we could draw its normative and institutional prescriptions, which are somehow straightforward: constitutional texts should be rigid (difficult to amend), have the force of law, and be interpreted and applied by independent judges that should remain isolated from external or internal pressures.56 These judges have to approach the constitutional text with specific rules of interpretation tuned with the moral content of the object under interpretation, and who (generally) have the last word on what that constitution means.57 Within a strict division between law and politics, neoconstitutional literature places the emphasis on the incorporation of (international) human rights standards into the constitutional catalogue of rights, which should then be used as the standards of political legitimacy for every infra-constitutional provision. The technique of balancing allows legal reasoning to apply constitutional rights and principles to every legal conflict, as they are considered ‘optimization requirements’ that, through the weigh formula, have an answer for every set of circumstances.58 That explains the progressive constitutionalisation of all areas of law, and the direct or indirect application of the constitution in all public or private relationships. Despite maintaining the basic liberal arrangements for the organization and separation of powers, it imbued both law-making and application processes                                                                                                                         52

For an overview of the critiques against the conceptual underpinnings of neo-constitutionalism, see E Aldunate, ‘Aproximación conceptual y crítica al neo-constitucionalismo’, Revista de Derecho 33:1. He also questions whether there is something really new in some of its main elements, compared to the evolution of constitutionalism since the nineteenth century. 53 J Etcheberry, ‘El ocaso del positivismo jurídico incluyente’, Persona y Derecho 67:2, 413-414; see also Pozzolo, ‘Reflexiones sobre la concepción neoconstitucionalista de la constitución’, 173. 54 Although Paolo Commanduci thought it could be possible to develop an ‘inclusive positivist’ account of neoconstitutionalism, he ended up rejecting this school of thought because of its methodological commitments with iusnaturalism. P Commanduci, ‘Formas de Neoconstitucionalismo: un análisis metateórico’, in M Carbonell, Neoconstitucionalismo(s) (Trotta, 2009), 87. According to the Mexican scholar Pedro Salazar Ugarte, this is what distinguishes ‘Garantismo’ (Ferrajoli) with neo-constitutionalism. ‘Garantismo y Neo-constitucionalismo frente a frente: algunas claves para su distinción’, in J Fabra and L García Jaramillo (eds.), Filosofía del Derecho Constitucional: Cuestiones Fundamentales (UNAM, 2015), 55 That is one reason why some scholars speak about neoconstitutionalism in plural: neo-constitutionalism(s). Carbonell, Neo-constitucionalismo(s). 56 M Carbonell, ‘El neoconstitucionalismo: significado y niveles de análisis’, in M Carbonell and L García Jaramillo (eds.), El Canon neoconstitucional (Trotta, 2010) 154-157. 57 L Prieto Sanchis, ‘Notas sobre la Interpretacion Constitucional’, Revista del Centro de Estudios Constitucionales; see also the famous essay by Ronald Dworkin, ‘The Moral Reading of the Constitution’, The New York Review of Books 43:5. 58 In other words, constitutional adjudicators have the normative resources to give a legal answer to every conflict (direct application); constitutions irradiate their normative force to every part of the legal system, and there is no need to wait for the legal production of the legislature or the administration, and there is almost no space for ‘political question doctrines’. Aldunate, ‘Aproximación conceptual y crítica al neo-constitucionalismo’, 89. In a way, if constitutional rights are considered as ‘optimization requirements’ that, through the technique of balancing constitutional rights and principles, have a precise answer for a legal conflict (a rule, applicable to the case), then only judges have the final solution. For the characterization of constitutional rights as ‘optimization requirements’, see R Alexy, A Theory of Constitutional Rights (Oxford University Press, 2002).

 

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with standards and principles that are unavoidably open to moral interpretation. Every act of lawmaking power, either public or private, should be now under the scrutiny of substantive constitutional law.59 The origins of neo-constitutionalism are in the post-war period, when the language of human rights became the language of justice and social progress, and international and domestic courts its best allies.60 However, its importation to Latin America has shaped newer understandings of its main premises. Thus, the main question we should ask here is what is the distinctiveness of Latin American neo-constitutionalism (hereafter, LANC)? The enactment of the Brazilian Constitution in 1988 began a process by which many countries in the region started to create new constitutional arrangements or amended substantially their constitutional texts.61 After years under dictatorships, weak and fragile democracies, or under military tutelage, the constitutional transformations of recent decades were based on the creation of catalogues of rights that included a broad range of individual and collective rights, including social rights, and new ways of protecting and realizing those rights. Additionally, transitional law focused on the incorporation of international human rights standards and the possibility of constitutionalizing the ‘nunca más’ (that is, of avoiding a retreat to an era of repressive human rights regimes).62 In general, neo-constitutionalism has been associated with long and detailed constitutions, although this has not always been the case.63 In the case of NLAC, and probably as a legacy of processes of codification, there has been an inflationary process of incorporating detailed regulations and more fundamental rights in the constitution’s catalogues.64 These new constitutional scenarios changed also adjudicative practices, which were supported by a ‘growth industry’ of judicial reforms that has gradually changed constitutional practices.65 As a result, we could fairly say that Latin America has stronger and more independent courts compared with the                                                                                                                         59

Alterio, ‘Corrientes del Constitucionalismo Contemporáneo a Debate’, 234. S Moyn, The end of utopia: Human Rights in History (Harvard University Press, 2012); any other? 61 Uprimny, ‘Recent Transformations in Constitutional Law in Latin America’; Negretto, Making Constitutions, 1722. 62 C Ayala, ‘La jerarquía constitucional de los tratados relativos a derechos humanos y sus consecuencias’, in R Mendez Silva (ed.), Derecho Internacional de los Derechos Humanos. Memoria del VII Congreso Iberoamericano de Derecho Constitucional (UNAM, 2002). 63 The example of the Italian Constitution, from where the term was imported to Latin America, is a case in point: a short constitution that has been read in a certain way, to the extent it is now the paradigm of a new kind of neoconstitutional scholarship: neo-constitutional minimalism. 64 For a recent comparative study to inform the debate on whether to codify or not the UK constitutional arrangements, ‘[t]he number of rights included in national constitutions has increased steadily over the years. Early in the modern constitutional era, constitutions had, on average, only 10 rights, a number skewed upward by Latin American constitutions that had many more rights than their European counterparts.’ J Melton, C Stuart and D Helen, ‘To codify or not to codify? Lessons from consolidating the United Kingdom’s constitutional statutes’, The Constitution Unit (UCL, 2015), 27-28; see also the recent report of the Council on Hemispheric Affairs, that speaks of Latin America’s ‘fluid constitutions’, in part due to the longstanding preference of Latin America’s framers of ‘specificity over generality’. R Eustace, ‘Fluid Constitutions’, COHA 2014. 65 L Hammergren, Envisioning Reform: Improving Judicial Performance in Latin America (Penn State University Press, 2007). The new shape of adjudicative practices has been a consolidation of a longstanding evolution of forms of judicial review since the nineteenth century, where the influence of the US was crucial. A Brewer-Carias, Judicial Review in Comparative Law (Cambridge University Press, 1989). Nowadays, a hybrid model of constitutional review, with an extended access to amparo proceedings for the protection of constitutional rights, is one of the most distinguishable features of Latin American constitutional law. A Brewer-Carias, Constitutional Protection of Human Rights in Latin America: A comparative study of amparo proceedings (Cambridge, 2009). 60

 

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previous decades, although with different performances.66 For LANC, the combination of more constitutional rights and stronger courts would increase the chances for social progress, specifically in the hands of ‘new more consequentialist, socially conscious and self-consciously progressive judges’.67 However, the ‘third wave’ of democratisation brought with it not only new constitutional texts and adjudicative practices, but altered the traditional conception of legal interpretation in the region. Although not every constitutional text placed the same emphasis on the substantive dimension, the remarkable fact is that in less than 20 years the transnational scholarly debate turned very fast from discussions around sovereignty and non-intervention, to a more cosmopolitan, integrated, and rights-oriented legal realm.68 Indeed, there was a rediscovery of the open texture nature of legal texts, in which an active role of the legal subjects was determinant in the production of legitimate aims. Moreover, such new legal readings shifted the focus from the previously dominant statutory (textual) interpretation that was bequeathed by codification.69 This ‘turn to legal interpretation’ marked ‘a shift away from traditional legal reasoning and its accepted methods’, towards the endorsement of ‘new interpretive theories’, which ‘are marshalled against the conventional practices of national courts and traditional commentators, which are in turn dismissed as pure legal formalism’.70 The new emphasis in a dialectic and open legal interpretation produced a shift from memorizing rules and logic legal deduction to argumentation theories and new methods of balancing values, principles or open textured standards.71 The new conception of legal interpretation was seen ‘as a key to open the closed gates of legal formalism’, partially responsible for the conservatism of legal practice.72 The predominance of neo-constitutional theory among progressive legal scholars in Latin America was deemed as a new way of challenging legal formalism, confronting academics (progress) with practitioners/legal operators (conservatives). In the words of López Medina, ‘legal philosophy was seen, at least at the moment of transplant of the new anglo-saxon anti-formalism, as the equivalent of a counter-cultural and counter-hegemonic, academic

                                                                                                                        66

G Helmke and J Ríos-Figueroa (eds.), Courts in Latin America (Cambridge University Press, 2011). D Brinks, ‘“A Tale of Two Cities”: The Judiciary and the Rule of Law in Latin America’, in Routledge Handbook of Latin American Politics, 66. See also J Couso, ‘Los desafíos de la democracia constitucional en América Latina: entre la tentación populista y la utopia neoconstitucional’, Anuario de Derechos Humanos 2010, 44. 68 Alexandra Huneeus speaks of a transnational neo-constitutional ‘movement’ of constitutional lawyers and scholars. ‘Constitutional Lawyers and the Authority of the Inter-American Court’, Law and Contemporary Problems 79. 69 A remarkable example of this departure is the doctrine of unenumerated or implicit rights. For an assessment of this practice of the Colombian Constitutional Court, see L García Jaramillo, ‘Los argumentos del neoconstitucionalismo y su recepción’, en M Carbonell and L García Jaramillo (eds.), El Canon neoconstitucional (Trotta, 2010) 231-236. For the Peruvian case, see Luis Castillo-Córdoba, ‘Justificación y Significación de los derechos constitucionales implícitos’, Gaceta constitucional: jurisprudencia de observancia obligatoria para abogados y jueces, (5), 31-48. 70 J Esquirol, ‘The Turn to Legal Interpretation’, American University International Law Review 26:4, 1033. 71 R Pérez Perdomo, Latin American Lawyers: A Historical Introduction (Stanford University Press, 2006). 72 D López Medina, ‘¿Por qué hablar de una teoría impura del derecho para América Latina?, en D Bonilla (ed), Teorías del Derecho y Transplantes Jurídicos (Siglo del Hombre, 2009), 46. 67

