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David Landau

Much recent work has examined and found support for a convergence thesis – the idea that constitutional law across countries is becoming increasingly similar through time. This chapter critically examines the convergence thesis in Latin America. While much recent work has focused on the level of constitutional text, this chapter argues that a more meaningful approach for many purposes would look at either judicial enforcement or actual enjoyment of rights. The chapter considers two issue areas – same-sex marriage and socioeconomic rights – where there are high-level pressures towards convergence within the region. It shows nonetheless how courts have used differing conceptions of justiciability and remedy to reach significantly different solutions to the enforcement of these rights. This enduring divergence is rooted in differing conceptions of judicial role, which in turn are a product of a number of factors including judicial design, constitutional and judicial history, the configuration of political institutions, and idiosyncratic factors related to individual judges. Most of these factors are unlikely to show a clear trend towards convergence through time. Thus, on-the-ground convergence is likely to remain limited, since those seeking to promote convergence would need to align low-level factors impacting the behavior of judges as well as high-level factors like consciousness or the constitutional design of particular rights. This finding in turn raises broad questions about both the possibility and desirability of convergence in Latin American constitutional law.

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David Landau

This chapter argues that a “global south” constitutionalism might be constructed in part on distinctive theories of the judicial role. Both constitutional design and jurisprudence suggest that newer or more fragile democracies are often preoccupied with problems of democratic erosion, political dysfunction, and institutional failure. Judges working in these contexts have responded with at least two distinct theories of their role. In the first, labelled constitutional realization, judges may relax constraints on the separation of powers and take action themselves in the event of widespread institutional failures that make other branches of government unable or unwilling to carry out assigned constitutional tasks. In the second, judges justify interventions as an attempt to improve the functioning of the political system over time. These theories share an intertemporal nature – they focus on what judicial activism can achieve over time, rather than whether judges are overstepping pre-existing, static constraints. This chapter finds that both theories are plausible but also highlights important and underexplored questions, both normative and empirical. Further, it suggests that while global north and global south contexts share common problems, the distinctive nature of problems across many newer or more fragile democracies makes it attractive to develop constitutional theories of the global south and to use those to dialogue with global north constitutional theory.

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David Landau

This chapter explores and expands upon Charles Epp’s canonical idea of judicial reliance on support structures for success in issuing and implementing decisions. It does so in two ways. First, it draws on examples from a number of countries to argue that support structures are heterogeneous, and that much can be gained by focusing on the different patterns of support for courts. One might, for example, differentiate between political parties, ordinary court judges, domestic civil society groups of different types, international NGOs, or various slices of the public; different forms of support may affect judicial behavior and success in predictable, testable ways. Second, it argues that courts are not just passively reliant on their support structures, but rather that they can take actions, within limits, to strengthen and influence them. It gives examples of ways in which courts can build support from the public, international actors, and other groups.

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David Landau

Abstract: This chapter considers the place of legal pragmatism in comparative constitutional law. The article first defines legal pragmatism as a theory that is anti-formal, eclectic, contextual, and instrumental, and articulates and responds to some common critiques of these central tenets. It then explains that while legal pragmatism is sometimes viewed by its adherents (such as Richard Posner) as being mostly of relevance in United States constitutional theory, it actually has much to say to the field of comparative constitutional law. The chapter argues that the insights of pragmatism can usefully be viewed in synthesis with important tools of comparative constitutionalism, such as proportionality, in order to suggest ways in which those tools can be broadened and improved. It also can help to point out the importance of “blind spots” that are de-emphasized in existing theories, like questions of remedy and case selection.

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David Landau

This chapter provides an analysis of the judicialization of socioeconomic rights in Latin America. Landau argues that over the last few decades, the courts of the region have made it possible for socioeconomic rights to be judicially enforced. Nevertheless, Landau also indicates that the effect of this judicial application of socioeconomic rights has had little impact on the levels of social justice in the region. For Landau, this paradox could be explained if it becomes evident that the courts are institutions that usually protect the positions of the social majorities and therefore tend to favor the interests of the politically powerful sectors. For Landau, this pattern of behavior has two primary components in Latin American constitutional courts: the model of individual application of socioeconomic rights and negative judicial requirements. Landau finds, however, that some patterns of Latin American case law go against the arguments that are typically presented in the dominant constitutional doctrine on socioeconomic rights. One the one hand, for Landau, the courts fill the void left by institutions that defraud the population by non-compliance with their duties with respect to socioeconomic rights. On the other hand, courts block unpopular measures taken by governments as a consequence of pressure from powerful national and international interests. Finally, Latin American case law on socioeconomic rights contributes to the creation of a constitutional culture that brings constitutions closer to the citizens, making law relevant in their daily lives.

