—Johanna Fröhlich, Pontifical Catholic University of Chile
Latin America is claiming a leading position in global constitutional trendsetting, as its rich constitutional traditions keep inspiring new experiments and novel constitutional theories for seeking structural change. Transformative constitutionalism, Andean neo-constitutionalism or the idea of a distinct Latin American Ius Constitutionale Commune have all trusted judges, and especially justices of constitutional courts, with a great deal of responsibility in order to secure progress in eliminating structural inequalities, social injustice and the sweeping violence from Latin American societies. After a long history of interbranch crises with courts and numerous instances of attacks on judges and judicial institutions, some hold that there has been an “ideological shift” (Helmke&Ríos-Figueroa 2011, 2.) concerning the role of judges in the region. This shift is said to have brought not only the dominance of human rights in modern constitutionalism, but it generated a self-empowered image of judges adapted to the task of approximating the gap between the deficient social, political and institutional environment and law’s hopes to transform society. A robust empirical component, however, is still lacking to test constitutional courts’ activities and their outcomes under the “postwar paradigm”. In order to better understand judicial decision-making through reasoning, as well as the current trends and future perspectives of constitutional review in the region, it seems necessary to seek verifiable answers about what courts are actually doing in Latin America.
The Project on Constitutional Reasoning in Latin America (CORE Latam) seeks to advance the field by engaging with those questions. The project started in 2018 as a special regional follow-up of the CONREASON Project coordinated by András Jakab, Arthur Dyevre and Gulio Itzkovich (Comparative Constitutional Reasoning, CUP 2017). The CORE project aspires to contribute to a flourishing field of research by placing Latin America on the cartography of studies on comparative courts. The aim is to discover and explain the distinct features of constitutional reasoning in fifteen different jurisdictions including the Inter-American Court and the Caribbean Commonwealth, and to identify correlations and trends on a regional and sub-regional level. In order to achieve this goal, the empirical methodology of the CONREASON project was partially redesigned in line with the unique characteristics of the Latin American constitutional environment. After two years’ work, the team had its second yearly meeting on June 11-12, in order to present the results of the quantitative analysis, using a sequence of fifty indicators that were created to analyze the forty most important landmark cases from each of the fifteen jurisdictions. This short summary strives to share the most exciting and thought-provoking preliminary results based on the raw dataset. Although at this point, there are far more questions than answers, it is worthwhile making allowances for our doubts too.
The normatively linear vision of constitutional law as higher norm and courts as its guardian has become “the staple of the constitutional law theory” (Lustig & Weiler 2018, 319.). According to Lustig & Weiler, after the horizontal spread of judicial review of state actions (the first wave), followed by the emergence of a transnational order of higher law applied within the domestic legal system (the second wave), presently we are witnesses to a new surge. This third wave could be identified as a complex set of reactions to the tensions that exist between the first two waves, triggered by “the sensitivity to the rule of law and democratic deficits which exist in international and transnational governance” and the increasing counter-forces against a diminishing national identity (Weiler-Lustig 2018, 345.). Scholarly discussion has begun to offer further refined comments about the third wave and the different scenarios of “voice” and “exit”.
The rise of judicial review and the dominance of international law in constitutional adjudication happened somewhat hand in hand in Latin America, as the inclusion of international human rights law in constitutions was simultaneously a sign of the States’ commitment to the constitution. As the Inter-American Court of Human Rights aimed to become rather quickly a “super-constitutional tribunal” (p.218.), States started to consider different options of exit (see the cases of Trinidad and Tobago, Peru, the Dominican Republic, Argentina and Venezuela here as well). The Latin American experience seems to invite deeper analysis of the quality of judicial argumentation and judicial independence about the region-specific manifestation of backlash and voice. The use of international law in constitutional adjudication, especially the sources of the regional human rights system, plays a central role in these recent developments as well as in their possible explanatory framework – and this is exactly where the CORE dataset could offer some insights.
