Comparative constitutional law in Latin America: an introduction (original) (raw)

Comparative Constitutional Law in Latin America

Comparative constitutional law is a field that purports to be truly global in nature. Yet in recent years some scholars have suggested that the field suffers from a clear disciplinary bias or blind spot: it tends systematically to overlook the constitutional challenges and experiences of "the Global South" (Maldonado 2014, p 5). In economics, the Global South critique is generally understood to be a critique about the distribution of global wealth and resources: if the "North" is defined as North America, Western Europe and economically developed parts of East Asia, the North is then home to only 25 per cent of the world's population, but controls 80 per cent of the world's wealth. Ninety-five per cent of citizens living in the North have access to enough food, shelter and a functioning education system, whereas in the global "South"-i.e. Africa, Latin America, the Middle East and developing Asia-this figure is closer to 5 per cent. In constitutional law, the critique is somewhat different: it is that comparative constitutional law scholarship has tended to focus on the problems and challenges facing wealthy, consolidated constitutional democracies-i.e. challenges such as how best to balance commitments to individual rights and security, to respond to problems of reasonable disagreement in the context of the interpretation and enforcement of first-generation constitutional rights, or realize the claims of progressive generations to full social inclusion-while ignoring key challenges facing less wealthy and stable democracies, particularly those related to socioeconomic distribution (Maldonado 2014; Hirschl 2014). These challenges arise with different degrees of intensity in different parts of the Global South. In the last few decades, some parts of the Global South have enjoyed extended periods of democratic government, and economic growth and prosperity, while others have faced renewed threats of state failure, civil war, famine, public health crisis and rising