Supreme and Constitutional Courts: Directions in Constitutional Justice

Francisca Pou Giménez

(forthcoming in: Routledge Handbook of Law and Society in Latin America. Rachel Sieder
and Karina Ansolabehere, eds. Routledge, 2017)

Introduction

The centrality of constitutional courts is distinctive of contemporary democracies

worldwide, and legal and socio-legal literature on courts is now boundless. This chapter
intends to reflect the richness and frequent novelty of constitutional justice developments
in Latin America, and identify what are clearly distinctive regional trends, such us the
combination of judicial review models at the level of institutional design, the importance
apex courts have placed on social communication and on creating direct bonds with the
citizenry, the salience of inter-court interaction and judicial dialogue, or the vitality of the
debate about the social impact of judicial action.

As has been remarked, perceptions about the role of the judiciary in Latin America have
changed enormously in recent times, and the image of subservience to the executive and
relative irrelevance in the political system has been left far behind (Rodiles 2016: 153).
The burgeoning literature on “judicial politics”, “judicialization” or “judicial roles” in the
region attests that, following a global trend (Boulanger 2015, Hirschl 2004, Stone Sweet
2000, Tate & Vallinder 1995), its supreme and constitutional courts have become vastly
consequential political players (Kapiszewsky et al. 2013, Helmke & Ríos Figueroa 2011,
Wilson & Gianella in this volume). The legal academy, on its part, pays an ever-increasing
legal attention to courts, as compared to legal developments occurring in the other
branches.

The chapter will privilege analysis of the courts’ institutional structure and performance
over causal inquiry bound on explaining why courts behave as they do. Developed in
combination with waves of studies about the rule of law and democratization in Latin
America, the body of literature trying to ascertain the empirical determinants of courts’
performance and survival is vast and rich. In its context, studies on judicial independence
—a classic theme— have been more recently supplemented with others that set forth
models of judicial behavior and ponder what elements might explain why courts end up


Law Department, ITAM. I thank very much Jan Boesten, Javier Couso, Siri Gloppen, Juan González
Bertomeu, Stephen Meili, Catalina Smulovitz, and the editors of this volume, for enriching comments on a
previous draft.

1
privileging certain directions —protecting rights, guarding inter-branch peace, favoring
social transformation, securing economic and legal stability, defending their professional
interests, etc.— over others. Illuminating as it is, I will not engage in a systematic
assessment of the literature on empirical determinants, which is addressed in other
chapters (see González-Bertomeu). I will rather privilege description of what the region’s
constitutional and supreme courts arguably do, and how they do it, over inquiry into why
they do it. I will portray the generals of the institutional and procedural structures that
organize their performance, and single out some of the traits that capture the many roles
and functions they display in contemporary Latin American democracies.

Unfortunately, the analysis will not cover all apex courts and countries with the same
intensity. The explicit or implicit focus will be on developments in Colombia, Argentina,
Brazil and Mexico. Apex courts of Central America and the Caribbean, of South American
countries like Paraguay, Uruguay, Chile or Peru, or the group of three that mark a
distinctive current within the region’s constitutionalism –the “new Latin American
constitutionalism” of Bolivia, Ecuador and Venezuela (Viciano Pastor & Martínez Dalmau
2011, Couso 2014, Gargarella 2012)— will receive cursory references at most. While there
is no excuse for gaps that enlarged research could fill, there is no denying either that the
most discussed, well-known and readily available literature in the areas we will cover
disproportionately focuses on that handful of countries. This immediately marks pending
research agendas, since asymmetric attention deepens South-South asymmetries, no less
harmful than the North-South asymmetries that have traditionally pervaded the
production and diffusion of socio-legal knowledge (Bonilla 2016)—. As it stays, in short,
the chapter must not be taken as a comprehensive comparative appraisal, but as an effort
on identifying what directions and developments in constitutional justice have been more
salient and influential.

The structure will go like this. First (I), we will situate Latin American apex courts as
institutions, stressing, among other features, the remarkable quantity and variety of
procedural paths they have been conferred to fulfill their constitutional functions. Second
(II), we will survey salient aspects of their relations with civil society. The way Latin
American courts have understood their public role, their quest for transparency, their
taste for public exposure, and the way interaction between activists, litigants and judges
has molded the latter’s political position and created new forums of democratic debate no
doubt singularizes judicial developments in the region. Third (III), we will address the
relations apex courts maintain among themselves and with other courts, at both the
national and the supranational level. Over the last decades Latin America has witnessed a
revolution in interpretive methods and general understandings of the law: new paradigms
of normative legitimacy have emerged in a continental-wide judicial space in which courts

2
sometimes depict themselves as a kind of deliberative community. We will see how the
dialogic paradigm has been progressively advanced and contested, and address some of
the questions it poses in relation to the structure of the democratic conversation in the
continent. Finally, in the last section (IV), we will enter a terrain that is crucial given the
intersection between transformation-oriented constitutions, activist courts and grossly
unfair background social structures: the debate on the efficacy of judicial rulings and the
relations between law and social change more generally, which has prompted illuminating
and innovative scholarly work. A brief conclusion will close.

I. Institutional design: the mosaic re-visited

Latin American institutional developments in the domain of judicial review are innovative
and interesting from the very beginning. The region had in fact a pioneering role in setting
up judicial review procedures in the XIX century. Thus, Mexico created the amparo writ in
1847 to guard fundamental rights against state encroachments, when nobody could
predict this procedure would become a staple of post-II WW constitutionalism. Colombia
and Venezuela, on their part, were pioneers with regards abstract review of legislation —
which many people wrongly assume was invented much later in Europe by Hans Kelsen.
These two countries created in 1850 and 1859, respectively, public actions of
unconstitutionality allowing citizens to challenge before the Supreme Court, on objective
grounds, the validity of general acts enacted by sub-national entities (Fernández Segado
2012: 169-176, Ortiz 1997). Sometime later in Colombia, the famous 1907 Act Number 3
extended this possibility to national statutes and decrees (Giacomette Ferrer 2008,
Rodríguez Peñaranda 2007). These developments were path breaking not only because
such a review could led to the total invalidation of statutory provisions, but also because
ordinary citizens were given standing –something that continues to be remarkable viewed
from contemporary eyes.

At different points along the XIX century, several regional countries adopted, on their part,
systems of diffuse review of legislation along the lines followed in the United States after
1803, even if the background legal system and culture in the region was —and continues
to be— continental law, not the common law (Fix-Zamudio 2001, Saba 2008).

In any case, we shouldn’t overrate the centrality of judicial review of legislation at that
time. Those developments emerged under a paradigm in whose context the Constitution
did not operate as it now does, in times of direct application of the Constitution. The
Courts of the XIX century had many legality-review responsibilities –often under the frame

3
of “cassation”– and their performance was marked by the fact statutes, not the
constitution, were at the center of the law, and by the fact the executive had a strong
direct or indirect hold on them (see Navia & Ríos Figueroa 2005, exploring the elements
that allegedly influenced the historic behavior of regional judiciaries).

Things have radically changed in the last decades, with the global advance of a rights-
based modality of democracy that confers core responsibilities to the judiciary. In
comparative studies, contemporary Latin American systems of judicial review are
portrayed as “hybrid” (Frosini & Pegoraro 2008) or “mixed” (Brewer-Carías 1990). This
means they combine traits from two ideal types: the diffuse or de-centralized system
along the lines adopted in the US, and the concentrated or centralized model theorized by
Hans Kelsen at the beginning of the XX century. In a stylized centralized model, review of
legislation is done in exclusivity by a special institution —the Constitutional Court— whose
members are appointed through special procedures, the review is principal (not
incidental), abstract (not concrete), ex ante or ex post (before or after the statute has
entered into force) and culminates in a decision with general effects: unconstitutional
provisions are expelled from the books. In a prototypical decentralized model, by contrast,
any court of law can review the constitutionality of legislation and review is done in the
course of ordinary procedures; it is therefore incidental, concrete, ex post, and has inter
parts effects: the unconstitutional provision is merely set aside in the case at hand.

