Transformative Constitutionalism in Latin America: A Dialogic Route to Utopia?

—Leonardo García Jaramillo, Universidad EAFIT, Government and Political Science Department-Colombia[*]

In Latin America during the last three decades, the law (and particularly constitutional law) has been changing dramatically both anatomically and physiologically. It has become more widespread and more powerful, transforming its structure and shape, while its functions have grown in a more complex and inter-related way.

Although countries in the region have historically had fractured and blurred borders with respect to the processes of legal interpretation and political institutionalization the interactions have evolved significantly. There is no longer an exclusively vertical relationship between countries exporting rules, principles, institutions and jurisprudence (the so-called global North) and those importing such legal resources (the so-called global South).

Interactions are becoming increasingly horizontal between global South countries. Creatively dealing with judicial, theoretical and doctrinal input from the global North, Latin American countries like Mexico, Colombia, Ecuador, Peru and Argentina have begun to generate their own legal discourse. Incentivizing dialogic mechanisms and mutual references among local constitutional courts has been one of the most interesting features of these horizontal interactions.[1]

Dialogic mechanisms evolved during the last few decades are vivid expressions of the trans-nationalization of constitutional law in Latin America. Such dialogue has occurred primarily among countries which, during the last three decades, have undertaken constitutional amendments featuring important organic (i.e., creation of constitutional courts) and dogmatic (i.e., new rights and principles) changes.

A fundamental element of these shifts, but one still at an early stage, is the conventionality control of the Interamerican Court.[2] International obligations related to the rights enshrined in the American Convention on Human Rights shape the interpretation of laws and administrative practices within associated domestic legal systems. Consequently, the regional “Conventionalization” of legal systems is now a complementary concept to “Constitutionalization” of those systems.[3] Constitutional norms no longer exclusively determine the validity and development of national legal orders. The instruments of the Inter-American System of Human Rights have become key factors for the stabilization of democratic constitutionalism as the main national utopia nurtured by the Latin American network of transformative constitutionalism.

Constitutions, case law, and legal and political doctrines have begun to resemble each other more and more rather than following specific foreign textual or doctrinal[4] models. Constitutional law is no longer merely centered on domestic law but rather particularly open to reciprocal influence through regional constitutional dialogue. Domestic law has become subject to enthusiastic participatory dialogue among different Global South legal contexts resulting in the creation of law, the judicialization of politics, and the development of normative constitutional density in Latin American countries.

Dialogical and interactive experiences have occurred between Latin-American scholars and judges with their global South peers in India and South Africa.[5] For example, in the 2009 case Mazibuko v. Johannesburg, the South African Constitutional Court debated whether there is a constitutional guarantee for the right of access to a minimum quantity of daily water. Following that ruling, the Colombian Constitutional Court held water to be a fundamental right in decision T-740 of 2011 where it referenced Mazibuko. Nevertheless the creative Ius Constitutionale Commune process in the global South has occurred primarily in the context of Latin-American countries. Their historical disposition for dialogue and openness in building each legal system and institutions as well as contextual similarities and a shared language favor progressive shaping of a generic regional constitutional doctrine. Increased sharing of theoretical interests, methods and doctrines through national legal scholarship and jurisprudence has also contributed to that end.[6]

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Local consumers in Latin-American countries have tended to attribute more levels of quality and prestige to foreign products such as cars, laptops and watches, as well as legislation, jurisprudence and doctrine. The region nevertheless has ceased to revere legally and politically powerful countries such as the United States, Germany, France or Italy, recognizing the validity of domestic as well as imported legal products. Latin American scholars have the challenge of bestowing prominence on locally evolved comparative institutions as useful legal and political sources.

