Is the Ius Constitutionale Commune in Latin America Missing the Point?
摘要
Latin America offers a rich and diverse history for discussing what ideas are and should be considered associated with constitutionalism. A particularly influential type is the ius constitutionale commune (ICCLA). Championed by a group of scholars and judges, the ICCLA seeks to identify and promote a version of constitutionalism that emphasizes the protection of human rights understood from an egalitarian perspective, offering a transformative regional project that emphasizes the (final) authority of the Inter-American Court of Human Rights (IACtHR). Critics have questioned the possibilities of this normative project, challenged its liberal European-centred inspiration, objected that it promotes the judicialization of politics while weakening more compelling versions of democracy, and claimed that it could undermine alternative projects rooted in the idea of constitutional pluralism. This chapter argues that the ICCLA provides a means (the judicialization of human rights issues) poorly suited to advance its egalitarian goals fully. Even though some proponents of the ICCLA are aware of this limitation, they have done little to correct it. Some of their ideas can even deepen the problem by distracting from the real causes that prevent social rights expansions and promoting constitutional arrangements that undermine the goal of producing a more responsive political process.