Almost all contemporary regulations make for hybrid models. Different groups of hybrids,
however, exhibit identifiable family traits. Thus, European hybrids may be described as
centralized systems with a few drops of decentralization, the latter being represented by
the possibility of ordinary judges to pose a “question of unconstitutionality” and activate
review by the Constitutional Court. Latin American hybrids, by contrast, are more fairly
described, in my view, as decentralized systems with a few drops of centralization, or as
systems that superimpose the two models. Thus, in Argentina any judge can set aside a
statute in the course of ordinary adjudication, but the Supreme Court has areas of
exclusive jurisdiction (sec. 117 C. Argentina) and decides the "extraordinary recourse”
(sec. 280 Civil Proc. Code) in several hypotheses interpretively controlled trough a
certiorari system (Dalla Via 1997, Sagüés 2002). In Colombia, the Constitutional Court
concentrates abstract review in being the single institution allowed to decide
unconstitutionality actions, but there is diffuse review through the “exception of
unconstitutionality”, which allows any judge, including the Constitutional Court, to set
aside a statute she may find unconstitutional while resolving a case. And Mexico, after the
2011 amendments, has three tiers of review: centralized review through actions of
unconstitutionality and constitutional controversies, semi-centralized review through the
writ of amparo, and diffuse review in the hands of all ordinary judges.

4
Beyond this, available surveys (Roa Roa 2015, Frosini & Pegoraro 2008, Navia & Ríos-
Figueroa 2005) document that the region’s apex courts are quite varied along almost all
relevant dimensions of design: number and status of courts, appointment procedures,
areas of jurisdiction, effects of the rulings, etcetera. Thus, while some countries have
supplemented the pre-existing scheme by creating a Constitutional Court, others have
kept a single Supreme Court, and still others have created a specialized Constitutional
Chamber within the former Court. In some places —Mexico, Brazil or Argentina— a single
Court concentrates a huge amount of functions, while in others —Colombia or Peru— the
same package of responsibilities is distributed among several apex courts. Some
appointment systems follow the traditional American path of having the President and the
Senate share responsibility for designations, while others feature more innovative
solutions. Thus, Colombian Justices are elected by the Senate from candidates elevated, in
turns, by the Council of State, the President and the Constitutional Court itself. In Bolivia,
the members of the Supreme Tribunal of Justice are elected by popular vote (sec. 182, C.
Bolivia); the same system is used in the appointment of the Pluri-National Constitutional
Tribunal members, which must moreover respect pluri-nationality criteria and assure
representation of both the Ordinary Judiciary and the Indigenous Native Peasant Judiciary
(sec. 196-201, ibid.). To appoint the members of the Constitutional Court of Ecuador, on
its part, the Legislative, Executive and Social Supervision Branches each designate two
persons to integrate a Qualifying Commission, which, respecting gender parity, then
appoints the Justices from candidates pre-selected by them in a process of public
examination that must allow citizens to raise public challenges (sec. 434 C. Ecuador).

As regards areas of jurisdiction, existing overviews underline two main traits: the
importance of ancillary powers (Frosini & Pegoraro 2008) and the prevalence of rights-
protective writs or individual complaints (Uprimny 2015, Ferrer MacGregor 2006).
Ancillary powers are those other than judicial review of legislation. Latin American courts
hold quite many of them, from participating in the appointment of other public officials,
to deciding the validity of elections or conducting impeachment procedures. To put it in
Kelsenian jargon, Latin American Courts have not been designed to be “pure” (Ferreres
2009), but to crown multifunctional systems in whose context the judiciary has been given
quite varied responsibilities.

The second trait is the number, variety and reach of individual complaints for the
protection of rights. I would actually reframe this to speak of a more general regional
brand: the procedural openness of Latin American constitutional justice to society, well
beyond what we find in the US or in Europe. Thus, in the region amparo-style procedures
are flexible and far-reaching. In contrast to the German or Spanish amparos, most Latin
American writs can be used to challenge statutes or even treaties —not only state conduct

5
and executive and administrative regulations— and even conduct by private actors. This
last trait, the extension of constitutional rights enforcement in the private domain —often
called by its German tab, drittwirkung, or simply “horizontal effect”— is indeed one of the
leading themes in contemporary constitutional law (Gardbaum 2013) and a crucial bolster
of constitutional efficacy in scenarios where private power is sometimes overwhelming.
Also important has been the existence of collective amparo, which in countries like
Argentina has extraordinarily invigorated rights litigation and, more generally, the fact
these writs tend to operate under loose procedural strictures —Colombian and Costa
Rican tutelas being paradigmatic in that regard (Restrepo 2003: 81-83; Wilson 2011: 59-
60)—. An additional element of openness is that several countries —among them
Colombia, Ecuador, El Salvador, Bolivia, Guatemala and, less generously, Peru—, following
the historical precedents mentioned above, have set up public actions of
unconstitutionality allowing individuals to challenge statutes and obtain their permanent
invalidity. In Colombia, far from collapsing the Court, this channel has succeeded in having
the Court generating doctrine about extraordinarily relevant issues it would hardly been
raised by the institutions that enjoy standing under traditional organklage Kelsenian
models. And still one additional factor is, of course, the content of regional last-wave
constitutions, which include distinctively extensive bills of rights and are allegedly
concerned about speaking to the needs of the people.

This quite impressive institutional stage opens up many lines of inquiry. An immediate
one, within the field of comparative scholarship, is to develop theoretical work and “new
grounds of classification” (Frosini & Pegoraro 2008) capable of accounting for the rich and
nuanced mosaic portrayed by the region’s supreme and constitutional courts. These
analyses must be advanced with new lenses. As critical comparative scholarship has noted
(Esquirol 2014, 2016, Bonilla 2015, López 2016), accounts of Latin American institutions
and developments have been too often permeated by appallingly asymmetric
assumptions about the value of different legal traditions. So, the ample spectrum and
frequent superimposition of institutional elements we have just documented should not
be portrayed as “curious”, “kitsch” or “exceedingly complex”; it rather reflects sheer
geographical dimension —Latin America is a truly huge area—, core chapters of history,
important features of Latin American constitutionalism, and distinctive developments that
should be studied on its terms, and not in function of “something else”.

A more specific line of inquiry could try to ascertain in what ways the multiplicity of apex
courts’ responsibilities and the panoply of channels available to reach them is (or is not)
related to the heightened profile —“activism”— they are generally attributed. While
institutional factors have long been counted as central is explaining court’s delivery,
further work is called for to map out what sort of institutional choices are found in

6
correlation with different outcomes (González-Bertomeu 2012). Some theorists have
argued, for instance, that European centralized models have an in-built activist bias: since
Constitutional Courts are set up exclusively to review legislation, being very passive could
suggest they are actually not systemically required and raise doubts about their
continuation, in contrast with American-style apex courts, which exceedingly “earn their
salary” while discharging their ordinary duties within the judiciary regardless of how often
they strike down statutes (Ferreres 2009: 79-80). The fact Latin American courts, however,
are generally dealing with an upsurge in litigation and have a general image of activism,
despite their multi-layered and busy jurisdictional menu, could suggest otherwise —or
could simply help illuminate new ways of studying the area, from pursuing more refined
models to construe and measure central notions (“activism”, “constitutional
enforcement”), to finding new ways of mapping out the legal, cultural, institutional and
political interactions that convene around courts.

II. Latin American Courts and the people: building up legitimacy through social
and judicial action

The extensive literature on judicialization —which inquires how and why courts are
established and what elements influence their survival and performance— accords great
weight to courts’ relations with the other branches. Insurance, strategic defection,
fragmentation, attitudinal or strategic theories, to name a few, all make a central focus in
studying how courts situate themselves in view of the position and power resorts of the
other branches, who are regularly portrayed as having different or even opposed
interests.

But regardless of what may be found to occur at the level of deeper motivations, Latin
American courts have seemingly obsessed not about the other branches, but about the
people. Thus, one way of putting what contemporary regional courts have tried to do is by
suggesting that, in congruence with the transformative mandates of last-wave
constitutions and maybe following the activist drive built into the set of procedural tools
we have just surveyed, they have strived to cement their political position by building a
privileged relation with the citizenry, and by favoring inter-branch cooperation over
conflict, sometimes along the lines favored by weak-form, dialogic forms of judicial review
(Gargarella 2014a, Tushnet 2008, Roach 2004). In my view, these dynamics have delivered
important outcomes in many areas, but most noticeably in three particular ones: social
rights, sexual and reproductive rights, and indigenous and environmental rights.

