Access to Justice and Electoral Integrity
that, instead of excluding the most vulnerable and marginalized.
Julio Ríos-Figueroa and Andrea Pozas-Loyo, “Enacting Constitutionalism: The Origins of Independent Judicial Institutions in Latin
America”, Comparative Politics, Vol. 42, No. 3 (April 2010), pp.
293-311
While trying to answer the question regarding when and why it can be
expected that the process of creating constitutions produces an institutional framework to promote constitutionalism, a typology to characterize
the processes of creation of constitutions and their dynamic nature is
implemented in the article. The hypothesis is that multilateral processes
tend to establish institutional frameworks consistent with constitutionalism. In order to exemplify the elements of constitutionalism, the authors
underline that the concept is based on non-arbitrary government and the
belief that the concentration of political power leads to such government.
Additionally, a bill of rights is arguably another fundamental element of
constitutions that promotes constitutionalism.
The importance of the results of the article relies on the main conclusion,
which challenges the consensus that in Latin America constitutions are de
jure in accordance with the principles of constitutionalism, while de facto
these principles are systematically violated. The typology used by the
authors presents a new model to analyse constitutionalism, distinguishes
between ordinary and constitutional laws, and captures the interrelation
between law and politics, and the dynamism inherent in constitution and
law-making processes.
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