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  • Series: Studies in Comparative Law and Legal Culture series x
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Legal Innovations in Asia

Judicial Lawmaking and the Influence of Comparative Law

Edited by John O. Haley and Toshiko Takenaka

Legal Innovations in Asia explores how law in Asia has developed over time as a result of judicial interpretation and innovations drawn from the legal systems of foreign countries. Expert scholars from around the world offer a history of law in the region while also providing a wider context for present-day Asian law. The contributors share insightful perspectives on comparative law, the role of courts, legal transplants, intellectual property, Islamic law and other issues as they relate to the practice and study of law in Japan, China, Taiwan, Korea and Southeast Asia.
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Edited by Colin Crawford and Daniel Bonilla Maldonado

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Daniel Bonilla Maldonado and Colin Crawford

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Daniel Bonilla Maldonado

This chapter argues that the production, exchange, and use of legal knowledge are subject to a political economy. These processes, Bonilla explains, are governed by a series of rules and principles that determine the conditions of possibility for the creation of, commerce in, and consumption of legal theory, doctrine and practices. For Bonilla, this political economy is not neutral. It constructs a specific subject of knowledge that acts within a particular space and time. This chapter therefore has a double objective. On the one hand, it seeks to describe and analyze the political economy model that dominates the contemporary legal imagination. In this sense, it seeks to examine the conceptual structure of what Bonilla calls the free market of legal ideas model. This is the model that typically serves to explain the prevalence of U.S. constitutionalism in Latin America. On the other hand, it seeks to describe and analyze an alternative, peripheral political economy model that would best explain the real dynamics that regulate the creation, trade, and use of legal knowledge. To reach this objective, Bonilla sheds light on the conceptual structures that form what he calls the colonial model of legal knowledge production. In practice, this is the model that regulates key components of the relationships between Latin American and U.S. constitutionalism.

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Jorge L. Esquirol

This chapter contends that the relationship between Latin American and U.S. constitutionalism is not horizontal. Esquirol argues that the vertical nature of the relationship is illustrated particularly well by the relative importance of the Latin American constitutional courts and the Supreme Court of the United States. While the U.S. Supreme Court enjoys broad prestige in Latin America, Esquirol explains, Latin American courts have a questionable reputation in the United States (when they are visible at all). While the U.S. court is widely cited by Latin American court and academics, the case law of Latin American courts is not known and rarely cited by U.S. law professors and courts. For Esquirol, this relationship of subordination of Latin American to U.S. constitutional law is explained by two variables that have contributed to creating a negative image of Latin American constitutional law in the United States, variables that have been instrumental in constructing an idealized image of U.S. liberal constitutionalism and a hyper-realist image of the failures of Latin American constitutionalism. The first variable is the concept of “obstruction of justice” in international law. This concept presents Latin American justice systems as radically dysfunctional. The second variable is the law and development movement and its impact on contemporary comparative law. Esquirol argues that for the law and development movement Latin American constitutionalism has failed.

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Roberto Gargarella

This chapter examines the similarities and differences between U.S. and Latin American constitutional law. Gargarella indicates that, although U.S. constitutionalism has influenced Latin American constitutionalism in some circumstances, these two traditions constitute somewhat different ways of understanding constitutional law. Gargarella argues that Latin American constitutionalism has departed from U.S. constitutionalism on three significant points: it has incorporated a much broader list of rights than the U.S. Bill of Rights (which he says has the effect of allowing more substantive protection of egalitarian principles), it has favored hyper-presidential systems, and it has centralized territorial organization and the exercise of state political and legal power. Gargarella also states that these differences make the Latin American constitutional model more conservative and less consistent with respect to the exercise of power but more progressive on social, economic and cultural matters than the U.S. constitutional model.

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Javier Couso

This chapter concentrates on the radical democracies of Venezuela, Ecuador and Bolivia. Couso’s argument revolves around three axes. First, he argues that one of the innovative elements of Latin American constitutionalism has been its receptiveness to international human rights law and its commitment to the Inter-American Human Rights System. Second, he indicates that one of the characteristics of radical constitutionalism has been its staunch defense of the principle of national sovereignty. Finally, he states that the defense of national sovereignty has gone hand-in-hand with a constant defense of two principles of international law: the principle of self-determination of peoples and the principle of non-intervention. Couso then argues that the defense of these three principles has ended up pitting radical constitutionalsim against international human rights law. Finally, Couso argues that the illiberal turn taken by U.S. constitutionalism, demonstrated by the violations of due process in the Guantanamo prison, selective assassinations, and the practice of torture, has facilitated the questioning of the Inter-American Human Rights system by radical constitutionalism.

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Francisca Pou Giménez

This chapter provides a critical analysis of Mexican constitutionalism. For Pou, this is characterized by “reformism”, i.e., the capacity simultaneously to maintain close ties with the political/legal past and also to present itself as a system in continuous and uninterrupted transformation. The analysis of Mexican reformism advanced by Pou is both static and dynamic and is organised as follows: first, she presents the basic structure of the Mexican constitutional model; second, she provides an analysis of its key content: the standards, institutions, and substantive rules that form its backbone; third, she provides an assessment of the decision-making processes permitted and promoted by the Constitution; fourth and last, she evaluates what she calls the frequency variable, which is nothing other than weighing the effects that living under a constantly-changing constitutional regime has had on Mexicans. Pou concludes that, in a context of institutional fragility and social and political exclusion, the reformism that characterizes the Mexican system has allowed profound institutional change to be perpetually controlled and prevented from above. Pou likewise concludes that the Mexican legal and political system will only be successful if there is a radical qualitative change in its institutions, rules, and principles.

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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 S. Law and Tom Ginsburg

This chapter provides a quantitative, comparative analysis of Latin American constitutionalism over the last sixty years, aiming to examine the following three recurring legal and political concerns: the enormous influence of U.S. constitutional law, the excessive control of power by the executive branch, and the high level of human rights violations. This analysis focuses on the content of the constitutional texts taken from the quantitative data of “big n” or big data, and it seeks to question the stereotypes of and preconceptions about the creation of constitutional norms in the region. With respect to the first issue, Law and Ginsburg argue that Latin American constitutions have increasingly moved away from both the U.S. model and models from other regions of the world, such as Europe and Asia. With respect to the second issue, they argue that over time Latin American constitutions have decreased the formal powers granted to the executive branch and have been generous in the recognition and application of human rights. Finally, Law and Ginsburg argue that over the last two decades the distance between the rules recognizing human rights in Latin American constitutions and the social reality has become shorter. For these two authors, the differences between the constitutional promises and the daily life of common people in Latin America have decreased over the last twenty years.