7
In the area of social rights, interaction between litigants and courts cannot be understood
without first referring to an intervening doctrinal element: the fact Latin American
scholars have been pioneers in developing theories about the judicial enforceability of
social rights, and about the democracy-reinforcing potential of judicial intervention in the
area in contexts marked by highly exclusionary majoritarian politics. Thus, in an early
articulation of the main arguments, Christian Courtis and Víctor Abramovich convincingly
discredited traditional constructions about the structural or otherwise “natural”
differences between civil and political rights, on the one hand, and social, economic and
cultural rights, on the other, and stressed their continuities in terms of state obligations,
positive and negative dimensions, and costs (Abramovich & Courtis 2003). In so doing they
were joining an international trend that, in close connection with the work of the two
United Nations 1966 Rights Covenants Committees, developed doctrines about
transversal state obligations to respect, protect and guarantee rights and about the
multiple dimensions of rights enjoyment. A practice of “unpacking rights” along these
lines progressively emerged, creating a battery of analytical and argumentative tools that
bolstered opportunities for social advocacy and litigation in both national and
international fora. This strand of literature argues that remaining difficulties for the
enforceability of social rights should be met by transforming existing procedural
frameworks and further notes that judicial intervention in public policy is not necessarily
anti-democratic: in the context of often elitist, paralyzed and deeply captured legislative
chambers, and provided they operate with well-crafted and carefully administered
remedies, courts can vastly contribute to attain crucial democracy-reinforcing goals, like
taking the political branches out of inaction, force them correct discriminations, or secure
the enforcement of already recognized entitlements (Abramovich & Courtis 2003,
Abramovich 2009, Bergallo 2006, Gargarella 2006).

These views have been absorbed by wide sectors of the academy and, if not uncontested,
have gained terrain in the judiciary and other institutional spaces –it is remarkable, for
instance, that section 1 of the Mexican constitution as amended in 2011 now enshrines
transversal state obligations to respect, protect and guarantee rights and the principles of
universality, indivisibility, interdependency, progressivity and pro persona interpretation.
This is how, in a region where constitutions –let alone social rights—had been “pieces of
paper” for so long, new tools and a new general “state of mind” have been installed,
fostering the enforceability of even their most transformative provisions.

Changes at the level of ideas were propelled by the extraordinary expansion of national
and transnational networks of socio-legal activism and public interest litigation (Rodríguez
Garavito 2011a). In many regional countries, people first organized to denounce impunity
for the mass-scale atrocities perpetrated by the military juntas of the 70s and 80s —

8
litigation being part a wider set of efforts later theorized under the framework of
“transitional justice” (De Greiff 2012, Saffon & Uprimny 2007, Teitel 2000)—. As efforts in
this area went back and forth in national jurisdictions and before the Inter-American
System, structures were available to explore the potential of litigation in other domains.
Thus, well-equipped, well-funded and high-profile NGOs, joined by an increasing number
of public interest university clinics, have assured the continuous engagement of Latin
American courts.

While some topics have been litigated mostly at the national level (see, for instance,
surveys of national experiences in the health rights area in Lamprea 2014, Bergallo 2013,
Yamin & Parra-Vera 2010, and the chapters on Latin American countries gathered in
Langford 2008, which cover other social rights as well), in others the action of
transnational networks has been crucial. Transnational action has been particularly visible
in the domain of sexual and reproductive rights, where litigation has delivered legal
changes of variable reach —more weighty with regards sexual orientation, less
spectacular but nonetheless real in abortion law (see Restrepo 2013, Cook, Erdmann &
Dickens 2014, Bergallo & Ramón 2016, Gianella & Wilson 2016)—. More recently,
advocacy and litigation networks have entered the area of indigenous and environmental
rights. Litigation that vindicates respect for the right to previous consultation and
denouncing the effects of extractive economic projects —often result of the combined
efforts by communities, lawyers, sociologists and anthropologists (Rodríguez Garavito
2011b, 2015)— has marked news bonds between law and indigenous populations and has
supplemented the developments occurring at the national level under the pluri-cultural or
pluri-national provisions of last-wave constitutions (Bonilla 2006, Yrigoyen 2015, Ramírez
& Maisley 2016).

Courts have reacted to litigation by advancing new doctrines and forms of adjudication.
Attention should be paid, for instance, to normative doctrines such as “unconstitutional
state of affairs”, “connexity” or “vía de hecho”, famously crafted by the Colombian
Constitutional Court and imported by some others. In declaring an “unconstitutional state
of affairs”, the Colombian Court signals social problems that are multi-caused, and that
generate multiple and mutually reinforcing violations of rights; the concept allows for a
thicker description of unconstitutional realities, to which the court then associates special
remedies calling for the joint action of a wide number of social actors and public
authorities. Thanks to the “connexity” doctrine, on its part –now officially abandoned, but
only after the Court declared permanent many of the gains obtained under it— the Court
allowed certain second-tier rights claims to be treated as first-tier, tutela-protected
claims, when a sufficient connection between the two can be established, thus making
justice to the idea of rights interdependency and multiplying access and protection in

9
crucial domains like health care, social security or environmental protection. The “vía de
hecho” construct —and similarly occurs with “arbitrariedad” in Argentina— allows apex
Courts to correct exercises of judicial adjudication on constitutional grounds beyond the
possibilities available under standard rules. Evolving conceptions about rights damage and
wrongs, finally, have led to new doctrinal conceptions about remedies and reparations —
often inspired by Inter-American doctrines, increasingly permeating national practice—.

Other innovations are procedural (not substantive) in kind, such as the admission of
amicus and the celebration of public hearings where Courts listen to experts, parties and
civil society, gathering elements to decide on thicker grounds —a big novelty in civil law
systems— and, markedly, the crafting of non-traditional participatory, dialogical or
structural remedies (Bergallo 2006, Gargarella 2014a). As scholars have noted (Rodríguez
Garavito 2011a), Latin American structural rulings may be considered a second generation
that intend to learn from what happened with first-generation ones, issued,
paradigmatically, by the US Supreme Court in the 50s and 60s in domains such as school
desegregation or prison reform. In contrast with the “command and control” remedial
style of the latter —which would include detailed orders and pre-fixed schedules, making
courts the essential decision-makers and supervisors of the compliance, the structural
rulings of the Colombian or the Argentinian Courts are flexible and try to engage a wide
array of social and political actors, which are summoned up to act under the supervision
of the court. In the execution of the famous T-25 of 2004 ruling on internally displaced
people, for instance, the Colombian Court set down very loose guidelines for the making
of public policy that was largely non-existent, and required the concurrence of
government agencies, civil society —including Colombian universities, who were asked to
help produce some of the expert knowledge— and representatives of the victims, under a
strong supervision scheme that required the creation of a special office inside the Court
(Rodríguez-Garavito 2009).

These developments would have less chances of success were they not complemented by
a last feature that is absolutely appropriate to single out as peculiar of Latin American
apex Courts: the way they strive to render their tasks highly visible, look accessible and
transparent, and generally display a high public profile. Thus, many of them advance
defined strategies of social communication and have launched unprecedented initiatives,
such as, in Brazil and Mexico, the broadcasting of judges’ deliberations on the merits of
the cases (Falcão & Oliveira 2013, Hübner Mendes 2015, Pou Giménez 2016a). These
initiatives are strictly intertwined with the broader vision about the relationship between
courts and society this section tries to highlight. Cultivating an image of transparency and
openness has been considered key to the courts’ effort to distinguish themselves from the
often discredited majority branches, and instrumental to sustain a dynamic relation with

10
social actors (Screibner 2016). This publicity-mediated interaction becomes then crucial in
getting issues discussed before the courts, in securing the efficacy of the rulings, and of
course in maintaining the sort of public image that courts find appealing. As has been
cautioned, however (Silva 2013, 2015, Pou Giménez 2016b), it is crucial to examine the
impact internal rules such as the broadcasting of the sessions have on the deliberative
quality of judicial decisions and more generally on the courts’ capacity to successfully
meet their role as articulators of public reasons. At a more general level, whether the
courts’ “transparency revolution” is genuine or rather includes excessive “marketing” and
strategic moves —which could even decrease our capacity to hold them accountable for
what really matters— remains to be seen and should be carefully monitored.

