Hybridity and Constitutional Taxonomy in Latin America

Introduction

Talk of mixed or hybrid constitutions has increased as constitutions have gained center stage in the political landscape worldwide, as much in democratic regimes as in those with authoritarian and/or non-liberal inclinations. Among political scientists, this change has propitiated the replacement of the once widespread “transition-consolidation” paradigm with the idea that some political regimes are not in the way of becoming something else (specifically, not a standard liberal democracy) but rather stabilized along intermediate lines that distance themselves from both full authoritarianism and from standard democratic systems that limit power by guaranteeing rights and the rule of law.^[1] In the domain of constitutional theory and comparative constitutional studies, it has increased awareness of the many variations we find within the ever-expanding confines of constitutionalism, leading to what Tushnet has called, following Kapiszewski, “adjectival constitutionalism.”^[2]

Academic analysis makes often overlapping use of the “mixed” or “hybrid” adjective together with three different concepts: constitutions, constitutionalism, and political regimes. There seems to be, however, far more clarity as to the meaning of hybridity when applied to a political regime or to constitutionalism, where it is understood as a political-normative project or achievement (in Dieter Grimm’s terms), rather than when it is applied to constitutional texts.^[3] When applied to political regimes or to political-normative projects, the hybrid label indicates the presence of non-liberal and/or authoritarian features in the way a polity operates, independently of what the corresponding constitutional text provides for; the label intends to capture traits related to how a system empirically behaves, once both formal and informal developments are taken into account.^[4] When applied to constitutions, by contrast, the hybrid label should arguably certify the presence in the constitutional text of certain traits of content or design.^[5] Yet which contents exactly? What are the defining features of a constitution we might be justified in calling mixed or hybrid? Under which parameters should the operation of recognizing these traits within a particular constitution proceed? When in the face of generalized constitutional combination and variation, is the use of the hybrid label interesting?

In this article, I shed light on these questions by focusing on narratives of hybridity that have been used to capture traits present in Latin American constitutions at the turn of the nineteenth century—at the time that they were first enacted. All of these traits mean to refer primarily to what constitutional texts say—they do not mean to refer to the “behavioral” component of the system, although they probably wish to simultaneously gesture toward different instantiations of constitutionalism understood as a political project. A first historically recognized source of hybridity derives from the combination of features from Roman-Germanic, civil law systems, with constitutional designs largely inspired by the U.S. Constitution. A second source of hybridity has been associated with the substantive nature of constitutional designs that progressively developed in the nineteenth century constitutions; according to an influential reconstruction, at some point, Latin American constitutions come to coalesce around a liberal-conservative fusion or hybridation that would arguably continue to dominate constitutional dynamics up to this day, despite the presence of new constitutional contents. A third source of constitutional hybridity is associated with the establishment in all regional countries of hybrid or mixed systems of judicial review. At the beginning, the mix was between French-inspired systems of political review and U.S.-inspired systems of judicial review and later on, between centralized, European, abstract channels, and U.S.-inspired decentralized, concrete ones—a superimposition of models that has become widespread in Latin American constitutions of the last wave.^[6]

As I account for these narratives, I focus on the work of two important constitutional scholars—Roberto Saba and Roberto Gargarella—who have recently placed mixity at the center of their theoretical elaborations about contemporary regional constitutionalism. In the opinion of these scholars, the irresolvable tensions nested in the contradictory mixings of Latin American constitutionalism are responsible for some of the deepest problems that constitutionalism and democracy still face in the region. Analysis of their thesis but also of alternative or complementary analysis that have been raised in dialogue with them is useful to advance the project of clarifying how hybrid constitutionalism may work as a category. As I argue in the last section of the article, the notion of hybrid constitution may be used with three different functions: description, explanation, and prescription or normative evaluation. Although in some contexts the category displays a non-negligible descriptive function, it is most appropriate and illuminating when it fulfills also an explanatory one. In this case, the category captures a number of isolated aspects of a constitution or constitutional system, and also hints at holistic, systemic dynamics. When used in this key, the hybrid label signals the combination of certain components pertaining to previously conceptualized models, traditions or “pure” ideal types, a combination that accounts for certain historic processes (from which the combination results), and for certain social practices (whose development the combination has nurtured). From there, it is perhaps just natural to jump into prescriptive uses of the notion of hybrid constitutionalism, which convey a positive or negative evaluation of the phenomenon as something that has worked well, or badly, and which must be consequently celebrated, despised, resisted, or overcome.

As I ultimately argue, hybrid constitutionalism is of limited use in the description, explanation, and normative evaluation of contemporary Latin American constitutionalism. In its hegemonic, historically received instantiations, it is partially illuminating, but also partially misleading and geopolitically subordinating. It has been frequently inserted into explanations and assessments of contemporary constitutionalism that portray mixity as inharmonic and associated with constitutional failure. It is possible, of course, to reassess the traditionally identified sources of mixity and explore their positive role as triggers of innovation, and instruments of constitutional efficacy, as it is possible to inquire whether there are in Latin America other types of mixity that may be interesting to render distinctive in exercises of constitutional taxonomy. The goal of this article is not, in any case, to provide final answers about the proper characterization of regional constitutionalism, but to hopefully set a more clear and productive ground for debating the question, while simultaneously contributing to the more general project of methodologically clarifying what is involved in exercises of constitutional taxonomy.

