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This title examines the political role of courts in new democracies
in Latin America and Africa, focusing on their ability to hold
political power-holders accountable when they act outside their
constitutionally defined powers. The book also issues a warning:
there are problems inherent in the current global move towards
strong constitutional government, where increasingly strong powers
are placed in the hands of judges who themselves are not made
accountable.
Using case studies drawn from Latin America, Africa, India and
Eastern Europe, this volume examines the role of courts as a
channel for social transformation for excluded sectors of society
in contemporary democracies. With a focus on social rights
litigation in post-authoritarian regimes or in the context of
fragile state control, the authors assess the role of judicial
processes in altering (or perpetuating) social and economic
inequalities and power relations in society. Drawing on
interdisciplinary expertise in the fields of law, political theory,
and political science, the chapters address theoretical debates and
present empirical case studies to examine recent trends in social
rights litigation.
Traditionally relegated because of political pressure and public
expectations, courts in Latin America are increasingly asserting a
stronger role in public and political discussions. This casebook
takes account of this phenomenon, by offering a rigorous and
up-to-date discussion of constitutional adjudication in Latin
America in recent decades. Bringing to the forefront the
development of constitutional law by Latin American courts in
various subject matters, the volume aims to highlight a host of
creative arguments and solutions that judges in the region have
offered. The authors review and discuss innovative case law in
light of the countries' social, political and legal context. Each
chapter is devoted to a discussion of a particular area of judicial
review, from freedom of expression to social and economic rights,
from the internalization of human rights law to judicial checks on
the economy, from gender and reproductive rights to transitional
justice. The book thus provides a very useful tool to scholars,
students and litigants alike.
In a time of disenchantment with democracy, massive social protests
and the 'erosion' of the system of checks and balances, this book
proposes to reflect upon the main problems of our constitutional
democracies from a particular regulative ideal: that of the
conversation among equals. It examines the structural character of
the current democratic crisis, and the way in which, from its
origins, constitutions were built around a 'discomfort with
democracy'. In this sense, the book critically explores the
creation of different restraints upon majority rule and collective
debate: constitutional rights that are presented as limits to (and
not, fundamentally, as a product of) democratic debate; an elitist
system of judicial review; a checks and balances scheme that
discourages, rather than promotes, dialogue between the different
branches of power; etc. Finally, the book proposes a dignified
constitutional democracy aimed at enabling fraternal conversation
within the framework of a community of equals.
Comparative constitutional law has a long pedigree, but the
comparative study of constitution-making has emerged and taken form
only in the last quarter-century. While much of the initial impetus
came from the study of the American and French constituent
assemblies in the late eighteenth century, this volume exemplifies
the large comparative scope of current research. The contributors
discuss constituent assemblies in South East Asia, North Africa and
the Middle East, Latin America, and in Nordic countries. Among the
new insights they provide is a better understanding of how
constituent assemblies may fail, either by not producing a document
at all or by adopting a constitution that fails to serve as a
neutral framework for ordinary politics. In a theoretical
afterword, Jon Elster, an inspirational thinker on the current
topic, offers an analysis of the micro-foundations of
constitution-making, with special emphasis on the role of
crises-generated passions.
The long revolutionary movements that gave birth to constitutional
democracies in the Americas were founded on egalitarian
constitutional ideals. They claimed that all men were created equal
with similar capacities and also that the community should become
self-governing. Following the first constitutional debates that
took place in the region, these promising egalitarian claims, which
gave legitimacy to the revolutions, soon fell out of favor.
Advocates of a conservative order challenged both ideals and
favored constitutions that established religion and created an
exclusionary political structure. Liberals proposed constitutions
that protected individual autonomy and rights but established
severe restrictions on the principle of majority rule. Radicals
favored an openly majoritarian constitutional organization that,
according to many, directly threatened the protection of individual
rights. This book examines the influence of these opposite views
during the 'founding period' of constitutionalism in countries
including the United States, Argentina, Colombia, Chile, Ecuador,
Mexico, Peru, and Venezuela.
The long revolutionary movements that gave birth to constitutional
democracies in the Americas were founded on egalitarian
constitutional ideals. They claimed that all men were created equal
and with similar capacities and also that the community should
become self-governing. Following the first constitutional debates
that took place in the region, these promising egalitarian claims,
which gave legitimacy to the revolutions, soon fell out of favor.