 

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and anti-professional, moderately progressive version of what should be the role of law in social conflicts of countries such as Argentina, Colombia, Bolivia and Mexico’.73 The predominance of this new conception of legal interpretation came with a new practice of adjudication came along with an extended access to justice mechanisms, where progressive activists sought in courts what was not available through the ordinary means of legislative rules of change.74 Judges directly applying constitutional provisions to the solution of ordinary cases was seen as the main tool to defeat legal formalism. In a continent with subsequent representativeness crisis, and with manifold administrative shortcomings or weaknesses, courts applying open textured constitutions with long and broad catalogues of human rights were seen as the main avenue for social progress.75 Throughout the continent, and within the new constitutional discourse, constitutional principles were to be applied under the pro-personae criteria in order to offer the best available protection for fundamental rights. These principles took the job of fitting a whole codified legislation –in many countries, a legacy from the nineteenth century- that was seen as detached from social reality and as an unjust structure. Furthermore, if principles are ethical-political products of moral argumentation rather than legal rules with deontic structures, then nothing prevented judges from creating new constitutional principles not included in texts, if it was a requirement of justice or dignity in certain circumstances.76 This new practice of adjudication promoted the exercise of strong powers of judicial review, including both the constitution and international human rights treaties as standards of review.77 During recent years, this practice has been gradually developing at the regional and transnational levels, reaching its peak with the doctrines of the ‘bloc of constitutionality’ (that is, the idea of extended constitutions, which incorporate international

                                                                                                                        73

Lopez Medina, ‘¿Por qué hablar de una teoría impura del derecho para América Latina?’, 52. However, legal theory is seen as the philosophical abstraction from national legal systems, and usually the transplantation of legal theories from sites of production is done at the expense of the particular social and political circumstances that gave birth to those theories: think of the regional transplant of Hart´s legal theory as the main device of anti-formalism, ignoring how his theories were seen as a constraint of the conceptual overstatements of legal realists; or how Kelsen´s pure theory of law was used merely as a device to protect legal systems from marxist reasoning, ignoring Kelsen´s commitment with socialism. This has also been described as a general problem of neo-constitutional scholarship, that groups authors that endorse different methods (e.g., Hart´s open-texture with Dworkin´s integrity of law), without being aware of possible contradictions. Braga, ‘Una nota sobre el neo-constitutionalismo’, 522. 74 This has been the case even when the public trust in the performance of courts is still very low in the region. This may be better explained by changes in the constitutional opportunity structures (constitutional remedies) and the support by legal advocates and NGOs that have been creating activits’ networks. For the example of Argentina, see C Smulovitz, ‘Judicialization in Argentina: Legal Culture or Opportunities and Support Structures?’, in J. Couso, A Huneeus and R Sieder (eds.) Cultures of Legality: Judicialization and Political Activism in Latin America (Cambridge University Press, 2010). 75 D Brinks and W Forbath, ‘The Role of Courts and Constitutions in the New Politics of Welfare in Latin America’, R Peerenboom and T Ginsburg (eds.), Law and Development of Middle-Income Countries (Cambdirge University Press, 2014). 76 This practice has been investigated in many different jurisdictions. The most extreme case has been the Tribunal Supremo Federal, creating 24 new principles with no support in the text of the constitution of Brazil of 1988. L L Streck, Verdade o Consenso (Saraiva, 2014), 470-496. 77 In some cases, giving precedence to international human rights. As put by Bockenforde and Sabsay, ‘In Latin America there has been a tendency towards the adoption of rules close to monism, giving precedence to international over national law’. ‘Supranational organizations and their impact on national constitutions’, Routledge Handbook of Constitutional Law, 481.

 

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human rights as standards of review)78 and ‘conventionality control’ (that is, the idea that judges, as state officials, are bounded to apply the American Convention of Human Rights and its jurisprudence in the exercise of their adjudicatory powers).79 By placing the moral language of constitutions at the heart of social progress, LANC endorsed the image of ‘failed law’ in Latin America, which has shaped the expectations the public places on law and institutions.80 The idea that there is a long gap between laws on the books and laws on the ground raises challenges that must be overcome by any legally driven project of social change. In contrast with Europe, the legitimacy crisis of legislatures and bureaucracies has triggered judges to become the main social actors in the project of changing reality through ‘flexible standards and guidelines’, that allowed the ‘solution of what were seen as “management problems” by best available scientifical and technical expertise’.81 The idea of a top-down, elitebased project that could highlight the failure of legislative politics in delivering public goods has turned into a common picture of many constitutional jurisdictions of the region.82 Therefore, the change that neo-constitutional trends brought to Latin America was not only about entrusting judges with powers to enforce fundamental rights, but also about assuming a distrust of legislatures and its institutionalization in different legal devices.83 The latter could be considered as the main sign of identity of LANC. In certain political contexts, the idea of courts rather than executive or legislative powers addressing pressing social issues has become common currency for the language of constitutional law. In Latin America, the Colombian Constitutional Court has been seen as the model of agent for social change.84 For its part, the Supreme Court of Brazil,85 the Supreme                                                                                                                         78

R Uprimny, Bloque de Constitucionalidad, Derechos Humanos, y Proceso Penal (Consejo Superior de la Judicatura, 2006), 29-33. 79 For a good overview, see E Ferrer MacGregor, ‘Conventionality Control: the New Doctrine of the Inter-American Court of Human Rights’, 109 AJIL Unbound 93 (2015). The doctrine has triggered intense debates, specially considering the gradual consolidation of democracy in the region. J Contesse, ‘Inter-American constitutionalism: the interaction between human rights and progressive constitutional law in Latin America’, in C Rodriguez Garavito (ed.), Law and Society in Latin America (Routledge, 2014). Some have argued that part of the neo-constitutional scholarship has advanced a ‘strong conventionality control’, where judges are bounded by the American Convention of Human Rights, disregarding the internal distribution of judicial review powers. For a typology of conventionality control, which determines different degrees of international deference and national discretion, see P Contreras, ‘Conventionality Control, International Deference, and National Discretion in the Inter-American Court of Human Rights Case Law’, Ius et Praxis 20:2. 80 J Esquirol, ‘The failed law of Latin America’, The American Journal of Comparative Law 56:76. 81 M Koskeniemmi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’, Humanity: An International Journal of Human Rights, Humanitarianism, and Development 1:1, 47. For some commentators, neoconstitutional scholarship has ended up undermining the normativity of law (its binding character) and the ability of law to guide human behaviour, replaced now by the moral adjudication of judges who have the power to decide what law means only after the facts are considered. This might trigger a retreat to a pre-modern law. F Atria, La Forma del Derecho (Marcial Pons, 2016), 56ff; L Ferrajoli, Constitucionalismo Principalista y Constitucionalismo Garantista, Doxa 34, 23. 82 According to Mainwaring, governability crisis are mainly derived from state failures to provide public goods. ‘State deficiencies, Party Competition, and Confidence in Democratic Representation in the Andes’, in S Mainwaring, A Bejarano, E Pizarro (eds.), The Crisis of Democratic Representation in the Andes (Stanford University Press, 2006). In this scenario, courts could gain legitimacy and even popularity in bridging the divide between the constitution and the people. 83 A Alterio, ‘Corrientes del Constitucionalismo Contemporáneo a Debate’, 262-263. 84 M García Villegas and R Uprimny, ‘Corte Constitucional y Emancipacion Social en Colombia’, en B Dos Santos y M García Villegas (eds.), Emancipación Social y Violencia en Colombia (Norma, 2004); K Merhof, ‘Building a

 

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Court of the Nation in Mexico,86 the Constitutional Chamber of the Supreme Court of Costa Rica,87 or the Argentinian Supreme Court88 are sometimes seen as the main followers of this new practice of progressive neo-constitutional adjudication.89 Facing legitimacy crisis of legislatures, and the critiques against hyper-presidentialist regimes that dominate across the region, judges are seen as the last hope for those that are excluded from access to political or social channels to make their demands. For some scholars, we have to ask, in the current context, whether courts are an institutional voice for the marginalized, the socially excluded, or for those socioeconomically disadvantaged.90 Overall, and despite its impacts on the grounds, these courts see themselves as contributors to the consolidation of democracy over time, as fosterers of a constitutional culture, or as developers of stronger civil societies.91 Moreover, judges had to regain the legitimacy that was lost during the harsh times in the region during the 1970s and 1980s, when they did little to prevent violent conflicts or stand against egregious human rights violations.92 In these contexts, it should not surprise us that progressive legal scholars were the first to celebrate the idea of judges standing against institutional failures in meeting public expectations. As discussed above, LANC is a radical interpretation of the basic neo-constitutional idea that constitutions should emphasise its substantive over its procedural dimension.93 In this scenario,                                                                                                                                                                                                                                                                                                                                                                                               bridge between reality and the constitution: The establishment and development of the Colombian Constitutional Court’, International Journal of Constitutional Law 13:3, 721. 85 See the critical analysis of the Tribunal Supremo Federal of Octavio Ferraz, ‘Between Usurpation and Abdication? The Right to Health in the Courts of Brazil and South Africa’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1458299&download=yes 86 87

B Wilson, ‘Enforcing Rights and Employing Accountability Function: Costa Rica´s Constitutional Court’, in H Gretchen and J Ríos-Figueroa (eds.) Courts in Latin America (Cambridge University Press 2009). 88 M Ábalos, ‘Democracia y función judicial. El activismo decisional en la Corte Suprema de Justicia de la Argentina’, in Anuario de Derecho Constitucional Latinoamericano (Konrad Adenauer, 2014), 251-269. 89 Although neo-constitutional adjudication, in the sense of being aware of the axiological content of the object of interpretation, has not been uniformingly progressive. Brinks, ‘“A Tale of Two Cities”: The Judiciary and the Rule of Law in Latin America’, 68. 90 R Gargarella, P Domingo and T Roux, Courts and Social Transformation in New Democracies: An institutional voice for the poor? (Ashgate, 2006). 91 However, neo-constitutional scholarship has not given enough space for the empirical assessment of the contribution of constitutional adjudication to democratic development and social progress. For Daniel Brinks, ‘[w]e have only tentative answers to the question whether the introduction of courts into the policy-making and implementation process promotes greater equity and distributive justice in an unequal continent (possibly not), improves outcomes for the poor (occasionally), improves the accountability of public officials (more often), and generally improves the condition of anyone at all (occasionally). Theorizing and evaluating the implications of the surge in judicial power remains one of the crucial questions in the study of judicial politics everywhere, but especially in Latin America, given the region’s activist courts’. ‘‘“A Tale of Two Cities”: The Judiciary and the Rule of Law in Latin America’, 69. For David Landau, the study of adjudication in fragile democracies should move towards the empirical assessment of the role of courts in improving ‘the quality of democracy over time’, endorsing a dynamic theory of the judicial role, ‘A Dynamic Theory of Judicial Role’, Boston College Law Review 55:1501. 92 During those times, judges were not only reluctant to apply international human rights treaties or fundamental rights recognized in domestic jurisdictions, but also to apply simple criteria of statutory interpretation. L Hilbink, Judges Beyond Politics in Democracy and Dictatorship (Cambridge University Press, 2007), 215. Studying the Chilean judiciary’s attempt to atone for its complicity with the dictatorship, Alexandra Huneeus gave a thorough assessment of an activist turn to human rights. ‘Judging from a Guilty Conscience: The Chilean Judiciary's Human Rights Turn’, Law and Social Inquiry 35:1. 93 R Arango, ‘Fundamentos del Ius Constitutionale Commune en América Latina: Derechos Fundamentales, Democracia y Justicia Constitucional’, in A Bogdandy and M Morales (eds.) Ius Constitutionale Commune en