I American Constitutions in European Legal Systems

As scholars have noted, the French Revolution and the events and constitution-making episodes that ensued were profoundly influential in Latin America.^[7] Several of the Latin American independence processes find their roots in the crisis experienced by the Spanish Crown after Napoleon’s invasion of the Iberian Peninsula—which generated an immediate rearrangement of power in those countries. In some of these countries, the Constitution of Cádiz of 1812, which had fingerprints of early French constitutionalism, was temporarily in force.

These revolutionary movements occurred in countries that been under the patchy bodies of legislation that were in force in the Spanish empire under the Habsburgs, which were an evolution of the common layer of normativity provided by the Corpus Juris Civilis and legal ingredients from northern Europe.^[8] This blend shaped legal developments in Europe from Medieval times until nineteenth century codifications. The highest level of judicial-legal authorities in Spanish America were the royal Audiencias, whose style of adjudication were to exert great influence over the lower courts of the independent republics.^[9] The background legal bodies, institutions, and understandings familiar to the people that were behind the independence movements were, therefore, those that had developed in Europe over the centuries and had coalesced in what has been called the Civil Law tradition, as different and even opposed to the Common Law tradition that developed and still prevails in the British islands, North America and other places once placed under British colonial dominion.^[10]

Developments in Europe and in Latin America were also parallel in what concerns the codification process. The French Civil Code passed by Napoleon Bonaparte in 1804 was as much influential in Latin America as it was in Europe. The idea of replacing the fragmentation and content of inherited colonial law with a unified, well-structured, and encompassing body of rules that was identifiable with the will of the people was well received in the new republics. Although not without debate and difficulty, civil, penal, and procedural codes were enacted in the region over the course of the nineteenth century.^[11]

Latin American leaders were, however, also cognizant of political developments underway in the new-born United States. It was the U.S. Constitution that was the most influential in the design the first constitutions, especially in the countries that adopted federalism. Many of the countries did, as it was the only arrangement that could guarantee enough support for political rule in the new republics that were led by leaders with little support outside the urban pockets that had nurtured the independence revolution. Far too many constitutions were passed over in the first decades of the nineteenth century in Latin America to be precise about the details, and some of the institutional choices that they embraced were influenced by the European constitutions of the time.^[12] Yet the influential constitutions of the second half of the nineteenth century, which enjoyed longer periods of stability—the 1853–60 Constitution of Argentina, the Mexican Constitution of 1857, the Colombian Constitution of 1886, the Brazilian Constitution of 1891, and the Bolivian Constitution of 1880—clearly embraced institutional solutions similar to those in the U.S. Constitution. These constitutions replace political review with judicial review of legislation, establish supreme courts composed of justices who are appointed with the concurrence of president and senate, as in the U.S., and generally evince a concern for constitutional supremacy that would only emerge one century later in Europe. They included amendment formulas similar to the one in Article V of the U.S. Constitution; they embrace federalism and establish senates where states carry equal weight, as in the U.S.; and they adopted presidential systems of government, with a package of checks and balances similar to the one in the U.S.

In Argentina, for instance, Juan Bautista Alberdi designed the 1853 Constitution following the Madisonian model, with small modifications in view of local needs; Law 48 on the Organization of the Justice System is almost identical to the U.S. Judiciary Act, and the Argentine Supreme Court vindicated its review powers in a ruling (the Sojo case) strikingly analogous to Marbury v. Madison.^[13] The Mexican Constitution of 1857, on its part, established a presidential system within a framework of checks and balances almost identical to those in the U.S.; included a supremacy clause in the exact terms of Article V; embraced an amendment formula like that in the U.S., only with different requirements in terms of majorities; confirmed the existence a judicial structure made of district courts, circuit courts and a supreme court that was endowed with powers of judicial review, even if under a specific, dedicated procedure (the amparo); and set forth a federation with a dual system of jurisdictional distribution, and a senate designed along the lines of U.S. federalism.^[14]

The hybrid nature of nineteenth century Latin American constitutionalism thus coalesced. As it occurred in other places such as Louisiana, Quebec, or the Philippines, constitutional texts analogous in core structural aspects to those found in common law systems, came to coexist with institutional structures and procedural and substantive rules characteristic of the continental tradition.^[15]

In the opinion of Roberto Saba, the existence of an “unsettled” constitution in Argentina—the existence of weak and fragile constitutional practices and commitments—has lots to do with its mixed nature.^[16] Signs of constitutional weakness are, for him, the striking absence of constitutional debates and the underestimation of constitutional theory in relevant legal spaces, such as in law school classrooms (where a formalist teaching based on the learning of the codes still prevails), the Supreme Court (seen more as the upper instance of conflict resolution than as the maximum interpreter of the Constitution), parliamentary debates and professional media (which systematically project a skeptical and politicized vison of the Constitution).^[17] While the people and the legal community are not necessarily against the values of self-government, democracy, and the rule of law, he observes that they seem unaware of the role they should play in the collective construction of a constitutional tradition, and political leaders are largely indifferent to the importance of constitutional limitations.^[18] It is little wonder that the constitution has been often under attack from two sides: political majorities, occasionally in power, which have considered constitutional limitations a nuisance, and political minorities, which have felt threatened by the democratic dynamics that the constitution habilitates.^[19] This has led to the frequent temporary or permanent suspension of constitutional limitations, including five coups since 1930.^[20]

