Canadian Journal of Latin American and Caribbean

Studies / Revue canadienne des études latino-

américaines et caraïbes

ISSN: 0826-3663 (Print) 2333-1461 (Online) Journal homepage: http://www.tandfonline.com/loi/rclc20

The new Latin American constitutionalism:

a critical review in the context of neo-
constitutionalism

Felipe Curcó Cobos

To cite this article: Felipe Curcó Cobos (2018): The new Latin American constitutionalism:
a critical review in the context of neo-constitutionalism, Canadian Journal of Latin American
and Caribbean Studies / Revue canadienne des études latino-américaines et caraïbes, DOI:
10.1080/08263663.2018.1456141

To link to this article: https://doi.org/10.1080/08263663.2018.1456141

Published online: 19 Apr 2018.

Submit your article to this journal

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at

http://www.tandfonline.com/action/journalInformation?journalCode=rclc20
CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES, 2018
https://doi.org/10.1080/08263663.2018.1456141

The new Latin American constitutionalism: a critical review

in the context of neo-constitutionalism
Felipe Curcó Cobos
Rio Hondo, Instituto Tecnológico Autónomo de México, Tizapán, Mexico

ABSTRACT ARTICLE HISTORY

The new Latin American constitutionalism (NLC) is the term that Received 12 January 2017
has been coined to refer to certain constitutional processes and Accepted 19 March 2018
constitutional reforms that have taken place relatively recently in KEYWORDS
Latin America. Constitutional theorists have not been very opti- Constitutionalism; neo-
mistic regarding the scope and nature of this new constitutional- constitutionalism; new Latin
ism. I thoroughly agree with this critical skepticism as well as with American constitutionalism
the idea that this new phenomenon does not substantively
change the organic element of the different constitutions in the
region. However, I argue that it is a mistake to focus analysis on
this characteristic. My intention is to show that the NLC should be
evaluated in the context of its relationship with contemporary
neo-constitutional theory.

RÉSUMÉ
Le nouveau constitutionalisme latino-américain est la locution qui a
été inventée pour renvoyer à certains processus et réformes con-
stitutionnels ayant eu lieu dans une époque relativement récente
en Amérique Latine. Les théoriciens des constitutions ne se sont pas
montrés très optimistes quant à l’étendue et à la nature de ce
nouveau constitutionalisme. Je suis tout à fait d’accord avec ce
scepticisme critique, ainsi qu’avec l’idée selon laquelle ce nouveau
phénomène ne change pas significativement l’élément organique
des différentes constitutions en place dans la région. Cependant, je
soutiens qu’il est erroné de concentrer l’analyse sur cette
caractéristique. Mon intention est de montrer que le nouveau con-
stitutionalisme latino-américain doit être examiné relativement à la
théorie néo-constitutionnelle contemporaine.

Introduction
The new Latin American constitutionalism
According to Martinez Dalmau (2011), all Latin American constitutions amended or
implemented since the 1980s started with the same assumption: the need to enhance the
existing political regime in order to build a true democracy where it otherwise existed
only on paper.

CONTACT Felipe Curcó Cobos felipe.curco@itam.mx Rio Hondo, Instituto Tecnológico Autónomo de México,
#ColoniaProgreso, Tizapán C.P. 01080, Mexico
© 2018 CALACS
2 F. CURCÓ COBOS

The “new Latin American constitutionalism” (NLC) is the expression that attempts
to encompass this “transformative” political will. For jurists like Rodrigo Uprimny
(2011), it defines the set of shared traits and the common denominator of all
constitutional processes and constitutional changes which have taken place in recent
years in countries such as Argentina (1994), Brazil (1988), Costa Rica (1989), Mexico
(1992), Paraguay (1992), Peru (1993), Colombia (1991), Venezuela (1999), Ecuador
(1998 and 2008), and Bolivia (2009).
Now, as Uprimny himself acknowledges, saying that what allows us to combine all
these constitutions is their “shared transformative will” is certainly ambiguous and of
little analytical utility, especially as some of these constitutions have undergone deep
changes while others have undergone merely partial changes. Others yet, however, are the
result of truly revolutionary constitutional processes that break with the previous legal
order. Without going any further (and to offer but one significant example), the difficulty
of dealing in the same phrase with the neoliberal Peruvian Constitution of 1993 and the
socialist Venezuelan Constitution of 1999 is obvious. It is undoubtedly evident, however,
that since the 1980s most of the countries of Latin America enacted new constitutions or
advanced important legal reforms intended to promote a political and democratic
transition. It is also true that in many cases this momentum led to certain common traits
very general in nature (expansion of protected property and individuals, protection of
natural resources and environmental rights, expansion of popular participation protec-
tions, affirmative action, and respect for ethical and cultural differences).
On the other hand, however, in countries like Bolivia (2009), Ecuador (2008), and
Venezuela (1999), truly revolutionary constitutional processes have taken place that
have represented a clear break with the post-war constitutional movement alongside the
individualist liberal tradition and its main features: rights-based administration of
political power and mechanisms of constitutional legal review. In other words, the
aforementioned constitutions of Bolivia, Ecuador, and Venezuela have a common
denominator that differs from the others and which is characterized by at least three
basic attributes. First, (i) as the product of a social and political crisis, it leads to (ii) the
activation of a wide-ranging referendum meant to approve and support their constitu-
tional text, which in turn (iii) leads to, without being identical, the fact that these three
constitutions are characterized by their emphasis on the role of constitutional political
power as a means of legitimizing social will through a clean democratic process.
These differences make clear that the NLC is far from being a uniform phenomenon.
This requires us, then, to rethink the following: within this inhomogeneous phenom-
enon, what exactly is new about the NLC? To answer this clearly in Section I, following
Gargarella, I will briefly summarize the historical stages of regional constitutionalism.
This will allow me to focus on the central historical elements and unifying features of
the NLC. Section II explains the NLC as a result of the strong historical tensions that
led to it. From these tensions, I gather the main reasons that require us to question it. In
Section III, I gather Gargarella’s main criticisms against the NLC. For reasons we shall
observe, he thinks there is nothing new underlying the NLC. I share the reasons why he
concludes that. However, I am convinced that what is most valuable about the NLC
resides in a place that Gargarella has not yet considered (or at least has not considered
enough): that place is in the theoretical link with contemporary neo-constitutionalism.
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 3

