Comparative Constitutional Law in Latin America
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Comparative Constitutional Law in Latin America

Edited by Rosalind Dixon and Tom Ginsburg

This book provides unique insights into the practice of democratic constitutionalism in one of the world’s most legally and politically significant regions. It combines contributions from leading Latin American and global scholars to provide ‘bottom up’ and ‘top down’ insights about the lessons to be drawn from the distinctive constitutional experiences of countries in Latin America. In doing so, it also draws on a rich array of legal and interdisciplinary perspectives. Ultimately, it shows both the promise of democratic constitutions as a vehicle for social, economic and political change, and the variation in the actual constitutional experiences of different countries on the ground – or the limits to constitutions as a locus for broader social change.
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Chapter 14: The constitutional protection of economic and social rights in Latin America

Carlos Bernal

Abstract

This chapter aims to illuminate answers to two questions: whether there is convergence in the constitutional protection of economic and social rights in Latin American countries; and what can explain the existence or absence of convergence. I will argue that despite the convergence of Latin American constitutions in the entrenchment of economic and social rights under similar circumstances, an analysis of the case law of Latin American apex courts shows that there is only limited convergence and, correlatively, extended divergence concerning the standards of adjudication of those rights. While the beginning of a practice of intra-regional migration of constitutional ideas may account for the convergence, differences in the strength of the judiciary vis-à-vis political authorities may explain the divergence. Keywords: economic and social rights, constitutional rights, reasonableness, proportionality, minimum core, constitutional review

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