Research agendas for the incoming years should engage legal and socio-legal scholars in
the systematic identification and critical analysis of the doctrinal areas where the region’s
apex courts have made distinctive contributions. The first regional casebook, edited by
Juan González-Bertomeu and Roberto Gargarella (2016) surveys regional judicial doctrine
on thirteen areas —including equality rights, religious freedom, free speech, rights of
prisoners, LGBTI people, indigenous people, the environment, economic regulation or the
separation of powers, among others— making a first, giant step in that regard. Continued
monitoring should carefully survey developments in the domain of non-traditional rights
(i.e., the right to peace, the right to food, the rights of the earth) without neglecting
doctrines generated outside the realm of rights, where there are allegedly less
developments to be registered, but some of them identifiably distinctive from the
comparative perspective —Latin American doctrines about the unconstitutionality of
constitutional amendments being, for instance, a case in point—.

III. Latin American Courts and their peers: the “judicial community”

By some accounts, over the last decade Latin America has witnessed the emergence of a
regional “judicial space” singularized by the force of the interpretivist turn, the centrality
of the idea of judicial dialogue, and the salience of Inter-American sources of law in
judicial reasoning. Of course legal integration occurs today in many other spaces. Europe,
for instance, confronts us with an area of multi-level judicial adjudication impressive in
reach and complexity. What would be distinctive of Latin America is that it all proceeds in
a space where the bonds of political integration are weak, thus inviting a debate about the
potential and the possible risks of regional integration process based almost exclusively on
courts and rights-adjudication practices.

11
Last wave democratic constitutions in the region have taken life in parallel with a radical
change in traditional understandings of law, legal reasoning and legal culture —a
dimension that, quite appropriately, is gaining increasing weight in overall accounts of
judicial power (Couso, Hunneus & Sieder 2010)—. For long, variably (dis)empowered Latin
American judges would carry out their jobs as described under the “legislative state”
paradigm (Zagrebelsky 2003, Aguiló 2004): they would put rules —not principles— at the
center of the law, they would assume disputes were to be resolved by applying statutes —
not the constitution— and they would assume a relatively detached relationship between
the constitution and the wider legal system. Years later, both legal theorists and
sociologists (Carbonell 2011, Esquirol 2011, Couso 2010, Rodriguez Garavito 2011a) signal
Latin America as a champion of legal “interpretivism”, or of “neo-constitutionalism”,
understood a version of the “constitutional state” paradigm. Under this paradigm, law is
made of principles, values and rules, the constitution is directly applicable and paramount
in judicial adjudication, and basic constitutional rights and principles invade and daily
orient the wider legal system (Pozzolo 2015).

The “neo-constitutional” label has progressively faded into non-use, as for some it signals
nothing “new” —only constitutionalism, taken seriously— and for others it captures an
objectionable variety of it: one that is hyper-elitist and accords judges a messianic role,
paving the way to an exceedingly anti-majoritarian administration of the new
constitutions of the region. Yet beyond labels and emphasis, there is no denying that
regional courts smoothly operate under the pretty much globalized paradigm articulated
around the idea of rights supremacy, supported in the series of conceptual argumentative
structures that comparative scholars have called “generic constitutional law” (Law 2005).
In the context of these emerging patterns of “global constitutionalism”, Latin American
judicial discourse would stand out by two features: one, the thematic and argumentative
emphases mentioned in the previous section, and two, the openness of judicial discourse
to international sources and institutions, particularly Inter-American ones, the latter
exhibiting, in their turn, a distinctive willingness to influence national practices. Both the
“internationalization of constitutional law” (Chang & Yeh 2012) and the
“constitutionalization of international law” (Klabers, Peters & Ulfstein 2009, Acosta 2015)
are then perceptible in contemporary Latin America.

At the background of these trends we find, on the one hand, constitutions that accord a
preeminent hierarchical position —supra-legal or even constitutional— to international
sources, particularly in the domain of rights, and a Court that nurtures a distinctive stance
vis-à-vis its own functions: the Inter-American Court of Human Rights. The Inter-American
Court of Human Rights —itself a highly interpretivist court— has progressively crafted a
model of interaction with national courts that departs from standard expectations under

12
international law. Ariel Dulitzky calls it the “integration model”, in opposition to the
“subsidiarity model” that prevailed before and still prevails in other human rights systems
(Dulitzky 2015). Under a classic subsidiarity model, first, states must secure observance of
the treaties but need not accord them any particular hierarchical position within the
system of legal sources; second, the duty to honor international commitments falls on the
shoulders of the state understood as a single entity, without imposing duties as to how
the goal will be met; third and accordingly, international courts can only be reached after
exhausting internal remedies, precisely because the state must be given full opportunity
to comply and international institutions must come into play only when it fails; and fourth,
when the international court or body detects an infringement of the treaty, it declares the
state to have incurred in “international responsibility”, without making specific
qualifications about the legal status of particular state acts or norms (ibid: 52-54). By
contrast, beginning in 2008 and until 2013, at least, the Inter-American Court
progressively crafted the “conventionality review” theory, which almost inverts the
aforementioned tenets: thus, the Court has declared that the full efficacy of Inter-
American sources must “prevail”, suggesting they must be accorded supremacy; second,
the Court has asserted that treaty efficacy must be guaranteed by “all state authorities,
within their areas of jurisdiction”, with repeated emphasis on the judiciary, which is
explicitly directed to engage in conventionality review while discharging its ordinary
duties; third, the requirement of exhausting internal remedies has been relaxed when
ineffectivity can be presumed; and fourth, the Court, far from stopping at the traditional
“international responsibility” declaration, has directly pronounced the “invalidity” of
domestic statutes and acts, and has directed judges to change particular doctrinal strands,
suggesting then, at all times, that there is little space for states not to treat Inter-American
human rights sources as paramount within the legal system (ibid: 54-59). That’s why
Dulitzky believes we are facing a new paradigm of integration and suggests the Court
increasingly operates in the manners of an Inter-American constitutional court.

“Conventionality review” has triggered disparate reactions. In the academy, a first group
of scholars, with historic links with the Max Planck Institute in Heidelberg and a
remarkable influence among the upper levels of the national judiciaries, has
wholeheartedly embraced this evolution; it has registered the progressive emergence of a
sort of “Latin American ius constitutionale commune”, expressing hope in the way it might
help more closely articulate a community of Latin American judges collectively committed,
for the first time, to the enforcement of a common set of fundamental values (Bogdandy
2013, 2015, Bogdandy, Ferrer & Morales 2010). While scholars in this current are strongly
supportive of recognizing interpretive supremacy to the Inter-American Court –whose
powers of “concentrated conventionality review” would guarantee the coherence and
closure of the system (Ferrer 2011)—, they also place much emphasis on the idea of

13
“judicial dialogue” and on the idea that judges, included the Inter-American Court, learn
from each other and decide within the benefic constrains of this wider community of
peers (Ferrer & Herrera 2013, Acosta 2015). Other scholars have been more moderate, or
less enthusiastic right away. Jorge Contesse (2014: 106, 111-120), for instance, defends
the need to privilege the domestication of Inter-American standards and duties through
national deliberative processes, advanced before national judicial forums, and argues that
the IACHR should replace a maximalist, cassation-like attitude by a genuinely dialogical
one that recognizes spaces of State discretion and treats national courts as equal partners
(see also Basch & Contesse 2016). Roberto Gargarella (2014b, 2015) warns, on his part,
that this judge-made “shared amalgam of fundamental rights law” should not escape a
democracy-sensitive evaluation. He points out that Inter-American institutions exhibit a
clear democratic deficit —given current appointment procedures and other institutional
features— and that state actions and norms are not always equal in terms of democratic
pedigree. Gargarella thus questions, for instance, the uncompromising views on the
invalidity of amnesty laws expressed by the Inter-American Court in rulings like Barrios
Altos, Almonacid, Gomes Lund or Gelman, for being insensitive to the nature of the
national processes that led to their adoption and treating indecorous self-amnesties and
carefully debated pieces of legislation alike. “Of course, judges are an integral part of the
democratic process, and should help us in the construction of democratic laws”,
Gargarella concedes, “[b]ut the content of democratic laws should be fundamentally the
product of collective, “horizontal agreements,” and not the result of “vertical impositions”
of the judicial or political type” (2015: 119). Scholars like Uprimny, Sánchez Duque &
Sánchez León (2014, 24-26), have on their part identified several elements that should be
weighted in to determine the reach and contours of the internationally mandated state
duty to investigate and sanction in a context of negotiated peace process, thus proposing
a more careful and democratically sensitive balance between national and international
commitments).

