Edited by Rosalind Dixon and Tom Ginsburg
Chapter 10: Judicial role and the limits of constitutional convergence in Latin America
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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