Democracy and Adjudication in Latin America: A Critical Analysis of Wil Waluchow’s Common Law Theory of Judicial Review

After recognizing the importance of a sound theory of adjudication in constitutional law, this chapter raises questions about Waluchow’s common law theory of judicial review in Latin American constitutionalism. Despite most nations providing a progressivist constitutional protection of rights, one can find on this continent a conservative concentration of powers. Under this circumstance, the scope of a constitutional court (or a supreme court) is better understood under Gargarella’s model of deliberative democracy. Judicial activism should be avoided and the courts seen as engineers of public debates over institutional dialogues. The common law theory of judicial review can play a role in regulating the democratic process and aid judges in adjudication, yet three elements should be developed within this theory. The first is the new dimension of democratic challenge. The recognition of new rights in such a conservative division of powers makes the power of courts stronger than that imagined by Waluchow. The second is the necessity of a new theory of rights wherein we could account for the importance of not only individual but also social and Indigenous rights. The third is the need for a theory of judicial self-restraint for the defense and construction of a community’s constitutional morality.