What have been the reactions of Supreme and Constitutional Courts to this Inter-
American self-proclaimed leadership, and to the idea of “judicial dialogue” more
generally? Regional apex courts seem definitely at ease with the idea of holding periodic
meetings in a varied range of seminars and summits, where they update each other about
recent developments and debate issues of common concern, sometimes in combination
with courts from other regions (Pérez & Hernández 2014) or with the Inter-American
Court, which sometimes celebrates public audiences in countries parties to the System
and reserves space for seminars where local and international judges debate with each
other and with members of the wider legal community. Assessing what happens when
these judges sit down and write their rulings is less straightforward. There is some work
registering, commenting or trying to systematize different modalities of incorporation of

14
Inter-American sources (Filippini & Rossi 2010, Rodiles 2016) —analogous work on
comparative law ones is largely pending— and a general interest in more closely
documenting how and to what extent, beyond judicial comity, engagement with foreign
and international courts occurs in actual fact. Though with regards the Inter-American
Court and its demands, the general view is that national courts have not offered open
resistance, recent debates in the Colombian Constitutional Court about compliance with
the Kimel or López Mendoza cases (see, for instance, C-442 of 2011) and similar events in
Costa Rica around Atala and again López Mendoza—evince that a more fine-grained
interaction is starting to emerge.1 This is, in short, a crucial area, where more
comprehensive findings should soon become available.

Analysis of how apex courts relate with one another and with the institutions of the Inter-
American system should be supplemented with analysis of how are their interactions with
the lower judges in each country. This is an area where more research is in order. Scholars
often fall prey of an “availability bias” and tend to develop work focused on what occurs
at the highly visible level of the upper judiciary, whose rulings and activity are typically
public and readily available on the web. By contrast, monitoring and analyzing
developments in the lower levels of the judiciary is logistically more complex and time-
consuming. In any case, over time thicker descriptions of intra-judicial dynamics should
become available, identifying some of the main patters in view. For instance, have all
countries crowned with a plurality of apex courts faced a “train crash” (choque de trenes),
as was the case for some time in Colombia (as far as the doctrines of the Supreme Court
and the Constitutional Court were concerned)? What elements have been helpful in
avoiding or overcoming frictions where the crash has occurred? Has the constitutional
system opening to international legal sources influenced the traditional relations between
upper and lower judges? In what directions has this transformation gone? Does the
impact vary in any manner depending on whether the traditional structure of the judiciary
is patterned after a hierarchical model or after a coordinated one, in Damaška´s terms
(1986)? In what ways different degrees of internal independence —i.e. independence of
lower judges vis-à-vis upper judges— influence legal developments?

Finally, analysis of regional judiciaries should pay attention, in my view, to a development

that —regrettably— seems likely to gain more prominence in the times to come: the rise
in non-traditional forms of pressure on judges. As political branches replace classical
attacks (court packaging, open defiance) with a new repertoire —from Bolivarian
presidents’ criticism to Inter-American judicial imperialism (Couso 2015), to more

1
I thank Óscar Parra Vera for extremely useful information and references about these developments,
which he is exploring in ongoing research on national courts patterns of compliance and margins of dissent
with Inter-American doctrines.

15
nuanced, underhand strategies such as nomination of government-friendly judges, low-
quality execution of rulings, or economic strangling of the courts— it will be interesting to
inquire what sort of designs or dynamics help preserve the autonomy of the judiciary, and
which ones do not. Jan Boesten (2016) has argued, for instance, that an institutional
scheme that includes several apex courts —as the one we find in Colombia— makes it
harder for an assertive executive to co-opt the judiciary. Another relevant line of inquiry
could try to ascertain whether internationalization and the new transnational texture of
the Latin American judiciary —the alleged existence of an incipient “Latin American
judicial community”— makes any difference in terms of resisting these new forms of
pressure.

IV. Constitutional adjudication, efficacy and social transformation

As we have seen so far, Latin American contemporary constitutional courts enjoy a

position they never had before. They enjoy a multifaceted and diversified constitutional
position, though their role as ultimate rights guardians is paramount. Regional
constitutions stand out for the robustness of the substantive program they enshrine, and
regional apex courts have taken its transformative cue and created innovative doctrines.
They have tried to build a direct, privileged relationship with citizens and social groups,
and they have progressively asserted their systemic position, often conceiving themselves
as operating in a wider judicial space in which they have won an uncontestable space for
political and legal action.

To what extent, however, have these courts actually succeeded in changing the world –
which is, allegedly, what Latin American constitutions instruct them to do (García Villegas
2013)? The central question of the efficacy of rulings must then be faced. In Latin America
it is more pressing than in other contexts because of the interplay between transformative
constitutions and socioeconomic backgrounds that include millions of people in
deprivation, and because analysis proceeds at a point in time when there is no way to
sidestep certain arguments and debates —those developed around the US “rights
revolution” (Rosenberg 1991, McCann 1994), for instance, or the powerful “critique of
rights” in the American legal academy (Jaramillo 2004)—. On the flipside, the debate can
build on the careful and sophisticated scholarship about the efficacy of the law in Latin
America, which is path-breaking in many respects and illuminate aspects largely
overlooked in analyses from the Global North (García Villegas 2009, 2010 and the Chapter
in this volume, Böhmer 2011).

16
The first thing regional scholars have noted is that the efficacy or inefficacy of rulings looks
radically different depending on whether one adopts an instrumental or a constitutive
theory of the relations between law and society (Restrepo 2003, Rodríguez-Garavito
2011a, Parra Vera 2014). From an instrumental stance, law and social realities are
conceived as conceptually separate, and legal efficacy is gauged in terms of whether a
particular legal product directly generates the outcome it was intended to have. A good
part of the Global North literature on constitutional efficacy —for instance, the theories
that define efficacy as “text-reality-congruence” (Kokott & Kaspar 2012)— seems to be
permeated by this stance. From a constitutive vision, by contrast, law and social realities
cannot be seen as conceptually separate, since law is a social artifact with continuities
with all others, which shapes and is shaped by them in varied and not always predictable
manners. From a constitutive perspective, the indirect and symbolic effects of rulings are
as significant as direct and instrumental ones (Restrepo 2003).

Along these lines, socio-legal scholars César Rodríguez and Diana Rodríguez have argued
that it is necessary to develop new methodological and theoretical lenses capable of more
adequately capturing a wide range of indirect effects. The analytical framework they
develop —and then apply to case studies— detects at least five types of indirect effects of
rulings (material or symbolic): the reframing effect, by which certain problems start to be
perceived as human rights questions, enter public agendas and abandon the political dark;
the unblocking and the public policy effect, which reinforce a country’s institutional
capabilities to deal with complex socioeconomic problems; the participatory effect,
associated to the way rulings favor the creation of activist social coalitions that foster
deliberation and may participate in the process of implementation of the rulings; and the
socioeconomic effect, which favors collective debate over management of complex
problems of redistribution (2015: 37). They additionally argue that potential effects
depend on three different dimensions of the rulings: the legal force they accord to the
right (weak or strong rights, in Tushnet’s sense), but also —and critically— the sort of
remedy (weak or strong) crafted by the Court, and the sort of supervision mechanism
(weak or strong) devised to assure compliance. According to their findings, courts multiply
the general effects of their rulings when engaging in exercises of dialogical decision-
making that result from the combination of strong rights, intermediate remedies, and
strong supervision schemes; these rulings respect the division of powers, promote its own
efficacy, and favor participatory compliance processes that engage a plurality of social
actors, thus reinforcing public deliberation (ibid: 37).

The impact Latin American apex courts have exerted in recent years, in short, cannot be
measured exclusively in terms of the number of technical, procedural or doctrinal
novelties we find in case law, nor by measuring compliance formalistically, or trying to

17
correlate rulings with economic or political indicators. That would miss many of the social,
cultural and political effects of constitutional adjudication and the wider processes it
encourages, or emerges from. That would particularly miss —one could say in a closing
note— the special meaning or social import judicial intervention has often had. As Esteban
Restrepo remarks, at the impulse of amparos, tutelas or mandados, over the last decades
Latin American courts have attended the demands of ordinary people to an
unprecedented scale, putting on the spotlight issues —violence, poverty, racism and
discrimination of all sorts, material deprivation, state moral perfectionism, land
mismanagement, and hundreds of others— that had received little political attention
before (Restrepo 2015: 6-8). As in other Global South countries (Bonilla 2013), oppressed
social groups have knocked at the judges’ door and judges have answered, expressing
confidence in the power of constitutional adjudication to wipe out indignity, thus taking a
central role in modern struggles for social emancipation (Restrepo 2015: 8).

