Mpil Research Paper Series

MPIL RESEARCH PAPER SERIES | No.
2016-21
IUS CONSTITUTIONALE COMMUNE

EN AMÉRICA LATINA: A REGIONAL
APPROACH TO TRANSFORMATIVE
CONSTITUTIONALISM
Armin von Bogdandy, Eduardo Ferrer Mac Gregor, Mariela
Morales Antoniazzi, Flavia Piovesan, Ximena Soley
Electronic copy available at: https://ssrn.com/abstract=2859583

MPIL RESEARCH PAPER SERIES
No. 2016-21
IUS CONSTITUTIONALE COM-

MUNE EN AMÉRICA LATINA:
A REGIONAL APPROACH
TO TRANSFORMATIVE
CONSTITUTIONALISM
AUTHORS
Armin von Bogdandy, Eduardo Ferrer Mac Gregor, Mariela Morales Anto-
niazzi, Flavia Piovesan, Ximena Soley
EDITORIAL DIRECTORS
Armin von Bogdandy, Anne Peters
EDITOR-IN-CHIEF
Steven Less
TECHNICAL ASSISTANCE
Verena Schaller-Soltau
Angelika Schmidt
STUDENT ASSISTANT
Eda Oez
2
ABSTRACT
This contribution introduces the multiple dimensions of Ius Constitutionale Commune en América
Latina (ICCAL), a regional approach in transformative constitutionalism. The concerns and nor-
mative commitments that drive this project are addressed. To this end, the complicated Latin
American reality is given center stage: the role of law in society, the role of courts, the state of
democracy, and the effects of corruption and private power. Considering that Latin America is a
region where constitutionalism is very much alive and fiercely debated, ICCAL is situated in the
rich regional constitutionalist discourse. Its similarities and differences with other strands of con-
stitutionalism, namely neoconstitutionalism and the new Latin American constitutionalism, are
laid bare.
KEYWORDS:
ius constitutionale commune, transformative constitutionalism, Latin American constitutionalism,

democracy, human rights, rule of law, Inter-American Court of Human Rights
MPIL Research Paper Series No. 2016-21

3
IUS CONSTITUTIONALE COMMUNE EN AMÉRICA LATINA: A REGIONAL APPROACH
TO TRANSFORMATIVE CONSTITUTIONALISM
Armin von Bogdandy, Eduardo Ferrer Mac Gregor,

Mariela Morales Antoniazzi, Flavia Piovesan, Ximena Soley*
SUMMARY: I. The Idea and Thrust of Ius Constitutionale Commune en América Latina.
II. A Short Introduction to a Long List of Ailings.
III. ICCAL in the Changing Latin American Constitutional Landscape.
I. The Idea and Thrust of Ius Constitutionale Commune en América Latina
We, a diverse group of scholars from Europe and Latin America, have been cooperating for
over a decade on Latin American legal issues. 1 We study them with a public law focus: our
main interest is the law governing the exercise of public authority, that is, authority that
should advance the common good. This brought us to constitutional law, administrative law,
general public international law, regional integration law, human rights, investment law, but
also to debates with economists, political scientists and theorists, as well as historians. Over
the years, we have increasingly clustered around the term Ius Constitutionale Commune en
América Latina (ICCAL). ICCAL indicates an original Latin American path of transformative
constitutionalism which we wish to introduce with this book to the English speaking world. 2
As most legal terms, ICCAL has multiple dimensions.
* Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public Law and International
Law. Eduardo Ferrer Mac Gregor is a judge and the Vice-President of the Inter-American Court of Human
Rights. Flávia Piovesan is Professor of Constitutional Law and Human Rights at the Catholic University of São
Paulo and Special Secretary for Human Rights of Brazil. Mariela Morales Antoniazzi is a Senior Research
Fellow at the Max Planck Institute for Comparative Public Law and International Law. Ximena Soley is a
Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.
We are grateful to Jesús Casal, Leonardo García Jaramillo, Sabrina Ragone, Pablo Saavedra, Elizabeth Salmón,
Judith Schönsteiner, José María Serna, René Urueña, and Pedro Villarreal for most valuable suggestions on this
paper.
1
For an overview of our publications please refer to <http://www.mpil.de/de/pub/forschung/nach-
rechtsgebieten/oeffentliches-recht/ius-constitutionale-commune/publicaciones.cfm>.
2 This research paper is the introduction to an edited volume entitled ‘Transformative Constitutionalism in Latin
America: The Emergence of a New Ius Commune’ to be published by Oxford University Press in 2017.
MPIL Research Paper Series No. 2016-21 1

First, ICCAL has an analytical, even ontological function. We use it to posit a new legal
phenomenon. It is composed of elements from various legal orders which are united by a
common thrust, namely transformative constitutionalism. ICCAL links the American
Convention on Human Rights, other Inter-American legal instruments, 3 the concordant
guarantees of national constitutions, the constitutional clauses opening up the domestic legal
order to international law as well as pertinent national and international case law. To give but
one example of what that means: The legal understanding of the Inter-American Court of
Human Rights (IACtHR) mutates from a lonely international institution tucked away in the
fairyland Republic of Costa Rica 4 into just one of the many servers which nurture the Latin
American web of transformative constitutionalism. That web links the IACtHR to likeminded
domestic courts and tribunals. 5
Second, ICCAL has a normative function. It supports the specific thrust of transformational
constitutionalism in Latin America, as adopted or renewed in the constitutional projects that
followed a period of authoritarian regimes. It aims at expanding the regionally secured
realization of the central promises of national constitutions and portrays the embedding of
various countries in a mutually supportive structure as a key to success. This should help
diffusing human rights standards, compensating national deficits, and fomenting a new
empowering dynamic among social actors.
Third, ICCAL designates a scholarly approach. It is characterized by a disciplinary

combination of national and international legal scholarship, a comparative mindset, and a
methodological orientation towards principles, in particular the triad of human rights,
democracy, and the rule of law. Its logic is incremental, and rights are its main focus and
instrument.
3
For an overview of the instruments making up the Inter-American corpus juris, please see the listing made by
the Court in its webpage: <http://www.corteidh.or.cr/index.php/en/about-us/instrumentos> (accessed 15 July
2016).The instruments of the universal system are also incorporated via the interpretation technique of article 29
ACHR, see IACtHR, Case of the Community Garifuna Triunfo de la Cruz & its members v Honduras (8 October
2015), Series C No. 305, Merits, Reparations and Costs, para. 168.
4
Paraphrasing the perhaps most famous quote on European legal integration, Eric Stein, ‘Lawyers, Judges and
the Making of a Transnational Constitution’ (1981) 75, American Journal of International Law, 1ff. ‘tucked
away in the fairyland Duchy of Luxembourg and blessed, until recently, with the benign neglect by the powers
that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional
framework for a federal type structure in Europe’.
5
Manuel Góngora Mera, ‘Diálogos jurisprudenciales entre la Corte Interamericana de Derechos Humanos y la
Corte Constitucionale de Colombia: una visión coevolutiva de la convergencia de estándares sobre derechos de
las víctimas’ in Armin von Bogdandy, Eduardo Ferrer Mac Gregor and Mariela Morales Antoniazzi (eds), La
Justicia Constitucional y su Internacionalización. ¿Hacia un Ius Constitutionale Commune en América Latina?
(Instituto de Investigaciones Jurídicas, Mexico City, 2010) 403ff.
2 MPIL Research Paper Series No. 2016-21

