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Book Reviews
Roberto Gargarella. Latin American
Constitutionalism, 1810–2010. The
Engine Room of the Constitution. Oxford
University Press, 2013. 283 pages.
£47.99. ISBN: 9780199937967.
Latin American Constitutionalism is an ambi­
tious project with descriptive, explicative and
normative purposes. In this book, Roberto
Gargarella, Argentine legal scholar and soci­
ologist, Professor at the Universidad Torcuato
di Tella and visiting professor at numerous
universities in Latin America, Europe, and
the United States, reviews 200 years of con­
stitutionalism in Latin America. He develops
the hypothesis that inequality in the region
can be partially explained by the predomi­
nance of constitutions that foreclosed effect­
ive democratic participation, and advocates
for an egalitarian constitutionalism in Latin
America. This book takes up the central ideas
of his previous work, The Legal Foundations of
Inequality: Constitutionalism in the Americas,
1776–1860,1 and extends them to cover the
time period of 1810–2010 and a larger num­
ber of countries.
Gargarella presents the constitutional his­
tory of Latin America as characterized by the
tension and accommodation between three
constitutional models that offer contrast­
ing approaches to the ideals of individual
autonomy and collective self-government.
The republican/radical model, founded on the
value of collective self-government, has politi­
cal majoritarianism and moral populism as its
two central features. The conservative model is
based on the idea of moral perfectionism and
1
Roberto Gargarella, The Legal Foundations of
Inequality: Constitutionalism in the Americas,
1776–1860 (2010).
I•CON (2014), Vol. 12 No. 1, 256–271
political elitism, meaning that society must be
organized according to a comprehensive moral
project and ruled by a few capable persons. The
liberal model is committed to the moral neutral­
ity of the state and to the equilibrium of pow­
ers through a system of checks and balances
aimed at protecting individual autonomy
against the abuse of power by government.
Although all these models were in dis­
pute in Latin America at the beginning of
the nineteenth century, an amalgam of con­
servative and liberal ideals prevailed in most
constitutions. According to the book, the lib­
eral-conservative approximation, more than
being the product of affinities between the two
models, was motivated by common antago­
nism toward the republican/radical model,
which was seen as a threat to both individual
freedom and the right of a few to rule accord­
ing to traditional values.
From the mid-nineteenth century (the
“foundational period of Latin American con­
stitutionalism” (p. 1)) to the beginning of
the twentieth century (when authoritarian
regimes pushing for “order and progress”
emerged), the liberal-conservative “fusion”
created constitutions that were averse to
broader political participation. Participation
was hindered by the way in which institu­
tions were organized, with a concentration of
power in the authority of the executive (the
president), and in which rights were recog­
nized—focused mainly on civil rights, with
political rights restricted to a few privileged
groups and an absence of social commitments
in favor of the poorer classes.
From the 1930s, the liberal-conservative
alliance had to adapt to a new socio-economic
reality in which, due to the process of indus­
trialization and urbanization, a working class
was emerging and demanding rights and
participation in public life. The old exclusion­
Book Reviews
ary order was difficult to maintain given this
new context, and elements of the marginal­
ized republican/radical model started to be
incorporated in order to accommodate new
demands for social rights and universal suf­
frage. This incorporation, and the tensions it
created in the course of the twentieth century,
prompted different responses from constitu­
tionalism, which included, among others, the
authoritarian alternative, opposed to the new
transformations; the populist alternative, aim­
ing to reconcile class interests; and the social­
ist alternative.
From the end of the 1980s, when the
transition from authoritarian to democratic
governments took place, a new wave of con­
stitutions emerged as a reaction to the dicta­
torial past. These new constitutions expanded
citizens’ human rights, including not only a
long list of civil and political rights, but also
social, economic, and cultural rights. None­
theless—and this is one of the main argu­
ments of the book—the structure of power in
which authority is concentrated at the head
of the executive was maintained. The expan­
sion of rights was “grafted” onto constitu­
tions that were hostile to social demands and
this created what Gargarella calls “internally
contradictory constitutions” (p. 157). These
constitutions promise to disperse power and
protect citizens through the distribution of
rights, but at the same time impair democratic
participation by preserving a centralized and
vertical organization of power and allow pres­
idents to exercise dominion over the judiciary
and the legislature.