For sure, not all regional courts understand themselves under this role, and for sure a
more sophisticated methodological apparatus would facilitate the heightened detection of
pernicious effects and dynamics, as much as virtuous ones. A full and geographically
comprehensive assessment of gains and losses has not been attempted and it could look
unpromising. But if the task is more modestly to identify significant and distinctive
developments in constitutional justice, no doubt paramount among them is the fact most
Supreme and Constitutional Courts in the region have recently succeeded —probably for
the first time— at rendering the constitution relevant to the ordinary citizen.

Conclusion

In the last decades the judiciary has greatly strengthened its constitutional position. In
Latin America this has been particularly notorious because traditionally judges had not
been politically weighty, and the constitution had not been a key piece in everyday legal
and political dynamics. Last-wave Latin American constitutions have been innovative at
many levels, including the design of the judicial branch, which has been assigned a wide
menu of functions, powers and responsibilities. The apex courts of the region have
understood that the founding documents confer them important public roles and have
generally not refrained from deploying them.

Latin America is a huge area and a comparative appraisal of judicial developments should
account for the variety we encounter. But for several reasons —including a relatively
simultaneous reinstallation of democracy, similarities in socioeconomic background, and
the existence of self-perceived and externally attributed family traits among the countries

18
of the region— there are many dynamics with a truly transnational dimension that
somehow gloss over the absence of political integration at the subcontinental level.

This chapter has surveyed distinctive regional developments in constitutional

adjudication. They are grounded on identifiable traits of institutional design and illustrate
the performance of apex courts from perspectives that reveal an intense concern about
the interaction with civil society and the other courts. An analysis bent on identifying
trends and novelties naturally over-emphasizes certain directions and under-emphasizes
others. The existence of novelties does not erase in itself the many things that remain the
same: “dialogical” developments do not deny the persistence of huge areas of
adjudication shaped under different parameters; the emergence of new channels of
access to justice does not erase those where the situation remains inertial, and so
essentially closed. And so on. But none of the applying discounts abates in any significant
measure the need to underline the amazing dynamism of the region in the areas we have
addressed nor reduces the amount of relevant developments to be registered and
carefully examined.

References

Abramovich, Víctor, and Christian Courtis (2003): Los derechos sociales como derechos exigibles. Madrid:
Trotta.

Abramovich, Víctor (2009): “El rol de la justicia en la articulación de políticas y derechos sociales”, in Víctor
Abramovich and Laura Pautassi (comps). La revisión judicial de las políticas sociales. Estudio de casos.
Buenos Aires: Editores del Puerto.

Acosta Alvarado, Paola (2015): Diálogo judicial y constitucionalismo multinivel. El caso interamericano.
Bogotá: Universidad Externado de Colombia.

Aguiló Regla, Josep (2004): La constitución del estado constitucional. Bogotá and Lima: Temis-Palestra.

Basch, Fernando, and Jorge Contesse (2016): “International law and domestic adjudication”, in Juan F.
González-Bertomeu and Roberto Gargarella, eds., The Latin American Casebook. New York: Routledge.

Bergallo, Paola (2006): “Justicia y experimentalismo: la función remedial del poder judicial en el litigio de
derecho público en Argentina”, in Derecho y pobreza. SELA 2005. Buenos Aires: Editores del Puerto.

(2013): “Unleashing Health Rights in Argentinian Courts: From the Myth of Rights to the Politics of Rights”.
JSD Dissertation, Stanford University.

Bergallo, Paola, and Agustina Ramón Michel (2016): “Abortion”, in Juan F. González-Bertomeu and Roberto
Gargarella, eds., The Latin American Casebook. New York: Routledge.

19
Boesten, Jan (2016): Between democratic security and democratic legality: discursive institutionalism and
Colombia’s Constitutional Court. Ph.D. Dissertation, University of British Columbia. Available at:
https://open.library.ubc.ca/cIRcle/collections/ubctheses/24/items/1.0224798

Bogdandy, Armin von (2013): “Ius Constitutionale Commune Latinoamericanum: Una aclaración conceptual
desde una perspectiva europea”, in Luis Raúl González Pérez and Diego Valadés (coords.), El
constitucionalismo contemporáneo. Homenaje a Jorge Carpizo. Mexico City: Instituto de Investigaciones
Jurídicas, UNAM.

(2015): Ius Constitutionale Commune en América Latina: Observations on Transformative Constitutionalism,

109 AJIL Unbound.

Bogdandy, Armin von, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi (2010): La justicia
constitucional y si internacionalización: ¿Hacia un ius constiutionale comune en América Latina? Mexico City:
Instituto de Investigaciones Jurídicas UNAM, Instituto Iberoamericano de Derecho Constitucional, Max
Planck Institut.

Böhmer, Martín (2011): “Lursus naturae”, in César Rodríguez-Garavito, El derecho en Amércia Latina. Un
mapa para el pensamiento jurídico del siglo XXI. Buenos Aires: Siglo Veintiuno Editores

Bonilla Maldonado, Daniel (2006): La Constitución multicultural. Bogotá: Siglo del Hombre Editores.

(2013): Constitutionalism of the Global South. New York: Oxford University Press.

(2016): “La economía política del conocimiento jurídico”, in Daniel Bonilla Maldonado, ed., El
constitucionalismo en el continente americano. Bogotá: Uniandes, Siglo del Hombre Editores, Universidad
EAFIT.

Boulanger, Christian (2015): “Role Theory, Democratization and Comparative Constitutionalism:

Constitutional Courts as "Guardians", "Umpires" and "Founders"” (unpublished paper, on file with author).

Brewer-Carías, Alan (1990): “Judicial Review in Comparative Perspective”. 90 Columbia Law Review 1449.

Carbonell, Miguel (2011): Neo-constitucionalismo(s). Madrid: Trotta.

Chang, Wen-Chen, and Jiunn-Rong Yeh (2012): “Internationalization of Constitutional Law”, in Michel
Rosenfeld and Andras Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford
University Press.

Contesse, Jorge (2014): “¿La última palabra? Control de convencionalidad y posibilidades de diálogo con la
Corte Interamericana de Derechos Humanos”, in Marisa Iglesias et al., Derechos humanos: posiblidades
teóricas y desafíos prácticos. SELA 2012. Buenos Aires: Libraria Ediciones.

Cook, Rebecca, Joanna Erdmann, and Bernard Dickens (2014): Abortion Law in Transnational Perspective.
Cases and Controversies. Philadelphia: The University of Pennsylvania Press.

Couso, Javier (2010): “Los desafíos de la democracia constitucional en América Latina: entre la tentación
populista y la utopía neoconstitucional” en Anuario de Derechos Humanos 2010. Santiago de Chile:
Universidad de Chile, pp. 33-47.

(2014): “Las democracias radicales y el “nuevo constitucionalismo latinoamericano”, in Marisa Iglesias et al.,
Derechos humanos: posiblidades teóricas y desafíos prácticos. SELA 2012. Buenos Aires: Libraria Ediciones

20
(2015): “Back to the Future? The Return of Sovereignty and the Principle of “Non-intervention in the Internal
Affairs of the States” in Latin America’s Radical Constitutionalism.” Available at:

Couso, Javier, Alexandra Hunneus, and Rachel Sieder (2010): Cultures of Legality. New York: Cambridge
University Press.
Dalla Via, Alberto (1997): “La Justicia Constitucional en Argentina”, Anuario Iberoamericano de Justicia
Constitucional”. Madrid: Centro de Estudios Constitucionales.

Damaška, Mirjan (1986): The Faces of Justice and State Authority. A Comparative Approach to the Legal
Process. New Haven, CT: Yale University Press.

De Greiff, Pablo (2012): “Theorizing Transitional Justice”, in Melissa Williams, Rosemary Nagy and Jon Eslter
(eds.), Transitional Justice. Nomos Vol. LI. New York: New York University Press.

Dulitkzy, Ariel (2015): “An Inter-American Constitutional Court? The Invention of the Conventionality Control
by the Inter-American Court of Human Rights.” 50 Texas International Law Journal 46.