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David Landau

This chapter surveys constitution making in Latin America since 1990. It classifies the nine constitution-making episodes in the region along two dimensions: (1) whether they were constrained or unconstrained by the existing constitutional order, and (2) whether they were drafted unilaterally or by a more consensual coalition of actors. An examination of recent regional constitution-making reveals that original constituent power theory, or the theory that the “people” retain the power to remake the constituted powers in the existing constitutional order, has played a major role in most recent exercises of constitution making. The main practical function of the doctrine has been to allow powerful political forces to remake their constitutional orders unilaterally, evading a need to negotiate with the opposition. Clarifying this function is useful for developing a practical rather than theoretical critique of the harm often done by constituent power theory, and for highlighting the desirability of alternative conceptions of constitution making. In many cases, reliance on replacement clauses found in existing constitutions themselves is likely to be a superior alternative.

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Edited by David Bilchitz and David Landau

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David Landau and David Bilchitz

The goals and thinking behind the doctrine of the separation of powers have proven to be so compelling that in virtually all democratic systems across the world, some version of the separation of powers concept has been enshrined in the constitution. The contributors to this volume were motivated by a recognition of the value that the doctrine has but also by the need to re-think its core aspects in light of recent changes both in design and practice. Much recent work has sought to develop new theoretical defenses or reconceptualize the purpose or functioning of the separation of powers. In contrast, this volume examines the evolution of the doctrine in light of important developments that we believe have been underexplored in existing work. First, the recent past has seen important changes in the field of constitutional design. These trends are most pronounced in what Daniel Bonilla has called the constitutions of the “global south,” but they are far from exclusive to new or more fragile democracies. These include questions about the changes in function of existing institutions in light of the inclusion of more expansive lists of rights such as socio-economic rights. They also include the widespread inclusion of independent accountability institutions – such as human rights commissions – whose place within the existing separation of powers is unclear. Secondly, a series of political and technological changes have altered the way the traditional model functions. While these shifts are difficult to generalize across countries, scholars have noted an increase in executive power and a decrease in legislative legitimacy and importance. The chapter examines the implications of these practical shifts for the theory of the separation of powers. Thirdly, we pose the question whether the differences between the constitutionalism that is developing in the global south and the traditional constitutionalism of the global north requires a divergent conception of the separation of powers, or whether a unified theoretical conception is possible. Lastly, we attempt to provide an understanding of how the various chapters in the book tackle the problems we examine.

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The Evolution of the Separation of Powers

Between the Global North and the Global South

Edited by David Bilchitz and David Landau

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? Constitutions now often include newer forms of rights – such as socioeconomic and environmental rights – and are written with an explicitly transformative purpose. They also often reflect include new independent bodies such as human rights commissions and electoral tribunals whose position and function within the traditional structure is novel. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. The chapters in this edited volume grapple with these shifts and the ways in which the doctrine of the separation of powers might respond to them. It also asks whether the shifts that are taking place are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world.
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Hanna Lerner and David Landau

This introduction to the Elgar Handbook of Comparative Constitution Making briefly lays out some of the most important recent debates in a burgeoning field. Part 1 defines constitution making and explores recent literature on why it is carried out. Part 2 considers recent work on the relationship between constitution making and “the people,” focusing on the theory of constituent power and its potential competitors. Part 3 looks at academic literature on the design of constitution making processes, focusing on three hotly-debated dimensions: the nature of the drafting body, forms of popular participation, and the role of courts. Part 4 considers the state of the art on the question of how constitution making might ameliorate or exacerbate various kinds of division, while Part 5 looks at the ways in which globalization and diffusion are impacting practices of constitution making, and the underlying question of convergence or divergence of constitution making models. Finally, Part 6 provides a map for the 25 substantive chapters that make up the rest of the handbook.