Stages and historical characteristics of Latin American constitutionalism

Without being, as we said earlier, homogeneous, contemporary Latin American con-
stitutionalism has several features in common: we can see a gradual process through
which constitutional notions of the collective ownership of rights have gained strength,
along with respect for ethnic and cultural differences, the establishment of new guar-
antees and institutions of judicial review, mechanisms of popular participation, and,
ultimately, a clear broadening of the catalogue of constitutional rights (social, economic,
and cultural). In very broad terms, we can say that the constitutional process in Latin
American countries was doctrinally marked by parent European constitutions, the
Anglo-French Declarations Rights, the federalist constitution of the United States, the
Spanish Constitution of Cadiz, and the Napoleonic civil code. The strong axiological
content found in the writing of their texts is partially derived from its enlightened
heritage. On the other hand, many of its elements emerge in sharp tension from the rest
of the variegated and pluralistic traditions that converge around it.
For example, inspired by the US model, these constitutions organized the administra-
tion of power on the axis of institutional checks and balances. At the same time, however,
they originally differed from the US example in regard to the balance of power.
Influenced by the Napoleonic authoritarian model, these constitutions concentrated
power historically and territorially. They also transferred all authority to an especially
powerful executive (paradigmatic, in this sense, is the Chilean Constitution of 1833, a
typical example of the first authoritarian constitutionalism in the region). In extreme
cases, power was centralized in institutions such as the Venezuelan “Moral Power”, the
“moderating power” established by the Brazilian Constitution of 1824, or the “fourth
power” established by the Constitution of the Mexican centralist regime of 1836 (which
resulted in the separation of the State of Texas and the separatist attempt by the states of
Coahuila, Nuevo Leon, and Tamaulipas to form the Rio Grande Republic).
Diverging thusly, Latin American constitutions radically changed the scheme of checks
and balances that was thus altered, losing almost all its virtue. In the nineteenth century,
Lucas Alamán, a colonial politician and legislator before the courts during the liberal
triennium in Spain, had already warned about the inconsistency of the Mexican
Constitution of 1824. This mixed – he said – the system of balance of power taken from
the US system of checks and balances with the principle of division of powers from the
French and Spanish Constitutions of 1812 inspired by Montesquieu (Alamán 2008, 199).
A system of checks and balances (such as the United States’) contrasts sharply with
the system of differentiation or separation of powers (like the French) inspired by
Montesquieu. Typically, the separation of powers establishes a “strict separation”. When
that happens, demarcation is one-to-one. That is, each body should play a unique role
without interference from any other branch: the legislature legislates, the executive
executes, and the courts adjudicate. However, in the system of “checks and balances”
(inspired by Madison’s famous Federalist declaration that ambition should counteract
ambition), demarcation is many-to-many or even all-to-all. That is, all the powers of
government are involved in different ways in the performance of all functions (e.g. both
the legislature and the executive have the power to initiate legislation).
As we shall see later, such mixes between the US system of checks and balances and
the principle of division of powers from the French and Spanish Constitutions could be
4 F. CURCÓ COBOS

found in most of the models that gave legal form to the region. As a result, the Latin
American legal tradition has institutionalized the separation of powers, formal equality
before the law, popular sovereignty, and liberal protection of rights. However, and in
conflict with this, in practice, legal and political institutions in Latin America have been
characterized by the centralized and bureaucratic control of power, forms of exclu-
sionary democracy, and political patronage systems. Against this background, the NLC
has been considered both a result of such conflicts and an attempt to remedy them,
hence the importance of a clear and in-depth understanding of the twisted historical
process of constitutional administration in the region that NLC seeks to straighten out.
There are different ways of grouping the periods marking the evolution of Latin
American constitutionalism, but I find that Gargarella’s (2013; Gargarella and Courtis
Ch, 2009) offers special analytical usefulness because he discerns at least four main
stages, each one focused on facing and solving distinct social and political problems (as
we shall see, I will suggest an alternative, adding another stage to this classification).
The first of these stages is one that Juan Bautista Alberdi (1981) calls initial and
Gargarrella experimental (see Gargarella 2003, 305–28; Gargarella 2008). This first
constitutional legal system was focused primarily on strengthening independence on
the basis of majority popular rule through a variety of mechanisms that today we would
refer to as being essentially republican or populist in nature. Hence the trend in this
period consisted of favoring the doctrine of separation of powers rather than the
doctrine of checks and balances. As a result, a populist inclination and a general
mood toward increasing the weight of the legislature in order to restrict presidential
powers prevailed. The bet, therefore, was in favor of unicameral legislative systems in a
Rousseauian bid to ensure the expression of indivisible popular will. During these years
(1810–1825), experiments proliferated, like that of Artigas, in Uruguay, the first con-
stitution designed for the Banda Oriental (Eastern Strip) in 1813, the Mexican
Constitution of Apatzingan of 1814 (which was never implemented), as well as the
Peruvian constitutions of 1823, or the first revolutionary document adopted in
Venezuela in 1811. In all these circumstances the will to weaken executive power was
evident, to such an extent that authority was divided into three heads that were
generally subordinate, additionally, to parliament. Hence, for example, Argentina
from 1811 to 1814 and Venezuela between 1811 and 1812 were governed by
triumvirates.
To this stage I would add another that Gargarella does not contemplate, but one
which will later be of great analytical usefulness. (see Gargarella 2005 on this subject). I
suggest referring to it as an anti-populist or counter-majoritarian stage (1826–1850).1
Its most important historical reference is the defeat (and the recapture for the Crown)
of the short-lived First Venezuelan Republic in charge of the royalist troops of the
Spanish General Juan Domingo de Monteverde. In the famous document known as the
“Cartagena Manifesto”, in which Bolivar seeks to find the causes of this defeat, the
General attributes this momentary failure of the First Republic precisely to “the nature
of its constitution” (Bolivar 1812, 5). Later, in his Address to Congress at Angostura of
1819, he was even clearer in attributing the failure to the way the “original constitution
weakened the president”. He finally arrived at a definitive position, wherein, strongly
influenced by the example of Napoleonic constitutionalism, Bolivar defended a con-
stitutional project designed to curb and control populist disarray by subjecting it to a
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 5

firm centralized authority: an executive whose authority must be perpetual while safe-
guarding institutional order. Thus began a constitutional period in Latin America with
a clear hyper-presidentialist bent. This was first crystallized in Juan Egaña’s design for
the moralist Chilean Constitution of 1823, and definitively in his son Mariano’s openly
authoritarian Constitution of 1833. The latter (1833) would serve as inspiration for a
wave of constitutional projects aimed at burying that first populist trend: along with
Egaña in Chile, García Moreno in Ecuador, Mariano Ospina in Colombia, Bartolomé
Herrera in Peru, and Lucas Alamán in Mexico, the counter-majoritarian constitution-
alism eventually became established as a trend in the region, which is surprising given
the parallels with the history of US constitutionalism. As is well known, since the early
1780s and until the meeting of the Constitutional Convention in Philadelphia, the
United States suffered a period of enormous popular turmoil. In its early stages and
after the Declaration of Independence, several of the colonies on the Atlantic coast
adopted democratic unicameral designs, which gave great power to the legislative
branch. Paine and Jefferson drove government ordinances in the states of
Pennsylvania and Virginia which established the periodic endorsement of the
Constitution and frequent popular referenda (Notes on the State of Virginia 1785).
Instead of a constitution that restricted majority rule, they supported instead a project
that we would call today republican, democratic, and populist. This project sought to
make the legislature a soundboard for popular claims. It tried, therefore, to trust the
majority to make reasonable decisions. Distrustful of government by the masses,
Madison, Jay, and Hamilton feared strongly that a popular democracy would lead to
a tyranny of the majority. This forced Madison and the federalists to conceive of a
compound political system of multiple vetoes that would limit the political action of the
masses. Its explicit intention was to prevent majorities as much as possible from making
reasonable decisions. To that end, they defended a project that today we would call
“counter-majoritarian”. This required the implementation of various counter-majori-
tarian locks that allowed the political class of the time to not lose control over the
revolutionary process of independence. Notable among them are the presidential veto,
the system of separation of powers based on the idea that “ambition should counteract
ambition”, as well as a strong bicameralism in which legislation is passed by both
chambers and a two-thirds majority within them is necessary to annul a presidential
veto. Finally – and very significantly – an independent judiciary with the power to
declare legislation unconstitutional.
This opened the way for the third stage of Latin American constitutionalism, one
that Alberdi considered decisive and important in the nineteenth century, as its primary
purpose was based on very different concerns than those prevailing in the two previous
periods (see Gargarella 2003, 2008 on this subject). As we have just seen, in the first
period the central concern was the strengthening of independence by activating popular
support. The second period attempted to contain majority claims by subjecting them to
a strong and centralized institutionalism. Now, in this third period (1850–1917), the
concern was focused on the need to orient constitutional structures to achieve eco-
nomic growth. Gargarella (2003, 2008) points out that this period was particularly
fruitful, especially because, for the first time, the constitutions of this period already
reflected the balance achieved in the region between liberal and conservative forces.
This, based on a balance reached between the two forces and consisting of granting very
6 F. CURCÓ COBOS

