Constitutional courts in transitions to democracy: Limits, critiques and possibilities in Brazil and Argentina

It's a commonplace occurrence that citizens in Western democracies are disaffected with their political leaders and traditional democratic institutions. But this book argues that this crisis of confidence is partly a crisis of understanding. The book makes the case that the sources of democratic legitimacy have shifted and multiplied over the past thirty years and that we need to comprehend and make better use of these new sources of legitimacy in order to strengthen our political self-belief and commitment to democracy. Drawing on examples from France and the United States, the book notes that there has been a major expansion of independent commissions, NGOs, regulatory authorities, and watchdogs in recent decades. At the same time, constitutional courts have become more willing and able to challenge legislatures. These institutional developments, which serve the democratic values of impartiality and reflexivity, have been accompanied by a new attentiveness to what the book calls the value of proximity, as governing structures have sought to find new spaces for minorities, the particular, and the local. To improve our democracies, we need to use these new sources of legitimacy more effectively and we need to incorporate them into our accounts of democratic government. This book is an original contribution to the vigorous international debate about democratic authority and legitimacy.

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Dictators and Democrats

10.23943/princeton/9780691172149.001.0001 ◽

2016 ◽

Cited By ~ 7

Author(s):

Stephan Haggard ◽

Robert R. Kaufman

Keyword(s):

First Century ◽

Organizational Capabilities ◽

Mass Mobilization ◽

Democratic Transitions ◽

Authoritarian Rule ◽

Emerging Democracies ◽

Regime Changes ◽

Political Landscape ◽

Transitions To Democracy ◽

Multiple Routes

From the 1980s through the first decade of the twenty-first century, the spread of democracy across the developing and postcommunist worlds transformed the global political landscape. What drove these changes and what determined whether the emerging democracies would stabilize or revert to authoritarian rule? This book takes a comprehensive look at the transitions to and from democracy in recent decades. Deploying both statistical and qualitative analysis, the book engages with theories of democratic change and advocates approaches that emphasize political and institutional factors. While inequality has been a prominent explanation for democratic transitions, the book argues that its role has been limited, and elites as well as masses can drive regime change. Examining seventy-eight cases of democratic transition and twenty-five cases of reversion to autocracy since 1980, the book shows how differences in authoritarian regimes and organizational capabilities shape popular protest and elite initiatives in transitions to democracy, and how institutional weaknesses cause some democracies to fail. The determinants of democracy lie in the strength of existing institutions and the public's capacity to engage in collective action. There are multiple routes to democracy, but those growing out of mass mobilization may provide more checks on incumbents than those emerging from intra-elite bargains. Moving beyond well-known beliefs regarding regime changes, this book explores the conditions under which transitions to democracy are likely to arise.

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The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

International and Comparative Law Review ◽

10.2478/iclr-2019-0001 ◽

2019 ◽

Vol 19 (1) ◽

pp. 7-37

Author(s):

Aleksandra Kustra-Rogatka

Keyword(s):

European Integration ◽

Legal System ◽

Constitutional Court ◽

Centralized Control ◽

Constitutional Treaty ◽

Constitutional Courts ◽

Constitutional Review ◽

Legal Norms ◽

Basic Features ◽

The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

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The role of Constitutional Courts in Transitional Justice: Colombia and South Africa

Criterio Jurídico Garantista ◽

10.26564/21453381.652 ◽

2016 ◽

Vol 9 (15) ◽

Author(s):

Nadiehezka Paola Palencia Tejedor

Keyword(s):

South Africa ◽

Structural Analysis ◽

Transitional Justice ◽

Critical Analysis ◽

Historical Context ◽

Constitutional Courts ◽

Political Background ◽

Similarities And Differences ◽

Peace And Reconciliation

This work focuses on a compared analysis of the South Afri- can decision related to the “peace and reconciliation act” of this country’s Parliament, and the Colombian decision regarding the amendment of the constitution called “The juridical framework for the peace.” Turning to the structure, it is developed in three major topics: 1. It provides a brief of the historical context, political background and an overview of the two decisions.2. It gives a structural analysis of the powers that each Court has and the nature of the constitutional mechanism through which both Courts decided the constitutionality of the said norms 3. It presents a critical analysis on the similarities and differences between the two systems and judgments. It presents some con- clusions.

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