My paper explores the expansion of human rights law as a feature of domestic constitutional law in a context of democratic decay. It discusses the particular case of “Latin American international law,” which combines a distinctive monist tradition of international law with a strong and recent adoption of constitutional review. The question I seek to address is: what can we learn from a case of enhanced monism that has (nonetheless?) rendered a dramatic democratic erosion? Is there a causal relation or is it just a coincidence? More generally, what does this exploration tell us about the future of constitutional democracy? The paper examines the ways in which the Inter-American Court of Human Rights takes stock of, and interacts with, domestic law. Specifically, it looks at recent articulations of that interaction, such as the notion of “judicial dialogue” and the development of a kind of Latin American common law of rights and constitutionalism.
This article discusses the role of high courts in the context of a political transition from competitive authoritarianism towards full autocratic rule. What are the roles of high courts in processes of authoritarian consolidation? Why, and under what conditions, would authoritarian rulers employ high courts to consolidate their rule and entrench their power? What advantages – if any – would a politicized, dependent, illegitimate high court afford a consolidating authoritarian regime?
Internal and external challenges are leading to a growing distrust in democracy, giving room to regimes pushed by various populists, which fulfill in some scale the characteristics of illiberal democracies; constraints on rights, press control, disregard of minorities, concentration of power in the Executive, elimination of political opponents. In Brazil, Bolsonaro presents himself as someone who can communicate directly with the people and ensure their will is translated into public policies. His official measures demonstrate a conservative authoritarian tendency; impregnating the public policy with religious belies, politically incorrect, intolerant and confrontational moral agenda. The paper proposes an assessment of Brazilian institutional situation to discuss whether Bolsonaro's government guidelines coincide with characteristics of the so-called illiberal democraies and how this can affect global constitutionalism considering the growing populist belt worldwide.
Populist leaders define the people as one part of the population that is unbound by law to create new authoritarian constitutions. I examine all instances of popular constitution-making in post-Cold War South America to argue that through the “extraordinary adaptation” of old institutions the “people” may include everyone. Rather than opening a legal void, in extraordinary adaptation, the revolutionaries win democratic elections and then repurpose the old institutions by bending and re-interpreting their rules. The repurposing is principled: the revolutionary exhausts all other legal channels, openly acknowledges the violation to seeks popular vindication, and concedes enough to the opposition so that it may begrudgingly acquiesce to the new constitution. I show how populists in Venezuela and Ecuador established authoritarian constitutions through lawless and exclusive constitution-making while Colombia and Bolivia managed to avoid the same fate by through extraordinary adaptation.