Advocates of a conservative order challenged both ideals and
favored constitutions that established religion and created an
exclusionary political structure. Liberals proposed constitutions
that protected individual autonomy and rights but established
severe restrictions on the principle of majority rule. Radicals
favored an openly majoritarian constitutional organization that,
according to many, directly threatened the protection of individual
rights. This book examines the influence of these opposite views
during the founding period of constitutionalism in countries
including the United States, Argentina, Colombia, Chile, Ecuador,
Mexico, Peru, and Venezuela and explores their legacy to our time.
Traditionally relegated because of political pressure and public
expectations, courts in Latin America are increasingly asserting a
stronger role in public and political discussions. This casebook
takes account of this phenomenon, by offering a rigorous and
up-to-date discussion of constitutional adjudication in Latin
America in recent decades. Bringing to the forefront the
development of constitutional law by Latin American courts in
various subject matters, the volume aims to highlight a host of
creative arguments and solutions that judges in the region have
offered. The authors review and discuss innovative case law in
light of the countries' social, political and legal context. Each
chapter is devoted to a discussion of a particular area of judicial
review, from freedom of expression to social and economic rights,
from the internalization of human rights law to judicial checks on
the economy, from gender and reproductive rights to transitional
justice. The book thus provides a very useful tool to scholars,
students and litigants alike.
Comparative constitutional law has a long pedigree, but the
comparative study of constitution-making has emerged and taken form
only in the last quarter-century. While much of the initial impetus
came from the study of the American and French constituent
assemblies in the late eighteenth century, this volume exemplifies
the large comparative scope of current research. The contributors
discuss constituent assemblies in South East Asia, North Africa and
the Middle East, Latin America, and in Nordic countries. Among the
new insights they provide is a better understanding of how
constituent assemblies may fail, either by not producing a document
at all or by adopting a constitution that fails to serve as a
neutral framework for ordinary politics. In a theoretical
afterword, Jon Elster, an inspirational thinker on the current
topic, offers an analysis of the micro-foundations of
constitution-making, with special emphasis on the role of
crises-generated passions.
Using case studies drawn from Latin America, Africa, India and
Eastern Europe, this volume examines the role of courts as a
channel for social transformation for excluded sectors of society
in contemporary democracies. With a focus on social rights
litigation in post-authoritarian regimes or in the context of
fragile state control, the authors assess the role of judicial
processes in altering (or perpetuating) social and economic
inequalities and power relations in society. Drawing on
interdisciplinary expertise in the fields of law, political theory,
and political science, the chapters address theoretical debates and
present empirical case studies to examine recent trends in social
rights litigation.
The last fifteen years have seen a tremendous growth in the
number of health rights cases focusing on issues such as access to
health services and essential medications. This volume examines the
potential of litigation as a strategy to advance the right to
health by holding governments accountable for these obligations. It
includes case studies from Costa Rica, South Africa, India, Brazil,
Argentina and Colombia, as well as chapters that address
cross-cutting themes.
The authors analyze what types of services and interventions
have been the subject of successful litigation and what remedies
have been ordered by courts. Different chapters address the
systemic impact of health litigation efforts, taking into account
who benefits both directly and indirectly--and what the overall
impacts on health equity are.
Legacies of State Violence and Transitional Justice in Latin
America presents a nuanced and evidence-based discussion of both
the acceptance and co-optation of the transitional justice
framework and its potential abuses in the context of the struggle
to keep the memory of the past alive and hold perpetrators
accountable within Latin America and beyond. The contributors argue
that "transitional justice"-understood as both a conceptual
framework shaping discourses and a set of political practices-is a
Janus-faced paradigm. Historically it has not always advanced but
often hindered attempts to achieve historical memory and seek truth
and justice. This raises the vital question: what other theoretical
frameworks can best capture legacies of human rights crimes?
Providing a historical view of current developments in Latin
America's reckoning processes, Legacies of State Violence and
Transitional Justice in Latin America reflects on the meaning of
the paradigm's reception: what are the broader political and social
consequences of supporting, appropriating, or rejecting the
transitional justice paradigm?
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