According to Saba, these weaknesses emerge because certain practices and institutions do not exist and those that prevail are characteristic of the continental law tradition that continues to dominate vast territories of the institutional, political, and legal system.^[21] The argument is not that the common law is superior, but that the two traditions rest on different assumptions, and that those attached to the civil law tradition are not those that allow strong constitutionalism to thrive.^[22] Two core aspects create structural tensions: diverging understandings of democracy and diverging understandings of the law.^[23] The understanding of democracy that prevails in Argentina—and probably in other regional countries, Saba remarks—is that political majorities should rule with little constraint, in line with the idea of sovereignty of the people characteristic of the continental traditions, which is expressed in the codes, not in the constitution.^[24] As to the understanding of the law, in the civil law Argentinian tradition, codes are seen as sets of rules that have proven to be the best through a comparative method; their integrity must be respected by judges, who need to abide to their textual meaning. This generates a dogmatic conception of the law at odds with the idea of the law as a social practice that underlies constitutionalism,^[25] with profound institutional implications in terms of expectations about judging, methods for selecting judges, use of precedents, or the role of philosophy in legal debates.^[26]

Saba illustrates how the conflicts and tensions between the two traditions affect institutional design—that is why we may see him speaking about mixed constitutions, not mixed political regimes. As he notes, in “the Argentine hybrid,”

[the] territory of norms and legal institutions bristles with flags from both sides planted in areas which at times overlap and are easily confused and at times are clearly dominated by on and only one of the legal traditions in tension.^[27]

Saba’s examples include the existence beginning in 1867 of a supreme court with judicial review (U.S.) but without stare decisis (civil law), though rulings are public from the beginning, like in the U.S.,^[28] and political appointment of judges (U.S.) coupled from 1994 with a Consejo de la Magistratura which preselects according to technical merit the pool of candidates that the president and the senate must choose from (civil law).^[29] Legal education, by contrast, is almost entirely under the dominion of the continental tradition: the construction of legal meaning is not conceived of as a collective, cross-generational activity, but as a scientific, value-neutral activity, that is distant from citizens.^[30] Legal academia either generates highly sophisticated abstract philosophical inquiry, or commentary of the codes, with little in between, and few people building bridges between constitutional theory, constitutional practice and democracy.^[31]

II Liberal-Conservative Fusion at the Constitutional Core

In his reconstruction of two centuries of Latin American constitutionalism, Roberto Gargarella refers to the rich interchange of political, philosophical, and legal ideas that dominated constitutional struggles at the beginning of the nineteenth century. Contrary to the image of chaos that some might be tempted to entertain in view of frequent constitutional replacement, he notes, debates evince a sincere concern for the pertinence of the constitution: about the need to ask “for what” and “against what” constitutions were written, and to clarify its guiding goals as a requirement for selecting the institutional arrangements suitable to attain them.^[32] He identifies three major ideological currents exerting influence on constitutional texts, each of them endorsing distinctive views on questions of collective self-government (democracy) and individual autonomy (rights).^[33]

One of these currents is conservatism, which favors a restrictive view of both collective self-government and personal autonomy. On the first dimension, conservatives would generally defend political elitism, and consequently defend arrangements like centralism, strong presidentialism, bicameralism, and other strategies reflecting mistrust of majorities, in addition to favoring the separation of politics and economy.^[34] Regarding personal autonomy, they were moral perfectionists and believed in the moral foundation of law. Under that condition they would strongly defend the Catholic church (with was declared the official religion in 81% of the constitutions of the nineteenth century), and generally endorsed an epistemological perfectionism that would lead some of them to sponsor the enactment of “moral codes”—Simón Bolívar himself, or Juan Egaña in Chile.^[35]

Liberals, on their part, endorsed a restrictive view of collective self-government and an expansive view of questions of personal autonomy. The former led them to be strong defendants of decentralization and federalism, and the establishment of mechanisms guaranteeing checks and balances between the three branches. They opposed the conferral of extraordinary powers to the Executive and defended bicameralism as well as the need to assure concurrence of wills for the appointment of many officials. They generally held an anti-statist and anti-collectivist stance, favoring “spontaneism.”^[36] On personal matters, they defended the moral and religious neutrality of the State, and naturally favored the constitutional enshrinement of individual inviolable rights of freedom and property.^[37]

Radicals or republicans, finally, had a restrictive view of personal autonomy and an expansive view of collective self-government. The latter translated into a defense of political majoritarianism, a criticism of legislative delegation on the Executive and of Presidentialism more generally, a defense of federalism and strict separation of powers, a vindication of associations and other avenues of political inclusion, and an endorsement of State management of the economy.^[38] Regarding personal autonomy, they were largely supportive of a sort of “mosral populism,” opposing both natural law and the moral sovereignty of individuals. They would counsel deference to majoritarian tendencies while insisting on the importance of civil virtue and of installing certain traits of character in citizens. They did not totally reject rights, but endorsed a heterodox understanding of them, coupled with an expansive notion of political rights and concern for social matters.^[39]

Gargarella charts how these ideas left institutional and regulatory fingerprints in the liberal and conservative constitutions that alternated in the first decades of the century. (The radicals, which were influential at the beginning, operated after the failure of the 1848 French Revolution mainly as currents in the opposition, although they were the “phantom” against which the other currents would proceed).^[40] According to this author, the sort of constitutionalism that became stabilized over the second half of the nineteenth century—the one reflected in the constitutions of Argentina 1853, Mexico 1857, Perú 1860, Uruguay 1830, Colombia 1886, and Paraguay 1870—is a “constitutionalism of fusion,” supported on a political compromise between liberal and conservatives.^[41] This synthesis is reflected in constitutional provisions guaranteeing religious tolerance, while falling short of enshrining the religious neutrality of the State. It established a system of checks and balances that grossly tilted in favor of the Executive branch; setting up formally federal states, but states in whose context the Federation is accorded powers and financial resources that keep power tightly held at the center. It rejected radical proposals for larger popular participation in public affairs and the enshrinements of strong social programs, which meant keeping lists of exclusively liberal rights, despite the ever-growing social conflict.^[42]