As the three dimensions of ICCAL show, coining, developing, and propagating this concept is
consequential, and it is meant to be this way. It aims at impacting reality. Law is a social
construct. The terminology of lawmakers, courts, and legal scholars is not external to the law,
but constitutive. It is essential to create and shape the law. This is true for specific legal
institutions, such as freedom of speech or property, as for entire legal regimes, such as
domestic law or international law. ICCAL affirms the very existence of a new legal
phenomenon, one emerged out of the interaction between and the confluence of domestic and
international law, distinguished by its specific thrust.
The concept of ICCAL gives this legal phenomenon an identity, provides orientation, and
aims at generating and structuring academic, political, and judicial communication. By
naming this phenomenon and describing it under a single label, we propose a shared reading
of legal, doctrinal and scholarly phenomena that have, until now, been mainly explored as
separate occurrences. By naming ICCAL, we strive to bring together people and projects of
very diverse backgrounds, who nonetheless share a common belief in the transformative
potential of human rights, democracy, and the rule of law for Latin America.
Law and legal scholarship can make a difference in a social agenda. Latin America provides
an important example of this, precisely regarding human rights. Human rights have developed
over the last thirty years into a common and consequential language, legal—but also political
and social—that did not exist previously. It is not only a language amongst legal
professionals, but also a platform of mobilization for the broader public.
We understand the law that ICCAL bundles as opportunity structures which may be used to
advance a transformative agenda. A tenacious web of institutions and individuals has used
these structures to unleash considerable transformative dynamics. Though many problems
continue to afflict the region, the terms under which power must be justified and claims can
be pursued have changed. The concept of ICCAL connects various strands of that
transformative discourse, which might help to make it more powerful. ICCAL thus highlights
the possible role of law in transforming societies. At the same time, it emphasizes law’s and
scholarship’s responsibility for deficient situations. After all, the structures that lead to Latin
America’s problems are cloaked in law.
Modern legal orders depend on constructs, constructs depend on concepts, concepts depend
on legal scholarship. Refined concepts help to better construct reality, organize, develop and

critique the law, and in our case also the interaction of various legal regimes. Such concepts
do not fall from the sky nor jump up from legal texts but require scholarly effort. This book is
the result of such a project: The various contributions elaborate the concept of Ius
Constitutionale Commune en América Latina by linking various legal phenomena,
experiences, theories. 6 They organize, develop and critique the various legal regimes pushing
for transformation according to the logic of ICCAL. It is to the reader to decide on its
theoretical and practical value.
ICCAL is an inclusive concept. We are adamant that it is not linked to a specific partisan
agenda. But, like any legal concept, it is not neutral or agnostic. Indeed, by its link to
transformative constitutionalism, it professes its normativity and becomes part of broad social
processes. Indeed, many actors, not only jurists, aim at changing political and social realities
of Latin America in order to create the general framework for the full realization of
democracy, the rule of law, and human rights, making Latin American countries more
differentiated and more cohesive at the same time. As abstract and vague as this appears at
first, such a project is in fact quite concrete and precise.
Two elements are at the core of this agenda. The first is to address the profound structural
deficiencies in many countries, often due to weak institutions, which lead to insecurity,
impunity or corruption. A true constitutional democracy is impossible without overcoming
such deficiencies. The second arises out of unacceptable living conditions for broad parts of
the population. Indeed, there is a specific concern for so called ‘vulnerable groups’. 7 A
remarkably stark accent on ‘the social’ is indeed a specific feature of many Latin American
discourses. This distinguishes it from mainstream discourses in Europe or Canada, to say
nothing of the United States. Some authors place the question of inequality at the very center
of their thought. 8 This leads to the thorny issues of equality and redistribution and how
ICCAL authors relate to them. We hold different ideas on economic policy, property
protection and redistribution but we agree that exclusion must be overcome. Inequality can
have many sources, but it is particularly deep, stubborn, and even explosive when entire
groups of the population are not able to participate in the main social systems. That is, when
6
This is, of course, but one of many ways to conceptualize concepts; this understanding relies on Reinhart
Koselleck, Vergangene Zukunft. Zur Semantik geschichtlicher Zeiten, Begriffsgeschichte und Sozialgeschichte
(4th edn, Suhrkamp, Berlin, 2000) 119; ‘Einleitung’, in Otto Brunner, Werner Conze and Reinhart Koselleck
(eds), Geschichtliche Grundbegriffe. Historisches Lexikon zur politisch-sozialen Sprache in Deutschland, vol 1
(Klett-Cotta, Stuttgart 1972), XIII, XXIII.
7
For more detail on how vulnerability has been used by the IACtHR, see Soley in this volume. On the
feminization and ethnization of poverty and human rights violations see Piovesan in this volume.
8
In detail Piovesan and Aldao, Clérico and Ronconi in this volume.

they have no access to health, education, the economy, politics, and legal protection, thus
depriving them from the effective enjoyment of rights. The concept of exclusion describes
this challenge. It opens up an overarching perspective on a society whose capacities for social
integration falter because many people are not given due consideration within their
institutions.9 A society will never truly thrive if it cannot overcome such exclusion, 10 and law
is crucial to that effect. However, while law is a platform to overcome such exclusion, it can
also be used as a tool to perpetuate it.
By the same token, this project aims at inclusion in accordance with constitutional
principles. 11 Constitutions are not limited to the organization of politics, but rather project an
idea of society. Overcoming exclusion and furthering inclusion within constitutional
democracy describes a project which can encompass different, even conflicting approaches to
the social creation of economic value, as well as to questions of redistribution, free trade or
investment protection. As European development after World War II has shown, a project of
social inclusion can be shared and developed by conservative, liberal, and socialist forces. 12
Some conceptual fuzziness regarding ICCAL is for that reason an advantage. 13
These overarching concerns and normative commitments can be usefully read as an agenda of
transformative constitutionalism. They emerge from a fertile ground of debate in Latin
America and beyond, where public law has received a mandate to address authoritarianism, to
strengthen public institutions to advance the common good, as well as to overcome
exclusion. 14
The comparative orientation of pertinent constitutional scholarship gained important

momentum with the founding of the Instituto Iberoamericano de Derecho Constitucional in
1974, which since then has provided a crucial forum for rich scholarly debates on
9
Pointing out that moral and political philosophy today require that everyone be taken into account, Amartya
Sen, The Idea of Justice (Allen Lane, London, 2009) 117. This is connected to the issue of recognition of
identities as developed by Axel Honneth, Kampf um Anerkennung (Suhrkamp, Frankfurt am Main, 1994) and
Nancy Fraser and Axel Honneth, Redistribution or recognition?: A political-philosophical exchange (Verso,
London, New York, 2003).
10
Just see the mea culpa of Neoliberalism in The Economist, ‘Liberalism after Brexit: The politics of anger’
(The Economist Newspaper Ltd, 2 July 2016) 12.
11
The attractiveness of the concept of inclusion did not escape politicians who use it in political struggle. This
does not taint it as a possible academic concept.
12
A testament to that by Tony Judt, Postwar. A History of Europe Since 1945 (Penguin, New York, 2005).
13
For a praise of such concepts Mathias W Reimann, ‘The American Advantage in Global Lawyering’ (2014)
78, Rabels Zeitschrift für ausländisches und internationales Privatrecht, 1-36.
14
Outside Latin America, the term ‘transformative constitutionalism’ is perhaps best known from the South
African transitions. Seminal is Karl E Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14,
South African Journal on Human Rights, 146, 150; in detail see Fowkes in this volume.

comparative constitutional law. 15 It has its seat at the Instituto de Investigaciones Jurídicas of
UNAM (National Autonomous University of Mexico), a central platform for comparative
legal scholarship in the Americas since its foundation in 1940 as a comparative law institute.16
The primary goal of Jorge Carpizo, Héctor Fix-Zamudio, Pedro Frías, Diego Valadés and
Jorge Vanossi was to establish communication between the isolated legal discourses in order
to commonly pursue the idea of constitutionalism in the difficult context of authoritarian
regimes. They were soon joined by jurists from other states, like Brazil, Colombia,
Guatemala, Peru, Uruguay, and Venezuela. 17 What was first mainly an academic project
became ever more a broad social and political process. Towards the end of the 20th century,
many actors, not least many courts, started propelling this idea of the transformative
constitutionalism.18
Transformative constitutionalism is, as the South African case shows most clearly, a global
phenomenon. That is why we think that the Latin-American path is of interest for other parts
of the world, in particular because of its comparative and multilevel dimensions. But also for
scholars from countries where transformative constitutionalism is not common, there are
reasons to engage with the Latin American contributions to constitutionalism. They afford the
opportunity to consider the extent to which the constitutional conceptions of the ‘global
North’ can truly claim to be universal. At the same time, Latin American constitutionalism
has a lesson for those who see key concepts of Northern constitutionalism as exhausted. 19
Indeed, they can gain new energy from the current discussions in Latin America. 20 Of
15
The Instituto Iberoamericano has more than twenty national sections and has organized XII Iberoamerican
Conferences and several other seminars in Latin America. For its most salient publications see
<http://www.juridicas.unam.mx/iidc/publicaciones.htm> accessed 15 July 2016; on its early activities, see
Gerardo Gil Valdivia and Jorge Chávez Tapia (eds), Evolución de la Organización Político-Constitucional en
América Latina (1950-1975) (Tomo I México y Centroamérica, Tomo II Sudamérica y España, Instituto de
Investigaciones Jurídicas, UNAM, México City, 1979).
16
See <http://www.juridicas.unam.mx> accessed 15 July 2016.
17
See Instituto Iberoamericano de Derecho Constitucional, Instituto Iberoamericano de Derecho Constitucional:
1974-2004 (UNAM/IIDC, México City, 2004); Laura Eugenia Rodarte Ledezma, Andrea Enríquez Marín, (eds),
Instituto Iberoamericano de Derecho Constitucional: Trayectoria (UNAM/IIDC, México, 2014).
18
In general about the development of the constitutional jurisdiction in the region Néstor Pedro Sagüés, El
Sistema de derechos, magistratura y procesos constitucionales en América Latina (Editorial Porrúa, Mexico
City, 2004); Humberto Nogueira Alcalá, La jurisdicción constitucional y los tribunales constitucionales de
Sudamérica en la alborada del siglo XXI (Editorial Porrúa, Mexico City, 2004). Rodolfo Piza Escalante,
‘Legitimación Democrática en la Nueva Justicia Constitucional de Costa Rica’, in Juan C Castro Loría (ed),
Libro homenaje al Profesor Eduardo Ortiz Ortiz (Universidad Autónoma de Centroamérica, Colegio Santo
Tomás de Aquino, San José, 1994).
19
Martti Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’ (2010) 1,
Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 47; Koskenniemi,
The Politics of International Law (Hart Publishing, Oxford, 2011) 133.
20
On this possible contribution of the Global South, see: Jean Comaroff and John L Comaroff, Theory from the
South. Or, How Euro-America is Evolving Toward Africa (Paradigm Publishers, Boulder, 2012) in particular 1-
19.

