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).