Esquirol, Jorge L. (2003): “Continuing Fictions of Latin American Law”. 55 Florida Law Review 41.

(2011): "The Turn to Legal Interpretation in Latin America". 26 American University International Law Review
1031.

(2014): Las ficciones del derecho latinoamericano. Bogotá: Siglo del Hombre Editores, Uniandes.

Falcão, Joaquim, and Fabiana Luci de Oliveira (2013): “O STF e a agenda pública nacional: de outro
desconhecido a supremo protagonista?” 87 Lua Nova 429.

Fernández Segado, Francisco (2012): Del control político al control jurisdiccional. Evolución y aportes a la
justicia constitucional en América Latina. Pensamiento Constitucional, año XII, núm. 12.

Ferrer MacGregor, Eduardo (2006):”Breves notas sobre el amparo iberoamericano (desde el derecho
procesal constitucional comparado)”, in Héctor Fix-Zamudio and Eduardo Ferrer Mac-Gregor, eds., El
derecho de amparo en el mundo. Mexico City: UNAM, Porrúa, Konrad Adenauer Stiftung.

(2011): “Interpretación conforme y control difuso de convencionalidad. El nuevo paradigma para el juez
constitucional mexicano”, in Miguel Carbonell and Pedro Salazar (eds.), La reforma de derechos humanos del
2011: un nuevo paradigma. Mexico City: IIJ UNAM.

(2015): “Conventionality Control: The New Doctrine of the Inter-American Court of Human Rights”, 109 AJIL
Unbound 93.

Ferrer MacGregor, Eduardo, and Alfonso Herrera García (2013): Diálogo jurispurdencial en Derecho
Humanos entre Tribunales Constitucionales y Cortes Internacionales. Mexico City: Tirant lo Blanch.

Ferreres, Víctor (2009): Constitutional Courts and Democratic Values. A European Perspective. New Haven,
CT: Yale University Press.

Filippini, Leonardo, and Julieta Rossi (2010): “El derecho internacional en la justiciabilidad de los derechos
sociales: el caso de Latinoamérica”, in Pilar Arcidiácono, Nicolás Espejo Yaksic and César Rodríguez Garavito,
eds., Derechos sociales: justicia, política y economía en América Latina. Bogotá: Siglo del Hombre Editores,
Uniandes, U. Diego Portales, CELS y LAEHR.

21
Fix-Zamudio, Héctor (2001): “La justicia constitucional en América Latina”, in Héctor Fix-Zamudio, Justicia
constitucional, ombudsman y derechos humanos. México City: CNDH.

Frosini, Justin, and Lucio Pegoraro (2008): “Constitutional Courts in Latin America: A Testing Ground for New
Parameters of Classification?” 3 Journal of Comparative Law 39.

García Villegas, Mauricio (2009): Sociología y crítica del derecho. Mexico City: Ediciones Fontamara.

(2010): Normas de papel. La cultura del incumplimiento de reglas. Bogotá: Siglo del Hombre Editores,
Dejusticia.

(2013): “Constitucionalismo aspiracional”. Araucaria. Revista Iberoamericana de Filosofía, Política y

Humanidades, year 15, No. 29.

Gardbaum, Stephen (2013): “The structure and scope of constitutional rights”, in Tom Ginsburg y Rosalind
Dixon (eds.), Comparative Constitutional Law. Cheltenham: Edward Elgar.

Gargarella, Roberto (2006): “Should Deliberative Democrats Defend the Judicial Enforcement of Social
Rights?” in Samantha Besson and José Luis Martí, eds., Deliberative Democracy and its Discontents.
Burlington, VT: Ashgate.

(2012): “Latin American Contitutionalism Then and Now: Promises and Questions”, in Detlef Nolte and
Almut Schilling-Vacaflor, eds, New Constitutionalism in Latin America. Promises and Practices.Ashgate
Publishing.

(ed.) (2014a): Por una justicia dialógica. El poder judicial como promotor de la deliberación democrática.
Buenos Aires: Siglo Veintiuno Editores.

(2014b): “Sin lugar para la soberanía popular. Democracia, derechos y castigo en el caso Gelman”, in
Derechos Humanos: posibilidades teóricas y desafíos prácticos. Seminario en Latinoamérica de Teoría
Constitucional y Política (SELA) 2013. Buenos Aires: Libraria Ediciones.

(2015): Democracy and Rights in Gelman v. Uruguay. 109 AJIL Unbound 93.

Giacomette Ferrer, Ana (2008): “Acción pública de inconstitucionalidad de las leyes”, in Eduardo Ferrer
MacGregor and Arturo Zaldívar (comps.), Estudios en homenaje a Héctor Fix Zamudio en sus cincuenta años
como investigador del derecho. Tomo VIII. Procesos constitucionales orgánicos. UNAM, IMDC, Marcial Pons.

Gianella, Camilla, and Bruce Wilson (2016): “LFBTI Rights”, in Juan F. González Bertomeu and Roberto
Gargarella, eds., The Latin American Casebook. Courts, Constitutions and Rights. New York: Routledge.

Ginsburg, Tom (2012): “Constitutional law and courts”, in David S. Clark, Comparative Law and Society.
Cheltenham, UK: Edward Elgar.

González-Bertomeu, Juan F. (2012): “Constitutional Adjudication in Non-ideal Scenarios. The case of

Argentina and Colombia”. JSD Dissertation, NYU School of Law.

González-Bertomeu, Juan F., and Roberto Gargarella (2016): The Latin American Casebook. Courts,
Constitutions and Rights. New York: Routledge.

Helmke, Gretchen, and Julio Ríos-Figueroa (2011): Courts in Latin America. New York: Oxford University
Press.

22
Hirschl, Ran (2004): Towards Juristocracy. The Origins and Consequences of the New Constitutionalism.
Harvard, MA: Harvard University Press.

Hübner Mendes, Conrado (2015): “The Brazilian Supremo Tribunal Federal’ (STF): Design and Reasoning of a
Soloist Court” (unpublished paper, on file with author).

Jaramillo, Isabel Cristina (2004): “Estudio preliminar”, in La crítica de los derechos. Bogotá, Siglo del Hombre
Editores.

Kapiszewsky, Diana, Gordon Silverstein, and Robert A. Kagan (2013): Consequential Courts. Judicial Roles in
Global Perspective. New York: Cambridge University Press.

Klabers, Jan, Anne Peters, and Geir Ulfstein (2009): The Constitutionalization of International Law. Oxford,
Oxford University Press.

Kokkot, Julianne, and Martin Kaspar (2012): “Ensuring Constitutional Efficacy”, in Michel Rosenfeld and
András Sajó, The Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford University Press.

Lamprea, Everaldo (2014): “Colombia’s Right–to-Health Litigation in a Context of Health Care Reform”, in
Coleen Flood and Aeyal Gross (eds.), The Right to Health at the Public/Private Divide. A Global Comparative
Study. Cambridge: Cambridge University Press.

Langford, Malcolm (2008): Social Rights Jurisprudence: Emerging Trends in International and Comparative
Law. Cambridge: Cambridge University Press.

Law, David (2005): “Generic Constitutional Law”, 89 Minnesota Law Review 652.

López, Diego (2016): “Reposicionando América Latina y el Caribe en los mapas del Derecho constitucional
comparado”, in Daniel Bonilla Maldonado (ed.), El constitucionalismo en el continente americano. Bogotá:
Siglo del Hombre Editores.

McCann, Michael (1994): Rights at Work: Pay Equity Reform and the politics of Legal Mobilization. Chicago:
The University of Chicago Press.

Navia, Patricio, and Julio Ríos-Figueroa (2005): “The constitutional adjudication mosaic of Latin America.”
Comparative Political Studies, Vol. 38, No. 2, pp. 189-217.

Ortiz, Julio César (1997): “El nuevo sistema de control constitucional en Colombia. De la supresión de las
funciones de control constitucional de la Corte Suprema a la creación de la Corte Constitucional”, in La
Justicia Mexicana hacia el Siglo XXI. Serie Estudios Doctrinales, No. 183. Mexico City: IIJ UNAM.

Parra Vera, Óscar (2014): “El impacto de las decisiones interamericanas. Notas sobre la producción
académica y una propuesta de investigación en torno al empoderamiento institucional”, in Armin von
Bogdandy, Héctor Fix Fierro and Morales Antoniazzi, Mariela (eds.), Ius Constitutionale Commune en
América Latina. Rasgos, potencialidades y desafíos. IIJ UNAM, Max Planck Institut, IIDC.