particular relevance are the insights on the potential, but also the limits of activist courts in
social transformations, the different modes of interaction between domestic law and the
international legal system, and the role of civil society and transnational activism in reform
agendas. Moreover, Latin America has had many years of experience with the phenomenon of
weak public institutions, of increasing relevance in Europe. 21 The study of Latin America
therefore relates in many aspects to European and global phenomena. 22 As the establishment
of the International Society of Public Law shows, the intertwining of political theory, political
science, constitutional law, comparative law, integration law and international law is both a
current and universal theme. 23
Our confidence in the global relevance of the Latin American experience is fed by the depth
of Latin American constitutionalism. It has been around for over 200 years, and thus for much
longer than many European states and most states in the world. Latin America has in
particular labored with three constitutional ideologies: conservatism, informed by catholic
Spain, liberalism, informed by the US before the New Deal, and radicalism, informed by
French socialism. 24 Many think that these ideologies have seen their days and new ideas are
being developed. Latin America is a rich laboratory of constitutional theory and practice,
building on a long-standing legacy of original and trend setting contributions such as the writ
of amparo 25 or the constitutionalization of social rights. 26 ICCAL has joined this discussion.
II. A Short Introduction to a Long List of Ailings
21
Beate Sissenich, ‘Weak States, Weak Societies: Europe’s East-West Gap’ (2010) 45, Acta Politica 11, 19-23.
22
On this perspective see Thomas Duve, ‘Von der Europäischen Rechtsgeschichte zu einer Rechtsgeschichte
Europas in globalhistorischer Perspektive‘ (2012) 20, Rechtsgeschichte, 18-71.
23
Programmatically Joseph H H Weiler, ‘The International Society for Public Law – Call for Papers and Panels’
(2014) 12, International Journal of Constitutional Law, 1-3.
24
Roberto Gargarella, ‘Latin American Constitutionalism 1810-2010. The Engine Room of the Constitution’
(OUP, New York, 2013), in particular at 197. César Astudillo and Jorge Carpizo (eds), Constitucionalismo: Dos
siglos de su nacimiento en América Latina (Instituto de Investigaciones Jurídicas, Mexico DF, 2013); Ernesto de
la Torre Villar and Jorge García Laguardia, Desarrollo histórico del constitucionalismo Hispanoamericano
(Instituto de Investigaciones Jurídicas, Mexico DF, 1976); Domingo García Belaunde, Francisco Fernández
Segado and Rubén Hernández Valle (eds.), Los sistemas constitucionales iberoamericanos (Dykinson, Madrid,
1995).
25
See Brewer-Carías in this volume and Héctor Fix-Zamudio, ‘The Writ of Amparo in Latin America’ (1981)
13, University of Miami Inter-American Law Review, 361; Fix-Zamudio and Ferrer Mac-Gregor (eds), Derecho
de amparo en el mundo (Editorial Porrúa, México, 2006); Carlos M Ayala Corao, Del amparo constitucional al
amparo interamericano como institutos para la protección de los derechos humanos (Editorial Jurídica
Venezolana, Caracas, 1998).
26
The Mexican Constitution of 1917 being the first to constitutionalize social rights. For more on this see Grote
in this volume.

ICCAL’s transformative constitutionalism addresses structural deficiencies and exclusion.
This part of our introduction has the double aim to better describe these challenges. To this
end, we focus first on the studies on the weak normativity of the law, then on courts,
democracy, corruption, and private power.
Since ICCAL is a legal approach aimed at transformation through law, we need to confront
the many reservations regarding the potential of law in Latin America to achieve any type of
meaningful transformation. The key words in this sense are structural deficiencies, weak
institutions and exclusion. However, it is important to stress that law in Latin America is not
generally weak. Rather, it is unevenly effective. In some respects, it seems all-too effectively
enforced in order to protect established interests. On this point, it is telling that some Latin
American countries have a high ranking in indicators on ‘regulatory quality and efficiency’
for the purposes of fostering investment, sometimes even surpassing European countries. 27 By
contrast in others areas, the law lacks effectiveness, in particular when called to protect those
in weaker social positions. 28 The rule of law is in such instances more a lofty objective than a
constraining reality. 29 Sometimes it seems pure window dressing. In some instances, there is
sheer unwillingness of state authorities to comply with the law. In other instances, non-
compliance is due to weak capacities on the part of states, deficits in institutions, procedures
or practices. 30 There are geographical areas or thematic issues in which public institutions do
not, and perhaps cannot stand up to private actors, not even in protecting essential rights, such
as life, liberty, security, or property. 31
The problem is not so much that inadequate laws are in force, although some instances of this
are obviously present, but rather that admirable legal frameworks are not abided by or applied
in a selective fashion. This problem is also analyzed as an implementation gap, in particular
27
Although countries within Latin America fare quite unevenly in this regard, some of them, like Mexico (38),
Chile (48), Peru (50), Colombia (54) and Costa Rica (58) are well-positioned in the global ranking of 189
countries. See Doing Business 2016. Measuring Regulatory Quality and Efficiency (13th edn, The World Bank,
Washington, 2015) in particular at 5.
<http://www.doingbusiness.org/~/media/GIAWB/Doing%20Business/Documents/Annual-
Reports/English/DB16-Full-Report.pdf> accessed 15 July 2016.
28
Juan E Méndez, Paulo Sérgio Pinheiro and Guillermo O’Donnell, The (Un)Rule of Law and the
Underprivileged in Latin America (University of Notre Dame Press, Chicago, 1999).
29
Marcelo Neves, A constitucionalização simbólica (Martins Fontes, São Paulo, 2007); ibid, Verfassung und
Positivität des Rechts in der peripheren Moderne (Duncker und Humblot, Berlin, 1992).
30
Antonio M Hernández, Daniel Zovatto and Manuel Mora y Araujo, Encuesta de cultura constitucional:
Argentina, una sociedad anómica (Instituto de Investigaciones Jurídicas, Mexico DF, 2005).
31
An argument running through Mauricio García Villegas and José Rafael Espinosa R, El derecho al estado. Los
efectos legales del apartheid institucional en Colombia (Dejusticia, Bogota, 2013); Thomas Risse and Stephen C
Ropp, ‘Introduction and Overview’, in Thomas Risse, Stephen Ropp and Kathyrn Sikkink (eds), The Persistent
Power of Human Rights. From Commitment to Compliance (CUP, Cambridge, 2013) 17-18.