In the twentieth century, Gargarella registers five different reactions or “exit doors” to the social that “fusion” constitutional texts were not prepared to deal with: the “authoritarian exit,” grounded on inherited ideologies of order and progress, which placed power in the hands of military or civil dictatorships or an hegemonic party; the “reformist exit,” which combined the incorporation of social rights in the constitution with moderate forms of Presidentialism, as exemplified by mid-century constitutions in many regional countries, or by the Mexican constitution of 1917; the “populist exit,” pursued by Juan Domingo Perón in Argentina or Getulio Vargas in Brazil, which combined anti-communism, anti-liberalism and authoritarianism with social sensitivity; the “excluding democratic pact exit” in virtue of which the hegemonic political parties agreed to rotate in power, as in Colombia under the National Front or Venezuela under the PF; and the “socialist exit,” tried in Cuba, Chile, and Nicaragua.^[43]

The constitutions enacted over the last wave of democratization—including the distinctive texts of Ecuador and Bolivia—are, for Gargarella, the last chapter in the centuries-long regional efforts to deal with ingrained problems, especially inequality. The basic formula has been, however, the combination of unprecedentedly strong constitutional declarations of rights—featuring economic, social, and environmental rights, the rights of indigenous people and other clauses with great transformative aspirations—with systems of power organization that are far too close to the old liberal-conservative fusion that has been the spinal cord of regional constitutionalism for so long. As emphatically stated in his scholarship, the imagination constitution-makers put into innovating in terms of rights provisions was not replicated in the organization of powers, which maintains hyper-strong executives and structures that de-incentivize or impede participation and inclusive deliberation.^[44] As a result, contemporary constitutions combine two components at war with each other: the “engine room” does not promote efficacy of the substantive program it should serve, and gives space for elitist or even authoritarian dynamics that compromise the entire constitutional project and perpetuate undemocratic and inequalitarian dynamics.

Gargarella, in short, is identifying here two cumulative layers of mixed constitutionalism, since the liberal-conservative synthesis inherited from the nineteenth century gets now mixed with a transformative rights-based program. The problem is not so much that there is much “old” in “new” Latin American constitutionalism, but that old and new work in different directions. The problem is perhaps not mixity in itself, but the incoherence of the mix. All his presentations of contemporary constitutions—“grafting social rights in constitutions hostile to them;”^[45] “constitutions in internal tension;”^[46] “constitutions in trouble”—emphasize this central message. The only area where he detects institutional innovation is the judiciary. The creation of channels like the Colombian tutela or the Costa Rican amparo, as well as the flexibilization of procedural requirements to access justice (present in Argentina and Brazil as well) are positive reforms that evince the possibility of changing the engine room,^[47] bringing constitutional justice much closer to citizens. In his participation in debates about “dialogic” or “weak” judicial review, he celebrates many of the innovations in adjudication before the regional apex courts.^[48] Yet the limits are clear:

this type of reforms tends to evince crucial limitations whenever the basic structure of political power remains untouched, and the organization and composition of the Judiciary remains the same, as it normally happens. On the one hand, this double limitation generates effective restrictions to the participation of citizens and their capacity to support, achieve and maintain more radical and aggressive legal changes. On the other, it is likely that the Judiciary will have more difficulties to advance in politically sensitive areas.^[49]

The composed, conflicting nature of constitutions remains determinative.

III Centralized and Decentralized Systems of Judicial Review Superimposed

Constitutionalists and procedural constitutionalists—an immensely influential subfield of scholars in Latin America—have provided largely coincidental, already canonical reconstructions of the emergence of judicial review in Latin America.^[50] These reconstructions all register the introduction of political review during the first half of the nineteenth century, by means of institutions like the ”legislative reference,” the establishment of special non-judicial bodies of constitutional supervision, or the conferral to the Federal Legislative branch of the power to pronounce local statutes unconstitutional.^[51] In Mexico, for instance, the Seven Constitutional Statutes of 1835–36 set out a body called the “supreme conservative branch,” to arbitrate conflicts between the three branches and maintain the purity and supremacy of the constitution.^[52] It was a body of political integration with echoes of Benjamin Constant’s theorizations about neutral power, and l’abbé Sieyès’ ideas on constitutional moderation. These solutions were harmonic with the model of democracy that gained ground in France, premised on the political primacy of the legislative and the idea of strict separation of powers—not checks and balances.

As we saw, however, Latin American countries had set up Supreme Courts modelled after the U.S. and—in contrast with the situation in Europe—operated in federal states. By the mid- nineteenth century, constitutions had all replaced political review with judicial review designed along diffuse, decentralized lines, if often with particularities.^[53] Thus, in some countries the power to set aside statutes was reserved to the Supreme Court, not decentralized, and in most of them the emphasis was placed in securing the supremacy of rights, not the supremacy of the constitution in general. This eventually gave rise to the emergence of a radically new institution, the amparo, first in Mexico and later in other countries, inaugurating at an early stage the successful career of constitutional complains in contemporary constitutionalism.^[54] Another singular step was the creation in this period of channels of abstract review in Colombia and Venezuela, far earlier than in Austria or Czechoslovakia^[55]—operating alongside diffuse review. The prevailing model was, in sum, diffuse review, but with variants that generally reflect the distinctive position of apex courts in the different countries.