broad civil liberties at the expense of recognizing very narrow political freedoms, would
be the characteristic of the main constitutions of Argentina and Mexico of 1857, that of
Colombia of 1886, and that of Brazil of 1891. In some countries this balance was more
precarious than in others (in Mexico it was precisely the Constitution of 1857 which
enabled the military coup of President Comonfort that would lead to the War of
Reform and liberal victory after the second French intervention). In Brazil, the text
remained in effect until the military coup of Getulio Vargas and the new Constitution
of 1934. I want to stress that while I am looking deliberately to focus on the similarities
here, that should not be an obstacle to recognizing the obvious historical differences. In
Colombia, for example, liberalism was imposed as constitutional doctrine between 1853
and 1863. Since the enactment of the Constitution of 1886 and until 1930, conservative
governments dominated. From 1930 to 1946, Colombia was ruled by liberals. Just the
opposite happened in Chile, where conservatism won decisively in 1833 only to
gradually lose strength in the following years. These are just a couple of examples, as
dealing carefully with these important differences is something that is beyond the scope
of this text.
The fourth stage is that which I describe (following Gargarella) as social constitu-
tionalism. For the above reasons, social claims had not found a favorable situation in
any of the prior periods. The recognition of social rights had to be postponed due to the
urgency of prioritizing claims, which until then had been more pressing. However,
following the Mexican Constitution of 1917, the result of the first social revolution of
the twentieth century, a very broad and unprecedented list of social rights began to be
incorporated. Much later, but in a sustained manner, several Latin American constitu-
tions began to follow the example of that Mexican Constitution of 1917; among those
with the most pronounced social profile are those of Brazil of 1937, Bolivia (1938),
Cuba (1940), and Argentina (1949).
Finally, the fifth, last, and most recent stage of regional constitutionalism is that
which corresponds to the wave of reforms which took place at the end of the
twentieth century. Such reforms generally involved a considerable expansion in the
catalogue of rights pre-existing in earlier stages. The general characteristic among
those countries that in recent years modified (or reestablished) their constitutional
texts is a marked concern for social, economic, and cultural rights (Colombia 1991,
Argentina 1994, Venezuela 1999, Ecuador 2008, Bolivia 2009, Mexico 2011). There is
also a significant interest in recognizing indigenous and environmental rights as well
as those of cultural minorities that had not been taken into account in earlier drafts.
This is the period that analysts tend to classify as the NLC. Hence, the summary we
have embarked on will be essential in understanding what impulses (not free of
inconsistencies) led to NLC.

The serious deficiencies of the NLC

As we have seen, Latin American constitutionalism was historically driven by four types
of very different motivations, which were not always in harmony: (1) strengthen
independence through legal designs that located reasonable decision-making in large
legislative majorities; (2) create legal mechanisms aimed at distancing the majority from
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 7

reasonable decision-making (in order to ensure political order and stability); (3) foster
economic growth; and (4) take up neglected social claims.
All these motivations had a clear impact on the two normative levels that are part of
modern constitutions, leading to superimposing two legal models of the state that are
rather opposite. Let me explain this in detail, as it will be essential to the argument that
I will develop below.
A constitution always incorporates two types of standards (Alexy 2009). In the first
category are those that are considered organic standards, being those that organize and
constitute power (legislative, executive, and judicial). In the second class of standards is
the construction of principles that limit or indict state power. This is achieved mainly
by incorporating a catalogue of rights. Given that said catalogue defines the funda-
mental principles and values that should guide state action, this section is usually
referred to as the dogmatic part of a constitution. While this is not the place to delve
too deeply into it, legal and philosophical tradition has tended to differentiate standards
from principles. According to Dworkin (1977), the difference between legal principles
and standards is a logical distinction. Standards are applied in terms of an all-or-
nothing division. A standard can have exceptions, but then they should be included
in its articulation. Principles, however, do not operate this way because they have a
characteristic standards lack: the dimension of specific weight or importance. If two
standards collide, one of them (that with the higher legal structure) should prevail over
the other. On the other hand, when two principles collide, the importance of each of
them must be considered and weighed in order to make a decision. In short, according
Zagrebelsky (1999, 110), “rules are obeyed”, while principles, however, “are adhered to”,
providing criteria in order to take a position.
Note that one of the principal functions of constitutions is precisely to limit state
authority and democratic majority rule (Przeworski 2000). Constitutionalism refers to
limits on majority decisions; more specifically, to limits set primarily through mechan-
isms such as judicial review or the incorporation – precisely – of a bill of rights. The
function of these rights is to prevent majority decisions from neglecting or under-
mining social interests considered too important to be questioned. In other words, most
of the contemporary written constitutions contain expressly structural and expressly
restrictive provisions. Openly structural provisions are those that constitute and define
powers. Restrictive provisions, however, are those that set limits to the power available
to the majority as stipulated by structural provisions.
Given the foregoing, the most acute and important criticism against the NLC has
doubtlessly been formulated by Gargarella (2005, 2008, 2009, 2010). Gargarella warns
(rightly) that in current Latin American constitutions, two legal models of the state
converge that are asymmetrical and incompatible. Let us see why.
On the one hand, the organic or structural part of these constitutions still responds
to the needs and motivations that were typical and characteristic of the nineteenth
century. Let us remember what those needs were. During this period predominates
what I previously referred to as the anti-populist or counter-majoritarian stage. Once
independence was secured, the new regional elites needed to use constitutional provi-
sions to establish an organizational structure of powers to contain the masses. There is
no doubt that one of the few points on which liberals and conservatives agreed during
their confrontation at this time was the fear that they had of uncontrollable social
8 F. CURCÓ COBOS