with respect to human rights. Most states have accepted international human rights norms,
have incorporated them into their domestic law, and have created protection mechanisms for
individuals. But this is not enough for true human rights compliance. Social scientists have
concluded that to advance with human rights, stronger institutions have to be built up,
political culture changed, social and economic structures modified. The international relations
literature shows that transition from normative acceptance to true compliance is a bottleneck
that only a few states manage to get through. 32 This is precisely the phase at which most state
parties to the American Convention find themselves. At the same time, it seems safe to state
that democracies are generally more concerned about their international standing and are thus
easier to sway by pressure from international organs. 33 We see this as supporting our
multilevel approach.
Because of its focus on rights and their protection, ICCAL attributes an important role to
judges and courts. Though courts are certainly not the only institutions to uphold the law, it
seems impossible to have the rule of law without them. Moreover, transformative
constitutionalism attributes a specific and very demanding role to the judiciary. 34
For courts in Latin America to take on such a task does not fit easily with their traditional
role. The judiciary has often not truly checked the power of the executive. Courts have been
rather subservient. 35 The rules on justice nomination have often allowed executives to stack
those courts in its favor. 36 Some executives went so far as to dismantle a court that showed
32
For a review of the literature, see Beth A Simmons, ‘Compliance with International Agreements’ (1998) 1
Annual Review of Political Science, 75-93; ibid, ‘Treaty Compliance and Violation’ (2010) 13, Annual Review
of Political Science, 273-96.
33
Anja Jetschke and Andrea Liese, ‘The power of human rights a decade after: from euphoria to contestation?’,
in Thomas Risse, Stephen Ropp and Kathyrn Sikkink (eds), The Persistent Power of Human Rights. From
Commitment to Compliance (n31) 17.
34
Roberto Gargarella, Pilar Domingo, Theunis Roux (eds), Courts and Social Transformation in New
Democracies (Ashgate, Burlington, 2006); Oscar Vilhena Vieira, Upendra Baxi and Frans Viljoen (eds),
Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa (PULP,
Pretoria, 2013) 3-4; Daniel Bonilla Maldonado (ed), Constitutionalism of the Global South: The Activist
Tribunals of India, South Africa, and Colombia (CUP, New York, 2013).
35
Susan Eva Eckstein and Timothy Wickham-Crowley, ‘Struggles for Justice in Latin America’, in Eckstein and
Wickham-Crowley (eds), What Justice? Whose Justice? Fighting for Fairness in Latin America (University of
California Press, Berkeley, 2003) 7.
36
For example Ortega in order to be eligible for re-election or Chavez as well documented in the report of the
Inter-American Commission on Human Rights, Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II.
Doc. 54, 30 December 2009, especially Section III, 46ff.

too much independence. 37 Not least for these reasons, trust in the judiciary is notoriously low.
On average, 67% of Latin Americans have little or no trust in it, for some reason. 38
Another difficulty for a social transformation by law and courts is that access to justice is
rather difficult for certain sectors of society. 39 Those in most dire need of judicial protection,
persons belonging to vulnerable groups, tend to lack the means to engage in lengthy and
costly judicial proceedings with uncertain results. By some estimates, around half of the
population in the region has no real access to justice. 40 Although great quantities of money
have been invested in judicial reform in the region, 41 important hurdles must still be
overcome. For instance, judicial congestion remains an endemic challenge in the region. 42
The boom in human rights litigation is not due to the action of excluded individuals, but
rather to that of civil society organizations and clinics in the region’s law schools. Outside of
these, the chances for success of individuals is limited, if not doomed.
At the same time, there is evidence of transformative successes. Salient examples are: The
1985 trial of the Juntas in Argentina established the existence of a systematic plan to
imprison, torture and kill political opponents; members of the ruling military juntas were
found guilty of a range of human rights violations. 43 The Supreme Court of Chile prosecuted
37
This was the case of Peruvian strongman Alberto Fujimori in 1997, see Eckstein and Wickham-Crowley,
‘Struggles for Justice in Latin America’ (n35) 8.
38
Latinobarometer 2015, answer to the question ‘Please look at this card and tell me how much trust you have in
each of the following groups/institutions. Would you say you have a lot (1), some (2), a little (3) or no trust
(4)...? We considered the percentage of those answering little or no trust in the judiciary. Complete database
available at <http://www.latinobarometro.org/latOnline.jsp> last accessed 15 July 2016.
39
OEA, Acceso a la justicia: llave para la gobernabilidad democrática. Informe final del proyecto
‘Lineamientos y buenas prácticas para un adecuado acceso a la justicia en las Américas’ (OEA, Washington,
2007) 23ff; OEA, El acceso a la justicia como garantía de los Derechos económicos, sociales y culturales.
Estudio de los estándares fijados por el sistema interamericano de derechos humanos (OEA/Ser.L/V/II.129
Doc. 4, 7 September 2007).
40
<https://www.giz.de/de/downloads/giz2014-sp-factsheet-dirajus-america-latino.pdf> accessed 15 July 2016.
For an enlightening study regarding access to the legal system, rights and the legal system in Colombia, see
García Villegas and Espinosa R, El derecho al estado. Los efectos legales del apartheid institucional en
Colombia (n31) especially Chapter two, 40ff.
41
Julio Faundez and Alan Angell, Reforma judicial en América Latina: El rol del Banco Interamericano de
Desarrollo, <http://www.sistemasjudiciales.org/content/jud/archivos/notaarchivo/467.pdf> accessed 15 July
2016.
42
OEA, Acceso a la justicia: llave para la gobernabilidad democrática. Informe final del proyecto
‘Lineamientos y buenas prácticas para un adecuado acceso a la justicia en las Américas’ (n39) 68-70.
43
Leonardo Filippini, Criminal Prosecutions for Human Rights Violations in Argentina, ICTJ Prosecutions
Program, 2009; Kathyrn Sikkink, ‘From pariah state to global protagonist: Argentina and the struggle for
international human rights’ (2008) 50(1), Latin American Politics and Society, 1-29; Naomi Roht-Arriaza, ‘After
Amnesties are Gone: Latin American National Courts and the New Contours of the Fight Against Impunity’
(2015) 37, Human Rights Quarterly, 341-382.

Manuel Contreras, Pinochet’s second in command. 44 Peru prosecuted and incarcerated former
President Alberto Fujimori, 45 and a Guatemalan Criminal Court tried its former Head of State
and dictator Ríos Montt in the face of overwhelming resistance by the all-powerful business
establishment and the country’s military. 46 The Colombian Constitutional Court famously
decided against re-election, which Uribe accepted, thereby acknowledging its great
authority. 47 Although challenges remain regarding the independence of the judiciary, massive
changes have occurred in the past decades that point towards a more self-assured and
independent judiciary. Many millions of dollars have flown into judicial reform and judges
have come to realize that they too can play a role in making their societies fairer. So it is not
science fiction to trace important developments in the construction of a common regional
constitutionalism back to the legal process.
We are aware that advancing a transformative agenda through legal process raises many
challenges. Of course, the judiciary cannot substitute policy making through political
institutions. If courts are perceived as ‘politicized’, whatever that means, that will ‘undermine
their legally grounded legitimacy’. 48 However, more than a discussion on the abstract role of
courts in a political system, one needs to ask what is the appropriate role for courts in political
and social context of Latin America, particularly in terms of exclusion and institutional
weakness, as pointed out before. This leads to consider foremost ‘what other channels are
there to address such concerns, how effective are they, what opportunities are available to
vulnerable groups to have their concerns addressed.’ 49 When political institutions are grid-
locked or captured, there is a good case to make for courts to become engaged. Many theories
of democracy recognize that courts can get legitimacy from addressing deficits of the
democratic process. 50
44
Cath Collins and others, ‘Silencios e Irrupciones: Verdad, Justicia y Reparaciones en la Postdictadura chilena’,
in Tomás Vial Solar (ed), Informe Anual sobre Derechos Humanos en Chile 2015 (Universidad Diego Portales,
Santiago de Chile, 2015) 21-73.
45
Jo Marie Burt, ‘Guilty as Charged: The Trial of Former President Alberto Fujimori for Human Rights
Violations’ (2009) 3, The International Journal of Transitional Justice, 384-405.
46
Susan Kemp, ‘Guatemala Prosecutes former President Ríos Montt. New Perspectives on Genocide and
Domestic Criminal Justice’ (2014) 12, Journal of International Criminal Justice, 133-156;
Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente, (10 May 2013), Judgment C-
01076-2011-00015 Of. 2º.
47
Colombian Constitutional Court (26 February 2010), Judgment C-141/10,
<www.corteconstitucional.gov.co/relatoria/2010/c-141-10.htm> accessed 15 July 2016.
48
Siri Gloppen, ‘Courts and Social Transformation: An Analytical Framework’, in Gargarella, Domingo, Roux
(eds), Courts and Social Transformation in New Democracies (n34) 39.
49
Gloppen, ‘Courts and Social Transformation: An Analytical Framework’, in Gargarella, Domingo, Roux (eds),
Courts and Social Transformation in New Democracies (n34) 39.
50
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (HUP, Cambridge, 1980).