Parra Vera, Óscar, and Alicia Ely Yamin (2010): “Judicial Protection of the Right to Health in Colombia; from
Individual Demands to Individual Claims to Public Debates”. 33 Hastings International and Comparative Law
Review 101.

Pérez Vázquez, Carlos, and Javier Hernández Valencia (eds.) (2014): A Dialogue Between Judges. Writings of
the Summit of Presidents of Constitutional, Regional and Supreme Courts (Mexico, 2012). Mexico City:
Suprema Corte de Justicia de la Nación, Office of the UN High Commissioner for Human Rights.

23
Pou Giménez, Francisca (2016a): “Changing the Channel: Broadcasting Deliberations in the Mexican
Supreme Court”, in Richard Davis and David Taras (eds.), Justices and Journalists: The Global Perspective.
New York: Cambridge University Press (in press).

(2016b): “Constitutional Change and the Supreme Court Institutional Architecture: Decisional Indeterminacy
as an Obstacle to Legitimacy”·, in Andrea Castagnola and Saúl López Noriega, eds., Judicial Politics in Mexico:
The Supreme Court and the Transition to Democracy. New York, Routledge (in press).

Pozzolo, Susanna (2015): “Apuntes sobre neoconstitucionalismo”, in Enciclopedia de Filosofía y Teoría del
Derecho, Jorge Fabra and Álvaro Núñez (eds.), Vol. I. Mexico City. Available at:
http://biblio.juridicas.unam.mx/libros/libro.htm?l=3875

Ramírez, Slivina, and Nahuel Maisley (2016): “The Protection of the Right of Indigenous Peoples”, in Juan F.
González-Bertomeu and Roberto Gargarella (2016): The Latin American Casebook. Burlington, VT: Ashgate
Publishing.

Restrepo Saldarriaga, Esteban (2003): “Reforma constitucional y progreso social: la constitucionalización de

la vida cotidiana en Colombia” in Roberto Saba (ed.), SELA 2002. El derecho como objeto e instrumento de
transformación. Buenos Aires: Editores del Puerto.

(2011): “Advancing Sexual Health and Reproductive Rights in Latin America and the Caribbean”. Working
paper prepared for the World Health Organization. Geneva. Available at:
http://www.ichrp.org/files/papers/183/140_Restrepo_LAC_2011.pdf

(2015): Constitutional Agonism. JSD Dissertation, Yale Law School.

Ríos-Figueroa, Julio (2016): Constitutional Courts as Mediators. Armed Conflict, Civil-Military Relations, and
the Rule of Law in Latin America. New York: Cambridge University Press.

Roa Roa, Jorge Ernesto (2015): “La justicia constitucional en Amércia Latina”. Serie Cuadernos de Trabajo, nº
34, Universidad Externado de Colombia.

Roach, Kent (2004): “Dialogic Judicial Review and Its Critics”, 23 Supreme Court Law Review 49.

Rodiles, Alejandro (2016): “The Law and Politics of the Pro Persona Principle in Latin America”, in Helmut P.
Aust and Georg Nolte (eds.), The Interpretation of International Law by Domestic Courts. Unity, Diversity,
Convergence. Oxford: Oxford University Press.

Rodríguez-Garavito, César (2009) (dir.): Más allá del desplazamiento: políticas, derechos y superación del
desplazamiento forzado en Colombia. Bogotá: Uniandes, Acnur, ASDI.

(2011a): “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America.”
89 Texas Law Review 1669.

(2011b): “Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social
Minefields”. 18 Indiana Journal of Global Legal Studies 263.

(2015a): “Remapping law and society in Latin America: Visions and topics for a new legal cartography”, in
César Rodríguez-Garavito, ed., Law and Society in Latin America. A New Map. New York: Routledge.

(2015b) (dir.): Human Rights in Minefields. Extractive Economies, Environmental Conflicts, and Social Justice
in the Global South.

24
Rodriguez-Garavito, César and Diana Rodríguez Franco (2015): Radical Deprivation on Trial: The impact of
Judicial Activism on Socioeconomic Rights in the Global South. New York: Cambridge University Press.

Rodríguez Peñaranda, María Luisa (2007): Minorías, acción pública de inconstitucionalidad y democracia
deliberativa. Bogotá: Universidad Externado de Colombia.

Rosenberg, Gerald (1991): The Hollow Hope: Can Courts Bring About Social Change? Chicago: The University
of Chicago Press.

Saba, Roberto (2008): “Constitutions and Codes: A Difficult Marriage; The Unusual Merging of the American
Constitutional Law Tradition with The Continental Law Tradition, 77 Revista Jurídica de la Universidad de
Puerto Rico 285.

Saffon, María Paula, and Rodrigo Uprimny (2010): “Uses and Abuses of Transitional Justice in Colombia”, in
Morten Bergsmo and Pablo Kalmanovitz, eds., Law in Peace Negotiations. Torkel Opsahl Academic
Publishing.

Sagüés, Néstor Pedro (2002): Derecho procesal constitucional. Recurso extraordinario. Buenos Aires, Astrea.

Screibner, Druscilla (2016): “Judicial Communication: (Re)constructing Legitimacy in Argentina”, in Richard

Davis and David Taras, eds, Justices and Journalists: The Global Perspective. New York: Cambridge University
Press (in press).

Silva, Virgílio Alfonso da (2013): “Deciding without Deliberating”. International Journal of Constitutional Law,
Vol. 11, No. 3.

(2015): “Um Voto Qualquer? O Papel do Ministro Relator Na Deliberaçao No Supremo Tribunal Federal”.
Journal of International Studies / Revista Estudios Institucionais, Vol. 1., No. 1.

Stone Sweet, Alec (2000): Governing with Judges. Constitutional Politics in Europe. Oxford: Oxford University
Press.

(2012): “Constitutional Courts”, in Michel Rosenfeld and Andras Sajó, eds., The Oxford Handbook of
Comparative Constitutional Law. Oxford: Oxford University Press.

Tate, Neal, and Torbjorn Vallinder (1995): The Global Expansion of Judicial Power. New York: New York
University Press.

Teitel, Ruti (2000): Transitional Justice. Oxford: Oxford University Press.

Tushnet, Mark (2008): Weak Courts, Strong Rights. Judicial Review and Social Welfare Rights in Comparative
Constitutional Law. Princeton: Princeton University Press.

Uprimny Yepes, Rodrigo, Luz María Sánchez Duque, and Nelson Camilo Sánchez León (2014): Justicia para la
paz. Crímenes atroces, derecho a la justicia y paz negociada. Bogotá: Dejusticia.

Uprimny, Rodrigo (2015): “The recent transformations of constiuttional law in Latin America: trends and
challenges”, in César Rodríguez Garavito, ed., Law and Society in Latin America. A New Map. New York:
Routlegde.

Viciano Pastor, Roberto, and Rubén Martínez Dalmau (2011): “El nuevo constitucionalismo latinoamericano:
fundamentos para una construcción doctrinal”, Revista General de Derecho Público Comparado, N° 9.

25
Wilson, Bruce (2011): “Enforcing Rights and Exercising an Accountability Function: Costa Rica’s
Constitutional Chamber of the Supreme Court”, in Gretchen Helmke and Julio Ríos-Figueroa (eds.), Courts in
Latin America. New York: Oxford University Press.

Yamin, Alicia Ely, and Óscar Parra Vera (2010): “Judicial Protection of the Right to Health in Colombia: From
Social Demands to Individual Claims to ^public Debates. 33 Hastings Int'l & Comp. L. Rev. 431

Yrigoyen Fajardo, Raquel (2015): “The panorama of pluralist constitutionalism: from mlticulturalism to
decolonization”, in César Rodríguez Garavito, ed., Law and Society in Latin America. A New Map. New York:
Routlegde.

Zagrebelsky, Gustavo (2003): El derecho dúctil. Ley, derechos, justicia. Madrid: Trotta.

Francisca Pou Giménez

Assistant Professor, Department of Law
Instituto Tecnológico Autónomo de México (ITAM)
Río Hondo 1. Col. Progreso–Tizapán, Del. Álvaro Obregón.
04310 Mexico City, México.
E-mail: [email protected]

26