Order from Transfer
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Order from Transfer

Comparative Constitutional Design and Legal Culture

Edited by Günter Frankenberg

Constitutional orders and legal regimes are established and changed through the importing and exporting of ideas and ideologies, norms, institutions and arguments. The contributions in this book discuss this assumption and address theoretical questions, methodological problems and political projects connected with the transfer of constitutions and law.
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Chapter 16: Constitutional grafts and social rights in Latin America

Roberto Gargarella


The 1917 Mexican Constitution, which was adopted after a revolutionary period, decisively changed the history of Latin American constitutional- ism. Gradually, following its adoption, most countries in the region began to change their basic constitutional structure. In fact, and following the early Mexican pioneering example, most countries began to include a long list of social rights in their constitutions, which was a complete legal novelty in the western world. This substantive constitutional change represented a remarkable achievement. Latin American societies were able to translate into constitutional language part of the profound social changes that they had gone through since the end of the 19th century. In particular, the new, 20th century constitutions managed to express in legal language the incorporation of the working class as active political citizens at this time. However, this fact came together with another remarkable circumstance, namely the enormous difficulty experienced by these Latin American societies in setting those new rights in motion. In fact, and for almost half a century, the entire region experienced unusual problems in enforcing the newly adopted social rights. The resulting picture was surprising. On the one hand, the region had constitutions that seemed to be unique in the world, given their extremely robust commitment to the resolution of the “social question.” Most Latin American countries (with certain rare exceptions, such as that of Chile) seemed to reject the US constitutional model of a Spartan constitution – a thin, negative, merely procedural constitution, void of social clauses.

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