 

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constitutional jurisdiction becomes the main actor in delineating the powers allocated to the legislative, the executive, and to ordinary judges, with an overarching view of protecting fundamental rights.94 In a few words, we could say, far from the state arrangements, closer to the citizen. The perspective of rights as ‘trumps’95 or as ‘the sphere of the undecidable’,96 was advanced in the region to the detriment of the majoritarian understanding of democracy.97 Therefore, instead of attempting to protect political equality through the majority rule, NLAC gave priority to the institutional arrangements that allegedly pay due respect to the Dworkinean principle of equal respect and concern. The best example is the widespread access to constitutional courts with extended scopes of authority that has been developing very fast during the recent years. The emergence of amparo, mandatos de securanca, tutelas, or recursos de proteccion, which gave individuals and groups an easy access to processes of constitutional review, expresses the commitments of NLAC with a novel conception of democracy.98 The institutional architecture of courts and the principle of procedural fairness, then, are considered a better warranty for the egalitarian protection of fundamental rights.

IV. New ‘Latin American’ Constitutionalism The term is used to describe the recent processes of constitution-making in Bolivia (2009), Ecuador (2008), and Venezuela (1999), and the interest it has arisen for their study in the IberoAmerican academic world.99 Although some authors tend to include the Constitution of Colombia (1991) and other constitutional processes, there are structural differences with these processes that will become clear at the end of this section.100 Thus, we should start asking what does the ‘new’ mean when applied to Latin American Constitutionalism? What is the novelty in New Latin American Constitutionalism (hereafter, NLAC)?                                                                                                                                                                                                                                                                                                                                                                                               América Latina. Rasgos, Potencialidades y Desafíos (UNAM, 2015) 27. A neo-constitutional institutional arrangement places law, and not politics, as the site of correction. Alterio, ‘Corrientes del Constitucionalismo Contemporáneo a Debate’, 241-246. 94 For a positive view on this issue, see A J Estrada, ‘Los Tribunales Constitucionales y la Eficacia entre particulares de los derechos fundamentales’, in M Carbonell (ed) Teoría del Neoconstitucionalismo: Ensayos Escogidos (Trotta, 2007), 122. 95 R Dworkin, Taking Rights Seriously (Harvard University Press, 1978). 96 L Ferrajoli, Luigi, ‘Democracia y garantismo’, in M Carbonell (ed.), Neo-constitucionalismo(s) (Trotta, 2008), 304 97 Alterio, ‘Corrientes del Constitucionalismo Contemporáneo a Debate’, page 98 A R Brewer-Carías, Constitutional Protection of Human Rights in Latin America: A Comparative Study on of the Amparo Proceeding (Cambridge University Press, New York 2009). In a continent plagued by imperfect democracies, LANC does not even require an own democratic theory that could be relevant. Salazar Ugarte, ‘Garantismo y Neo-constitucionalismo frente a frente: algunas claves para su distinción’, 583. 99 A remarkable fact is that Spanish legal scholars have produced a great amount of literature to reflect on this trend, based in no small part on the writings of Latin American scholars. For the first time, we could say, the primary ‘sites of production’ are located in Latin America and not in the Global North. C Storini and Alenza García, J, Materiales sobre neoconstitucionalismo y nuevo constitucionalismo lati-noamericano (Thomson Reuters-Aranzadi, 2012). See also the works compiled in the Actas del XV Encuentro de Latinoamericanistas Españoles, Congreso Internacional “América Latina: La Autonomía De Una Región” (Trama, 2015). 100 S Insignares Cera, Construcción constitucional del proceso de integración suramericano (Universidad del Norte, 2015). I agree with Pedro Salazar Ugarte, who argues that the ‘family resemblance’ should be thick enough to make the common patterns relevant. He includes only Bolivia, Ecuador and Venezuela under NLAC. ‘El nuevo constitucionalismo latinoamericano (una perspectiva crítica)’, in L Gonzalez D Valades (coords.), El constitucionalismo contemporáneo. Homenaje a Jorge Carpizo (UNAM, 2013), 349.

 

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According to its more prominent scholars, what is new are the radical democratic origins of the abovementioned constitutions, and the idea that for the first time Latin America can elaborate on a constitutional project of native origins.101 Even more, according to Boaventura Dos Santos, a better label for NLAC could be ‘experimental constitutionalism’, as we still don´t know how it will evolve, considering the pioneering exercise of the people taking seriously the commitments of popular sovereignty.102 Moreover, some claim that NLAC is the first transformative project, because the liberal constitutional projects have always been designed and operated to protect the status quo (from there the motto postliberal).103 Its novelty also relies in that it is the only current that explicitly stands against capitalism, acknowledging the importance of articulating it in constitutional terms through the explicit endorsement of a certain political economy.104 Finally, some of its main intellectual sources claim that its origins lie outside the academia and closer to the processes of social mobilization against the impacts of the Washington Consensus.105 This, of course, is something remarkably new in the history Latin American Constitutionalism. The most striking feature of NLAC is the priority of the ‘popular’, relocating the people at the forefront of constitutional law.106 According to Sebastian Edwards, the NLAC is also the best representation of new forms of populism in constitutional law, where a single source of power (the populist leader) appeals directly to the masses, through referenda or other participatory means, in order to maintain its legitimacy.107 Although it shares with LANC the pervasiveness of constitutional law even at the margins of legal regimes, the priority is placed on the democratic rather than the legal dimension of constitutions.108 It claims a specific extra-constitutional origin in constituent assemblies that have a ground-breaking character in the history of Latin American Constitutionalism.109 That leads NLAC to define the constitution as the expression of the will of the constituent power rather than a framework to limit and correct politics. Nevertheless, the ‘people’ do not limit themselves, under these constitutions, to appear only at certain special                                                                                                                         101

R Viciano Pastor and R Martínez Dalmau, ‘La Constitución democrática, entre el neoconstitucionalismo y el nuevo constitucionalismo’, Debates Constitucionales en Nuestra América. Indeed, they claim that it is a kind of refoundation of the Latin American state. The symbolic dimension is also crucial in the democratic process of breaking with the old order. The replacement of the official name of the countries in constitutional clauses is a sign of this idea: from Republic of Venezuela to the Bolivarian Republic of Venezuela; from Republic of Bolivia to the Plurinational State of Bolivia. In these cases, the transformative ethos, with a re-foundational character, it is clear from the beginning of constitutional texts. 102 B Dos Santos, La reinvencion del Estado y el Estado Plurinacional (CENDA, CEJIS, CEDIB, 2007), 28. 103 J Wolff, ‘Towards Post-Liberal Democracy in Latin America? A Conceptual Framework Applied to Bolivia’, Journal of Latin American Studies 45:1, 33. 104 G Pisarello, ‘El nuevo constitucionalismo latinoamericano y la constitución venezolana de 1999: balance de una década’, Revista Sin Permiso 6. 105

R Martinez Dalmau and R Viciano Pastor, ‘Fundamentos Teoricos y Practicos del Nuevo Constitucionalismo Latinoamericano’, R Viciano Pastor (ed.), Estudios sobre el nuevo constitucionalismo latinoamericano (Tirant Lo Blanch, 2012), 332. 106 A Medici, ‘Nuevo constitucionalismo latinoamericano y giro decolonial: Seis proposiciones para comprenderlo desde un pensamiento situado y crítico’, Debates Constitucionales en Nuestra America, 21. 107 S Edwards, Populismo o Mercados (Norma, 2009). 108 R Martinez Dalmau, Viciano Pastor, ‘¿Se puede hablar del nuevo constitucionalismo latinoamericano como corriente doctrinal sistematizada?’, 4 109 Based on the model of the constituent assembly of Colombia (1991), the constitution-making processes of NLAC proud themselves to be the first truly exercises of collective self-determination in the region. Martinez Dalmau and Viciano Pastor, ‘Fundamentos Teoricos y Practicos del Nuevo Constitucionalismo Latinoamericano’, 310.

 

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moments. Thus, it rejects dualism and challenges representative democracy.110 Moreover, it reclaims the role of the people in constitutional interpretation. However, it is quite different from several strands of popular constitutionalism, as it is know in the US constitutional debate.111 Regarding constitutional arrangements, it distances itself from the classical separation of powers, not only because it gives predominance to the executive power in dealing with the most important daily issues of politics, but because it creates a fourth power (‘citizen’s power’, ‘social control and transparency power’, or ‘participation and social control function’), in charge of supervising the way in which constituted authorities are carrying out the constituent power’s will.112 Mechanisms of direct democracy, then, are crafted in order to prevent the constituted authorities to deviate from the will of constituent power.113 Overall, we may say that the most important feature of NLAC is the permanent presence of constituent power, which always retains the power to make the constitution anew. The rules of constitutional change are crafted in order to prevent114 or, even more, exclude the participation of constituted powers.115 Along with LANC, it supports a rigid constitution, with super-majoritarian rules of change and strong powers of constitutional judicial review (in this case, however, a form of non-elitist strong constitutionalism). This architecture suggests the intention of these constitutions is to freeze the constituent power over time, to keep alive the revolutionary spirit that originally animated it, as a threat against the potential abuses of constituted authorities.116 In that sense, at least regarding the powers of interpreting the constitutional text, it is committed with a kind of ‘originalism’.117                                                                                                                         110