Another systemic problem in the region is corruption. In many Latin America countries,
power is often used for personal enrichment or to advance the interests of one’s own social
group. 51 The perception of corruption in the region is high, and severely dents the acceptance
of democracy as a desirable form of government. 52 In some countries, citizens are regularly
faced with corruption, not only as an abstract scandal touching high spheres of government 53
but as a daily occurrence in their own lives. Palms must be greased in order for even the
smallest government services to be provided in a timely manner. 54 Over half of the countries
in the region are placed in the bottom half of most governance indicators, including
Transparency’s International Corruption Perception Index, the Rule of Law Index, and most
Governance Indicators compiled by the World Bank. This erodes trust in democratic
institutions.55
ICCAL stresses not only human rights and the rule of law, but also democracy. The
democratic system is strained by widespread poverty, deep inequalities, ethnic divides and in
some cases bad economic performance. 56 These factors weaken democratic institutions in the
region and affect the attitude that many Latin Americans have towards democracy. 57 Many
Latin Americans do not seem to be die-hard democrats. Even more daunting, the region kept
failing to ‘produce’ more democrats over time. 58 To the question on the Latinobarometer
survey ‘democracy is preferable to any other type of government’ the regional average is a
51
Guillermo O’Donnell, ‘Corporatism and the Question of the State’, in James M Malloy (ed), Authoritarianism
and Corporatism in Latin America (University of Pittsburgh Press, Pittsburgh, 1977).
52
Peter H Smith, Democracy in Latin America: Political Change in Comparative Perspective (OUP, New York,
2005) 307.
53
Studying corruption in Mexico in depth, Irma Sandoval Ballesteros (ed), Corrupción y transparencia:
Debatiendo las fronteras entre Estado y Mercado (Siglo XXI Editores, Mexico DF, 2009). Mentioning the
prevalence of corruption scandals in Brazil, Oscar Vilhena Vieira, ‘Inequality and subversion of the rule of law’,
in César Rodríguez Garavito (ed), Law and Society in Latin America. A New Map (Routledge, Abingdon, 2015)
35-36.
54
Gary Prevost and Harry Vanden, Latin America: An Introduction (OUP, Oxford, 2011) 247 - related to the
problem of an unprofessional bureaucracy based on clientelism.
55
Daniel Zovatto, The State of Democracy in Latin America (Brookings, 15 September 2014)
<https://www.brookings.edu/opinions/the-state-of-democracy-in-latin-america/> accessed 15 July 2016;
Gretchen Helmke and Steven Levitsky (eds), Informal Institutions and Democracy, Lessons from Latin America
(The Johns Hopkins University Press, Baltimore, 2006) – on how formal and informal institutions interact in
new democracies; Charles H Blake and Stephen D Morris (eds), Corruption and Democracy in Latin America
(University of Pittsburgh Press, Pittsburgh, 2009).
56
For data on inequality see: CEPAL: Panorama social en Latinoamérica 2015 (March 2016),
<http://repositorio.cepal.org/bitstream/handle/11362/39965/1/S1600227_es.pdf> accessed 15 July 2016;
historical data, Gini and others: <http://repositorio.cepal.org/bitstream/handle/11362/4095/1/S2013244_es.pdf >
accessed 15 July 2016.
57
Scott Mainwaring and Frances Hagopian, ‘Introduction: The Third Wave of Democratization in Latin
America’, in Scott Mainwaring and Frances Hagopian (eds), The Third Wave of Democratization in Latin
America: Advances and Setbacks (CUP, Cambridge, 2005) 5.
58
Latinobarometer 2016. Full report in http://www.latinobarometro.org/latNewsShow.jsp

worrying 54%. 59 The causes for this are multiple and complex. Data from the past 20 years
suggest that not only economic crisis trigger distrust towards democratic institutions, but also
persistent inequality, violence and corruption. 60 In that sense, many not only want respect of
their electoral, civil and political rights but also claim for security, jobs, a higher standard of
living - and some seem willing to support authoritarian regimes to get them. 61 In other words,
‘democracy is not the only game in town’. 62 Democratic regimes have only been marginally
better at achieving such social goals, making it more difficult for citizens to associate
democracy with personal improvements. Yet, despite a lack of widespread entrenchment of
the value of democracy in the population, elites do express a much firmer commitment to this
form of government than was the case several decades ago. 63 The threat of a military takeover
has largely receded. Although authoritarian tendencies remain, 64 there is a greater
commitment to making democratic institutions work. 65 Hence, the principle of democracy has
some solid ground, on which ICCAL can build.
Weak institutions are often linked with populist politics. Populism was not abandoned with
the last wave of democratization.66 The surge of popular support for strong leaders who vow
to address the economic concerns of their citizens was to be expected after the neoliberal
policies, which dismantled social programs, yielded only moderate growth, which was,
moreover, unequally shared. The problems with some populist leaders has been the disregard
for institutions, the concentration of power and the disdain for typically liberal civil and
political rights such as freedom of the press and freedom of association. 67 Many of these
leaders also show a disdain for institutions when these are perceived as standing in the way of
59
Latinobarometer 2016, ibid.
60
Latinobarometer 2016, ibid.
61
Smith, Democracy in Latin America: Political Change in Comparative Perspective (n52) 344.
62
Javier Couso, ‘Back to the Future? The Return of Sovereign and the Principle of Non-Intervention in the
Internal Affairs of the State in Latin America’s Radical Constitutionalism’ (SELA [Seminario en Latinoamérica
de Teoría Constitucional y Política], 2015)
<https://www.law.yale.edu/system/files/documents/pdf/SELA15_Couso_CV_Eng.pdf > accessed 15 July 2016.
63
Hagopian, ‘Conclusions: Government Performance, Political Representation, and Public Perceptions of
Contemporary Democracy in Latin America, in Mainwaring and Hagopian (eds), The Third Wave of
Democratization in Latin America: Advances and Setbacks (n57) 324-325.
64
Steven Levitsky and James Loxton, ‘Populism and Competitive Authoritarianism in the Andes’ (2013) 20,
Democratization, 107-136; David Landau, ‘Abusive Constitutionalism’ (2013) 47, University of California
Davis Law Review, 189.
65
The Inter-American Democratic Charter is an important piece of the commitment to democracy.
Unfortunately, its application has been patchy.
66
Kenneth M Roberts, ‘Latin America’s Populist Revival’ (2007) 27(1), SAIS Review of International Affairs,
3; Cas Mudde and Cristóbal R Kaltwasser (eds), Populism in Europe and the Americas: Threat or Corrective for
Democracy? (CUP, Cambridge, 2012); Levitsky and Roberts (eds), The Resurgence of the Latin American Left
(The Johns Hopkins University Press, Baltimore, 2011).
67
On the phenomenon of ‘illiberal democracies’ see Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997)
76, Foreign Affairs, 22-43.

their political agenda. Appeals are made directly ‘to the people’ and legitimacy sought in
opinion polls - plebiscitarian legitimacy. 68 This is not conducive to strong institutions in a
checks and balances system; in large part this goes back to the problem of hyper-
presidentialism. 69
Twenty-first century Latin American Bolivarian socialism is a specific brand of populism. It

has informed politics and policies in particular in Venezuela. 70 There is deep mistrust between
the Venezuelan institutions and the Inter-American human rights system, which resulted in
that country denouncing the American Convention. 71 Traditional bourgeois rights should
yield to social rights, the alleviation of poverty, the battle against unequal income distribution
and the provision of services such as health and education. This has meant curtailment of
freedom of the press (portrayed as an ally of the Empire and the savage economic interests of
the old elites), 72 the limitation of political participation and the manipulation of institutions
(through firings, court-packing 73) when they have stood in the way of such projects. It must
be noted though that, populism is not a phenomenon that can be attached to any specific
ideological orientation. In fact, Latin American populist leaders have shown otherwise. Back
in the 1990s, both Fujimori and Menem combined populist appeals with neoliberal policies. 74
Another aspect of the weakness of democratic government springs from the fact that political
power is tied to private economic forces. They all too often reinforce each other in insidious
68
Guillermo O’Donnell, ‘Delegative Democracy?’ (1994) 5, Journal of Democracy, 63ff.
69
See Valadés in this volume.
70
OEA and PNUD, Nuestra democracia (Fondo de Cultura Económica, PNUD, OEA, México, 2010).
71
IACHR, Deeply Concerned over Result of Venezuela’s Denunciation of the American Convention (IACHR
Press Release No 64/13, Washington D.C., 10 September 2013)
<http://www.oas.org/en/iachr/media_center/PReleases/2013/064.asp.> accessed 15 July 2016.
72
Smith, Democracy in Latin America: Political Change in Comparative Perspective (n52) 272. He has
controlled the press through frequency allocation, has ‘given supporters license to attack journalists, tapped
phone lines and had agents following reporters. On top of that, his program Alo Presidente (a call in show that
can last for hours on end) must be transmitted through all channels and frequencies. Judges have joined in the
attack, arresting critics of the government.
73
See the IACHR, Democracy and Human Rights in Venezuela (30 December 2009), OEA/Ser.L/V/II. Doc. 54;
IACtHR, Case of Chocrón Chocrón v Venezuela (1 July 2011), Series C No. 227, Preliminary Objection, Merits,
Reparations and Costs; ibid, Case of Reverón Trujillo v Venezuela (30 June 2009), Series C No. 197, Preliminary
Objection, Merits, Reparations and Costs; ibid, Case of Apitz Barbera and others (‘First Court of Administrative
Disputes’) v Venezuela (5 August 2008), Series C No. 182, Preliminary Objection, Merits, Reparations and
Costs. The IACHR has closely followed the human rights situation in Venezuela. See IACHR, Annual Report
2015, <http://www.oas.org/en/iachr/docs/annual/2015/doc-en/InformeAnual2015-cap4-Venezuela-EN.pdf>
accessed 15 July 2016.
74
Roberts, ‘Neoliberalism and the Transformation of Populism in Latin America: The Peruvian Case’ (1995) 48,
World Politics, 82, 83; Patricio Navia and Ignacio Walker, ‘Political Institutions, Populism, and Democracy in
Latin America’, in Scott Mainwaring and Timothy R Scully (eds), Democratic Governance in Latin America
(Stanford University Press, Stanford, 2010) 245-267.