According to Gargarella, the maintenance
and strengthening of an organization of
power where authority is centralized in presi­
dents (“hyper-presidentialism”) jeopardizes
people’s individual freedom and neutralizes
or undermines the progress towards equal­
ity and citizenry empowerment that could be
expected from an increase in the number of
human rights recognized in a constitution.
This contradiction explains, according to the
author, the puzzling fact that in the last two
decades in Latin America constitutions gen­
erous in affirming human rights of all sorts,
which includes giving special legal status
257
(sometimes constitutional status) to interna­
tional human rights treaties, have coexisted
with human rights violations and social crisis
caused by unemployment, deprivation and
deterioration in social protection for vast sec­
tors of the population (ch. 8).
The author argues that this contradic­
tion exists because those aiming to reform
constitutions “concentrated their energies in
the section of rights” and failed to tackle the
organization of power—the “engine room”
of the constitution—to make it more open to
democratic participation (p. 185). According
to Gargarella, constitutions in Latin America
have changed in many aspects throughout
history, but the institutional matrix created
by the liberal-conservative alliance, in which
political power is concentrated in the hands
of presidents, has been maintained. This is
the distinctive feature of Latin American con­
stitutionalism (p. 201) and can explain why
constitutions have failed to guarantee politi­
cal stability, deliver social and political inclu­
sion, or protect individual autonomy, and
have favored an extremely unfair distribution
of resources and power.
Gargarella argues that it is therefore neces­
sary to reform the organization of power in
the constitutions in order to materialize the
commitments recognized in rights declara­
tions. He suggests an egalitarian constitu­
tionalism composed of two ideals: collective
self-government and individual autonomy.
The battle for this agenda, he warns, cannot
be fought only in the Bill of Rights section of
the constitutions, but must change the way in
which power is organized so as to reduce the
concentration of power and increase popular
political participation in the “engine room of
the constitution.”
Latin American Constitutionalism is a book
that has opted for breadth. It covers 200 years
of constitutional experiences in order to build
a general theory of constitutionalism in the
whole region, in spite of the particularities
of each country. This is a legitimate choice,
although a more explicit historical methodol­
ogy would have made the work more robust.
It is impossible to present in a book a his­
torical narrative that approaches every single
258
I•CON 12 (2014), 256–271
aspect of constitutionalism in each Latin
American country. The writing of a his­
torical study is always a work that involves
choices and cutting. However, these choices
and cuts must be well explained and justified.
Gargarella uses many authors and events to
construct the narrative that underpins his
theory, but the criteria for using some rather
than others are not made explicit. The authors
and events he mentions are introduced as “an
interesting example” (p. 69), “a case that
is worth mentioning” (p. 234 n. 16), or “a
good illustration” (p. 25), but the reader is
not informed of why the author thinks this
is so. The book offers a coherent narrative of
Latin American constitutionalism, but a more
explicit historical method would allow the
reader to judge whether this coherence is per­
tinent or due to the fact that the author has
picked the elements that best fit his theory and
excluded those that would allow a different
interpretation.
One example of where methodological clar­
ity could make the narrative more consistent
is the discussion of the “Apostolado Positiv­
ista”2 in Brazil, the role of which is greatly
emphasized in the book. Positivism was indeed
very influential in Brazil during the transition
period from Empire to Republic, but it was not
strictly related to the Apostolado. Gargarella
states that “[e]ven though their [Apostolado
Positivista] project was not finally accepted,
many of their proposals were incorporated
into the Brazilian 1891 Constitution (i.e., the
separation between Church and State, civil
marriage, and a more decentralized adminis­
tration, etc.)” (p. 90). However, these proposals
were not sustained by the Apostolado in par­
ticular, since many other groups—with and
without positivist influence—were in favor of
the same points. For instance, Rui Barbosa,
who Gargarella himself states cannot be con­
sidered a positivist, supported those ideas.
The Apostolado’s project for the Republican
The Apostolado Positivista was a group created
in 1881 in Rio de Janeiro. Led by Miguel Lemos
and Teixeira Mendes, they published brochures,
newspapers articles, and books sustaining radi­
cal and orthodox views of positivism.