In that sense, it avoids being associated to the kind of ideas proposed by Bruce Ackerman, which have been very popular in Latin America to justify the systems of constitutional control. See B Ackerman and C Rosenkrantz, ‘Tres Modelos de Democracia Constitucional’, Cuadernos y Debates 29, 15-31. 111 For the possibility of establishing connections between popular constitutionalism and constitutional practices in Latin America, see the works included in R Niembro and M Alterio (eds.), Constitucionalismo Popular en América Latina (Porrúa, 2013). 112 Constitution of Venezuela, Title V, chapter V; Constitution of Ecuador, Chapter V, title IV; and the Constitution of Bolivia, articles 241-242. 113 R Martinez Dalmau and R Viciano Pastor, ‘Fundamentos Teoricos y Practicos del Nuevo Constitucionalismo Latinoamericano’, 323. 114 Constitution of Ecuador, article 441. 115 Constitution of Bolivia, article 411; Constitution of Venezuela, articles 342-346. 116 R Martinez Dalmau y R Viciano Pastor, ‘Fundamentos Teoricos y Practicos del Nuevo Constitucionalismo Latinoamericano’, 332. The role of concentrated constitutional review in updating the political will of the constituent power has been a constant since the early case law of the Supreme Tribunal of Justice of Venezuela: ‘To interpret the legal regime according to the Constitution means safeguarding the Constitution itself from any deviation of its principles and of any departure from the political project embedded in it by the people´s will’. Judgement of the chamber n3.167, from December 9, 2002, case Fiscal General de la República. See also the Judgement on the constitutional review of the amnesty law enacted by the newly elected Congress, which was successfully challenged by the Presidency of Nicolas Maduro. Sentencia de Sala Expediente N-160343, del 11 de abril de 2016, caso Ley de Amnistía y Reconciliación Nacional, section I (“The Constitutional Framework of the Amnesty”). 117 To my knowledge, no scholar from NLAC has used the term ‘originalism’ to defend the constitutional methods of interpretation used by the mixed systems of constitutional controls established by the constitutions of Bolivia, Ecuador or Venezuela. In this case, I use the term in a radical different flavour than the U.S. style of originalism. In some cases, it has implied using the proceedings of the constituent assembly to defend a certain point (in the case of Bolivia, it is the main criteria for constitutional interpretation, according to the Law of the Plurinational Constitutional Court, article 6). In the case of Venezuela, and following the constitutional endorsement of the Bolivarian doctrine (article 1), the Supreme Tribunal of Justice of Venezuela refers to the writings of Bolivar in order to serve as interpretive criteria, adding uncertainty to the outcome of the interpretive process. See, for example, Sentencia de Sala Expediente N-160343, del 11 de abril de 2016, caso Ley de Amnistía y Reconciliación

 

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For some scholars, NLAC should recognize the openly political character of post-liberal methods of constitutional interpretation and leave behind the artificial boundaries between law and politics.118 In that regard, NLAC has taken very seriously the counter-majoritarian objection to judicial review, and promoted the direct election of the members of constitutional courts, the possibility to reject nominations for these courts, or opening the indictment of justices to the general public.119 The constitutions of the NLAC are filled with principles, and rules are exceptionally called into the public arena mainly when they are needed to articulate the will of the constituent power.120 Moreover, these constitutions are comparatively more extended than the average: the Constitution of Venezuela has 350 articles; the Constitution of Ecuador, 444 articles; and the Constitution of Bolivia, 411 articles.121 Thus, these constitutions are a rebellion against the trend of constitutional minimalism, as they need to reflect and incorporate the demands of several groups that are for the first time participating in public life.122 Additionally, the role of non-legal                                                                                                                                                                                                                                                                                                                                                                                               Nacional, section I.2 (“The Constitutional Framework of the Amnesty”). Moreover, there has not been a rich development of textual analysis, and in mostly every judgement there are numerous references to the political purpose of the revolutionary project embedded in the Constitution. In a famous case, regarding the criminal procedure against Leopoldo Lopez, leader of the political opposition, the Supreme Tribunal of Justice of Venezuela validated the opinion of an expert in linguistics to determine that a speech given by Lopez, where he called the government illegitimate and summoned the people to protest in the streets, could not have a non-violent purpose. To Allan Brewer-Carias, this is an example of how the court avoids any effort in attempting to interpret the Constitution in its own right (in this case, article 350, that establishes a kind of ‘eternity clause’ for the protection of democracy and human rights), and instead re-interpret the facts (in this case, the political interpretation of a political discourse) according to the political purpose of the project embedded in the constitution. ‘The Sentencing of Leopoldo López For The “Felony Of Opinion”: Or How the Judges of Horror are Forcing the People into a Citizens’ Rebellion’, 4. 118 This is the way in which Angel Oquendo has read the critiques of countries of the Bolivarian axis against the Inter-American System of Human Rights, following ideas from legal realism and critical legal studies: ‘These schools sought, in part, to debunk notions such as “formalism and objectivism” in order to postulate understanding law as a means for accomplishment of reformist or “leftist” political objectives. The dissident nations within the Inter-American Human Rights System appear to be making an equivalent move with respect to human rights, instead of the law as a whole’. ‘The politicization of human rights’. However, I think this move is closer to what Karl Klare understood to be the method of constitutional interpretation that should be attached to a project like ‘transformative constitutionalism’. In Karl Klare’s account, then, if one accepts the plausibility of a postliberal reading of an aspirational and transformative constitution like the one of South Africa, there is only one correct method of legal reasoning, which requires a transparent political engagement and a certain ethos towards the content of the postliberal clauses. According to this approach, judges ‘must treat the postliberal reading not just as a legally plausible reading, but as an ideological project that they have a duty to promote through the process of adjudication’. KE Klare, ‘Legal Culture and Transformative Constitutionalism’, South African Journal on Human Rights. 14, 156. 119 Albert Noguera Fernandez speaks of ‘democratization mechanisms of constitutional justice’. ‘El neoconstitucionalismo andino: ¿una superación de la contradicción entre democracia y justicia constitucional?’, Revista Vasca de Administración Pública 90, 191-194. For a critical assessment of the Bolivian ‘elected’ judiciary, after almost a decade of the Bolivian Constitution, see C Ochoa, ‘Poner la Justicia en sintonía con la Constitución. Justicia para todas y todos’, Revista Jurídica Universidad Mayor de San Andrés 1:2. 120 See, for example, the highly specific rules of referendum included in chapter XI, on constitutional reforms, in the Constitution of Venezuela. 121 J L Cordeiro, ‘Constitutions around the world: A vision from Latin America’, Institute of Developing Economies, Working Paper n164. Along with the Constitution of Colombia (380 articles), these are the most extended constitutions in the region. 122 Martinez Dalmau, Viciano Pastor, ‘¿Se puede hablar del nuevo constitucionalismo latinoamericano como corriente doctrinal sistematizada?’, 16. When analysing the idea of constitutions as ‘missions statements’, that is, that include provisions that ‘set out the core and constitutive political commitments of the community, not only as a record of pre-existing socio-political conditions and conventions, but as a pro-active programme of development’,

 

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knowledge in the constitution-making process triggered several demands that may sound at odds with liberal constitutionalism.123 The extension, then, is merely the product of the will of the constituent power, composed by the many, who may need to express their different aims, and in that sense restraint the powers of constituted authorities (specially, the legislative), and give more powers of constitutional review, in order to comply with the complex will of the constituent power.124 The constitutions of the NLAC include lengthy and detailed catalogues of rights, compared to others constitutions in the region, in some cases articulating the institutional protection that will be afforded to each right, considering its individual or collective dimension.125 Although the constitutional structure supported by the NLAC sounded radical in the ears of progressive legal scholars, the operation of democratic mechanisms of control has not been used in order to democratise the ‘engine room’ of constitutions.126 Indeed, the strengthening of public participation has been advanced simultaneously with processes of concentration and centralization of power.127 Even more, hyper-presidentialist arrangements of NLAC have also blurred ‘the legal and political dividing line between the presidency as an institution and the                                                                                                                                                                                                                                                                                                                                                                                               Jeff King argued that it should be used to legitimate constitutions, and said that morally attractive constitutions should reflect three characteristics (egalitarian, non-minimal and be the product of inclusive procedures of constitution-making) that are closely related: ‘In practice a constitution adopted under inclusive procedures will tend to contain more detail, and that detail will tend to recognise the interests of more groups, and therefore make the constitution (at least superficially) more egalitarian’, D Galligan and M Versteeg (eds.), Social and Political Foundations of Constitutions (Cambridge University Press, 2013), 73, 88. 123 Indeed, there is some literature that reflects on the influence of decolonial studies and ‘liberation theology’ in the possibility of developing ‘epistomologies of the South’ (Boaventura Dos Santos) or ‘subaltern knowledges’ (Medici), which, in its turn, has influenced the constitution-making processes of NLAC. For an overview, see A Medici, ‘Nuevo constitucionalismo latinoamericano y giro decolonial: Seis proposiciones para comprenderlo desde un pensamiento situado y crítico’. 124 R Martinez Dalmau y R Viciano Pastor, ‘Fundamentos Teoricos y Practicos del Nuevo Constitucionalismo Latinoamericano’, 323. Jeff King argued that for constitutions to serve as ‘mission statements’, they should be nonminimal, but he criticized the ‘maximalism to be found in some constitutions that seek to virtually micro-manage the day-to-day workings of politics’. ‘Constitutions as Mission Statements’, 90. 125 For an overview on the system of right’s protection in NLAC, see Claudia Storini, ‘Derechos y Garantías en el Nuevo Constitucionalismo Latinoamericano’ Actas del XV Encuentro de Latinoamericanistas Españoles, Congreso Internacional “América Latina: la Autonomía de una Región”. 126 Gargarella, Latin American Constitutionalism, 156, 172-177, 192-195; R Huber and C Schimpf, ‘Friend or Foe? Testing the Influence of Populism on Democratic Quality in Latin America’, Political Studies 2015. At the level of local governments, there are critical assessments of the ‘recall referendums’ of the Andean countries (Bolivia, Colombia, Ecuador, Perú and Venezuela). See Y Welp and U Serdut, ‘Cuando es peor el remedio que la enfermedad. Análisis de la revocatoria del mandato en los municipios de los países andinos’, in A Lissidini et al (eds.), Democracias en Movimiento: Mecanismos de democracia directa y participativa en América Latina (UNAM, 2014); also, there has been a critical evaluation at the level of presidential elections, specially in the case of Venezuela, where recall referendums have worked against representative democracy, and with other setbacks that betray the original attempt to foster public participation; M Kornblith, ‘Revocatoria de mandato presidencial en Venezuela: Definción y puesta en práctica’, in A Lissidini et al (eds.), Democracias en Movimiento: Mecanismos de democracia directa y participativa en América Latina (UNAM, 2014); lastly, the Ecuadorian constitutional structure has been criticized for inadequately articulating popular participation, with no real political power, and instead maintaining traditional structures of representative democracy and concentration of power in the hands of the executive. See the debate between M Navas and M Benente on ‘El papel de la justicia constitucional en el Ecuador en el marco de un constitucionalismo complejo’, in Primer Congreso Iberoamericano. XXVIII Jornadas Argentinas de Filosofía Jurídica y Social (Ministerio de Justicia y Derechos Humanos de la Nacion, 2016). 127

 

Gargarella, Latin American Constitutionalism, 157.

