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Preview: International Journal of Constitutional Law - current issue

International Journal of Constitutional Law Current Issue





Published: Mon, 03 Jul 2017 00:00:00 GMT

Last Build Date: Mon, 03 Jul 2017 05:44:33 GMT

 



High Courts and Economic Governance in Argentina and Brazil

2017-07-03

KapiszewskiDiana, High Courts and Economic Governance in Argentina and Brazil. Cambridge University Press, 2012. $113.00. ISBN: 9781107008281.



Making Brazil Work: Checking the President in a Multiparty System

2017-07-03

MeloMarcus André & PereiraCarlos. Making Brazil Work: Checking the President in a Multiparty System. Palgrave Macmillan, 2013. Pp xx + 212. $ 100.00. ISBN: 9781137310842.



Constituição e Direito das Mulheres: Uma Análise dos Esterótipos de Gênero na Assembleia Constituinte e suas consequências no Texto Constitucional

2017-07-03

de OliveiraAdriana Vidal. Constituição e Direito das Mulheres: Uma Análise dos Esterótipos de Gênero na Assembleia Constituinte e suas consequências no Texto Constitucional. Juruá Editora. 2015, 473 pp. BRL 129.90. ISBN: 978853624939-1.



Judicialização ou representação?: Política, direito e democracia no Brasil

2017-07-03

PogrebinschiThamy. Judicialização ou representação?: Política, direito e democracia no Brasil. Rio de Janeiro: Elsevier, 2011. BRL 59.90. ISBN: 9788535251517.



La doctrina del precedente en la Corte Suprema

2017-07-03

GarayAlberto F.. La doctrina del precedente en la Corte Suprema. AbeledoPerrot, 2013. Pp. 417. Price: ARS 862. ISBN: 9789502025100.



Obligatoriedad atenuada de la jurisprudencia de la Corte Suprema de Justicia de la Nación

2017-07-03

LegarreSantiago. Obligatoriedad atenuada de la jurisprudencia de la Corte Suprema de Justicia de la Nación. Ábaco, 2016. Pp. 198. ARS 410.00. ISBN: 9789505693047.



El Test de Proporcionalidad en la Jurisprudencia del Tribunal Constitucional Peruano

2017-07-03

Rubio CorreaMarcial Antonio. El Test de Proporcionalidad en la Jurisprudencia del Tribunal Constitucional Peruano. Fondo Editorial de la Pontificia Universidad Católica del Perú, 2011, Pp. 420. Price: PEN 70. ISBN: 9789972429811.



Cortes y Cambio Social. Cómo la Corte Constitucional Transformó el Desplazamiento Forzado en Colombia Radical Deprivation on Trial. The Impact of Judicial Activism on Socioeconomic Rights in the Global South

2017-07-03

Rodríguez GaravitoCésar & Rodríguez FrancoDiana. Cortes y Cambio Social. Cómo la Corte Constitucional Transformó el Desplazamiento Forzado en Colombia. De Justicia, 2010. Pp. 290. ISBN 9789589914212.



Eslabones del Derecho El Derecho de los Jueces

2017-07-03

López-MedinaDiego E.. Eslabones del Derecho. Legis and Universidad de los Andes2016. Pp. 227. COP 43,000. ISBN: 9789587674125.



Judicial Politics in Mexico: The Supreme Court and the Transition to Democracy

2017-07-03

CastagnolaAndrea & NoriegaSaúl López(eds.), Judicial Politics in Mexico: The Supreme Court and the Transition to Democracy. Routledge, 2016. Pp. 176. $44.95. ISBN: 9781138697829.



La casa de todos. La Nueva Constitución que Chile merece y necesita

2017-07-03

LarraínPatricio Zapata. La casa de todos. La Nueva Constitución que Chile merece y necesita, 2015. Ediciones Universidad Católica de Chile. Pp. 217. CLP 12,150. ISBN: 9789561417120.



The Legal Foundations of Inequality: Constitutionalism in the Americas, 1776–1860

2017-07-03

GargarellaRoberto. The Legal Foundations of Inequality: Constitutionalism in the Americas, 1776–1860. Cambridge University Press, 2010. Pp. 288. $108. ISBN 9780521195027.