2
constitution was not the main proposal
debated during the constituent assembly: the
three proposals elaborated by the “Comissão
dos Cinco,” the revised proposal presented by
Rui Barbosa and the works of the “Comissão
dos 21” were more relevant.3 Therefore, it is
not clear why Gargarella emphasizes the role
of the Apostolado Positivista.
The explicative aspect of the book, based on
the hypothesis that strong presidentialist sys­
tems jeopardize individual rights and hinder
social and political equality, also needs fur­
ther development. It is not made clear in the
book what a strong (or hyper-)presidentialism
consists of or what the difference is between
this and a weak presidentialism. He mentions
that in hyper-presidentialism, “the president
concentrated too much power, too many
responsibilities, and too many expectations
in his/her own figure during a fixed term”
(p. 150). However, this is an almost tautologi­
cal definition, and an explanation of how, or
compared to what, the author defines what is
“too much” and “too many” is lacking. The
author would have benefited from literature
which tries to identify the different forms and
degrees of executive dominance.4 When Gar­
garella affirms that hyper-presidentialism is
the characteristic feature of Latin-American
constitutionalism, he is collecting under the
same label governments with different degrees
of power in relation to the other branches of
power and to society.
Concerning the process of drafting the constitu­
tion in Brazil during the transition from Empire
to Republic, see Agenor de Roure, A Constituinte
Republicana (1920), and Paulo Bonavides & Paes
de Andrade, História Constitucional do Brasil
(2004).
4
The literature on this topic is enormous. For
an overview of the debate, see Arend Lijphart,
Patterns of Democracy ch. 10 (2012); Jose
Cheibub & Fernando Limongi, LegislativeExecutive Relations, in Comparative Constitutional
Law 211 (Tom Ginsburg & Rosalind Dixon eds.,
2011); Jose Cheibub, Making Presidential and
Semi-presidential Constitutions Work, 87(7) Tex.
L. Rev. 1375 (2009); Jose Cheibub, Presidentialism,
Parliamentarism and Democracy (2007).
3
Book Reviews
The book does not distinguish between
presidentialism in authoritarian and in demo­
cratic regimes. In the former, governments
have an effective capacity to prevent and
overturn outcomes of the political process
that are adverse to their own interests. This
capacity is non-existent or greatly mitigated
in democratic regimes.5 Gargarella also fails to
differentiate among the diverse forms of presi­
dentialism in Latin-American democracies.
Latin-American countries vary considerably
in terms of their respect for democratic values,
individual liberties, and distributive policy
achievements.6 A distinction among different
forms and degrees of executive domination
would have allowed Gargarella to prove his
hypothesis had he found a positive correlation
between the strength of the executive and the
extent of civil and political rights violation,
inequality and poverty in Latin American
countries.
Gargarella’s theory could have also incor­
porated, or responded to, other hypotheses
that explain how institutions impact pov­
erty and inequality in Latin America. Recent
research,7 based on quantitative analyses and
comparative case analysis, has found that the
access of left or center-left parties to executive
power via elections is one of the most impor­
tant determinants of universal and redistribu­
tive policies in Latin America. This is evidence
that the presidentialist system and representa­
tive democracy can be an effective channel for
underprivileged groups to enter the political
decision-making process, and will not neces­
sarily suppress pressure for redistribution and
equality.
Adam Przeworski, Democracy as a Contingent
Outcome of Conflicts, in Constitutionalism and
Democracy 59 (Jon Elster and Rune Slagstad eds.,
1997).
6
See Kurt Weyland, Raul Madrid & Wendy Hunter,
Left Governments in Latin America: Successes and
Shortcomings (2010).
7
See, e.g., Jennifer Pribble, Welfare and Party
Politics in Latin America (2013); Evelyne Huber
and John Stephens, Democracy and the Left: Social
Policy and Inequality in Latin America (2012).