The scene changed again with the emergence of the last-wave constitutions. Following the tendency of post-war constitutionalism in Europe, many Latin American countries created constitutional courts, specialized constitutional chambers within existing supreme courts, or redesigned the latter along Kelsenian lines, setting up channels of abstract review allowing for the general invalidation of statutes and other norms of assimilated status. Yet they also retained their traditional channels of diffuse, incidental review. Thus, in Brazil, there are four channels of abstract review,^[56] together with diffuse review in the context of a wide array of judicial ordinary writs, including the “security mandate,” habeas corpus, habeas data, judicial order, public civil action, and popular action.^[57] In Colombia, there are both public actions of unconstitutionality and concrete review via tutela. In Mexico, there are three channels of review of legislation: diffuse review, amparo (a semi-concentrated channel of principal, concrete review of acts and legislation, with inter pars effects), and abstract, non-incidental review with general effects in ‘actions of unconstitutionality’ and ‘constitutional controversies.’^[58] In Perú, there is abstract review by the Constitutional Tribunal. Article 138 of the Constitution, however, directs all judges to always prefer the Constitution over any statute incompatible with it, something that habilitates diffuse review.^[59] This is similar in other countries. Regional outliers are Argentina, with only decentralized review, and Paraguay, with only abstract review—practiced by the Constitutional Chamber of the Supreme Court. Rights that protect specific complaints supplement this structure in most countries.

This scenario therefore makes the region home to mixed or hybrid systems of judicial review. Not because of their being partly centralized and partly decentralized, but because of their being both, with channels of abstract centralized review superimposing themselves to channels of decentralized incidental review. Many European countries may be said to have mixed models as well, having channels allowing ordinary judges to ask the Constitutional Court about the compatibility of statutes with the constitution. The creation of such channels—the Spanish cuestión de inconstitucionalidad, the Italian giudizio di leggitimità constituzionale in via incidentali, the German Richtervorlage—and others in Central and Eastern Europe^[60]—adds some drops of decentralization within essentially centralized systems in which the Constitutional Court retains the ultimate monopoly to declare statutes void. Latin American countries, by contrast, place concrete review in the hands of all courts, even if simultaneously entrusting supreme or constitutional courts with the power to review statutes in the abstract, typically for a limited time after they are enacted, and to declare them void with general effects. They are essentially decentralized models, with a few drops of centralization.

No efforts have been made, however, at theorizing mixity as an important feature of the regional mosaic.^[61] Scholars have rather underlined the richness, variety, and innovative character of the institutional designs, as well as the need to transcend traditional parameters of classification in order to account for the many fold dimensions of Latin American systems^[62]—many of them not found elsewhere, like the broad menu of responsibilities they have beyond review of legislation—including participation in appointments or the supervision of elections.^[63]

IV Counter-narratives

The theorizations of Saba and Gargarella illustrate the power of an analytic framework that, placing at the center the idea of constitutional mixity, is used not only to identify and describe, but also to provide an explanation: to make sense, identify points of relevance, evaluate, criticize, and signal directions for change. As I expound later on in more detail, they transform the mixed nature they attribute to regional constitutions into what Josep Aguiló calls a “driving property.’”^[64] Scholarly depictions of the third strand of hybridity—the one associated with systems of judicial review—stay, by contrast, at a more basic, descriptive level. Beyond this difference, in any case, the three of them emphasize certain elements while sidestepping and underemphasizing others, building up narratives that must co-exist with possible alternative analysis.

One alternative analysis could point out, for instance, that the ideal types behind these hybridity frames have lost distinctiveness. Many of the elements on which the contrast between civil law and common law is grounded, for instance, have lost saliency and coexist with very different, new ones. Take the centrality of the codes. While the codes remain important, we have long lived in scenarios dominated by the overwhelming presence of specialized legislation, bylaws—including independent bylaws untraceable to previous instances of parliamentary will—the direct applicability of constitutions and treaties, and the applicability of other legal bodies outside the state-generated ones—from international banking norms to indigenous legal systems. For almost half a century now, administrative lawyers have been busy commenting on “the runaway from administrative law,” criminal lawyers on the emergence of blank or special penal laws that break the integrity of codification; and public lawyers on fragmentation, pluralism, and the multilevel generation, interpretation and application of legal sources. Integration in supra-national structures of governance, rights-guarantee or economic interchange might have lost acceleration in the last few years with the return of political or economic nationalism in many places, but only after being successful in radically altering traditional ways of structuring legal regulation as much in common law countries as in civil law ones.

Regarding precedents and practices of interpretation, things have also evolved significantly, blurring the differences between the two traditions. As Víctor Ferreres observes, although it is true that, historically, civil law countries have stood by the thesis that judges are not bound by precedents—only by legislation, which they can interpret in theory with “sovereignty,” on the grounds Roberto Saba aptly underlines—in contrast with the position of common law judges, the status of precedents in both systems is actually similar. Although not obliged, civil law judges tend to follow the criteria set by the higher echelons for both organic and procedural reasons: they all operate within a system of judicial career where merits for professional progress are judged by those superiors, and appeals and reviews are generally available, so that a great deal of interpretative unification is preventively or ex post attained in this way.^[65] Moreover, civil law countries have for centuries featured cassation review, which allows rulings to be modified when resolved on a wrong legal basis—including a “wrong” interpretation of statutes, gauged in light of the existence of “settled case-law.” Common law judges, on their part, frequently resort to “distinguishing” to soften the dynamics of binding precedent. Some scholars have identified important systemic differences in deliberation and decision-making protocols in court,^[66] but it is little disputed that European constitutional courts’ rulings and reasonings, in particular, have substantively distanced themselves from classic French molds, something that is definitely the case in Latin America, where apex courts have for long worked under different parameters.