ways. Elite capture of institutions has skewed governments. 75 The rules of the political and
economic game are too often drawn up by those that already wield this power in order to
maintain it.76 One does well to remember that from the beginning, the colonial enterprise was
meant to extract the riches of the new world for the benefit of the Crown and a small elite and
at the expense of the masses. This model largely perpetuated itself since ‘those with wealth
have written political rules’. 77 The Chilean constitution lends itself particularly to be read in
this light, Its Constitution of 1980 created an economic constitutional system which has
managed to petrify the traditional wealth distribution, as well as opening business
opportunities for both national and transnational actors. 78
The retreat of the State due to the structural adjustment programs pushed by the Washington
Consensus in the 80s and 90s have exacerbated the power that business elites hold in Latin
America. Policies regarding taxes, spending and regulation are often skewed towards the
economic elites. 79 Electoral politics seem to hold little sway over the actual policies that
governments enact. Unchecked power and law’s selective enforcement are interrelated.
Given these challenges, it is no wonder that the traditional constitutional theories and
doctrines lost their appeal. The authors of ICCAL, aware of these challenges, nevertheless see
a role for transformative constitutionalism. Though it will certainly not bring heaven to earth,
a review of Latin America’s ailings shows that this no reason to give up and that law is
essential to any transformation.
III. ICCAL in the Changing Latin American Constitutional Landscape
The ICCAL builds on many insights developed by Latin American scholarship. Indeed, the
constitutional renaissance after the demise of authoritarian regimes in Latin America has
yielded a substantial body of knowledge on how constitutional law and adjudication should
confront structural deficiencies and exclusion.
75
John Higley and Richard Gunther (eds), Elites and Democratization in Latin America and Southern Europe
(CUP, Cambridge, 1992); Barry Cannon, The Right in Latin America: Elite Power, Hegemony and the Struggle
for the State (Routledge, New York, 2016).
76
Vanden and Prevost, Politics of Latin America: The Power Game (5th edn, OUP, New York, 2015) 154.
77
Prevost and Vanden, Latin America: An Introduction (n54) 187
78
Couso, ‘Trying Democracy in the Shadow of an authoritarian Legality: Chile’s Transition to Democracy and
Pinochet’s Constitution of 1980’ (2012) 29, Wisconsin International Law Journal, 393-415, especially 400.
79
Eckstein and Wickham-Crowley, ‘Struggles for Justice in Latin America’, (n35) 15; Philip Oxhorn, ‘Social
Inequality, Civil Society and the Limits of Citizenship in Latin America’, in Eckstein and Wickham-Crowley
(eds), What Justice? Whose Justice? Fighting for Fairness in Latin America (n35) 52; Terry Lynn Karl, ‘The
Vicious Cycle of Inequality in Latin America’, in ibid, 147-148.

Most important in this respect is a strand of thought which emerged in the 1990s to renovate
Latin American constitutionalism, coined as ‘neoconstitutionalism’
(neoconstitucionalismo). 80 It draws heavily on European innovations in constitutional
democracy after World War II, and particularly on innovations since the 1970s. 81 Core
references are the Italian Constitution of 1947, the German Basic Law of 1949, as well as the
Portuguese and Spanish Constitutions of 1976 and 1978. 82 The Latin American reception of
these European constitutional ideas was not mechanic, but rather they were adapted to the
region’s main problems, namely inequality, poverty, exclusion, human rights-compliance
deficits and problems of political representation. 83 It seems that Spanish scholarship of the
1980s on democratization and rule of law has been of particular importance. 84
Neoconstitutionalism certainly does not amount to one ‘unitary theory’. 85 The term covers
different approaches to the reconfiguration of constitutional law, 86 which however share
important commonalities. One such commonality is the main topics addressed, for example:
the very concept of constitution and its interpretation, its function within the legal system,
how to square the separation of powers doctrine with the new role of judges. Another
commonality is the idea that the entire legal order should be informed by the constitution, in
80
On its philosophical foundations in the Genoese school of legal philosophy see Susanna Pozzolo, ‘Un
constitucionalismo ambiguo’, in Miguel Carbonell (ed), Neoconstitucionalismo (s) (Trotta, Madrid, 2003) 188ff;
Paolo Comanducci, ‘Formas de (neo)constitucionalismo: un análisis metateórico’, in ibid, 75ff; Pedro Salazar
Ugarte, ‘El nuevo constitucionalismo latinoamericano (una perspectiva crítica)’, in Luis Raúl González Pérez
and Diego Valadés (eds), El constitucionalismo contemporáneo. Homenaje a Jorge Carpizo (Instituto de
Investigaciones Jurídicas, Mexico City, 2013) 352.
81
Miguel Carbonell, Neoconstitucionalismo (Diccionario Iberoamericano de Derechos Humanos y
Fundamentales, Universidad de Alaclá, 9 May 2009)
<http://diccionario.pradpi.org/inicio/index.php/terminos_pub/view/101> accessed 15 July 2016.
82
Jesús María Casal, La justicia constitucional y las transformaciones del constitucionalismo (Universidad
Católica Andrés Bello, Fundación Konrad Adenauer, Caracas, 2015) 15ff.
83
Rodolfo Arango, ‘Justiciabilidad de los derechos sociales fundamentales en Colombia. Aporte a la
construcción de un ius constitutionale commune en Latinoamérica’, in Armin von Bogdandy and others (eds),
Construcción y Papel de los Derechos Sociales Fundamentales. Hacia un Ius Constitutionale Commune en
América Latina (Instituto de Investigaciones Jurídicas, Mexico City, 2011) 18, 19; García Jaramillo, Activismo
judicial y dogmática de los márgenes de acción (Centro de Estudios Constitucionales del Estado de
Querétaro, Querétaro, 2016) chap. 1.
84
Eduardo García de Enterría, La Constitución como norma y el Tribunal Constitucional (Editorial Civitas,
Madrid, 1981); On its impact Germán J Bidart Campos, El derecho a la constitución y su fuerza normativa
(Ediar, Buenos Aires, 1995) 19.
85
María Ángeles Ahumada, ‘Neoconstitucionalismo y constitucionalismo’ in Paolo Comanducci, María Ángeles
Ahumada, Daniel González Lagier, Positivismo jurídico y neoconstitucionalismo (Fundación Coloquio Jurídico
Europeo, Madrid, 2009) 135. It is justified to speak about ‘neoconstitutionalisms’, in plural; It was already done
by Carbonell in the compiled book, Neoconstitucionalismo (s) (n80).
86
Neoconstitutionalism profiles are reconstructed in various authors: Pozzolo (ed) Neoconstitucionalismo,
Derecho y derechos (Palestra, Lima, 2011); Luis Prieto Sanchís, ‘Neoconstitucionalismos. Un catálogo de
problemas y argumentos’ (2010) 44, Anales de la Cátedra Francisco Suárez, 461-506; Carbonell, García
Jaramillo (eds), El canon neoconstitucional (Madrid, Trotta, 2010); Carlos Bernal Pulido, El
neoconstitucionalismo y la normatividad del derecho (Bogotá, Universidad Externado, 2009).