mobilization. In terms of organization of power, both liberals and conservatives feared

above all social anarchy and lawlessness. In that sense, it was not difficult for them to
agree on the need to construct the organic and structural levels of the constitution to
curb growing and threatening populist power. As in the case of US Federalists, one of
their main concerns was not to lose control over the revolutionary process of indepen-
dence. As a result, the organic standards of Latin American constitutions arranged a
system of “checks and balances”, imbalanced in favor of the executive and designed to
distance the masses as much as possible from reasonable decision-making (Linz and
Valenzuela 1994). Hence, they broadly agreed upon an organic design explicitly
designed to hinder the formation of large majorities in congress (through, for example,
a bicameral design meant to hinder the reaching of agreement). In addition, they
encouraged majorities and minorities to constantly feel forced to compromise in
every decision before turning it into law. Finally, they strengthened internal or endo-
genous controls to the detriment of popular or exogenous controls to leave in the hands
of an elite of non-elected judges the final decision of constitutional cases. This regime is
clearly inspired by the principle of distrust in the masses formulated by Madison and
Hamilton in The Federalist.2 Hence the purpose of such institutional designs is to
separate representatives from those they represent as much as possible, thereby gen-
erating a clear democratic deficit. While O’Donnell believes that said deficit is a Latin
American pathology, to Madison (as I said) that was how a representative government
should work. Lippman (1956) went even further, saying that the people did not need to
have any role in government. He insisted that the duty of citizens “is to fill the position
and not direct the individual who occupies it” (Lippmann 1956, 182). The similarity of
these notions to the distrust of the people as expressed by Bolivar in the Address to
Congress at Angostura is very striking, when he points out: “Most men are unaware of
their true interests [thus] not everything should be left to the chance and accident of
elections: the people are easily deceived”.3
On the other hand, there would be an attempt to mitigate this democratic deficit
generated by organic and structural provisions by reforming restrictive or dogmatic
provisions. This is precisely – let us remember – the central feature of the fourth and
fifth stages of regional constitutionalism. This reform of the dogmatic section was
aimed primarily to increase the catalogue of rights. Since 1917, Latin America has
done nothing but expand in its constitutions its inventory of rights, adding to civil and
political rights already incorporated new social, economic, and cultural rights.
It is here that Gargarella’s criticism (1996, 2008) acquires most weight, because this
“inflation of rights”, distinctive of NLC, leaves the structural-organic part of constitutions
untouched. As a result, the progress of regional constitutionalism in the area of constitu-
tional rights is hampered in its execution by an organization of power that is in conflict with
the principles underlying those rights. In other words, the NLC becomes merely declaratory
and cosmetic (makeup for ancestral injustices). After the last two waves of reforms, the
organic part of the new constitutions continues to be characterized by a power structure that
is politically and territorially focused. This implies that social commitments assumed by the
new catalogue of rights do not result in a substantial improvement that remedies the serious
democratic deficit in the region. Nor it is reflected in increased opportunities, life expec-
tancy, and improved spaces of social decision and control. To put it in terms that Gargarella
would use: the obsession with incorporating more rights has not been accompanied by a
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 9

parallel obsession with introducing the enabling conditions (material, political, and legal)
that make them effective (Gargarella 2013). The organic constitutional scheme in Latin
America seems to continue working on the basis of the principle of distrust toward the
citizenship. That principle of distrust made sense against the threat of actual or potential
civil war that prevailed during the nineteenth century in Latin America (or in the eighteenth
century during the US Revolutionary War). Today, however, under radically different
circumstances, that design does not appear to make sense any longer.Few people know
that Madison himself dramatically changed his views once the risks of civil war were left
behind. Thus, being secretary of state (1801–1809) and as the fourth president of the United
States (1809–1817), Madison abandoned his old counter-majoritarian opinions and unhe-
sitatingly favored the project of a radical democracy that trusted the majority with important
decision-making (see Madison 1865, 332, on this subject).
The system of checks and balances was designed with the express purpose of
avoiding a civil war, not with the intention of promoting the kind of democratic culture
that the new social rights seek to encourage. That is the reason that this system is
archaic today, which is reflected in the severe asymmetry between the dogmatic and
organic dimensions of regional constitutions. Because, while the former currently
asserts a wide range of claims related to Republican demands (rights of citizen parti-
cipation, oversight, and control), the latter discourages autonomous citizen participa-
tion both in fact and in its organic constitutional engineering. As a result, the old
structures of Latin American power emanating from the nineteenth century remain
intact. The consequence are constitutions that increasingly allude to groups not pre-
viously mentioned or interests not contemplated before, declarations that seek to
introduce mechanisms that encourage popular participation, and open (nominally)
institutional opportunities. However, and in conflict with the foregoing, practice denies
what the constitution states because a centralized and bureaucratic control of authority
remains in effect, along with an atrophied hyper-presidentialism (Linz and Stepan
1978), a judiciary subject to politics and interest groups, weak institutions, electoral
patronage, and widespread corruption. Without a doubt, the political organization
inherited from the nineteenth century barely shows any signs of having evolved.
Gargarella is moderate in his criticism and continues to accept (within limits) that
the recognition of certain rights and social commitments may represent the first step on
the way to reverse this situation (Gargarella 2010). However, while the organic dimen-
sion of constitutions remains unchanged, the material conditions for the effective
implementation of rights will be far from being realized. As I have said, I thoroughly
share his diagnosis. Based on what has been said thus far, there does not seem to be
anything new in the NLC. And yet there is in this NLC something that Gargarella
surprisingly never discusses or takes into account. In my opinion, that “something” new
must be found in the forward-looking neo-constitutional trend that is beginning to
manifest itself in some legal cultures of the region (especially Colombia). That is what I
intend to analyze and argue below.

Neo-constitutionalism and the new Latin American constitutionalism

The concept of “neo-constitutionalism” was first used by Italian professor Susanna
Pozzolo during a lecture given at the XVIII Congress of the International Association
10 F. CURCÓ COBOS