Maybe these changes are associated with the fact that prevailing understandings of democracy have arguably evolved as well. It is true that in Europe parliamentary systems are still predominant while America remains “the land of Presidentialism.”^[67] However, the manner that access and exit from power is organized is no longer sufficiently informative of the manner power is exercised.^[68] Moreover, after frequently painful historic meanders, European constitutional designs offer to both political and ethnic or national minorities greater protection; together with the long-term impact of integration within the European Union and other international spaces, this has led to a very significant transformation of how the “demos” and the holders of political legitimacy are imagined. The same has occurred in Latin America, where last-wave constitutions attest to the changes in the understanding of popular sovereignty in contexts where indigenous peoples now share in the definition of the nation, and the constitution integrates parts of international law.^[69] It is difficult to be accurate in invoking lines of evolution in this domain, and the upsurge of populism worldwide, in its different variants, as well as the reactions to it, can be read as yet another round of opportunity in the struggle to recreate what democracy means. Yet whatever results, it arguably cuts across the lines that once made it essential to distinguish majoritarian and atomized, check-and-balance-mediated conceptions of democracy.

Similar issues may be raised with Gargarella’s influential analysis, which has been widely discussed in recent times. Jorge Roa, for instance, finds the explanation provided by the engine room thesis insufficient in overlooking two phenomena that deeply influence the efficacy of constitutional texts in Latin America: the generalized presence of constitutional elusion—an internal conditioning factor— and the effects of the economic policies attached to the bilateral and multilateral regimes Latin American countries are committed to—an external conditioning factor.^[70] Constitutional elusion happens when governments legislate through infra-statutory bylaws that are more or less incompatible with constitutional provisions; in doing so, observes Roa, “Executive branches not only avoid the political scrutiny of parliaments, but also the constitutional review of supreme or constitutional courts,’”^[71] since these cases are seen by traditionally deferent administrative courts.^[72] Elusion is frequent in areas that are reserved for special statutes or require constitutional amendment—generating what scholars have called “informal constitutional amendment.”^[73] As for the external factors, Roa points to the existence of “free trade agreements, investment protection regimes or the International Monetary Fund and World Bank programs which place high barriers to guarantee, inter alia, access to medicines at reasonable prices, previous consultation to indigenous communities or high public services.’”^[74]

On the other hand, Roa observes that contradiction between schemes of power distribution and the promises of the bill of rights is a global phenomenon, often being associated with the preconditions that make constitution-making possible: negotiation and transaction.^[75] Incoherence may be more blatant in the region because of the distinctive generosity of the bills of rights, but considering it a regional singularity makes it difficult to insert the problem in the comparative conversation so as to benefit from learning how other countries have addressed it.^[76] In his view, the real problem is not intra-constitutional contradiction but the clogs and blockings that prevent the constitutions’ more abstract and indeterminate clauses from becoming operative at the policy level.^[77] Latin American politics, he contends, is full of inertias and blind-spots: parliamentary output continues to be determined by factors other than the constitutional normative program, and damaged by the crisis of representation affecting parliaments.^[78] While provisions about power structures are more precise and amenable to automatic enforcement, the rights program is deeply damaged by the many problems of majoritarian politics. Since social movements and organizations have unequal resources and share space with corporations and industry, they alone are unable to vindicate the constitution with enough effectivity.^[79] According to Roa, in short, “the engine room thesis explains well […] how we have reached a scenario of contemporary constitutions that feature this inter-organic contradiction. But it does not explain satisfactorily why constitutional promises are underenforced or have a low degree of efficacy.”^[80]

In analyzing Gargarella’s thesis within a comparative frame, Tom Ginsburg similarly suggests how difficult it is to construct defined, unidirectional narratives. As he reminds us, Gargarella’s hypothesis poses the inner contradictions of the prevailing constitutional model as the main element explaining why the region has been unable to overcome its core social problem: inequality; because constitutions maintain great concentrations of power on the Executive and generally rely on a non-attractive modality of democracy, they are unable to realize rights and attain a more equalitarian distribution of economic and political power.^[81] In the style of the liberals, observes Ginsburg, Gargarella believes that redistribution should not be attempted directly (by including social rights and mandates) but indirectly, through the workings of the political system; he therefore emphasizes the importance of institutions, underlines the inability of current constitutional machineries to encourage participation, and insists on the need to strengthen citizens’ connection to politics through participation and deliberation, as a necessary condition to produce better outcomes.^[82]

