The Migration of Constitutional Ideas in Latin America: Dynamics, Underlying Assumptions, and Possible Improvements

Certain features of judicial borrowing in Latin America point to a search for an external source of authority to sort out constitutional and human rights issues. Within the context of an increasingly globalised constitutional law, references to foreign and international courts surely make sense, but if the goal is to truly improve the quality of decisions and to find better solutions collectively, it is worth reflecting on potential reasons behind the judges’ method and eagerness to embrace the borrowing trend. In turn, the findings may point to ways to strengthen the practice. Thus, the paper will first pinpoint certain characteristics, patterns and dynamics of judicial borrowing in the region, to then consider how they play out in practice by analysing the influence of the ECtHR in Argentina. Lastly, it will draw from postcolonial theory to explain some aspects of the Latin American approach to borrowing, and build from it to suggest ways to improve the practice.