In order to test our theories, we can look at different indicators, for instance, the one on the general topic of landmark cases. The overwhelming majority (at least the half, if not the two-third) of the selected landmark cases are about human rights (as opposed to state organization or procedural aspects) in Latin America, which seems to cause doubt on any claims about the end of “the age of rights.” Our data on the use of the different interpretive methods could help assessing the claim about the dominant methods used by constitutional courts and supreme courts. Preliminary empirical evidence on the selected landmark cases suggests that usually interpreting the constitution in line with international law appears at least twice as often than textual methods in the region. Most of the time, courts take an accumulative attitude and employ all types of sources of international law at the same time without differentiating between binding, non-binding sources or soft law. Reference to non-legal sources, mostly sociology, scholarly articles and foreign law are the sources that seems to be increasingly present beyond the more common methods, such as domestic harmonization or teleology. Besides interpretive methods, we can observe that concepts such as sovereignty or the nation are practically missing from the vocabulary of Latin American constitutional courts. Rule of law and democracy are also relatively rarely considered, and the previous one is mainly applied in its thin sense as “legal security.” Instead, concepts such as proportionality, economic, social, cultural and environmental rights and post-material values seems to be on the rise in the regional jurisprudence.
There is still a long way to go in demonstrating a coherent explanation of these findings, but it is already discernible that the Latin American contribution to the global tendencies of judicial review represents a unique path and that international law has a major role in it. The conception of international law in constitutional adjudication forcefully reminds us that all concepts are bounded by their cultural context and they are always situated in concrete historical circumstances. The “sovereigntist” and “apprehensive” approach that characterized judicial review two decades ago is now in sharp contrast with the progressive image of Latin American high courts. Is it that the first and second wave of judicial review happened so fast and so intensely in Latin America that right now it is a hyper-cosmopolitan version of the – so to say – classical second wave, and the backlash is still to come? This scenario might make some sense, given the image taking shape from Latin American landmark judgements reconfirming the dominance of international law in domestic judicial decisions. Or is it instead the case that Latin America has entered into the third wave already, as some examples have convincingly shown, but as the judicial paradigm change has only recently gained momentum, voices and exit appears to make less noise?
Our mission here is not to answer these questions or to offer a complex explanatory framework. A final, intuitive remark might however, shed light on fragments of a potential response to this thought experiment in the future. Whichever path judicial review takes in Latin America, either proactively or reactively, there seems to be a need to reinforce the values of democracy and rule of law through real debate and “jurisprudence that invites experimentation and dialogue” (p.23). Constructive judicial dialogue happens between self-identical and equal peers in the framework of existing relationships – through court decisions that are authentically attributable to the national constitutional selves they correspond. “Judicial lawmaking can thereby link the local and the global dimensions of justice, the identitarian and the universal, by both appealing to common shared principles and giving plural and differentiated answers to varied situations and demands.” (Barsotti et.al. 2020, 22.) Discovering the genuine Latin American constitutional selves to serve as a point of departure for a true dialogue could be one of the most important ultimate contributions of this project.
Suggested citation: Johanna Fröhlich, Traces of Constitutional Reasoning in Latin America and the Caribbean – Regional Cosmopolitanism Without Backlash? Int’l J. Const. L. Blog, Jul. 30, 2020, at: http://www.iconnectblog.com/2020/07/traces-of-constitutional-reasoning-in-latin-america-and-the-caribbean-regional-cosmopolitanism-without-backlash/
 Argentina, Bolivia, Brazil, Chile, Colombia, Commonwealth Caribbean, Costa Rica, Ecuador, Guatemala, México, Paraguay, Peru, Uruguay, Venezuela, the Inter-American Court
 M.C. Mirow, Latin American Law: A History of Private Law and Institutions in Spanish America. 237. (2004)
 We find more balanced numbers in Uruguay and in the Commonwealth Caribbean, and a preference to textual method in Chile, Venezuela and Paraguay.
 The study of Eyal Benvenisti shows common patterns, such as restrictive interpretation of international norms, deference to the government and the application of “avoidance doctrines”.