particular by its fundamental rights, including social fundamental rights. Some speak of the
‘constitutionalism of human rights’ 87 others of ‘constitutionalized legal orders’. 88
Neoconstitutionalism is also marked by ambition: it seeks to establish ‘a new legal theory’, 89
‘a new legal culture’, 90 and deep transformations, conceptual, legal, and social.
Neoconstitutionalism posits that the constitution is far more than a mere frame for politics.
Indeed, the mechanics of state organization receive rather little attention. 91 The main focus is
on the rights and principles that a constitution enshrines. To give impact to these rights and
principles, a constitution’s rigidity becomes a core topic. Interpretation is another main
concern: all law should be interpreted according to constitutional mandates. This should bring
about the constitutionalization of the legal order which in turn is considered helpful for
advancing a social agenda. For that same reason, jurisdictional guarantees and progressive
interpretation of rights are pivotal to neoconstitutionalism. 92
Neoconstitutionalism puts much emphasis on constitutional principles, which are connected

to values. For this reason, neoconstitutionalism is often close to the idea of a ‘moral reading
of the constitution’. The long catalogues of fundamental rights, be they civil, political,
economic, social or cultural are considered legislative mandates that must be developed
through legislation. Every branch of the legal system (public law, private law, social law) has
a constitutional dimension. 93
Neoconstitutionalism highlights the normative value of all constitutional rules, principles and
directives. It posits that every constitutional norm, regardless of its structure, is genuinely
capable of producing legal effects. This emboldens constitutional courts. Since constitutional
principles are not formulated in a concrete and precise way, courts must determine their
meaning. Techniques of constitutional interpretation and balancing become central. Many
87
Prieto Sanchís, El constitucionalismo de los derechos (Madrid, Trotta, 2013) 24, 25.
88
Luís Roberto Barroso, El neoconstitucionalismo y la constitucionalización del derecho (UNAM-IIJ, Mexico
City, 2008); Alfonso García Figueroa, Criaturas de la moralidad. Una aproximación neoconstitucionalista al
derecho a través de los derechos (Trotta Editorial, Madrid, 2009) 60.
89
César Rodríguez Garavito (ed), Law and Society in Latin America: A New Map (n53); Detlef Nolte and Almut
Schilling-Vacaflor (eds), New Constitutionalism in Latin America. Promises and Practices, (1edn, Ashgate,
Farnham, 2012).
90
García Jaramillo, ‘El neoconstitucionalismo en el contexto de la internacionalización del derecho
constitucional: el caso colombiano’, in Griselda D Capaldo, Jan-Reinhard Sieckmann and Laura Clérico (eds),
Internacionalización del derecho constitucional, constitucionalización del derecho internacional (Eudeba,
Buenos Aires, 2012) 814.
91
The main thesis of Gargarella in this volume.
92
Carlos Bernal Pulido, Du néoconstitutionnalisme en Amérique latine (L’Harmattan, Paris, 2015) 9ff.
93
See Jesús María Casal, La justicia constitucional y las transformaciones del constitucionalismo (n82) 26ff.

authors focus on law application, i.e. in legal reasoning and the justification of judicial
decisions. 94 This explains much of the interest in authors such as Robert Alexy, Ronald
Dworkin, or Peter Häberle.
Accordingly, it seems that there is a ‘standard version of the neoconstitutionalist theory of

law’, whose main elements include ‘substantive but pluralist constitution, conflictivism,
principles, deliberation, defeasibility, singular right answer as in Dworkin, or, at least,
medium discretion through a distilled rational argumentation’. 95 This does not impede
diversity under the label neoconstitucionalismo, both terminologically and substantially. As
debates unfolded in the 1990s, it became clear that a distinction existed between positivist
and antipositivist constitutionalism,96 which for some was related to natural law. 97 Some
observed a distinction between a strong and a weak neoconstitutionalism, the latter being
closer to positivist theses. 98 Some texts are more descriptive, listing the internal
characteristics of constitutional texts, others rather prescriptive in the sense that they posit
what the proper functions of the constitution should be, the normative value of constitutional
rules, principles and directives; how constitutional norms should be interpreted or how far the
normative force of the constitution should reach.
Neoconstitutionalism (neoconstitucionalismo) is to be distinguished from new Latin

American constitutionalism (nuevo constitucionalismo latinoamericano). 99 This is a
subsequent constitutional movement which shows more distance to constitutionalism of the
‘Global North’. It has been particularly influential within the constitution-setting processes
and the constitutional texts of Venezuela in 1999, Ecuador in 2008 and Bolivia in 2009.100
94
Manuel Atienza, ‘Constitución y argumentación’ (2007) 24, Anuario de Filosofía del Derecho, 197-228.
95
Luis Prieto Sanchís, ‘Neoconstitucionalismos (Un catálogo de problemas argumentos)’ (2010) 44, Anales de
la Cátedra Francisco Suárez, 485.
96
Juan A García Amado, ‘Derechos y pretextos. Elementos de crítica del neoconstitucionalismo’, in Carbonell
(ed), Teoría del neoconstitucionalismo (Trotta Editorial, Madrid, 2007) 239.
97
See Luigi Ferrajoli, ‘Constitucionalismo principialista y constitucionalismo garantista’ (2011) 34 DOXA,
Cuadernos de filosofía del derecho, 17.
98
Alfonso García Figueroa, ‘La teoría del Derecho en tiempos de constitucionalismo’, in Carbonell (ed),
Neoconstitucionalismo(s) (n80) 159-186.
99
Roberto Viciano Pastor and Rubén Martínez Dalmau, ‘Fundamentos teóricos y prácticos del nuevo
constitucionalismo latinoamericano’ (2011) 48, Gaceta Constitucional, 307. See also Corte Constitucional de
Ecuador para el período de transición, El nuevo constitucionalismo en América Latina (1edn, Corte
Constitucional del Ecuador, Quito, 2010).
100
Marcelo Neves speaks of bolivarianism and monolithic democracies. Neves, ‘La concepción del Estado de
Derecho y su vigencia práctica en Suramérica, con especial referencia a la fuerza normativa de un derecho
supranacional’, in Armin von Bogdandy, César Landa Arroyo, Mariela Morales Antoniazzi (eds.), ¿Integración
suramericana a través del Derecho? Un análisis interdisciplinario y multifocal (Centro de Estudios Políticos y
Constitucionales, Madrid, 2009) 70. See for other approach Phoebe King, ‘Neo-Bolivarian Constitutional
Design: Comparing the 1999 Venezuelan, 2008 Ecuadorian, and 2009 Bolivian Constitutions’, in Denis J

Pedro Salazar notices the differences at the theoretical level, but also in practice, insofar as
these constitutions are the product of popular processes which adopted distinctive institutions
with a populist pedigree. 101
Constitutional texts as well as scholarship identified with new Latin American

constitutionalism show five core features: 102 (1.) increased emphasis on social, economic and
cultural rights, rather than on civil and political rights; (2.) emphasis on ‘participatory
democracy’, rather than on ‘representative democracy’ (‘citizen power’ in Venezuela, ‘social
control’ in Ecuador, and mechanisms of popular participation); (3.) recognition of collective
subjects as political actors (i.e. indigenous peoples, with rights to participate in politics; (4.)
vindication of the rights of indigenous peoples, re-designing state institutions to guarantee
those rights, going beyond the concept of multiculturalism and creating, as in the case of
Bolivia and Ecuador, the notion of the ‘plurinational state’, and (5.) increased state
intervention in the economy against economic neo-liberalism and the free market system. 103
Moreover, the constitutional texts identified with this trend are explicitly or implicitly
connected with a strong intention to transform the material conditions of society. They also
intend to go beyond the ideological framework of liberal constitutionalism. 104 At the same
time, it is important to note that the constitutional experiences and practices of Bolivia,
Ecuador and Venezuela are not identical. Thus, the Venezuelan constitution maintains a
multicultural approach, whereas Bolivia and Ecuador declare themselves as plurinational
states, generating diverse identity politics. Bolivia is embedded in a specific diversity-oriented
constitutionalism aiming at social inclusion, namely of indigenous peoples (legislative seats
for indigenous representatives, an indigenous judicial system, indigenous ownership of
natural resources as well as a right to autonomy and self-government). 105 Another difference
Galligan, Mila Versteeg (eds), Social and Political Foundations of Constitutions (CUP, New York, 2013) 366-
397.
101
Salazar Ugarte, ‘El nuevo constitucionalismo latinoamericano (una perspectiva crítica)’, (n80) 351.
102
See José María Serna de la Garza, ‘Problemas, novedades y desafíos del constitucionalismo latinoamericano’,
in Serna de la Garza (ed), Contribuciones al Derecho Constitucional (UNAM-IIJ, Mexico City, 2015) 697-714.
103
Ramiro Ávila Santamaría posits that the 2008 Constitution of Ecuador ‘incorporates an equalitarian model
based on solidarity, protection of less favored or most disadvantaged population, and on a State that can only be
strong’. Ramiro Ávila Santamaría, ‘Del Estado legal de derecho al Estado constitucional de derechos y justicia,
in Gisela Elsner (ed), Anuario de Derecho Constitucional Latinoamericano ( KAS, Montevideo, 2009) 776ff.
104
Rodrigo Uprimny Yepes, ‘Recent Transformation of Constitutional Law in Latin America: Trends and
Challenges’ (2010) 89, Texas Law Review, 1587–1609.
105
Art. 5.I of the Constitution of Bolivia: The official languages of the State are Spanish and all the languages of
the rural native indigenous nations and peoples, which are Aymara, Araona, Baure, Bésiro, Canichana,
Cavineño, Cayubaba, Chácobo, Chimán, Ese Ejja, Guaraní, Guarasu'we, Guarayu, Itonama, Leco, Machajuyai-
kallawaya, Machineri, Maropa, Mojeñotrinitario, Mojeño-ignaciano, Moré, Mosetén, Movima, Pacawara,