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persona of its holder’.128 Moreover, the incorporation of fundamental rights and the implementation of radical democratic practices have not implied a radical redistribution of economic power,129 or the improvement of environmental standards.130 Indeed, other centre of left political projects -like that of Brazil under Workers Party, or Chile under Concertación de Partidos por la Democracia- have achieved better and more sustainable socio-economic outcomes under liberal constitutional frameworks.131 However, the assessment of social policies and its effectiveness in tackling socio-economic problems is still an object of debate. It is still not clear whether constitutional forms of neo-populism are necessary to achieve more egalitarian outcomes.132 In practical terms, concentration of power in the hands of the Executive Power, infringements of judicial independence, and the restriction of civil liberties have been at the forefront of the agenda.133 Again, progressive political projects like those endorsed by NLAC have been under strong criticism even within the radical left.134 Criticizing the Inter-American System of Human Rights every time a country is subject to a judgment, or even opting-out of the system, have been promoted as strategies to defy the liberal bias of human rights regimes.135 Within the same line of reasoning, Venezuela, Bolivia and Ecuador had revived the Latin American interest in

                                                                                                                        128

F Panizza, Contemporary Latin America: Development and Democracy Beyond the Washington Consensus (Zed Books, 2009) 223. 129 As some studies have suggested, the new political structure has not been the key device to promote better social performances of the countries associated with NLAC. Instead, the ‘boom of commodities’ during the last decade has explained the increasing power of social policies in tackling poverty and inequality. However, if not supported by institutional structures that could remain over time, the constitutional commitments with more egalitarian outcomes will be another example of the ineffectiveness of deepening democracy as a means towards more egalitarian societies. N Birdsall, N Lustig and D McLeod, ‘Declining Inequality in Latin America’, in Routeldge Hanbook of Latin American Politics, 163-171. 130 A good example of the backlash against the promises of NLAC regarding environmental rights of nature (sumak kawsay) has been the recent critiques of ‘extractivist’ models in these countries, which have not improved environmental standards. R Lallander, ‘Entre el ecocentrismo y el pragmatismo ambiental: consideraciones inductivas sobre desarrollo, extractivismo y los derechos de la naturaleza en Bolivia y Ecuador’, Revista Chilena de Derecho y Ciencia Política 6:1, 109-152. 131 D McLeod and N Lustig, ‘Inequality and Poverty under Latin America’s New Left Regimes’, Tulane University, Working Paper 1117. 132 Since Laclau’s early writings on the topic, many have claimed that populism may be a better alternative to liberal frameworks when assessed from the perspective of radical socio-economic redistribution. Since the populist projects of the first half of the twentieth century (in Argentina, with Peron, and in Brazil, with Vargas), many have claimed that concentration of power on a single leader with popular support could be a fast track towards development. E Laclau, La razón populista (FCE, 2005); for an overview of the debate between populism and liberal constitutionalism, see C Rovira, ‘Populism vs. Constitutionalism? Comparative Perspectives on Contemporary Western Europe, Latin America, and the United States’; F Panizza, and R Miorelli, ‘Populism and democracy in Latin America’, Ethics and International Affairs 23:1. 133 See also several critiques against the infringement of basic civic liberties in the Universal Periodic review processes of Bolivia, Ecuador and Venezuela. See also the report of the International Commission of Jurists, Strengthening the Rule of Law in Venezuela (2014). 134

See, for example, several critiques of Pablo Iglesias, leader of Podemos (Spain), to the infringement of civil and political rights in Venezuela. http://vozpopuli.com/actualidad/62586-el-chavismo-carga-contra-pablo-iglesias-porofrecerse-como-mediador-para-el-viaje-de-gonzalez 135 A Huneeus, ‘Venezuela’s Exit from the Inter-American Court’, http://www.iconnectblog.com/2012/10/venezuelas-exit-from-the-inter-american-court/

 

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sovereign equality and the principle of non-intervention, as a way to attack the legitimacy of the Inter-American Human Rights System.136 V. Egalitarian-Dialogic Constitutionalism This is a current still in formation, but its main sources could be found in the work of those progressive scholars that are sceptical of both the premises of LANC and the operation of NLAC on the ground. The term has been coined by me, and draws from the writings of Roberto Gargarella, one of the leading constitutional scholars in the region.137 It is a combination of his active support for egalitarian constitutionalism and his works on the dialogical model of constitutional justice.138 Since the beginning of his career, he advocated for strengthening deliberative democracy, and gradually developed a theory of judicial review suited to the democratic challenges that Latin American countries usually face.139 Moreover, during the last decade, he attempted to reconstruct the Latin American constitutional tradition in order to understand what could we learn from 200 years of constitutionalism in the region.140 Like Gargarella, several scholars are somehow frustrated by the performance of self-declared progressive constitutional democracies in bringing about social change.141 Originally, these scholars thought that judicial review and activist courts could somehow trigger democratic deliberation and promote social justice, considering the difficult conditions in which electoral democracies have been working since the beginning of the 1990s.142 They frequently supported novel forms of legal mobilization and structural litigation, and developed their ideas on judicial                                                                                                                         136

J Couso, “Back to the Future? The return of sovereignty and the ‘principle of non-intervention in the internal affairs of the states’ in Latin America’s “radical constitutionalism”’, SELA 2015. However, for Angel Oquendo, the current critiques of NLAC (what he calls the ‘Bolivarian axis’, including Nicaragua) are not based on the notion of state sovereignty and the principle of non-intervention. Instead, he claims that the Inter-American System of Human Rights should recognize the political character of human rights, considering that states are politically engaged with human rights commitments, that their enforcement involves politics and, thus, deference; and, finally, that ‘decision makers should pause before castigating nations that have politically devoted themselves to the most of the emancipatory ideal that undergirds [human rights] entitlements’. ‘The politicization of human rights’, SELA 2013. 137 I disagree with those Latin American scholars that place Gargarella’s work under the LANC just because he places human rights at the centre of a theory of the state and law. That is common to the three currents or trends discussed in this chapter. See, for example, R Avila, ‘En Defensa del Neo-Constitucionalismo Transformador: los debates y los argumentos’, Repositorio Institucional Universidad Andina Simón Bolívar. 138 R Gargarella, Latin American Constitutionalism, chapter 10; ‘We the People’ Outside of the Constitution: The Dialogic Model of Constitutionalism and the System of Checks and Balances’, Current Legal Problems 67, 1-47. 139 His thoughts on both his early views on deliberative democracy and a theory of judicial review could be summarized in his ‘Democracia Deliberativa y Judicializacion de los Derechos Sociales’, in M Alegre and R Gargarella (eds.), El Derecho a la Igualdad Aportes para un constitucionalismo igualitario (capitulo XV, Abeledo Perrot, 2012). 140 He first published The Legal Foundations of Inequality: Constitutionalism in the Americas, 1776–1860 (Cambridge University Press 2014), and then completed the history of constitutionalism of the independent Latin America between 1810 and 2010 in his Latin American Constitutionalism (Oxford University Press). 141 See, for example, the critical accounts of the real impact of the ‘social constitutionalism’ advocated by the Colombian constitution. H Alviar, ‘Distribution of resources led by courts: A few words of caution’, in H Alviar, K Klare and L Williams (eds.), Social and Economic Rights in Theory and Practice (Routledge, 2015). For the case of Brazil, see O Motta Ferraz, ‘Between acitivism and deference: Social rights adjudication in the Brazilian Supreme Federal Tribunal’, in Social and Economic Rights in Theory and Practice. 142 They first try to answer the question of how can we cope the emphasis of deliberative democracy and popular sovereignty with the important role that is reserved for the judiciary. For an interesting attempt to answer this question in the Chilean case, see D Lovera, ‘¿A quién pertenece la Constitución en Chile? Cortes, Democracia y Participación’, Revista Jurídica de la Universidad de Palermo 11:1.

 

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review based on the practice of social movements, human rights clinics or non-governmental organizations.143 In that sense, they first elaborated on sophisticated versions of neoconstitutionalism and the potential contribution of courts to democratic consolidation.144 However, they gradually realised how the perils of judicial elitism and conservatism may downplay the main aim of progressive legal thinking in Latin America.145 As domestic and regional courts have been judicially assertive, going beyond (and against) the ‘neoliberal’ original framework under which they were fostered in the beginning, they have ‘become a politically prized booty and now enjoy less degrees of freedom than their younger selves’.146 Furthermore, judicial activism has become also a tool for conservative interests, who have used courts to prevent changes achieved through majoritarian politics.147 In reaction to that, and to novel mobilization strategies beyond courts, scholars from EDC started to reclaim, once again, the priority of the people in creating, crafting and interpreting constitutional arrangements. That is why they looked for support in popular constitutionalism, and began to welcome the democratic innovations of NLAC.148 After some years witnessing the operation of these novel legal institutions on the ground, they realized, once again, how progressive social projects may be curtailed by concentration of power, corruption and the restraint of individual liberties.149 Nowadays, and considering the repeated frustrations of progressive political projects, they still endorse the importation of transformative constitutionalism into Latin America, although within a critical reassessment of the liberal framework bequeathed by 200 years of constitutional history.150 Within the current debate, EDC stands for the double commitment of foundational Latin American constitutionalism to the principles of collective self-determination and individual autonomy. However, it remains sceptical on the current achievements of Latin American constitutionalism, both in terms of the content of recent reforms or constitutions and on its operation on the ground. As put by Gargarella,                                                                                                                         143

C Rodríguez-Garavito and D Rodríguez-Franco, Radical Deprivation on Trial (Cambridge University Press, 2015); N Espejo and A Carillo, ‘Re-imagining The Human Rights Law Clinic’, Maryland Journal of International Law 26. 144 On this issue, see the interesting literature on the relationship between judicial review and democracy in different political contexts: D Landau, ‘Political Institutions and Judicial Role in Comparative Constitutional Law’, Harvard Journal of International Law 51:2; S Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge University Press, 2015). They both discuss the role of Latin American courts, specially the Colombian Constitutional Court, in consolidating democracy. 145 See the critical approach to judicial elitism in the works included in the book edited by Micaela Alterio and Roberto Niembro, Constitucionalismo Popular en Latinoamérica (Porrúa-Escuela Libre de Derecho, 2013). 146 S Botero, ‘Agents of neoliberalism? High courts and rights in Latin America’, 147

See, for example, legal mobilization processes triggered by Catholic movements against developments in sexual and reproductive rights. F Muñoz, ‘Morning-After decisions: Legal Mobilization against Emergency Contraception in Chile’, Michigan Journal of Gender and Law 21; MA Peñas Defago, JM Morán Faúndes, ‘Conservative litigation against sexual and reproductive healthpolicies in Argentina’, Reproductive Health Matters 22:44, 82–90. 148 R Álvarez, ‘El Constitucionalismo Popular y los problemas de la “última palabra”: apuntes para un Contexto Latinoamericano’, Revista Jurídica de la Universidad de Palermo 13:1; A Noguera, ‘Las nuevas constituciones andinas y la articulación democrática entre justicia constitucional, conflicto y transacción social’, in Alterio and Niembro, Constitucionalismo Popular en Latinoamérica. 149

J Couso, ‘Radical Democracy and the “New Latin American Constitutionalism’, work presented at SELA 2014; C Rodríguez-Garavito, ‘Human rights and the “new” Latin American left’, https://www.opendemocracy.net/ 150 R Uprimmy, ‘Recent Transformations in Constitutional Law in Latin America’, 1599-1604.

