The paper analyzes how the concept of political representation can be applied to the Judiciary, focusing on the problems of democratic legitimacy that arise when the courts decide about issues that affect political minorities. Confronting several concepts of representation, the author discusses four questions: 1) Can the Judiciary be understood as a representative arena for the people? 2) What are the risks and implications of recognizing, conceptually, that the Judiciary has a representative role? 3) What are the burdens and institutional boundaries that the recognition of this attribute must impose on judges? 4) How underrepresentation of political minorities in courts impact its democratic legitimacy?
The paper argues that since its origins, the very notion of sexual rights presents itself with contradictions and paradoxes that reflect unresolved conflicts between freedom and equality. Despite the specific contributions that each one of these principles brings to the debate around sexual rights, there are also tensions between them that lead to opposite solutions for concrete cases concerning sexual rights. Based on this premise, the paper aims to explore this point by calling attention to the absence of a legal framework to deal with complex cases involving sexual rights and proposing the adoption of an integrated approach between freedom and equality to cope with them.
The paper argues that the legal turns on the recognition of transgender rights can be explained as variations within the legal liberalism and paternalism framework: initially as damage (i.e. must be prohibited), then as beneficence (i.e. must be provided and required), lastly as a space of self-realization authorized by the State. Additionally, it calls attention to the fact that the shifts between frameworks occurred within heteronormative paradigm. Finally, it points out the limitations of not challenging heteronormativity and disregarding the contributions that feminist theory and gender studies can bring to this case.
Following the return to democracy in the eighties, Latin American constitutions incorporated human rights treaties and embraced multicultural values. This constitutional change could be interpreted to entail an egalitarian commitment to both redistribute wealth and recognize disadvantaged groups. However, governments from across the political spectrum enforced multicultural constitutions favoring recognition of ethno-racial diversity over claims of redistribution of wealth.
Using empirical evidence of the profiling of poor young brown boys in the City of Buenos Aires as a case study, I argue that crime prevention law is unfaithful to the egalitarian imperative of multicultural constitutions, even in its most reduced form—the one attending solely to the recognition of diverse groups without any redistribution. I claim that crime prevention standards betray equality because they assume that disadvantaged groups are fixed entities instead of groups disadvantagized through stereotypes.
Using the process of recognition of same-sex marriage in Mexico as a case study, I claim that specific institutional features of a constitutional culture diminish the chances of backlash against supreme court’s rulings. This paper identifies two features of the Mexican constitutional culture that can explain why the Mexican Supreme Court ruling was not followed by backlash on this highly contested issue. First, the Mexican approach to judicial review limits the reach of the Court’s interpretation of the Constitution, and therefore restricts the role of judges in altering social realities. Second, due to operational dysfunctionalities, the Court is a week institution vis a vis other political actors and for that reason judicial decision-making goes unnoticed and uncontested. In doing so, this paper contributes to the recent discussions on law and politics in Latin American legal scholarship.