is that in Venezuela this new Latin American constitutionalism has subverted the essential
meaning of democracy, 106 even the usually complacent OAS has expressed as much. 107
Neoconstitutionalism and the new Latin American constitutionalism are perhaps the two most
prominent strands of thought, but certainly not the only ones. The so called
‘internationalization of constitutional law’ is another. 108 It became particularly vivid with the
Mexican opening towards international human rights law in 2011. 109 However, the
internationalization of constitutional law is by no means an unquestioned paradigm. Some
voices are very critical towards such an opening, questioning the democratic legitimacy of
international law. 110 Another important recent academic trend is looking beyond the region
and finding common ground with other transformations in the Global South. 111
It is in this thick discursive context that ICCAL intervenes. It builds on and interacting with
those prior debates, their successes, insights, but also blind spots. ICCAL certainly shares
their belief in the transformative potential of law, if properly embedded in broader social
processes. Moreover, it builds on and reconstructs the wealth of judicial activity with a
transformative agenda.
ICCAL does not position itself against the main theoretical insights that the debates of
neoconstitutionalism or the new Latin American constitutionalism have produced, but rather
Puquina, Quechua, Sirionó, Tacana, Tapiete, Toromona, Uruchipaya, Weenhayek, Yaminawa, Yuki, Yuracaré
and Zamuco.
106
Steven Levitsky, Lucan A Way, Competitive Authoritarianism: International Linkage, Organizational Power
and the Fate of Hybrid Regimes (CUP, New York, forthcoming); Steven Levitsky, ‘Populismo y autoritarismo
competitivo’, La República (26 September 2011) <http://larepublica.pe/columnistas/punto-de-vista-steven-
levitsky/populismo-y-autoritarismo-competitivo-26-09-2011> accessed 15 July 2016; Allan R Brewer-Carías,
Authoritarian Government v. the Rule of Law. Lectures and Essays (1999-2014) on the Venezuelan
Authoritarian Regime Established in Contempt of the Constitution (Editorial Jurídica Venezolana, Caracas,
2014) 986.
107
OAS, ‘Press Release E-057/16. Venezuela: Statement from the OAS Secretary General Luis Almagro’ (May
10, 2016) <http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-057/16> accessed 15 July 2016.
108
Capaldo, Sieckmann and Clérico (eds), Internacionalización del derecho constitucional,
constitucionalización del derecho internacional (n90).
109
On June, 2011, a constitutional reform was approved, in which the pro-persona principle was explicitly
inserted into the text of Article 1, consisting inter alia of granting international human rights treaties a privileged
status for constitutional interpretation by judges, See for example José de Jesús Orozco Henríquez, ‘Los
derechos humanos y el nuevo artículo 1° constitucional’ (2011) 28, IUS: Revista del Instituto de Ciencias
Jurídicas de Puebla, México, 85-98; Serna de la Garza, Impacto e implicaciones constitucionales de la
globalización en el sistema jurídico mexicano (IIJ-UNAM, Mexico City, 2012) 240ff.
110
There have been voices that propose an idiosyncratic constitutional discourse, focused on so-called
‘constitutional identity’, espousing the lack of legitimacy of international law. See Manuel Nuñez Poblete,
‘Introducción al concepto de identidad constitucional y a su función frente al Derecho supranacional e
internacional de los derechos de la persona’ (2008) 14, Ius et Praxis, 331-372. Such arguments have come from
all sides of the political spectrum, but have not reached the mainstream Latin American discussion.
111
See, for example, Daniel Bonilla Maldonado (ed), Constitutionalism of the Global South: The Activist
Tribunals of India, South Africa, and Colombia (n34).

against the distortion of constitutionalism with ideological-populist goals, i.e. with the
dismantling of the rule of law and democracy through populism. For ICCAL, strict respect of
separation of powers and representative democracy are crucial.
At the same time, ICCAL conceives itself as bringing some innovations to the current context
of Latin-American constitutional debate to face systemic deficiencies and exclusion. It builds,
far more than neoconstitutionalism, on the Inter-American system of human rights, whose
influence in the region the authors of the 1990s could not foresee. For that reason, ICCAL’s
analytical focus is not the individual national constitution, but rather the transnational
interaction of domestic public law in various countries both horizontally and with
international institutions. This interaction certainly occurs in different degrees and ways in
each of the different countries. There are cases of intense interaction (i.e. Colombia) 112 as
there are cases in which the interaction can be described as merely emerging (i.e. Chile). 113
This transnational prism makes ICCAL an essentially comparative undertaking.
Comparativism is imprinted into ICCAL’s scholarly DNA. Scholars form a network whose
first interest is the constant dialogue between domestic legal developments and international
human rights governance in light of socio-economic challenges. In the same vein, ICCAL
encompasses both scholars of domestic and of international law, who follow their object of
research regardless of whether borders of legal orders must be crossed. ICCAL links domestic
public lawyers who see in comparative and international law an essential dimension of their
trade, with international lawyers who understand that there is no global without the local. All
these scholars join efforts to explore the emergence of a common constitutional law in Latin
America. We think that the thick web of comparative constitutional law and regional human
rights law with its many institutions, stakeholders and actors is showing enormous potential to
advance in the transformative agenda. 114 ICCAL, by identifying, framing, and developing this
web, aims at contributing to this process.
112
Manuel J Cepeda Espinosa, ‘The Internationalization of Constitutional Law: A Note on the Colombian Case’
(2008) 41, Law and Politics in Asia, Africa and Latin America, 61-77.
113
Miriam Henríquez, ‘Propuesta inicial sobre derechos constitucionales’, in Lucas Sierra (ed), Propuestas
constitucionales: la academia y el cambio constitucional en Chile (Centro de Estudios Públicos, Santiago, 2016)
44, 45. Some argue the opposite, see Humberto Nogueira Alcalá, Derechos fundamentales, bloque constitucional
de derechos, diálogo interjurisdiccional y control de convencionalidad (UBIJUS, Mexico City, 2014) 39.
114
Uprimny, ‘The Enforcement of Social Rights by the Colombian Constitutional Court: Cases and Debates’, in
Gargarella, Domingo, Roux (eds), Courts and Social Transformation in New Democracies (n34) 127-151;
Cepeda Espinosa, ‘Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian
Constitutional Court’(2004) 3, Washington University Global Studies Law Review, 537–700.

Cover: Imbalanced World, 1996, Veronika Dell‘Olio (photo: Miriam Aziz)
“Essential to our concept was the establishment of a connection to the work and objectives of
the institute. In view of the diversity of the research tasks concerned, we have attempted to high-
light an overarching idea that can be understood as the institute’s mission. We see this as the
ideal of peaceful relations between peoples on the basis of an internationally validated notion of
justice…. The depicted sculpture…[symbolizes] an imbalanced world in which some peoples
are oppressed while others lay claim to dominance and power. The honeycomb form of the circu-
lar disks denotes the [international] state structure. Glass parts … [represent] the individual sta-
tes .… [The division] of the figure … into two parts [can] be interpreted as the separation of the
earth into two unequal worlds. The scissors-shaped base, on the one hand, makes the gap bet-
ween them clear, on the other hand, a converging movement of the disks is conceivable…. The
sculpture [aims] at what is imagined – the possibility of the rapprochement of the two worlds.”
[transl. by S. Less]
Art in architecture, MPIL, Heidelberg
Im Neuenheimer Feld 535

D-69120 Heidelberg
Tel.: +49 (0)6221 482 - 1
Fax: +49 (0)6221 482 - 288
www.mpil.de
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IUS CONSTITUTIONALE COMMUNE

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IUS CONSTITUTIONALE COM-

ius constitutionale commune, transformative constitutionalism, Latin American constitutionalism,