 

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‘On the one hand, Latin American constitutions maintain a concentrated organization of power, pay little attention to the deliberative bodies, and seem to still be too hostile to popular political participation. On the other hand, these Constitutions have extended their statements of rights, over the years, in an unprecedented way, although without providing those rights with a proper institutional support. Constitutions then look deficient not only in terms of self-government but also in terms of individual autonomy.’151 The ideals of collective self-government and individual autonomy could hardly generate an abstract objection, but EDC is concerned with the question of what constitutional arrangements are best equipped to realise these goals in practice. Gargarella, at the end of his comprehensive historical account of Latin American constitutionalism, gives us some clues to understand the implications of his conception of constitutional law, but there is still ‘a more concrete agenda to put forward’.152 Thus, the main challenge for the research program of EDC consists in the translation of this double commitment in institutions able to address current problems of Latin American societies. In what follows I will attempt to answer three questions that I think constitute the research agenda of EDC: Can we describe EDC as a revival of the republican tradition, after a long history of failures and frustrations with constitutional projects? What are the main features of EDC? And, more importantly, how are we going to materialize the institutional implications of EDC? Some scholars claim that modern versions of Latin American constitutionalism like EDC are not a revival of the republican tradition, born in the nineteenth century.153 However, there are many reasons to challenge that claim. First, because EDC rescues the central value of political equality, expressed through the ideals of majoritarian rule and participatory democracy. In other words, political equality is the main driver of social transformation, avoiding the defence of a constitutional arrangement just because it brings moral and social progress. Even EDC’s justification of judicial review relies explicitly on the protection of political equality and its contribution to the expansion of political participation and the consolidation of democracy.154 Second, EDC rescues the notion of political community from liberal constitutional frameworks, highlighting what is shared in common by the members of a certain polity, rather than on their separate individuality. EDC, in that sense, revives the republican tradition’s ideal of public virtues: it encourages all forms of mobilization, expressed in its preoccupation for social protest (social mobilization),155 political quotas (political mobilization)156 and collective remedies (legal mobilization).157 All these forms of mobilization are considered forms of participation, different ways to exercise and promote an active citizenry. Finally, and contrary to some depictions of the republican thought in the nineteenth century, EDC’s restoration of individual autonomy to the

                                                                                                                        151

Gargarella, Latin American Constitutionalism, 206. See the critique of D Wei and P Privatto, in their book review of Latin American Constitutionalism, International Journal of Constitutional Law 12:1, 260. 153 A von Bogdandy, ‘Ius Constitutionale Commune en America Latina: una mirada a un constitucionalismo transformador’, 6. 154 D Lovera, ‘Las caras de las participación en derechos sociales’, Revista de Ciencias Sociales, Número Monográfico Extraordinario. 155 R Gargarella, El Derecho a la Protesta: El primer derecho (Ad-Hoc, 2005). 156 L Pautassi, ‘¿Igualdad en la desigualdad? Alcances y límites de las acciones afirmativas’, Revista Conectas 4:6 157 G Maurino, E Nino and M Sigal, Las Acciones Colectivas (Lexis Nexis, 2006). 152

 

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forefront pays due to respect to a proper reconstruction of the Latin American republican tradition.158 However, the most important challenge for EDC is to provide a ‘third way’ that can overcome the deficiencies and failures of both LANC and NLAC. Although it shares with them a positive view of the relationship between law and social change, it puts forward a theory of law and legal reasoning that is inscribed in a broader theory of democracy that is suited to Latin American problems. Thus, it considers the urgent need to distribute economical, political and social power (to intervene in the current state of affairs and transform the actual distribution of power), and advances a particular conception of constitutional law, concerned with the design and operation of law and legal institutions on the ground (the role they actually play in fostering democratic practices and progressive social change). Regarding its explicit transformative ethos, it starts from the base that ‘it seems difficult to promote an egalitarian reform in an inegalitarian society, whose members lack the moral dispositions necessary for making the reform their own’.159 Thus, it acknowledges the need of constitutional reforms that transcend and go beyond mere institutional engineering, towards symbolic and ethical commitments with social goals. Moreover, it seems troubled by the idea that Latin American constitutions ‘do not challenge but rather accommodate their structure’ to the existing inequalities, and take the existence of self-interest individuals as given and fixed.160 Overall, the transformative ethos of EDC is explicit in the sense that poverty and socio-economic inequalities are the main constitutional evils, traumas or dramas that should be addressed, and that political equality is the best remedy against those evils.161 In that regard, it attempts to leave behind the idea that poverty and inequality are particular socio-economic issues that could be

                                                                                                                        158

Von Bogdandy argues that the idea of a Ius Constitutionale Commune, characterized by its transformative character, defines its identity by the ‘rejection of the three traditional constitutional ideologies of Latin American, namely, conservatism, radicalism and liberalism’. ‘Ius Constitutionale Commune en America Latina: una mirada a un constitucionalismo transformador’, 6. In contrast, I argue that EDC could be seen as the revival of the republican/radical tradition in the context of current challenges. A proper reconstruction of the republican ideals honours the double commitment defended by EDC. For example, Bilbao, one of the main thinkers of the radical tradition in the mid nineteenth century, was not only worried with political and moral majoritarianism, but also with classic civil liberties and individual autonomy. In different writings, he defended the rights to freedom of the press, freedom of association, universal suffrage, separation of Church and State, and religious toleration. See Francisco Bilbao’s El Gobierno de la Libertad, . Although his critiques against representative democracy place him under an extreme radical tradition (Gargarella, ‘Latin American Constitutionalism, 8), I think a proper reconstruction of his thoughts could well place him as both a defender of collective self-government and individual autonomy. The same could be said about the contributions of the Colombian teacher, Manuel Murillo Toro, who advocated for free speech and freedoms of the press in the mid nineteenth century. See María del Carmen Moreno Vélez, ‘Manuel Murillo Toro: La libertad de información y de expresión’; see also H Hernandez (comp.), Vida y Obra de Murillo Toro (Universidad de Ibague). Finally, the influence of Lamenais, who was also the master of Bilbao, in the Ecuadorian Juan Montalvo, proved crucial for his strong defense of individual autonomy, free speech and freedom of the press. See F MacDonald Spindler, ‘Lamennais and Montalvo: A European Influence Upon Latin American Political Thought’, Journal of the History of Ideas 37 (1976), p 137-146. 159 Gargarella, Latin American Constitutionalism, 205 160 Gargarella, Latin American Constitutionalism, 205 161 von Bogdandy, ‘Ius Constitutionale Commune en América Latina’, 9-10.

 

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addressed with a rights-approach to a means-tested social policy; instead, poverty and inequality are issues of structural and social discrimination and inequality.162 Nevertheless, the most important innovation of EDC is a particular placing of law at the centre of social progress. It is characterized by a republican conception of law as a medium of social integration, as it is based in lifeworld discourses, but also as an effective mechanism of social coordination in complex and functionally differentiated societies, where the grounds of social integration do not rely on mere authority or divine sources.163 In other words, law cannot just be posited, but, as a social system, needs to contribute its own conditions of legitimacy. This general idea, as it is applied to Latin America, becomes crucial to understand the relationship between constitutional law, legitimacy and the rule of law.164 EDC is then concerned with the political and institutional conditions under which law is created, and with the institutional conditions under which law is applied. Therefore, a concern with deliberative politics, a theory of legislation that in Latin America must address the particular problems of presidential forms of government; and a theory of adjudication and judicial review, where the distinction between law and morals, and law and politics, is maintained to the service of democracy.165 If laws are created under democratic conditions that pay due respect to the principle of political equality, with a fluid communication between political public spheres and institutional sites of legal production, then it surges a commitment with the positive character of law that shapes the way in which legal conflicts will be adjudicated.166 This Habermasian influence was strongly visible in the later writings of Carlos Santiago Nino, who turned to political theory in order to argue that legal norms produced by inclusive democratic procedures have a presumption of validity, procedures capable of generating impartial decisions on issues that affect everyone.167 If those conditions are                                                                                                                         162

E Nino, ‘La discriminación menos comentada’, in R Gargarella (ed.), La Constitución en 2020: 48 propuestas para una sociedad igualitaria (Siglo XXI, 2011), 49; R Saba, ‘(Des)igualdad structural’, in M Alegre y R Gargarella (coords.), El Derecho a la Igualdad. Aportes para un constitucionalismo igualitario (Lexis Nexis, 2007). 163 J Habermas, Between Facts and Norms (Polity Press, 1992), 38-41. 164 For Raymond Morrow, one of the leading experts in the reception of the Habermasian tradition in Latin America, it is ‘only with the revival of discussions of civil society, the public sphere and deliberative democracy in the 1990s’, when his Theory of Communicative Action and Between Facts and Norms started to be discussed in the ‘social sciences, especially communications, education, education, democratic theory and law reform’. ‘Defending Habermas Against Eurocentrism: Latin America and Mignolo’s Decolonial Challenge’, in T Bailey (ed.), Global Perspectives on Habermas (Routledge, London), 120. Indeed, it is interesting to see how Habermas’s Theory of Democracy has been applied in Latin America to discussions around transitional justice (the possibility of deliberative democracy to enact a legitimate amnesty law; see R Gargarella, ‘La democracia frente a los crímenes masivos: una reflexión a la luz del caso Gelman’, Revista Latinoamericana de Derecho Internacional 2), freedom and expression (specially considering the role of public opinion in a region with an extreme concentration of the media; see C Mauersberger, Advocacy Coalitions and Democratizing Media Reforms in Latin America (Springer, 2016), ch 1), or social rights (included generously in Latin American constitutions, that have triggered interesting judicial review cases that demands for communicative action, associated with public and privates duties to comply with social rights; see V Gauri and D Brinks, ‘Human Rights as Demands for Communicative Action, The Journal of Political Philosophy 20:4). 165 D Lopez Medina, ‘La “Cultura de la Legalidad” como discurso académico y práctica política: un reporte desde América Latina’, in I Wences et al (eds.), Cultura de la Legalidad en Iberoamérica: Desafíos y Experiencias (FLACSO, 2014), 72-75. 166 A republican conception of law accommodates within its elements a commitment with a revitalized version of positivism. Then, a kind of commitment with ethical or ideological positivism, as has been argued by Fernando Atria. La Forma del Derecho (Marcial Pons, 2016). 167 Although the Habermasian influence in the works of Nino was never fully articulated by himself, there is a clear connection between his moral constructivism and the possibility of elaborating on a discourse principle as the foundation of moral acceptability. La validez del Derecho (Astrea, 1985). For a development of this relationship, see