Ginsburg observes that this diagnostic may be interrogated in two ways. On the one hand, participation does not always lead where we like, and may help bestow power on highly unattractive leaders or policies.^[83] On the other hand, there are examples of polities where inequality and exclusion have been overcome within the strict confines of the sort of liberal-democratic mold that Gargarella finds wanting. Thus, East Asian countries have been in the past decades immensely successful in raising the income of median citizens, without the devices promoted by deliberative theorists playing any significant role.^[84] Like many Latin American countries, after the war, Japan confronted deep problems of inequality and land allocation, yet advancing within the confines of a standard liberal democracy (coupled with land redistribution decided “from above,” without much judicial protection for the expropriated), it soon became a successful, inclusive and largely equalitarian democracy.^[85] The Philippines, by contrast, facing a similar set of problems, adopted more participatory strategies and remains to this day poor and unequal.^[86]

Scholars like Rodrigo Uprimny actually consider that contemporary Latin American constitutions include strong participatory mechanisms and signal the challenge this feature may pose in combination with the strong rights component they also endorse, and with the strong presidentialist component they equally retain.^[87] In his portrayal of last-wave regional constitutions, Uprimny chooses to underline the many lines of discontinuity with the past. With regard to substantive clauses, he identifies 10 major novelties: change in the definition of national unity, where traditional homogenizing drives are replaced by a recognition of diversity and the foundational status of indigenous peoples; elimination of the residues of religious establishment and guarantee of religious freedom; protection of disadvantaged and traditionally discriminated groups, including indigenous and black communities, which are often granted special rights or jurisdiction; generous recognition of rights, including last-generation ones, and new categories of rights holders, like nature, groups or communities; great openness to international human rights law, which often operates together with the constitution; transformation of the system of legal sources, eliminating the centrality of statutory law and welcoming other sources of normativity; strong commitment to equality, including affirmative action; enshrinement of encompassing umbrella-clauses synthesizing the constitutional project, like the “Social and Democratic State” clause or varieties that intend to go beyond European postwar models; inclusion of principles and guarantees evincing a deep concern for the efficacy of rights; and mentions to the economy, even if heterogenous and difficult to reduce to a single message.^[88] Regarding power structures, Uprimny lists the supplementation of representation with enhanced spaces of participation (popular consultations, referendums, popular bills or presidential recalls); the setting up of independent, specialized electoral branches or agencies; the embrace of territorial decentralization; the strengthening of structures of supervision and control to boost accountability; the reinforcement, in multiple ways, of the judiciary; the maintenance of Presidentialism as the basic governance model; and the generalized presence of independent agencies.^[89]

Uprimny believes that last-wave constitutions are generally pertinent, since they clearly speak to the specificities of Latin American societies and intend to address their ingrained problems, avoiding the hasty import of foreign solutions.^[90] He certainly detects potential points of tension, like the one implied in maintaining strong presidents while reinforcing popular mechanisms, or those associated to the complexity of combining different instantiations of democracy (representative, participative, communal-indigenous) and justice (redistribution, recognition, judicial guarantee of rights and participation).^[91] But he sees them as an invitation to commit theoretical and practical efforts at constitutional implementation, with no damage to the conclusion that regional efforts at constitutional creativity are remarkable and generally promising.^[92]

V Latin American Hybrid Constitutionalism and the Uses of Constitutional Taxonomy

Our survey of narratives and counter-narratives around mixed constitutionalism in Latin America is a rich plateau on which not only to refine our knowledge of constitutions and constitutionalism in the region—as we inquire whether, or in what way, the hybrid label can be applied to its constitutional texts—but also to nurture our inquiries about the uses and functions of constitutional taxonomy in comparative constitutional studies.

A first preliminary distinction that arguably emerges from the analysis is the one between descriptive, explanatory, and prescriptive uses of the notion of mixed or hybrid constitutionalism—and probably of any other we might use in the course of exercises of constitutional taxonomy.^[93]

Descriptive constitutional categorization and adjectivization is ubiquitous; it is part and parcel of what we do as scholars and producers and presenters of organized knowledge.^[94] We assemble properties and build concepts, each of them with an “intension” and an “extension’ that influence what we may use them for, and how.^[95] When we define and adjectivize constitutions in certain ways, we provide visibility to one or a limited number of their properties or features, and we often organize these concepts in pairs, dichotomies, groups or assemblages, continuums or oppositions, for additional insight and clarity. Some exercises of descriptive constitutional categorization have gained worldwide diffusion, like Charles McIlwain’s distinction between ancient and modern constitutions,^[96] James Bryce’s between flexible and rigid constitutions,^[97] or Karl Loewenstein’s between normative, nominal, and semantic constitutions.^[98] Although it is strange for a concept to lose all chances of applicability—as Pasquale Pasquino underlines, after all the concept of ancient constitution still makes perfect sense and describes something that did not disappear on the eighteenth century but rather exists in virtually any human society^[99]—it is common to replace or set aside descriptive concepts or dichotomies as they progressively become less useful to provide information about the world. Pasquino reminds us that Bryce crafted its famous typology in believing that the dichotomy between written and unwritten or customary constitutions had become marginal and irrelevant at the ends of the nineteenth century.^[100]

In the context of contemporary Latin American constitutionalism, one dichotomy that has been massively resorted to is the one distinguishing between backward-looking versus forward-looking,^[101] re-legitimizing versus transformative;^[102] or preservationist versus aspirational constitutions.^[103] Latin American contemporary constitutions are unanimously ascribed to the second category in the pairs, because of their commitment to change a recognizably unfair status quo, in contrast with those assuming that the status quo is fair and must be preserved. Another classification—clearly more useful than talk about “new Latin American constitutionalism’ versus (standard) Latin American constitutionalism” in a region where most constitutions are relatively new—is the one between radical and liberal constitutions, the first one alluding to those in Venezuela, Ecuador and Bolivia, and the second one to the rest.^[104]

