Foto del docente

Lucio Pegoraro

Full Professor

Department of Political and Social Sciences

Academic discipline: IUS/21 Comparative Public Law

Research

 



Courts, legal doctrine and inclusive society: the impact of doctrinal formant on Supreme Courts case law (Prin 2012)

Two hundred years after indipendence, Latin America seems to have trodden a path in, although partial, resistance to the phenomena of globalization. Risen for centuries as an emblem of economic and cultural homogenization by Europe and the United States, it has since long experienced original solutions, on the one hand rediscovering and protecting its ancient roots, on the other, proposing new legal arrangements, not always submissive to western models.
For these reasons, Latin America represents an emblematic model that enables scholars of comparative public law to verify the theoretical assumptions of theirs subject-matter, offering the opportunity for a number of considerations related to the development of constitutionalism in the continent, in relation to distinct sets of problems.
Among these are: the import of models in their various forms (reception, imposition, etc..), the export of original contributions, the relevance, and in some cases the revival, of indigenous rights and options for their "compatibilization" with Western constitutionalism.
Like Spain in Europe, Latin America is a mélange of receptions of institutions modeled upon other legal systems (especially the Constitutions of Cadiz of Spain and of the United States of America, receptions often not entirely successful) and original solutions. From Europe come most strategic influences and models (though not only, of course) in the sphere of private law, with the adoption of civil codes on the example of the Code Napoleon, transplanted through the work of various important researchers such as Vélez Sársfield, Teixeira de Freitas, Andrés Bello, etc.. From the United States are traced three strong pillars of contemporary constitutionalism: presidentialism, the federal structure, the constitutional justice.
The originality of Latin American constitutionalism - that should encourage the U.S. and European scholars to reflect on the absolute primacy of their models - translates itself into proposals of great importance not only for the institutional history of the continent, but also for the rest of the world: for example, constitutional recognition of social rights, for the first time in the Mexican Constitution of 1917, constitutional actions such as amparo and habeas data. On a doctrinal level, it can be cited as instance the configuration of a new constitutional science, called derecho procesal constitucional, funded in Mexico by the great master Héctor Fix-Zamudio and, more recently, by new generations of scholars such as E. Ferrer Mac-Gregor; in Peru - where first it has been approved a procedural constitutional code - Domingo García Belaunde; in Argentina, N. SAGÜES, R. Haro, R. Vanossi, V. Bazán, etc.., and generally in the sub-continent by countless other American scholars. This shows the close relationship between doctrine and dynamic formants: legislation and case law.
For all these reasons, the legal systems chosen by the Bologna Unit can be considered a uniform and rational object of study, as far as they represent a group interrelated by relationships of mutual cultural influences that will be studied through the scholar quotations found in the constitutional case law.

 

 

 

 

Adhering to the general framework illustrated in the national project, the Unit of Bologna, together with a large group of foreign researchers, will study the influence of the legal doctrine of the colonizing countries in the Americas, focusing on some emblematic systems. After having analyzed how and to what extent the constitutional courts of Spain and Portugal “feed” their judicial decisions with scholarly quotations, will be taken into account three major federal countries (Mexico, Argentina, Brazil, to which is added Venezuela), and some centralized systems, selected also because of their different institutional arrangements: Chile, Peru, Colombia, Bolivia. In the selection, importance has been given to the protection of indigenous right granted by each legal system (with the problems of interculturalism that it poses, and then the necessity to use social sciences to solve legal conflicts). Some of these countries in the last decade have provided real Constitutional Courts; in others, Supreme Courts act as constitutional ones. In all, preliminary researches already carried out show a wide use of scholarly citations in constitutional judgments, and already have surfaced interesting data related to cultural influences prevalent in various sectors. The Bologna Unit will also analyze the case law of the Inter-American Court on Human Rights, because this court represents a "synthesis" of the cultural backgrounds of the entire area.
From an operational standpoint, the Unit has established research groups in each country, led by the foreign members. They are called upon to explain, from a historical perspective, the legal-cultural influences in each country, and from a socio-legal perspective, the structure of the Constitutional Courts and Tribunals (composition, judges appointment, backgrounds, training of judges, style of judgments, etc..). Then, the Unit members will analyze the case law of the last 10 years, trying to classify it on the following parameters: quantity (how many citations, compared to the judgments analyzed); source ("national" or "foreign" citations, with identification of countries, schools, universities of origin); nature (quotations from classical or contemporary jurisprudence; about philosophical roots or on the technical and legal points of the judgment); scope (to solve procedural issues or to assess rights and freedoms, civil law, criminal law, international law, etc.).
The conclusions will be drawn both by foreign scholars and, on separate profiles, by the Italian components of the Unit of Bologna (who will also join their foreign partners in the hard work of reading the thousands of judgments took into account).
The research will result in a book on relations between cultural and dynamic formants in Spain, Portugal and Latin America, which will be published in Italy and Mexico, whose index will be as follows:
1. General Introduction (L. Pegoraro, G. Figueroa Azael)
2. Methodology (Bologna Unit)
3. Roots:
3.1. Spain (S. Ragone, J.C. Ruiz Ruiz, R. Brito)
3.2. Portugal (C. Blanco de Morais)
4. Mexico City (Azael G. Figueroa)
5. Argentina (V. Bazan)
6. Venezuela (A. Mora)
7. Brazil (Tavares A. Ramos)
8. Peru (C. Heath)
9. Colombia (L. Estupiñan)
10. Bolivia (J. Delgado)
11. Chile (F. Padron)
12. Inter-American Court (R. Flores)
13. General Conclusions (Bologna Unit).