for the Philosophy of Law and Social Philosophy (Buenos Aires, 1997). To date, the
term has been widely used and cited in the theory of law. Even some distinguished
Latin American jurists, such as Miguel Carbonell, have suggested the need to refer to a
variety of “neo-constitutionalisms” (Carbonell 2010). The fact is that whether it is a
single theory in the singular, or several in plural, there are a number of common
features that we can recognize as being characteristic of the complex neo-constitutional
phenomenon.
In general, neo-constitutionalism is the term usually used to explain a series of
constitutional texts that begin to emerge after World War II, especially since the
1970s (Portugal 1996, Spain 1978, Brazil 1988, Colombia 1991, Venezuela 1999,
Ecuador 2008) (Carbonell 2010). It refers to constitutions that do not only limit
themselves to defining the organization of government authority and the constraints
in its performance, but also ones in which principles prevail over rules. This leads to
them incorporating a wide catalogue of rights with strong axiological weight and values
from which goals and objectives that determine the performance of the state are
established. In other words: neo-constitutional texts are essentially substantive (rather
than merely formal or procedural).
A second characteristic of neo-constitutionalism is that, as a result of the foregoing,
the jurisprudential practice of constitutional courts undergoes a significant change.
Judges have to start performing their functions under new interpretive parameters.
Their hermeneutic duties become more complex, to the extent that they have to start
working with constitutionalized “values” that must be applied to specific cases in a
justified and reasoned fashion.
Now, it is clear that neither of these two elements is in itself novel. I mentioned
earlier that constitutions like that of Mexico in 1917 already incorporated a strong
axiological weight and a large catalogue of rights. I have even argued in the previous
section that the NLC is actually quite old, to the extent that the changes to the dogmatic
sections of its constitutional texts have had no impact on their immutable organic parts.
Nevertheless, unlike the NLC, what is new about neo-constitutional theory does not lie
in these two elements separately, but precisely in that which connects them: that is,
their function and operation.
In other words, what neo-constitutionalism has introduced as a gradual innovation
has something to do with a certain kind of unwritten judicial activism. Ricardo Guastini
has called it the “constitutionalization of the legal system”. By “constitutionalization of
the legal system”, Guastini understands “a process of transformation of a system, after
which the system in question is completely ‘impregnated’ by constitutional standards”
(Guastini 2007, 153). This means that, in the neo-constitutional paradigm, a constitu-
tion is characterized by being “extremely invasive, meddlesome, capable of conditioning
both legislation and jurisprudence and doctrinal style” (153). Under this model, judges
must incorporate into their reasoning not only the provisions embodied in the con-
stitution but also the elements and regulatory standards that are part of the entire
constitutionalist block as a whole (that is, that which is formed by international
commitments, agreements, and treaties). As an effect, the intention is for constitutional
action to be able to impact on political actors and social relationships. Specifically, this
means that the consolidation of the neo-constitutional model produces a change of
perception not only in operators and interpreters of law but also in citizens themselves,
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 11

because in the context of this paradigm, constitutional interpretation is no longer the

exclusive domain of the judiciary, but is expanded to instead be understood as an
exercise in argumentation that can withstand public scrutiny. On this basis, neo-
constitutionalism aspires to have a clear cultural and social impact by achieving at
least three objectives: (1) to promote a dialogic model among all branches and organs of
the state; (2) to make all areas of public life subject to constitutional judicial parameters;
and (3) to ensure constitutional standards are used by the main political actors to argue
and defend their political choices or of governance. This is what Alexy calls the
“proliferation of the constitution to all areas of the state and legal system” (Alexy
1993, 108).
Finally, neo-constitutionalism is derived from constitutional texts that are strongly
substantive. However, it not only applies these substantive contents, it also creates
them. Based on this paradigm, it is essential that constitutions are not limited merely to
enshrining rights. It is also necessary that judges are able to interpret them so that these
recognized or written rights may lead to the establishment of other rights for unfore-
seen cases. This is what Colombian law considers cases of unstated rights (or not
specifically named). For example, Article 94 of the Colombian Constitution states:
“The enunciation of rights and protections contained in the Constitution and in
international agreements in force, should not be construed as a denial of others
which, being inherent in the human person, are not expressly mentioned therein”.
Hence the interpreters of the constitution (charged with performing constitutional
jurisprudence as well as ordinary judges) are not limited only to carrying out a literal
interpretation of it, but undertake a broad interpretation, using whenever possible the
pro homine principle and argumentum a simili.
It goes without saying that criticism of neo-constitutionalism has been increasing in
recent years on several fronts. For Ferrajoli, the proliferation of principles within neo-
constitutionalism has involved the introduction of moral arguments that “weaken the
law” (Ferrajoli 2010, 15–33). Others have accused neo-constitutionalism of offering
more a theory of power (aimed at favoring the elite authority of judges) than a theory of
law (Viciano Pastor and Martínez Dalmau 2014, 71). For Perez Luño, there is a risk that
the incorporation of so many moral and axiological elements may generate a consider-
able degree of indeterminacy and ambiguity incompatible with conceptual rigor (Pérez
Luño 2003, 59).
I do not underestimate any of these criticisms, even if I can give a convincing
response to each. Nevertheless, at this time I am not interested in doing so in this
text. My interest is to argue on behalf of the necessity to seek what is new in the NLC in
different terms than those considered by scholars.
The influence of neo-constitutionalism in the NLC is not widespread. In that sense I
think that Gargarella’s criticism (that there is nothing new in the NLC) applies to some
countries but not others. For example, in the neo-constitutional paradigm, judges
acquire great importance, as the legal mechanism must be guaranteed in all its parts
and in each judicial branch. Countries like Mexico, in which the court has a strong
ability to control the lower levels of the judiciary, make it impossible for these bodies to
properly fulfill their role. The Mexican model severely limits the internal independence
of judges, which leads to decisions that tend to move to higher courts through a
centralized control (even if Mexico operates under a diffuse system of constitutional
12 F. CURCÓ COBOS

review). These centralized controls are handled and manipulated by those in power to
prolong the conditions of political domination by certain groups on the rest of society.
When, however, judicial review is diffuse and effective, as in the Argentinean model,
this tends to open more fluid channels of communication between social claims and
judicial authorities at lower levels.
While Mexico represents the clearest example of neo-constitutional backwardness
and administration of justice, in contrast countries such as Colombia have shown a
clear trend toward introducing each of the elements we have previously used to describe
neo-constitutional theory. This is true particularly in three areas: (1) affording justice to
citizens; (2) justiciability of political, economic, social, and cultural rights; and (3) a
certain democratization of law. It is in the progress and achievement of each of these
three points where I find what is new about the NLC. As these are the advances that I
consider have been overlooked by Gargarella, let me then conclude by explaining each
of them in detail.

Affording justice to citizens

As we saw in previous sections, the history of Latin American constitutionalism, like
that of the United States, is the history of a constitutionalism built from the “top down”
and not from the “bottom up” (here I borrow the expression of Sousa Santos 2009).
That is, a constitutionalism that was created by elites in order to facilitate dialogue and
understanding between them, which at the same time sought to drive away majorities
from the nucleus of power. To reverse this trend, neo-constitutional theory seeks to
recover the link with the people: to make citizens trust in law and justice again. In that
sense, says Sousa, neo-constitutionalism offers the possibility of a counter-hegemonic
use of a hegemonic instrument like the constitution (Sousa Santos 2009, 80). In
Colombia, the most significant procedural innovation to promote this is the particular
version adopted in its legislation of the recurso de amparo through the acción de tutela
(roughly, writ of amparo, which has no legal equivalent outside of certain Latin
American jurisdictions, and which is a kind of legal remedy for the protection and
enforcement of constitutional and/or “fundamental” rights).
The traditional amparo safeguarded the immediate protection of rights in cases of
threat or violation thereof by any public authority. In Colombia, however (upon
examining compliance with the Constitution of the addenda of its Article 42), the
court found that, in certain cases linked to the provision of a public service or those that
severely affect the public interest, the acción de tutela may be brought against actions or
omissions of individuals who provide a service or violate any fundamental right.4 In
addition, the acción de tutela in Colombia extends the material scope of the protection
of rights not only to civil and political rights but also to social, economic, and cultural
rights. This, in turn, brings us to the next point.