Seeking Human Rights Justice in Latin America. Truth, Extra-Territorial Courts, and the Process of Justice

2017-07-03

DavisJeffrey. Seeking Human Rights Justice in Latin America. Truth, Extra-Territorial Courts, and the Process of Justice. Cambridge University Press, 2013. Pp. 247. US$33.99. ISBN: 9780521514361.



Constitutionalism of the Global South

2017-07-03

MaldonadoDaniel Bonillaed. Constitutionalism of the Global South. Cambridge University Press. 2013, Pp. 422. $57.00. ISBN: 9781107036215



Castigar al Prójimo. Por una Refundación Democrática del Derecho Penal

2017-07-03

GargarellaRoberto. Castigar al Prójimo. Por una Refundación Democrática del Derecho Penal. Editorial Siglo XXI, 2016. Pp. 296. ISBN: 9789876296793.



La Forma del Derecho

2017-07-03

AtriaFernando. La Forma del Derecho. Marcial Pons, 2016. Pp. 500. €43.70. ISBN: 9788491230403



Birth and decay of the Chilean Constitutional Tribunal (1970–1973) The irony of a wrong electoral prediction

2017-07-03

Abstract
Scholars debate about why constitution-makers create constitutional courts, and what the conditions are for making these tribunals politically relevant. This article examines how the understudied Chilean 1970–1973 Constitutional Tribunal has contributed to this discussion. That Tribunal was created in 1970, through an error made by constitution-amenders who believed that someone else was going to be elected president. Although the Tribunal generally benefited the unexpectedly elected president (Allende), it finally lost its relevance because of its refusal to alleviate a significant political conflict. Judicial review theories based on rights and political competition are not applicable to the Chilean case. The separation of powers theory, which claims that constitutional courts develop because of their function in solving inter-branch disputes, partly explains the creation of the Tribunal. However, the Chilean example suggests that that theory does not apply in highly controversial contexts.



Developments in the Commonwealth Caribbean The year 2016 in review

2017-06-30

Abstract
This article reviews a number of key constitutional developments that occurred in the Caribbean region during 2016. These include: the orderly transfer of power following elections in Jamaica and St Lucia, confirming the region’s continuing commitment to parliamentary democracy in the post-independence era; the overwhelming rejection of proposals to amend the country’s Constitution by voters in a referendum in Grenada; the announcement of plans to hold constitutional referendums in Barbados and Jamaica on whether to replace the Queen with a ceremonial president; the 50th anniversary of Barbados and Guyana’s independence; and a review of how homosexuality should be treated by the law by both the Supreme Court of Justice in Belize and the Caribbean Court of Justice.



Exporting the margin of appreciation: Lessons for the Inter-American Court of Human Rights

2017-06-30

Abstract
What might the Inter-American Court of Human Rights (IACtHR) gain from a ‘judicial dialogue’ with the European Court of Human Rights (ECtHR) in the form of borrowing the ECtHR’s margin of appreciation doctrine? Arguably, a favorable interpretation of the vague margin of appreciation doctrine allows the ECtHR to provide both human rights protection and deference to domestic democratic decision-making. This may guide the IACtHR’s attempt to respect both the American Convention on Human Rights and its sovereign creators. In particular, the ECtHR’s Doctrine may illustrate how these regional courts can interact with states that violate the respective conventions after less than fully democratic processes—in the eyes of the courts. The same margin of appreciation doctrine may justify more or less sovereignty-invading stances by both the IACtHR and by the ECtHR, depending on to the different levels of entrenchment of a democratic culture and rule of law in the state of concern, and depending on the actual deliberations carried out in the particular case.



New remedial responses in the practice of regional human rights courts: Purposes beyond compensation

2017-06-30

Abstract
In theory, remedies ordered by regional human rights courts aim at the full reparation of the consequences of a human rights violation (restitutio in integrum). In spite of this premise, both the European and the Inter-American Courts of Human Rights have traditionally focused on the provision of pecuniary and non-pecuniary remedies for repairing actual damage directly caused by said violations. On the few occasions where the courts have been asked to grant remedies beyond a compensatory aim, they have refused to do so, declaring that these types of remedies do not fall within their competence. This article takes issue with these declarations and, through an analysis of selected case law, demonstrates that the practice of both regional courts has changed. They, each in their own way, have started to use remedial measures as an instrument that is not solely directed at compensation, but also at cessation, deterrence, and policy-making.