 

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not met, then adjudicatory processes will intervene in its dynamic role for the protection of deliberative politics.168 The relationship between a theory of deliberative democracy and methodological positivism that understands itself in a dynamic way, where the division of labor (the creation and application of law) does not imply a complete isolation between law and morals, on one part, and law and politics, on the other. In that way, it acknowledges that law has internal resources, both in the stages of creation and application, although with different degrees and articulations, to put forward justice concerns; and also the radical indeterminacy of law, that generates the need to refer to legal procedures of adjudication to give a final word on some particular issue. As the last part of the research program, it is necessary to highlight the commitment of EDC with institutional reform. Indeed, the main argument of Gargarella´s historical account of Latin American constitutionalism is the way in which progressive social reforms have not touched or altered the ‘engine room’ of constitutions. To put it differently, the incorporation of substantive progressive clauses in Latin American constitutions has not altered the liberal-conservative arrangement regarding the distribution of powers, which has remained highly centralized on the executive.169 In the words of Gargarella, ‘The path of political democracy, like the path of social justice, has one of its major landmarks—but clearly not its only one—in the Constitution. Egalitarian constitutionalism, therefore, should challenge, rather than further develop, the kind of (economic, social, political) injustices that helped to forge it. In order to reconnect the Constitution with equality, reformers should first enter the “engine room,” which for some reason they have not done yet.’170 The idea of entering into the ‘engine room’ starts from the idea of being conscious of the dangers of ambitious projects of social engineering that may suffer from hyperrationality, that is, the belief that reason has sufficient ability to foresee all the consequences of legal reforms, without any concern for the processes that could address future changes.171 It is a recognition of the limits of legally-driven projects of social change. That is the reason why EDC stresses the institutional choices that are inscribed in constitutional decisions, which ascribe to different                                                                                                                                                                                                                                                                                                                                                                                               R Gargarella, ‘El punto de encuentro entre la teoría penal y la teoría democrática de Carlos Nino’, Análisis Filosófico 35:2, 189-191. 168 See the works included in the book edited by R Gargarella, Por una Justicia Dialógica (Siglo XXI, 2014). 169 For me, the debate within EDC scholars is not clear about what could be the best alternative to prevent the risks of hyper-presidentialism. As a matter of principle, EDC should be committed with an arrangement of executivelegislative relations that commits itself to radical democracy, dialogue and flexibility, pointing towards the development of some form of parliamentarism. However, the debate of presidentialism versus parliamentarism in the region is somehow still ongoing. Although hyper-presidentialism has been criticized as a factor of political instability, an opportunity for betraying political commitments, and an obstacle against democratic dialogue (M Shugart and S Mainwaring, ‘Presidentialism and Democracy in Latin America: Rethinking the Terms of the Debate’, in Shugart and Mainwaring (eds.), Presidentialism and Democracy in Latin America (Cambridge University Press, 1997)), there is no clear articulation of a concrete institutional alternative. See M Alegre, ‘Democracia sin Presidentes’, en M Alegre y R Gargarella (coords.), El Derecho a la Igualdad. Aportes para un constitucionalismo igualitario (Lexis Nexis, 2007). Indeed, some literature from comparative political analysis has argued that Latin American presidentialism has particular features that distinguish its dynamic developments, offering some possibility for democratic developments within its institutional constraints. J Cheibubg, T Ginsburg and Z Elkins, ‘Latin American Presidentialism in Comparative and Historical Perspective’, Texas Law Review 89. 170 Gargarella, Latin American Constitutionalism, 207. 171 J Elster, Reason and Rationality (Princeton University Press, 2009).

 

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institutions the role of pursuing certain goals in particular social contexts.172 In a way, it revives the interest for the old doctrine of separation of powers, updating it as a new concern for the ability of law in coordinating institutional efforts towards the chosen collective goals. EDC assumes that every authority has a certain institutional role in addressing public interest issues, duties that should also be accountable before different affected constituencies. The overarching ideal is to promote the virtues of deliberation and protect the value of collecting information from different sources, correcting initial preferences, addressing expert opinion, and incorporating previously excluded voices in the public debate.173 Then, the dialogical dimension of EDC is articulated as a methodological commitment with a kind of comparative institutional analysis that has a strong normative stance. Indeed, all these analysis are directed towards the protection of the principle of political equality.174 Indeed, even if abstract considerations favour institutional choices for deliberation and dialogue in democratically elected bodies, EDC is concerned with addressing alternative institutional capacities that may assume a dynamic role in the long-term project of consolidating democracy and political equality. Even more, EDC is concerned with extra-institutional spaces that may also play their part in fostering these ideals, like the emergent literature on social protest and popular constitutionalism in Latin America.175 Under these ideas, scholars of EDC support the connection of the dogmatic (catalogues of rights) with organic parts (distribution of powers) of constitutions, through the establishment of the foundations of institutional systems for the protection of rights.176 A good example are the constitutional mandates to create statutory duties for the government in tackling the most pressing social issues (like poverty or social deprivation), that could also be the object of judicial review processes that may be triggered by national human rights institutions or ombudsmen, or                                                                                                                         172

Applications of comparative institutional analyses are starting to be a topic of interest for Latin American legal academia. G Jimenez, ‘Nonjudicial Agencies of Legal Accountability in Latin America and The Chilean Comptroller’ (PhD Research Project, University College of London); D Wei, ‘Courts as healthcare policy-makers: the problem, the responses to the problem and problems in the responses’, São Paulo Law School of Fundação Getulio Vargas – DIREITO GV Research Paper Series – Legal Studies Paper n. 75. 173 Furthermore, and in contrast with both LANC and NLAC, EDC rejects dualist normative divisions of democratic deliberation, unduly splitting ‘the continuing political practice of democratic self-determination and democratic citizenship’, or uncritically accepting the ‘higher law’ character of constitutional normativity. In other words, they endorse the idea that constitutional structures should grant every act of ordinary law-making with the highest democratic deliberative pedigree. M Vargova, ‘Democratic Deficits of a Dualist Deliberative Constitutionalism: Bruce Ackerman and Jurgen Habermas’, Ratio Iuris 18 (2005), 369. Several scholars of EDC are sceptical of the dualist liberal constitutionalism’s idea that reduces the participation of citizens in public life only to exceptional moments of constitutional deliberation. REFERENCE? 174 An interesting example of an egalitarian reading of comparative institutional analysis, although in the European context, is done b J Croon, ‘Comparative Institutional Analysis, the European Court of Justice and the General Principle of Non-Discrimination—or—Alternative Tales on Equality Reasoning’, European Law Journal 19:2, 153173. 175 D Lovera, ‘¿Tres son Multitud? Constitucionalismo Popular, Cortes y Protesta’, en Alterio and Niembro, Constitucionalismo Popular en Latinoamérica. 176 In a recent comparative study, scholars have showed how organizational rights do matter for the protection rights on the ground. For them, ‘[t]he distinctive feature of organizational rights is that they do not merely represent a substantive policy preference for a particular right, but also aid the establishment of organizations—political parties and trade unions—that have the incentives to safeguard the right as well as the means to act strategically to protect it from government repression. In other words, they have a built-in mechanism that addresses the collective-action problem inherent in individual rights protection.’ A Chilton and M Versteeg, ‘Do Constitutional Rights Make a Difference?’, American Journal of Political Science 60:3.

 

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even by the wider public.177 Moreover, under these commitments, EDC has critically addressed the doctrine of ‘conventionality control’, according to which domestic judges should refrain from the application of any law that may contravene the object and aim of the American Convention of Human Rights.178 The critique has been grounded on the simple idea that democracies are allowed to decide on the best institutional arrangements to give effective protection to their international obligations. Conventionality control should not preclude the institutional possibilities that countries may explore for complying with international obligations, that is, democratic deliberation on the domestic distribution of powers.179 The relationship between national and supra-national legal regimes is characterized by regional and transnational dialogues that respect both democracy and human rights. As a current still in formation, EDC has yet to develop a theory of the administration and a theory of legislation. Compared to the EDC’s literature on a theory of judicial review, with exhaustive accounts of its different aspects (legal standing, scope and standards of review, judicial remedies, and its different kinds of effects), the theories of administration and legislation do not seem to attract the same amount of scholarly debate in Latin America.180 Overall, EDC is concerned with the role of law in developing the foundations of what O´Donnell called a ‘democratic rule of law’, that is, where countries observe the basic principles of the rule                                                                                                                         177

Enabling third party-controllers (e.g., governmental agencies, or even NGOs that may serve in the public interest) is an example of how constitutions may strengthen an institutional system for the protection of rights. Indeed, as proposed by Brinks and Botero, third-parties do not only have some control in the realisation of the relationship between the first and second parties (the duty and the right-bearers), but ‘might also (…) be facilitators, who provide support for first and second party actors in their interactions with controllers (for example, lawyers, NGOs, victim support groups, even neighbors)’. This is even more important ‘when the second parties are disadvantaged relative to the first parties’, so ‘third party facilitators might be as or more important than controllers’. D Brinks and S Botero, ‘Inequality and the Rule of Law: Ineffective Rights in Latin American Democracies’, in D Brinks, M Leiras and S Mainwaring (eds.), Reflections on Uneven Democracies: The Legacy of Guillermo O'Donnell (John Hopkins University Press, 2014). In a different strand, Helena Alviar has explored the role of law within the new developmental state prevalent in Latin America. Indeed, she has showed the need for a new kind of legal tools, modes of legal reasoning and a new frame for the relationship between branches or geographic units of governments in the implementation of social policies for the achievement of development goals. The kind of experimentalist welfare state she endorses requires us to be aware of the way in which new justiciable social rights are intertwined with innovative social policies that are inscribed in the organic parts of constitutions. H Alviar, ‘Social Policy and the New Developmental State: the case of Colombia’, in D Trubek et al (eds.), Law and the New Developmental State: the Brazilian Experience in Latin American Context (Cambridge University Press, 2014). An interesting possibility, still not well developed, is to explore the potential importation of public sector equality duties for the design of institutional systems for the protection of rights. See A Coddou, ‘Un diálogo con Fernando Muñoz: sobre la recepción del Derecho Antidiscriminación en Chile y su potencial emancipatorio’, http://www.redseca.cl/?p=6154 178 A good overview of this doctrine can be found in E Ferrer Mac-Gregor, ‘Conventionality Control: The New Doctrine of the Inter-American Court of Human Rights’, AJIL Unbound 109:93. 179 J Contesse, ‘¿Última Palabra? Control de Convencionalidad y Posibilidades de diálogo con la Corte Interamericana de derechos humanos’, in Derechos humanos: posibilidades teóricas y desafíos prácticos (Libraria, 2014); some scholars support a form of ‘weak conventionality control’. P Contreras, ‘Control de Convencionalidad y Nueva Constitución: Hacia Una Lectura Competencial Del Control De Convencionalidad’, en E Chia and F Quezada (eds.), Propuestas para una Nueva Constitución (Instituto Igualdad, Fundación Facultad de Derecho Universidad de Chile, 2015). 180 An exception are the works of administrative scholars like Guillermo Jimenez, Matías Guiloff and Raul Letelier, in Chile; the works frequently presented in the Journal of the Administrative Law Association of the City of Buenos Aires; the work of Mariana Mota on Brazilian regulative frameworks; and of Helena Alviar on the new developmental state in Colombia.