Justiciability of economic, social, and cultural rights

A right is justiciable when subjected to jurisdiction and noncompliance is remediable by
the courts. Obviously, this immediately gives rise to a series of issues, first of a structural
sort. It is often argued that economic and social problems involve issues of public policy
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 13

and budget allocations that are part of the jurisdiction of legislatures, not the courts.
Ordering legal measures to guarantee food, access to water, health, or education is
something that involves a systemic dimension. This necessitates an institutional rede-
sign that requires various government agencies to come to an agreement. Moreover, the
following is unquestionable: concern for the invasion of powers between branches of
government does not justify denying access to an effective remedy for an individual
who cannot otherwise find the recourse to assert his or her right of access to minimum
and dignified living conditions. To deny an active role to the courts in this regard would
mean leaving without any real recourse those who see their rights violated every day.
Moreover, it would mean that there is no institutional body before which the govern-
ment is held accountable.
Faced with these problems, the Colombian justice system has provided important
solutions: courts do not seek to legislate but to point out the flaws of formulation or
implementation of laws, while also punishing cases of omission or negligence on the
part of administrative authorities in the performance of their duties (Constitutional
Court of Colombia, Decision T-622/95). In this sense it means that the courts are not
intended to legislate or impinge upon the powers of other branches of government, but
rather to cooperate with the government as part of the state apparatus in order to
guarantee rights. This also covers cases in which the state fails to fulfill its obligations
not by omission or negligence but rather because of lack of resources. In such
circumstances, the state is urged to take urgent legislative and administrative measures
necessary to remedy the violation of rights (Constitutional Court of Colombia, Decision
C-176/96). This is consistent with the understanding that constitutional rights have a
structure of principles which leads to claims of progressive optimization (Constitutional
Court of Colombia, Decision SU-225/98). The progressive nature of the duty to allow
the exercise of these rights does not imply, however, that states may delay taking urgent
measures to make them effective. On the contrary, the state has an immediate obliga-
tion to implement processes that guarantee the material conditions necessary to safe-
guard the livelihood of its citizens. This seeks to further an unstated fundamental right
to a minimum standard of living conditions and resources necessary for a dignified
existence. Derived from the principle of progressivity, the obligation arises to avoid any
kind of regression to a state in which rights are afforded a lesser degree of protection. In
some Latin American countries, the obligation to progressively extend rights is not
directly linked to the proportional expansion of fiscal resources, while in others, such as
Ecuador, the constitution states that the budget for health care should increase in
proportion to the GDP.
These examples are relevant for a very specific reason. I want to strongly draw
attention to this, because this is where the entirety of my normative argument rests. The
foregoing shows that something is indeed new in the NLC. In some countries of the
region (unfortunately not in others), independent judicial activism has overcome
archaic jurisprudence. That archaic jurisprudence is the remnant of a passive constitu-
tionalism, merely programmatic, consisting of judicial decisions devoid of any practical
effect and whose history we reviewed in the previous sections. A window of opportunity
opens when the courts demand that active judicial intervention be put in place and
strengthened throughout the judiciary. This type of judicial activism, aimed at achieving
the aims of the constitution and its social project, has certainly had a certain novel
14 F. CURCÓ COBOS

effect: the processes of acción de tutela in Colombia have led to decisions that mandated
installing drains in slums. The Constitutional Chamber of the Supreme Court of Costa
Rica has ordered the construction of hospitals. Brazilian judges have managed to save
lives by ordering the delivery of essential medicines to sick people without resources.
The Constitutional Court of Guatemala stopped a coup in 1993. These are some
achievements, in no way decisive, but that let glimpse the hope of overcoming what
Gargarella has called “legal alienation”. An alienation – let us remember – that is the
result of institutions that historically were designed to: (1) not expose the elites to
popular pressure; and (2) confer the weight of reasonable decisions to an elite of
representatives distanced from the interests of the majority (Gargarella 1996).
Obviously, with these examples I do not intend to suggest that the justiciability of
political and social economic rights should be understood as a phenomenon exclusive
to the NLC (for a broad perspective see Langford 2008 on this issue). The South African
experience, since the adoption of its new Constitution in 1996, which contains fully
justiciable social and economic rights, has demonstrated the way in which recognition
of the justiciability of social and economic rights facilitates the hearing of previously
silenced voices. The South African Court, for instance, has had the ability to decide
cases in which there are reasons to believe that the government (or local governments)
have failed to apply the principle of the progressive realization of rights when it comes
to improving responsiveness to demands for justice (see, for instance: Soobramoney vs.
Minister of Health (CCT32/97) 1998 (1) SA 765 (CC). Moreover, the South African
Constitutional Court has refuted the argument that judicial intervention in relation to
governmental policymaking would violate the separation of powers doctrine (see
Minister of Health vs. Treatment Action Campaign). The Supreme Court of Canada
enunciated a similar position in Newfoundland (Treasury Board) vs. N.A.P.E). My
claim, therefore, is only to show that the justiciability of political and social economic
rights is one of the features that constitutes a structural part of the NLC. This brings me
to my third and final point.

Relative democratization of the legal system

A judicial activism as heretofore described has led to some Latin American courts
reaching surprising and unexpected decisions and undertaking innovative practices,
such as the following. Before issuing a ruling, in countries like Brazil and Argentina,
the courts have organized public hearings that bring together public officials, citi-
zens, and experts to participate. The purpose of these hearings is to encourage
democratic deliberation, allowing courts to obtain better information, listen to all
the arguments, and enhance the debate between the parties. A famous example of
this is the Mendoza case in Argentina. The contamination of the Matanza-Riachuelo
River that runs through Buenos Aires affected the lives of millions of people. This
contamination resulted in massive violations of health and environmental rights. The
responsibility for this violation was distributed among several state and private
actors: the National Government, the Province of Buenos Aires, the City of
Buenos Aires, as well as more than 44 companies. To break the impasse and force
a solution to a structural problem such as this, the court decided to convene a series
of public hearings with the participation of all involved, including representatives
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 15

from non-governmental organizations (NGOs), scientists, and academics. This

allowed many marginalized voices to be heard. After coordinating this process, the
courts ordered the national government to offer a coherent plan for the clean-up and
recovery of the river as well as the relocation of the people affected. Finally, the
courts implemented an ambitious monitoring plan to certify that the proposed plan
is carried out (as of the date of writing the plan is still active). Of course, the long
judicial process initiated in 2004 has been exposed to various criticisms. The same
has happened with similar instances in Brazil. However, it is difficult not to agree
that experiments like these, even while being perfectible, are thoroughly healthy in
democratic terms (Dorf and Sabel 1998, 267).
In other cases, the courts have avoided operating as referees and have directly
assumed the role of mediators between conflicting actors. This is particularly feasible
in circumstances in which the conflict between two actors is partially attributable to a
situation of shared uncertainty. For example, the expansion or reduction of military
jurisdiction introduces a scenario of uncertainty about the legal consequences this will
have for civilians and members of the military. In such circumstances, the courts may
facilitate an understanding by providing relevant information to the parties. The courts
are in a privileged position to take on this task. Following this example, statistics on the
frequency of military violations of human rights can provide useful data to determine
the degree of discretion that may be granted to the army. Providing information about
the legal consequences that could arise from such actions is another way to reduce
uncertainty in the relationship between civil and military courts. This would explain the
successful resolution in Colombia after the 1991 constitutional change that led the court
to define the scope of military jurisdiction, thus encouraging agreement and reasoned
deliberation among the stakeholders. Of course, all of this supposes a very strong and
impartial judiciary. I suspect that this constitutes a very important model to take into
account in studies of transitional justice.