259
The idea that presidentialist systems make
strong presidents in democracies is also con­
troversial. The empirical reality of presiden­
tialist systems shows that the Executive is
in fact weak if compared with other power
arrangements. At the same time that presi­
dentialism encompasses a concentration
of power in the executive, it also creates a
separation between executive and legislature
that can lead to powerless presidents. This is
what Lijphart calls the paradoxes of presiden­
tial power, and he mentions Latin America
democracies as examples of political systems
that create weak presidents “frustrated by
their lack of power.”8
The same argument is developed by Scott
Mainwaring, according to whom the combi­
nation of a fractionalized party system, undis­
ciplined political parties and presidentialism
in Latin America has created weak presidents
who have problems in building support in the
legislature and have therefore been unable to
carry out their agendas.9 This creates immo­
bilizing “executive/legislative” deadlocks
that may lead to non-institutional solutions
(democratic breakdowns) impelled either by
the government or by the opposition, which,
according to this theory, explains the instabil­
ity of Latin American democracies.10
Building on this literature, but also respond­
ing to it, Argelina Figueiredo, Fernando
Limongi, and Jose Cheibub have argued that
political deadlocks can be avoided in presi­
dentialist systems if the president is given a
greater degree of control over the legislative
process.11 The case of Brazil is mentioned
as an example of a presidentialist system in
which governments have been able to gather
support in the Congress for formulating and
implementing policies by giving the Executive
5
Arend Lijphart, Thinking About Democracy: Power
Sharing and Majority Rule in Theory and Practice
151–152 (2007).
9
Scott Mainwaring, Presidentialism in Latin
America, 25(1) Latin Am. Res. Rev. 157 (1990).
10
Scott Mainwaring, Presidentialism, Multipartidarism
and Democracy: The Difficult Combination, 26(2)
Comp. Pol. Stud. 198 (1993).
11
Cheibub & Limongi, supra note 4.
8
260
I•CON 12 (2014), 256–271
wide legislative powers—partial-veto power,
decree power, the power to request urgent
consideration of specific legislation, and the
exclusive power to initiate budget legislation.12
Such legislative powers allow the executive to
lead the legislative process, but this does not
mean that the government is undemocratic.
The president cannot unilaterally impose his/
her will or bypass the Congress because all
legislation must eventually be approved by
the legislature. Brazilian governments’ rate
of success in having legislation approved by
the Legislature is similar to that in most par­
liamentary systems,13 which shows that a
“hyper-president” in Brazil is powerful enough
to implement his/her agenda, but not more
powerful than the head of the Executive in
other democracies and political systems.
Brazil can be seen as a case in which presi­
dentialism with a relatively strong president,
in a context of democratic competition, has
allowed functioning governments that have
achieved important results in terms of socioeconomic policies—e.g., control of inflation,
reduction of poverty and inequality, consolida­
tion of a national public health system—and
with a record of respect for democratic institu­
tions and human rights that is incomparably
better than the previous dictatorial regimes.
This is a case that does not fit easily into Gar­
garella’s theory of hyper-presidentialism.
It is true that Gargarella cites one of Fer­
nando Limongi’s articles (p. 150), but only in
order to mention that the current Brazilian
Areglina Figueiredo & Fernando Limongi,
Presidential Power, Legislative Organization, and
Party Behaviour in Brazil, 32(2) Comp. Pol.
151 (2000). Cheibub & Limongi, supra note
4; Fernando Limongi & Argelina Figueiredo,
Processo
Orçamentário
e
Comportamento
Legislativo: Emendas Individuais, Apoio ao
Executivo e Programas de Governo, 48(4)
Dados—Revista De Ciências Sociais 737 (2005);
Jose Cheibub & Fernando Limongi, Democratic
Institutions and Regime Survival: Parliamentary
and Presidential Democracies Reconsidered, 5 Ann.
Rev. Pol. Sci. 151 (2002).
13
Fernando Limongi, Democracy in Brazil
Presidentialism, Party Coalitions and the Decision
Making Process, 3 Novos Estud. Cebrap 1 (2007).
12
Constitution, even after democratization, has
insisted on maintaining strong presidential
powers. However, Gargarella has not engaged
with Limongi’s argument that this is not antidemocratic (there is no way the president can
by-pass the Legislative) and that it is neces­
sary for governability. Gargarella does not
completely ignore the argument that strong
executives may be necessary in order to guar­
antee rights (pp. 160–162), but he dismisses
it as lacking an empirical basis (p. 243 n. 19)
and insists on associating strong presidents
with authoritarian regimes. The book would
have benefited from an extended analysis of
the literature produced by political scientists
which provides the empirical basis that Gar­
garella claims is missing.