 

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of law in democratic societies.181 In this way, EDC articulates a particular relationship between law and social change, and between law and democratic consolidation, broadly understood. As a full and working democracy is yet to be consolidated in the region, the role of law becomes central to foster the quality of democracy. Accordingly, law and legal institutions may contribute ‘to the endogenous formation of preferences conducive to social change’.182 In other words, law may contribute in generating the political practices that are required for the entrenchment of the basic tenets of the rule of law and constitutionalism in the region. The role of constitutions in maintaining democracy could be explained by either a conventional or a more realist account. According to the first, constitutions play their part only when citizens share the belief that constitutions should be applied and enforced as law, that is, as something distinct from politics. For the realist account, the focus is more in political practices that sustain constitutional structures, in many cases related with democratic practices that spread constitutional legitimacy. The problem with the conventional account is that it predicts the emergence of constitutionalism only after waiting for ‘the mysterious process by which a people become acculturated to the rule of law’.183 According to Schor, ‘The problem with the scholarly analysis of why Latin America failed to achieve republican government is that it focuses on the environment in which constitutions were planted while deemphasizing the role of human agency in constructing that environment.’184 EDC is looking for a middle path between an instrumental conception of constitutional law (the idea that law can directly transform social reality) and an extreme realist or sociological account (the idea that what really matters for democracy is not law, but societal attitudes). Therefore, the relationship between law and democracy is mutually reinforcing, and the historical problem of ineffective constitutions is not only solved by a naked devolution of power from elites to rules.185 It is not only more law, but laws that could promote its own legitimacy and effectiveness. EDC, then, supports a constitutional conception that could itself be the driver of transformation, democratization, and therefore legitimation. The question, in other words, is why the region still has to wait for a certain shared understanding of liberal values in order to make a place for constitution´s role in maintaining democracy? What Latin America needs to make the transition from authoritarian to democratic legality is not more ‘good’ laws imposed from above but movements from below that press governments to respect rights’.186 In that process, law becomes central for improving the quality of democratic practices and of rule of law more general. According to Schor, ‘When a desire to have the fundamental rules of the game respected permeates society, rulers have an incentive to respect those rules. The fidelity to rules that democratic consolidation requires can be created in the very process of effectuating those rights.’187

                                                                                                                        181

Brinks and Botero, ‘Inequality and the Rule of Law: Ineffective Rights in Latin American Democracies’ Gargarella, Latin American Constitutionalism, 202. 183 Schor, ‘Constitutionalism Through the Looking Glass of Latin America’, 11. 184 Ibid., 18 185 Ibid., 7. 186 Ibid., 35 187 Ibid., 35. 182

 

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VI. Concluding remarks The previous sections provided an overview of the debates around Latin American constitutionalism. After introducing the main elements of debate, it explained the main features of three schools of thought currently present in Latin America, which have emerged from desires embedded in allegedly aspirational, transformative or social constitutions of the recent era. Although the way of mapping the debates was based on academic sources, many of the main features of each constitutional current have interesting conceptual and institutional implications, which have affected constitutional arrangements. LANC and NLAC have been presented as different modes of articulating the relationship between law and social change, but both of them have been criticized for its insufficient democratic premises or for the real impact of constitutional innovations on the ground. Overall, after more than two decades living under a new era of Latin American constitutionalism, there is still a long road towards democratic consolidation and social progress. This constitutional experimentation has evolved in interesting times, where the region is debating with ‘urgency and intensity’ old and new constitutional ideas under expanding challenges. Indeed, some scholars have even moved from LANC to NLAC, and finally have endorsed some of the main elements of EDC, a current that is still information. The dynamic debates of Latin American constitutional scholarship have often been frustrated by its actual impacts, generating rapid delusions with its transformative original promises. As I said in section III, in Latin America, a region inflicted by continuous crises of parliamentary representation, and suffering repeatedly under the concentration of power in the hands of presidents (hyper-presidentialism), critics argue that neo-constitutionalism implies a double offense: to the basic idea of the rule of law, and to the principle of collective self-determination or popular sovereignty. In some way, neo-constitutionalism, at least in its Latin American version, has implied an unjustified priority of the so-called dogmatic parts of a constitution (catalogues of rights) over its organic parts (the priority of fundamental rights adjudication over the political process); but, moreover, it has also implied indifference towards the democratic origin or the external legitimacy of the standards of constitutional control (the priority of the normative role of constitutions, that is, to correct politics). Statutory law is then subordinated to constitutional law, and the latter is determined by principles uncritically open to moral readings in the hands of adjudicators. The form of law dissolves itself into morality, loosing its own identity (what makes law law), and leans to the political contingency the formation of conservative or progressive courts, where that may be the case. In part, as a result of the abovementioned critiques, several Andean countries with longstanding histories of social and political exclusion, addressed their crisis with the creation of new constitutions through the exercise of their constituent powers. In this context, the Constitution of Venezuela (1999) triggered a series of ideas and debates in the Ibero-American legal academia that were further developed with the constitutions of Ecuador (2008) and Bolivia (2009). As I said in section IV, NLAC has the following characteristics: the prevalence of the constituent power that, through constituent assemblies with an inclusive and plural character, creates a constitution that stipulates a transformative ethos for societies afflicted by poverty, inequality, and social and ethnic exclusion. Moreover, there are some additional elements that depart from the tradition of liberal constitutionalism, like the manifold citizen’s devices of control over the political powers (the so-called ‘fourth powers’), the direct or indirect election of constitutional adjudicators, indigenous autonomies and inter-cultural institutional arrangements that sound at odds with the constitutional tradition of the Global North, or mechanisms of direct democracy at  

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a range of different levels of the State administration. In some way, this implied blurring the distinction between law and politics, because the main constitutional task is to keep alive the spirit of the constituent power, maintaining a kind of ‘interpretive originalism’ that enables institutions to by-pass any constraint in order to pay due respect to the constituent power’s will. Although the promises of this constitutional narrative aspired to expand political participation, simultaneous processes of concentration and centralization of power ended up frustrating many of the initial commitments. Overall, NLAC did not generate better socio-economic outcomes than neo-constitutional frameworks, improve environmental standards, or radically strengthen the quality of democracies. At the end, the formal dimension of law, including constitutional law, is then dissolved in the changing will of the constituent power, which, in its turn, is subject to the final decision of the constitutional control in place. In this scenario, EDC presents itself as a kind of ‘third way’ to overcome the deficiencies exhibited by the abovementioned schools of thought. As I said before, it is a kind of ‘synthesis of a multiplicity of elements in their manifold relationships’. Through discussion around several axis of debate, and considering the innovations of the other schools of thought, the following features of EDC must be highlighted: first, it considers that the constitution is mainly a configuration of power, where this school embeds its radical commitments with the realization of democracy and the protection of human rights; along with NLAC, it also expresses its reliance on external legitimacy, assuming that constituent assemblies are a regulative ideal of utmost importance; regarding the organic distribution of powers and functions, it is committed with institutional choices oriented towards the protection of political equality, and its endorsement of forms of public dialogues (either in the structure of judicial review, in the implementation of a deliberative bureaucracy, or in a renewed theory of legislation); its definitive endorsement of the priority of the political process, and the constitutional institutionalization of the conditions of legitimacy of that same process; its defence of forms of dialogue and interaction with international orders that could protect both the values of democracy and human rights (‘weak conventionality control’); and, finally, its commitment with a republican conception of law that accommodates a revitalized version of positivism as a legal theory. As a current still in formation, it has yet to attract more scholarly attention, specially regarding the interest to develop a democratic theory of administration, and a renewal of the debate around executivelegislative relations with a normative commitment with political egalitarianism. Nevertheless, it is the latest answer to the challenges of a region that, even more than before, is plagued by a dynamic constitutional scholarship. In future chapters, I will argue that EDC constitutes the best embodiment of a kind of constitutionalism that accommodates the transformative approach to ADL I defend in my thesis.

 

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LATAM Constitutional Debate

 

Concept constitution

of

External legitimacy

Organic distribution of powers and functions

Democratic Process

Incorporation of Human Rights Law

Legal reasoning/Interpretive theories

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  LANC (constitutional practice of courts, e.g., Colombia, Brazil, Argentina, etc.) NLAC (Venezuela, Ecuador and Bolivia)

Normative (the binding character of the constitution on both public and private relations)

Non-determinant (asserts dualism?)

Priority of the dogmatic part over the organic part (the priority of fundamental rights)

Counter-majoritarian institutions serve democracy

Strong Conventionality control

Moral reading

The will of the constituent power (update the will of the constituent power)

Determinant (asserts dualism)

Paradox of participatory mechanisms (direct democracy) with centralization of power

Non-intervention

Mixed: Latin American Originalism? Post-liberal reading (openly political) New readings? (legal pluralism)

EDC

A configuration power (a radical commitment with democracy and human rights)

Determinant but limited (rejects dualism)

Dissolution of both parts when the will of the constituent power is under threat (the need for constitutional control to upheld the priority of the popular) (presidentialist) Institutional choices ordered towards the protection of political equality and dialogue (judicial review; deliberative administration; a theory of legislation)

Priority of the political process: institutionalization of the conditions of legitimacy of the political process

Weak Conventionality Control? (forms of regional and transnational dialogue)

Positivism Representation-reinforcing theory

 

 

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