Attributes offered by comparative means have proven to be a powerful source of inspiration and legitimation.[7] The pressing challenge currently faced by Latin-American scholars is how to generate greater authority and legitimacy for the evolving Ius Constitutionale Commune in local dimension where intense exchanges occur. Transformative constitutionalism is useful as a concept for explaining and normatively developing the emerging changes in Latin-American legal and political discourses, embodying doctrines, theories and methodologies that are not unique to any particular jurisdiction, but rather, which express similarity in norms, principles, judicial institutions and theories. This Ius Commune has come into existence for systematic reasons having to do with relationships of fractured sovereignty, adjudicative methodology and the broad normative appeal of fundamental rights.

Additional reasons that explain this phenomenon include similarities in circumstances characterized on the one hand by poverty and social and political inequalities. Local experiences related to the enforcement of constitutional provisions have become part of regional dialogue as a means of avoiding repetition of unfortunate historical incidents and of learning from shared experiences in order to resolve the region’s most pressing problems.

Some reasons that explain this trend towards regional convergence are that courts: (1) experience similar theoretical needs to justify practices and institutions – sometimes activist and other times countermajoritarian; (2) apply common creative techniques to confront and deal with unusual problems, and (3) deal with overlapping influences that foster the adoption of similar norms and practices. In a nutshell, comparativism is reinforced by factual and legal similarities.

Although Latin American constitutions do not compel courts to consider law from other countries when interpreting their own provisions,[8] the birth of an Ius Commune is not an isolated phenomenon. As a result of the globalization of legal processes in Latin America it is an unquestionable and irreversible feature in the new regional constitutionalism. Thus, Latin America has not shared the doubts and skepticism evident among American scholars and Supreme Court Justices with respect to the use of comparative law.

In Latin America, the key issue with respect to the relevance of comparative law has been “how” instead of “if”; for example, how to incorporate and enforce Interamerican Court of Human Rights jurisprudence in local practices? Should conventionality control be applied directly or with strict reference to local constitutionality control? How should the relevance of specific doctrines or practices be determined in contexts other than those in which they originated? How possible is it to evaluate, a priori, without local experience or context, the probable rate of success of a foreign doctrine or theory based on its success in its state of origin (e.g., the United States, Germany, etc.)?

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The enriching and persuasive practices and arguments of regionally focused comparative law should be considered by Latin-American scholars as an indispensable tool for improving local legal and political orders. For example, comparative law can be used to provide support for a rule or an outcome under analogous factual and legal circumstances, it can provide normative options where national law is undetermined or incompatible with international legal norms, it can illustrate how alien legal concepts can be incorporated into local systems, and it can help to assess factual assumptions underlying potential consequences of the enforcement of legal norms. Decisions in cases with important economic or social regulatory implications must often be made speculatively in the absence of empirical data; a vacuum comparative analysis can help fill.

The complexity associated with enforcement of constitutional rights has increased the importance of understanding how different states deal with problems related to social, political and economic pressures, thus rendering the comparative study of how constitutional courts reflect institutional practices that support evolving constitutional orders essential. In addition, recent developments in constitutional scholarship[9] focusing on comparative legal methodology as a means to shape and guide Latin American constitutional law in the face of challenges such as political exclusion, poverty and underdevelopment also require examination.

Consequently, analysis of how national constitutional courts are utilizing novel sources of regional legal materials to expand legal and political knowledge is of significant interest. The Ius Constitutionale Commune approach in Latin America is both descriptive and normative. As a transformative social and political model, evolving regional constitutional law serves to guarantee political, civil, liberal and social rights,[10] against encroachment at both local and regional levels by private as well as public authorities. Rights and moral principles are the substantive content incorporated into modern Latin American constitutions as validating criteria for ordinary laws and politics. The normative aspect of rights is projected within the legal system not just as an external ideal but as an internal or inherent juridical element.

