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Transformative Constitutionalism in Latin America - The Emergence of a New Ius Commune edited by von Bogdandy, Armin; Ferrer Mac-Gregor, Eduardo; Morales Antoniazzi, Mariela; Piovesan, Flávia; Soley, Ximena (22nd June 2017)

Part II The Domestic Element, 11 The “New” Latin American Constitutionalism: Old Wine in New Skins

Roberto Gargarella

From: Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune

Edited By: Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan, Ximena Soley

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 04 July 2020

In this chapter, I critically examine the notion of “new Latin American constitutionalism” to suggest that what is presented as “new” turns out to be, in general, all too “old.” Basically, I posit that the persistence of the central traits of the “old” Latin American constitutionalism—above all, the organization of power based on a very limited notion of democracy—affects the actual value and appeal of this so-called “new” constitutionalism. Specifically, I maintain that the greatest advances proposed by the regional approach to constitutionalism, which are fundamentally concentrated in the area of constitutional rights, appear to be blocked by how power is organized, a structure that lies in tension with the principles and aspirations enshrined in the section on rights.

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