Roberto Gargarella

89 Texas L. Rev. 1537

PDF Document

Professor Roberto Gargarella explains the tensions and implications of “unequal legal integration,” a scenario where new legal practices confront established legal infrastructure.  The most important example of this phenomenon in Latin America is the incorporation of social rights into hostile constitutions.

Historically, this merger occurred in Latin America during the early twentieth century by way of grafting social rights onto liberal-conservative political consensus.  Social rights were identified as objectives of the political branches, not the judicial.

The addition of new social rights changes organic constitutional structure by giving more power to the judicial branch, whether or not it is used.  Examples in Argentina and Colombia suggest that scholars pay insufficient attention to the internal implications of social reforms, even though they are perfectly foreseeable.  This fact is particularly pressing in light of the points of merger between models for different constitutions—conservative, liberal, radical or otherwise.  For instance, judicial constitutional review embraced by liberal and conservative constitutions may see less conflict when the parameters of the constitutional review are specifically defined to satisfy the preferences of both camps.  On the other hand, introduction of social rights into a liberal–conservative scheme that rejected those rights during the constitutional conventions of the nineteenth century may more seriously challenge the institutional framework subject to the imposition of the social rights.

As a result, the failure of reformers to anticipate and facilitate the inclusion of new social rights into constitutional infrastructures has resulted in some social rights falling into a “constitutional slumber.”  Not only does the institutional infrastructure sometimes resist actualization of the new social rights, those social rights are ineffectively or unpredictably reawakened in the future.  This flexibility is both a tool and a liability for the future pursuit of new social rights: it may mobilize groups around progress, but it may also be an exercise in futility.