Subsidiarity, margin of appreciation and international adjudication within a cooperative conception of human rights

2017-06-30

Abstract
The projected inclusion of the subsidiarity principle and the margin of appreciation doctrine in the preamble to the European Convention on Human Rights (ECHR) is a legal turn that deserves special attention. Is it a welcomed reform which will enhance the Strasbourg Court’s often-questioned legitimacy vis-à-vis member states? Does it represent, as some non-governmental organizations have claimed, a setback for human rights in Europe? This article elaborates on these questions by first entering into the current debate on the nature of human rights. I suggest that a “cooperative” political understanding of these rights, which is based on claims of relational justice, is a suitable ground for a normative theory of international human rights adjudication. I then use this political conception to present a non-statist reading of the subsidiarity principle, which is in accord with an incrementalist approach to human rights requirements and with a rationalized version of the margin of appreciation doctrine. My holistic reading is consistent with the axiological aims of the ECHR system as a regional driver of human rights protection without damaging Strasbourg’s legitimacy.



The final word? Constitutional dialogue and the Inter-American Court of Human Rights

2017-06-30

Abstract
In this article, I discuss the ways in which the Inter-American Court of Human Rights (IACtHR) may address cases adopting a novel approach to legal adjudication—one that relies on domestic notions of constitutional law carried out by domestic jurisdictions. Most scholarship on the inter-American human rights system assumes a top-down approach, whereby the Court dictates what countries must do. I offer an alternative, bottom-up, approach that could advance the Court’s legitimacy, especially in the face of criticism by countries, legal scholars and advocates for the Court’s decisions as an illegitimate intervention into domestic affairs. To this end, I examine the conventionality control doctrine, whereby domestic judges are expected to decide as if they were “inter-American human rights judges,” and I discuss two decisions that shed light on the IACtHR’s bottom-up model of constitutional dialogue with domestic jurisdictions.






The final word? Constitutional dialogue and the Inter-American Court of Human Rights: A rejoinder to Paolo Carozza and Pablo González Domínguez

2017-06-30

I am grateful to Paolo Carozza and Pablo González Domínguez for their insightful response to my article.11 I am thankful as well to I·CON for inviting me to reply.



From abusive constitutionalism to a multilayered understanding of constitutionalism: Lessons from Latin America

2017-06-30

Abstract
This article criticizes some of the implications of the recently coined notions of “abusive” and “authoritarian” constitutionalism. It argues that these terms assume that constitutions are merely higher law, and lose sight of the fact that they are also political documents that gain meaning due to the domestic and global power struggles. In light of this one-sided notion of constitutionalism, these terms generally imply that constitutions fail in places where amendment mechanisms are simply instruments for maintaining would-be autocrats in power. Reforms are thus necessary to limit amendment mechanisms. Focusing on the deployment of constituent power in Latin America during the 1990s—especially in Venezuela and Colombia—this article reacts against the fiction of “failed law” and uses the idea of constitutions-as-politics to show that amendment mechanisms in the region are related not only to the consolidation of power of authoritarian leaders, but also to domestic disputes around constitutional arrangements that limited democracy during the twentieth century and to the adoption of or resistance to new ideas about economic development in the transition from import substitution industrialization (ISI) to market-oriented reforms. The use of constituent power in Latin America has many faces and this article stresses the political debate, an issue largely forgotten by comparative constitutional scholars.