Conclusions
All the examples of judicial activism that I have given orchestrate deliberative mechan-
isms, contribute to the formation of collective agreements, and provide mechanisms to
respond to government inaction by encouraging accountability. My conclusion is that
these neo-constitutional instruments of the NLC contribute, at least in part, to the
reduction of the democratic deficit in Latin American politics.
My interest here has been to show the NLC as a result of a complex historical
process. The process begins when particular rights are included in constitutional texts
and continues when local groups take hold of that language to express their particular
aspirations. As Brinks, Gauri, and Shen show (2005, 289), “the struggle to realize social
rights is a political one, grounded in and pursued through local structures of demand.
In the course of that struggle, rights acquire local particularities”. What that means is
that most of the legal novelties I have mentioned in the paper – like better access to
justice or the implementation of public hearings – had their beginnings in constitu-
tional reforms. Nevertheless, many of the characteristics that I have attributed to the
NLC owe their origin to the jurisprudence. For example, the principle of progressive-
ness is not expressly recognized in all Latin American constitutions. However, its
16 F. CURCÓ COBOS

inclusion as a criterion of interpretation and orientation of legislative policies has been

the touchstone to resolve a significant number of legal problems brought to the
attention of constitutional and ordinary judicial authorities. In other cases, such as
Mexico, the principle of progressiveness has been incorporated from the first article of
the Constitution. In others, such as Costa Rica, the progressiveness rule of economic,
social, and cultural rights has become part of the block of constitutionality owing to
judgments 2002–11,598 and 2003–02743 of the Chamber, which recognize Article 26 of
the American Convention on Human Rights.
As part of the historical process that gives rise to the NLC, I therefore recognize all
the elements that Rodriguez Garavito also attributes to such a process: new constitu-
tions or constitutional reforms that have consolidated the democratic rule, fundamental
innovations that have been introduced in state institutions, social movements that have
turned to the law to advance their causes, and processes of globalization that have had
profound effects on legal norms and practices (Rodriguez 2005)
Nevertheless, I want to conclude with a couple of clarifications. The neo-constitu-
tional instruments of the NLC are quite nascent. Although many of them have been
undergoing implementation for decades, they are still clearly in an embryonic stage.
Moreover, I have insisted that their implementation in the region is very uneven.
Countries such as Colombia, Brazil, Argentina, Ecuador, and Guatemala have taken
very significant steps towards the justiciability of rights, fighting corruption, and the
protection and safeguarding of rights. However, at the other end, the legal system in
countries like Mexico remains in a situation of utter obscurantism: a national court
without a professional career service, with no social activism, rulings inevitably subject
to pro-government political forces, an inoperative justice system, scandalous levels of
impunity, and courts at the service of organized crime.
The second warning I want to make concerns the scope of the legal system. I am
aware of the modest effect that the legal system may have to correct ancestral institu-
tional failures or to confront recurring political, social, and economic crises in the
region. The legal circumstances of a country are usually symptomatic of more complex
structural issues. No doubt the legal strength of institutions (as shown in the case of
Colombia) may partially contribute to a favorable change in those circumstances;
however, I do not want to give the impression of exaggerating the importance of the
legal system and constitutional history. I have only sought to analyze here constitu-
tionalism as one more significant variable.
Finally, the impact of neo-constitutionalism in the NLC far from guarantees citizens
a central role in constitutional interpretation, compliance, and practice. In that sense,
the legal reality of Latin America is still very far from the popular constitutionalism
proposed by authors like Larry Kramer (2004) and Richard Parker (1993). Some
countries, such as Bolivia, have, however, taken great strides in that direction.
Without going any further, Article 198 of the Bolivian Constitution provides for the
election through universal suffrage of the members of the Supreme Constitutional
Court.
Throughout, my interest has been to explore the potential for social transformation
and that of the state such as one could expect from the NLC. Evidently, my concern is
more political than legal. And while my optimism regarding this potential is quite
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 17

moderate on the whole, I think that in the final analysis – for the reasons I have shown
– it is less pessimistic than Gargarella’s.

Notes
1. In the years that make up the period I have defined as the “counter-majoritarian stage”,
there is definitely a general trend, but I am also aware that in those years there are
constitutional manifestations that represent clear exceptions to this trend. Such is the case,
for example, of the Argentinean Constitution of 1853, or the Mexican one from 1857. A
variety of historical factors contributed to that: worldwide, the European revolutions of
1848; locally, the success of the liberal plan of Ayutla against the dictatorship of Santa Anna
in Mexico (and the restoration of unicameralism)
2. Let us remember the words of Madison in Federalist No. 58: “the more numerous any
assembly may be, of whatever characters composed, the greater is known to be the ascen-
dancy of passion over reason”. Also, those of Hamilton in The Federalist No. 6: “Are not
popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice,
and of other irregular and violent propensities?”
3. Thus, the constitution drafted by Bolivar for Bolivia in 1826 gave the president a lifetime
tenure. In Paraguay, José Gáspar Rodríguez of France proclaimed himself in 1813 “Perpetual
Dictator” (inspiring the famous novel by Roa Bastos “I, the Supreme”). In the late eighteenth
century, Francisco de Miranda was elevated as the Plenipotentiary Dictator of the First
Republic of Venezuela. This contrasts with a paradoxical fact: Latin American countries held
elections before Europe and Asia (Annino 1995, 10).
4. The Amendment to the Law of amparo in Mexico in 2013 sought a similar result in its text.
However, for the reasons I stated above, in practice this reform is merely lifeless text due to
the political forces to which legal bodies are subjected in Mexico. The journalist Carmen
Aristegui (famous for leading the investigation that exposed presidential corruption in the
case of the so-called “White House”) was fired from the company she worked at shortly after
publishing her report. The Appellate Court denied the journalist amparo, arguing that her
contractual dismissal should be settled in civil court. This meant ignoring the role played by
an individual who operates a radio franchise granted by the state. According to the
Amendment to the Law of amparo, this would have required giving the franchisee a position
of authority, especially involving a company whose public function performs constitutional
purposes as a medium for the free dissemination of ideas.