Twenty-first century Bolivarian socialism is the flip side of the trend towards legal and political convergence. Venezuelan populism has resulted in a denouncement of the American Convention, while reelectionist ambitions of Bolivian president with an acquiescent Constitutional Court undermine political rights and democratic principles that its own Constitution enshrines. Similarly, there have been also recent resistances to the Inter-American rulings. Argentine and Mexican Supreme Courts declared that they could not comply with Inter-American rulings because they held in their respective jurisdictions “the supreme law of land”.[11]

Those episodes have demonstrated the need for an even stronger set of Inter-American principles and legal rulings. Those are additional guarantees that allow national institutions to successfully confront both authoritarian regimes as well as severe human rights violations. The time is right to analyze the intensity, extent and impact that the region’s tribunals have on each other as well as collectively; to share and discuss what has been learned to date concerning positive regional evolution of constitutional concepts and norms; and to examine the impact of globalization particularly in the fields of human rights, presidential powers and political reforms. There is broad normative convergence in the region around some norms, particularly principles, but huge differences in judicial role continue to matter.[12] It is time, in other words, to identify the evolving patterns of New Latin American Constitutionalism that will soon be reflected in texts and related materials specifically addressing this new phenomenon.

Suggested citation: Leonardo García Jaramillo, Transformative Constitutionalism in Latin America: A Dialogic Route to Utopia? In’tl J. Const. L. Blog, Apr. 13, 2018, at: http://www.iconnectblog.com/2018/04/transformative-constitutionalism-in-latin-america-a-dialogic-route-to-utopia/

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[*] I am particularly grateful to David Landau, Vicente Benitez and Juan C. Herrera for their suggestions and criticisms.

[1] Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flavia Piovesan (eds.). Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune. Oxford University Press, 2017. Armin von Bogdandy – Héctor Fix Fierro – Mariela Morales (coords.), Ius Constitutionale Commune en América Latina: rasgos, potencialidades y desafíos. Ciudad de México, UNAM-IIJ – Max Planck de Derecho Público, Comparado y Derecho Internacional, 2014.

[2] Mariela Morales – Miriam Henríquez (eds.). El Control de Convencionalidad: Un balance comparado a 10 años de Almonacid Arellano vs. Chile. Santiago de Chile: Ediciones DER, 2017.

[3] Leonardo García Jaramillo, “De la “constitucionalización” a la “convencionalización” del ordenamiento jurídico. La contribución del Ius Constitutionale Commune”, in: Revista Derecho del Estado, n.º 36, enero-junio, 2016.

[4] Russell H. Fitzgibbon, “The Process of Constitution Making in Latin America”, in: Comparative Studies in Society and History, Vol. 3, No. 1, 1960. Michel Rosenfeld – András Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law. Oxford University Press, 2012, “Introduction”.

[5] Daniel Bonilla (ed.), Constitutionalism of the Global South. The Activist Tribunals of India, South Africa, and Colombia. Cambridge University Press, 2014.

[6] For example, facing political and legal problems in Mexico regarding the “Horizontal Effect” of Constitutional Rights has been useful the Colombian constitutional case law rulings as an example of an accurate foundation of such doctrine.

[7] Jorge L. Esquirol, “Legal Latin Americanism”, in: 16 Yale Human Rights & Development Law Journal 145, 2013. Günter Frankenberg, Comparative Law as Critique. Elgar Studies in Legal Theory, 2016.

[8] As does, for example, the Constitution of South Africa (§39, 1).

[9] Manuel José Cepeda – David Landau, Colombian Constitutional Law. Leading Cases. Oxford University Press, 2017.

[10] David Landau, Derechos sociales y límites a la reforma constitucional: la influencia de la jurisprudencia de la Corte Constitucional Colombiana en el derecho comparado. Bogotá, Universidad Externado, 2015.

[11] To paraphrase the Constitution, laws and treaties references in the U.S. Constitution (article III, § 2).

[12] Regarding how enduring differences in judicial role may limit Latin American convergence, see, David Landau, “Judicial Role and the limits of constitutional convergence in Latin America”, in: Rosalind Dixon & Tom Ginsburg (eds.), Comparative Constitutional Law in Latin America. Northampton, Edward Elgar, 2017.