Lastly, the normative aspect of the book
also needs clarification. Gargarella proposes
an egalitarian constitutionalism based on the
ideals of collective self-government and indi­
vidual autonomy. These are principles that
hardly any current political or constitutional
theory would disagree with, but the question
is what institutions are best equipped to carry
out these goals. This discussion is lacking in
the normative purpose of the book, although
the organization of power is a central element
in Gargarella’s theory.
The author criticizes presidentialism, yet
it remains unclear what kind of institutional
arrangement Gargarella is advocating. He
is ambiguous about parliamentarism. On
the one hand, he says that “unfortunately”
ideas of a parliamentary alternative were
abandoned (p. 150), but, on the other hand,
he affirms that the critique of hyper-pres­
identialism does not imply “a defense of
parliamentarism” (p. 165). Likewise, with
regard to judicial review, he affirms that “in
certain circumstances” it would make sense
to strengthen the judiciary (p. 137) and men­
tions the experience of courts in Costa Rica
and Colombia as producing modest but seri­
ous modifications in the “engine room” of
constitutions (pp. 190, 204). Nonetheless,
he notes that these would not be the kind of
reforms “that a radical egalitarian politics
would foster in the event of change” (p. 187)
and that the critique of presidentialism does
Book Reviews
not imply “a defense of the new roles acquired
by certain judiciaries in the region” (p. 165).
Gargarella mentions the importance of
increasing the representation of workers and
indigenous people in constituent assemblies
(pp. 202–203). Nonetheless, the question of
how these groups will participate (direct par­
ticipation or representation) and how power
will be organized once the constitutional
assembly finishes its work is not further devel­
oped. Plebiscites are also mentioned, but only
in passing (p. 170).
In the final section of the book, where the
reader would expect a more concrete agenda
to be put forward, Gargarella mentions the
importance of more deliberative bodies, his
disillusion with the representative system in
terms of offering inclusion and representa­
tion, and maintains that the “Rousseauistic
critique of the representative system” should
not be abandoned (p. 207). However, on the
same page, he affirms that “[e]galitarians
need to promote a structural change in the
organization of the representative system”
and that they should promote a different insti­
tutional model “designed to link citizens with
their representatives and allow a better and
more fluid communication between them.” It
is not obvious whether the recommendation
is to abandon the representative system or to
reform it, or how either of these aims can be
achieved.14
In conclusion, some ideas in this book
would have benefited from more methodolog­
ical and conceptual clarification and a deeper
engagement with authors from other fields
of study that have asked similar questions,
but reached different conclusions. However,
these critiques should not overshadow the
fact that Latin American Constitutionalism is
an original book and one of the first serious
intellectual attempts to identify common fea­
tures shared by the constitutional experience
of all countries in the continent. Roberto
Gargarella is affirming the existence of a
In his previous book, Gargarella suggested the
creation of decentralized assemblies inspired
in the town meetings in the United States. See
Gargarella. suprai note 1, at 234.
14
261
“Latin American constitutionalism” and his
book can be the cornerstone of a new field
of study in constitutional law and constitu­
tional theory.
Daniel Wei L. Wang
Department of Law, London School of
Economics and Political Science
Email: [email protected]
Priscila Pivatto
History of Parliament
Email: [email protected]
doi:10.1093/icon/mou009
Tania Groppi and Mari-Claire
Ponthoreau (eds). The Use of Foreign
Precedents by Constitutional Judges. Hart
Publishing, 2013. 431 pages. £60.
ISBN: 9781849462716.
When, in their judgments, constitutional
courts around the world cite foreign law and
the jurisprudence of their peers abroad, the
parties to the cases, legal practitioners and
scholars cannot be certain why the judges
were tempted to peek over the fence. Neither
can they be certain when a court will do so
again, what would prompt a judge to do so,
or what might be done with the knowledge
or insights that may be gained thereby. None­
theless, it is generally known that there is a
global dialogue among judges and that many
of them take note of comparative constitu­
tional research, often without acknowledging
it in their written judgments. There are even
indications that some cantankerous judicial
jingoists that passionately oppose this trend,
may, in the privacy of their chambers as it
were, occasionally glance at alien materials,
perhaps just to confirm their conviction that
the rest of the world cannot get it right. Yet,
however unfashionable the non-comparatists
may be, they may have a point when they
doubt whether looking at the solutions to