Notes on contributor
Felipe Curco Cobos has a PhD in Political Theory. He received his PhD in Political Theory from
the University of Barcelona, specializing in contemporary political thought. He was a Fulbright
scholarship holder in Social Sciences and professor at the University of Barcelona (Spain). He has
also been a professor at the Faculty of Philosophy of UNAM (Mexico). He has taught several
courses in Mexico and abroad. Presently he is a full time associate professor and investigator at
the Academic Department of Political Science at ITAM (Mexico). In Mexico he has participated
and collaborated with the Judicial Federation TV Channel. He was a scholarship holder at the
Institute of Philosophical Research (UNAM, Mexico). He has been a member of the Mexican
National System of Researchers since 2009. His most recent publications have been on the debate
between Latin American political philosophy and European political thought (“Latin American
Political Thought before Discourse Ethics”, in Latin American Research Review, Vol 50, no. 4),
the question being whether normative elements exist or not in the thought of Karl Marx (“Is
there a Normative Theory of Justice in Marx?”, in Topicos, 52), and the normative and moral
analysis about the violence in Mexico (“Gewalt und das nackte Leben in Mexiko in Zeiten des
18 F. CURCÓ COBOS

Imperiums”, in Krieg und Frieden: Politisch Kulturforschung, Peter Lang Edition, Samuel
Salzborn/Holger Zopf (Hrs.)).

References
Alamán, L. 2008. Examen Imparcial De La Administración De Bustamante. México: Conaculta.
Alberdi, J. B. 1981. Obras Selectas, ed. V. Joaquin. Buenos Aires: González.
Alexy, R. 1993. Teoría De Los Derechos Fundamentales. Madrid: CEC.
Alexy, R. 2009. “Derechos Fundamentales, Ponderación Y Racionalidad.” Revista Iberoamericana
De Derecho Constitucional Procesal 11: 3–14.
Annino, A. 1995. Historia De Las Elecciones En Iberoamérica. México: Fondo de Cultura
Económica.
Bolivar, S. 1812. “Manifiesto de Cartagena.” Accessed 4 April 2018. http://www.biblioteca.org.ar/
libros/1232.pdf.
Brinks, D. M., V. Gauri, and K. Shen. 2015. “Social Rights Constitutionalism: Negotiating the
Tension between the Universal and the Particular.” Annual Review of Law and Social Science
II: 289–308. doi:10.1146/annurev-lawsocsci-110413-030654.
Carbonell, M., ed. 2010. Neoconstitucionalismo(S). Madrid: Trotta.
De Sousa Santos, B. 2009. Pensar El Estado Y La Sociedad: Desafíos Actuales. Buenos Aires:
Waldhuter.
Dorf, M., and C. Sabel. 1998. “A Constitution of Democratic Experimentalism.” Columbia Law
Review 98: 250–267. doi:10.2307/1123411.
Dworkin, R. 1977. Taking Rights Seriously. Cambridge: Harvard University Press.
Ferrajoli, L. 2010. “Constitucionalismo Principialista E Constitucionalismo Garantista.” Doxa.
Cuadernos De Filosoía Del Derecho 34: 15–53.
Gargarella, R. 1996. La Justicia Frente Al Gobierno. Barcelona: Ariel.
Gargarella, R. 2003. “El Periodo Fundacional Del Constitucionalismo Latinoamericano” (1810–
1860).” Desarrollo Económico 43 (170): 305–328. doi:10.2307/3455825.
Gargarella, R. 2005. Crisis De Representación Y Constituciones Contramayoritarias. Alicante:
Biblioteca Virtual Miguel de Cervantes.
Gargarella, R. 2008. Teoría Y Crítica Del Derecho Constitucional. Vols. I-II. comp. Buenos Aires:
Abeledo-Perrot.
Gargarella, R. 2010. The Legal Foundations of Inequality. Cambridge: Cambridge University
Press.
Gargarella, R. 2013. Latin American Constitutionalism: 1810-2010. Oxfrod: Oxford University
Press.
Gargarella, R., and C. Courtis. 2009. El Nuevo Constitucionalismo Latinoamericano: Promesas E
Interrogantes. Santiago de Chile: Cepal.
Gargarella, R., L. Filippini, and A. Cavanna. 2011. Recientes Reformas Constitucionales En
América Latina. Reporte UNDP. New York: United Nations Development Programme.
Gargarella, R., P. Domingo, and T. Roux, eds. 2006. Courts and Social Transformation in New
Democracies. London: Ashgate.
Guastini, R. 2007. Estudios De Teoría Constitucional. México: IIJ-UNAM-Fontamara.
Jeferson, T.1785. Notes on the State of Virginia. Accessed 2015 11 17 http://www.encyclopedia
virginia.org.
Kramer, L. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. Oxford:
Oxford University Press.
Langford, M., ed. 2008. Social Rights Jurisprudence. Cambridge: Cambridge University Press.
Linz, J., and A. Stepan. 1978. The Breakdown of Democratic Regimes. Baltimore: John Hopkins
University Press.
Linz, J., and A. Valenzuela. 1994. The Failure of Presidential Democracy. Baltimore: John
Hopkins University Press.
 CANADIAN JOURNAL OF LATIN AMERICAN AND CARIBBEAN STUDIES 19

Lippman, W. 1956. The Public Philosophy. New York: Mentor Books.

Madison, J. ed. 1865. “Majority Government.” In Letters and Other Writtings,
Vol. 4. Philadelphia: J.P. Lippincort.
Manin, B. 1994. “Checks, Balances, and Boundaries: The Separation of Powers in the
Constitutional Debate of 1787.” In The Invention of the Modern Republic, edited by B.
Fontana. Cambridge: Cambridge University Press.
Martínez Dalmau, R. 2011. “El Nuevo Constitucionalismo Latinoamericano: Fundamentos Para
Una Construcción Doctrinas.” Revista General De Derecho Público Comparado 9: 1–24.
O’Donnnell, G. 1994. “Delegative Democracy.” Journal of Democracy 5 (1): 3–24.
Parker, R. 1993. ““Here, the People Rule.” A Constitutional Populist Manifiesto.” Valparaiso
University Law Review 27 (3): 531–584.
Pérez Luño, A. E. 2003. Trayectorias Contemporáneas De La Filosofía Del Derecho. Sevilla: Grupo
Nacional de Editores.
Przeworski, A. 2000. Democracy and Development. New York: Cambridge University Press.
Rodriguez, G., ed. 2005. Law and Society in Latin American: A New Map. New York: Taylor &
Francis Group,Routledge.
Uprimny, R. 2011. “Las Transformaciones Constitucionales Recientes En América Latina:
Tendencias Y Desafíos.” In El Derecho En América Latina: Un Mapa Para El Pensamiento
Político En El Siglo XXI, edited by R. Garavito. Buenos Aires: Siglo, XXI.
Viciano Pastor, R., and R. Martinez Dalmau 2014. “La Constitución Democrática, Entre El
Neoconstitucionalismo Y El Nuevo Constitucionalismo.” Debates Constitucionales en Nuestra
América. Accessed 05 03 2015 http://ilsa.org.co:81/biblioteca/dwnlds/od/elotrdr048/2.pdf>.
Zagrebelsky, G. 1999. El Derecho Dúctil. Madrid: Trotta.