Developments in Brazilian constitutional law: The year 2016 in review

2017-06-30

Abstract
Brazilian constitutional law was the subject of intense debate in 2016. Amid a political and economic crisis, the Brazilian Supreme Federal Court (STF) was called upon to intervene in several core political, economic, and social controversies. Taking the position as arbiter of national disputes, it was nonetheless thrust into the heart of the crisis. This report examines the developments in Brazilian Constitutional Law by focusing on the main controversies and major cases decided by the STF in 2016, such as the impeachment trial of President Dilma Rousseff, the enforcement of criminal sentences, the unconstitutionality of the incidence of the crime of abortion, health rights litigation, among others. It also looks into some of the STF’s longstanding flaws, such as its justices’ unbalanced powers and inability to deliver an “opinion of the Court.” As a court that has progressively gained strength and decided on matters of substantial political impact, moral disagreement, and social rights, for instance, it concludes that the comparative constitutional law field should pay more attention to the developments of the Brazilian Supreme Court.



Cooperative Brexit: Giving back control over trade policy *

2017-06-29

We invited Thomas Streinz, Fellow at the Institute for International Law and Justice, NYU School of Law, to contribute a Guest Editorial to our Journal. Taking Joseph Weiler’s recent Editorial, “The Case for a Kinder, Gentler Brexit”, as its starting point, Mr Streinz argues that the principle of “sincere cooperation” requires the Union and a departing member state to pursue a “cooperative” approach to withdrawal, and applies that proposition to the contested area of trade policy in the context of the United Kingdom’s impending withdrawal from the Union.






Rethinking judicial empowerment: The new foundations of constitutional justice

2017-06-29

Abstract
Despite growing attention to the causes and consequences of judicial empowerment and the judicialization of politics, there is no consensus on the concept or the measure of formal judicial power. We present an original and comprehensive conceptual framework that includes three dimensions. The first is ex ante autonomy, which is concerned with pluralism in the process of appointing justices, and with the ability of a single outside actor to control appointments. The second is ex post autonomy, which measures the extent to which a single actor can shape and manipulate the incentives of sitting justices. The last is the court’s scope of authority, which evaluates the court’s ability to intervene decisively on a broad range of politically relevant issues, on behalf of a broad range of actors. We argue that high and low levels of autonomy and authority interact to produce qualitatively different models of constitutional justice, reflecting differences in the goals of political actors to design courts as mechanisms of governance. We apply the framework in the context of formal institutional changes to courts in Latin America over thirty-five years. The results reveal several important insights not captured by purely additive or one-dimensional measures of judicial empowerment. We show that designers increasingly prefer tradeoffs among dimensions rather than across-the-board increases in formal autonomy and authority, and discuss the implications of these results.



The forgotten people in Brazilian constitutionalism: Revisiting behavior strategic analyses of regime transitions

2017-06-29

Abstract
Strategic behavior and game theory models of regime transitions have long dominated the constitutional and political science landscape. Even so, disagreements, controversies, and dilemmas over the causes and consequences of the process of democratization are the norm among those distinct theories, bringing about a great deal of inconsistency. Particularly intriguing, however, is the fact that, while normally focusing on the strategic behavior of political and economic elites, little attention has been given to the distinct groups of civil society which, through different means, have taken on a fundamental role during those transitions in building a new constitutional and democratic order. This article challenges those theories by diachronically revisiting the literature about the Brazilian Constituent Assembly of 1987/1988, a paradigmatic example of a constitutional moment marked by such conflicting interpretations. By bringing the “forgotten people” to the forefront, it concludes that perhaps those theories’ pessimistic stress on the behavior of the ruling elites might not be enough to cope with the un controllable power of popular masses and the paradoxical nature of constitutional democracy.



Democracy and regional human rights courts: An introduction

2017-06-29

The regional human rights courts in Europe and the Americas have a complex relationship with democracy. On the one hand, they were established to protect democracy (and the fundamental rights on which democracy depends) and to serve as “alarm bells” to facilitate detection and early intervention if tyranny nevertheless threatened. On the other hand, however, specific procedures and practices of these courts, or certain forms of adjudicative activity, may threaten or undermine stable democratic self-governance. History has shown that the work of the European and Inter-American courts has, at times, both augmented and challenged democracy in their respective member jurisdictions. This symposium addresses certain aspects of this tension. It consists of articles first presented at a World Congress of the International Association for the Philosophy of Law and Social Philosophy in Washington DC in 2015 at the initiative of Andreas Follesdal, Co-Director of PluriCourts—a Research Center at the University of Oslo committed to the study of the legitimacy of international courts.