The Rise of Neo-Constitutionalism in Latin America
Since the 1990s, a new legal theory, with a profound impact on politics, emerged in countries with codified law systems. Neo-constitutionalism, a broad movement that advocates for long explicit constitutions and a shift of power towards judicial institutions, seeks to supersede mainstream legal theories of positivism and naturalism (Comanducci 2016, 41-42). Positivist theory holds that only norms approved by the legislative branch, or the legitimate sovereign body, should be obeyed. Naturalism is the rival theory that holds that there are several universal norms that should be obeyed across territories. Neo-constitutionalism has an epistemology and methodology to approach the study of law critically. It is also an ideology that has come to influence the conception and use of constitutions.
Neo-constitutionalism would enable the establishment of an Inter-Latin American common law system, give international law in domestic Latin American courts more sway, and grant international courts binding authority. If neo-constitutionalist ideology is incorporated into the legal systems, courts such as the InterAmerican Court of Human Rights could overturn decisions of the highest domestic courts. This would set precedents that would have to be followed by all judges in countries that are members of that court and it could undermine the sovereignty of regional legislatures. However, this new critical law theory threatens to undermine the principle of divided powers and promotes the idea that the judicial branch should be able to prescribe new laws.
Although some have related the rise of neo-constitutionalism with the development of democracy in Latin America in the 1990s and early 2000s, competition and plurality in politics does not seem to directly affect the independence of these judicial systems (Uprimny, 2011). During the Cold War, as party leadership collapsed in Costa Rica, France, and Israel, their courts began protecting democratic institutions and properly prosecuting people in positions of power. Similarly, countries like Italy, India, and Tanzania with persistent one or two-party hegemonies also experienced more judicial independence due to judges' agency and initiative (Hilbink 2012, 591-595). Instead, the reason why legal scholars and proponents argue that neo-constitutionalism rose is because they claim that it bridges the deficiencies of the legislative branches of countries with codified law.
Miguel Carbonell, one of the leading neo-constitutionalism scholars, identified three main principles of constitutionalism. The first principle states how constitutions should look. Neo-constitutionalism advocates departing from ‘principled’ constitutions that focus on limiting state power and, instead, champions fundamental rights (Carbonell, 2007).
The second principle also takes a jab at traditional Anglo-Saxon systems by stating that norms should not be interpreted in traditional ‘legalist’ grammatical or originalist ways but rather in an ‘interpretivist’ pro-persona approach. In the United States and the United Kingdom, judges must interpret laws exactly as it is written, even if they or the public do not agree with them. They take the sense of those who wrote the laws and apply it to the situation. However, Neo-constitutionalists do not interpret laws as they are written. The pro-persona principle, also known as the pro-homine principle, means that judges should interpret the law in whichever way will give the broadest protection of human rights to benefit the person in question. This has led judges in Mexico, Peru, Argentina, Costa Rica, and Colombia to cite international treaties and Inter-American Human Rights Court decisions in their deliberations (Rodiles 2016, 163-164).
The third principle actively corrects and addresses legislators’ shortcomings. In codified law systems, judges are expected to have a cognitive approach to law. This means they can only cite laws written by legislators in their decisions and they cannot add to them to create new precedents. Under neo-constitutionalism, judges can create new norms by making interpretations that directly contradict the written state and national laws (Paucay 2016).
Each of these principles has complex legal and political consequences. Arguably, in recognizing too many rights, limiting legislative power, and making constitutions longer incorporating mundane reglementary norms, clarity is lost in legislation. The capital problem is that there is no hierarchy placing certain norms over others. It takes power from the people to decide which principles will guide the courts and gives it to the judges. In the case of Mexico’s constitution, indigenous peoples’ rights hold the same weight as national energy and transportation norms. Instead of having a constitution that protects a few vital rights, this constitution puts all of them at the same level. When building infrastructure or extracting natural resources in indigenous lands, courts could approve government projects for ‘the greater good’ and undermine these rights of indigenous people.
The Neo-constitutionalist first principle of the ideal constitution is inconsistent with its third principle. In the first principle, they argue for longer, more explicit constitutions that are likely to have more contradictions. When constitutions have too many articles covering a wide range of topics, legislators can make mistakes and make norms that contradict each other. On the third principle, Neo-constitutionalists argue that judges should have more power to make up for the legislators’ mistakes. A more practical and democratic solution would be to have shorter, more principled constitutions based on what its constituents prefer and have the judges interpret them as they are written.
In theory, the pro-persona principle is certainly a compassionate system, it does however have its downfalls. Unlike law, which is universal, morality is relative. Judges would be faced with making judgements that may not align with the norms created by elected legislators. Also, when the human rights of two groups are at odds, judges will inevitably have to decide which one to favor according to their own morality (Torrijo 2019). Another problem is that this principle does not specify who is the person benefiting from the pro-persona. As in the example of indigenous rights in the Mexican Constitution, judges could use the pro-persona principle to ‘protect’ rights of other people. If the rights of indigenous people are in conflict with the rights of those wanting to build a railway through their sacred jungles, judges could implement their own hierarchy and favor the transportation rights of the people.
Finally, the consequence of the third principle is “high-risk activism” by the courts (Ingram 2012, 440). When judges indirectly make new norms with their own decisions, they become judges of legislators too. This is highly undemocratic. It undermines the division of branches of government—this new role of the judicial branch steps on the legislative branch. Judges would be able to ‘nullify’ laws and impose other norms on people that did not vote for them. On one side, courts across the world have been able to achieve sweeping ‘progressive victories’ using this power. Democracy has its limitations when the majority votes for bad ‘regressive’ norms. On the other side, the judicial system is not meant to replace voters and the legislative power in a democracy. The third principle goes against the democratic will of the people who did not elect legislators to codify the norms that activist judges impose.
Politically, this new idea may bring Latin America closer together, creating an ‘ius constitutionale commune Americanum’ (Hilbink 2012, 156). While regional integration has been slow, Neo constitutionalism has the potential in a de facto binding legal union. It also elevates law creation to a more international level. If international treaties gain sovereignty and binding authority, the intentions and power of local legislators will fade. Latin American neo-constitutionalism could influence other global south legal systems in Asia and Africa. In the global north, the political left-wing in the United States, disillusioned with its judicial system, might consider this model to provide an alternative to the originalist legalist principled approach. However, those interested in adopting this system should consider its shortcomings. Despite being a ‘new’, ‘modern’, and ‘progressive’ system, neo-constitutionalism is not perfect, and it could exacerbate the problems that it seeks to solve.
Photo: Organization of American States Headquarters