How useful and illuminating is it to describe Latin American contemporary constitutions as mixed, or hybrid? A first consideration that we mentioned in passing but needs to be emphasized is that both mixed and hybrid refer to a combination of two or more background elements that must be uncovered and examined.^[105] It is important to evaluate what would count as an example of the “pure” or “paradigm” instantiation of each of the background categories, and what kind of discursive and normative bridges their use creates. This would provide probably a reason not to use the “mixed constitution” framework to describe the combination of ideological elements that Gargarella identifies in contemporary constitutions. While Gargarella, who does not explicitly use the hybrid or mixed constitutionalism label (despite placing mixity at the center of his reading), reconstructs liberalism, conservatism, and radicalism as three convincing archetypes, the fact is contemporary texts are the results of an initial compromise between liberalism and conservatism, but also of successive episodes of layering and accumulated additions of many different kinds; it is no longer possible to recognize a limited number of defined archetypes amidst contemporary constitutional ideological combinations. One might therefore say that, if Latin American constitutions are hybrid or mixed because of this, then most constitutions of the world would be equally so.

The situation is different with the other two of the strands of hybridity we have surveyed—common law-civil law constitutions and centralized-decentralized systems of judicial review. There, the background ideal types are clearer and have been theorized and sharpened by legal historians, comparatists, and constitutional lawyers. The basic problem is that they invite a description of regional realities in terms of ideal categories that, even if framed in geopolitically neutral terms, centrally match realities of the Global North, which are then taken as core point of reference. While tracing commonalities and differences in any direction is at the core of comparative analysis, this modality of hybrid labelling must confront risks of false attribution, invisibilization, essentialism, and asymmetric evaluation.

Thus, for instance, abstract review of legislation was invented, as we saw, much earlier in Latin America than in Austria or in Hans Kelsen’s books, something that gets un-registered on the standard version of the centralized-decentralized narrative—and pretty the same could be said about constitutional rights-protective complains, which are generally celebrated as staples of post-war constitutionalism while being present in several Latin American countries from the nineteenth century. In the context of abstract review, moreover, the fact that in Latin America countries petitions can be often filed by citizens, and not only by the limited number of institutional actors that have standing within a Kelsenian frame, never ceases to be considered a bit strange, a ‘deviation’ from natural expectations.^[106] Yet, clearly, if the standing rules that are part of the Kelsenian archetype are considered natural and non-problematic is not only because of the way “the political economy of legal knowledge” operates,^[107] but also because they were certainly non-problematic in the sort of political-democratic context that Kelsen had in mind. In the political dynamics that prevail in Latin America, by contrast, the institutional actors that enjoy standing in a Kelsenian model are rarely interested in challenging statutes on the basis of rights violations, leaving abstract review (in the countries that exceptionally follow the Kelsenian design, as does Mexico) under-used, or used often in view of the interests of public authorities, not the interests of citizens. What is therefore a design solution reasonably tailored to actual local needs is placed in need of justification under the paradigms on which the mixed constitution framework is built.

To this, we must add the distortions that come from describing the world in terms of archetypes that are in themselves, to an important extent, reified inventions,^[108] inserted in genealogies of scholarly analysis that rest on profoundly asymmetrical North–South assumptions, and that are actually inappropriate to describe current legal realities even in the contexts where they first emerged. This is most centrally the case with descriptions in terms of common law/civil law mixes, given the amount of misrecognition and erasure of diversity that the historic settling of these categories already implied, and the degree to which, as we noted, neither of the two constructs nor its dichotomous relation map well onto contemporary realities.^[109] Yet the effects of invisibilization and default essentialism are also probably at work if we describe contemporary constitutions as a mix of liberalism, conservatism, and social rights, since this necessarily makes it more difficult to account, describe and appreciate in their terms the many features that, under accounts such as Rodrigo Uprimny’s, break those molds.

None of this is, however, arguably a major problem for the sort of exercises attempted by Roberto Saba and Roberto Gargarella—and we now finally turn to the second use of the category of mixed constitutionalism that I mention at the beginning of the section: explanation. And it is not a major problem because their project is not to provide an appropriate, informative description of contemporary Latin American constitutionalism giving salience to certain common or singularizing contents, but to provide an explanation about how it operates. These scholars might perfectly admit their depictions leave many features outside, because their aim is a different one: to identify the feature (or the limited number of features) that matters most, the one that is determinant—the one that explains something systemic and consequential. They do not build a concept, but a theory. As Josep Aguiló observes, in contrast to crafting a concept of constitution, defending a specific conception of it implies selecting one of its properties as “driving” property that will prevail over the others when appropriate, without negating the existence of those others.^[110] It is one thing to say that a constitution is democratic, notes Aguiló, and a very different one to defend a democratic reading of that constitution; It is one thing to describe the procedural and substantive provisions of a constitution, and another one to defend a procedural conception of that constitution. In his view, the concept of a constitution is built on such complex a set of properties that it is actually only operative under one or another specific conception, and it is these conceptions that guide constitution-making or habilitate readings of existing constitutions that then guide their interpretation and development.^[111]

At this level, then, the hybrid category identifies and captures something with a systemic impact.^[112] The combination of components pertaining to previously conceptualized models, traditions, or ideal types at the same time accounts for certain historic processes, from which the combination results, and for certain social practices, whose development the combination propitiates. Appropriately in line with this, Gargarella and Saba do not regard Latin American constitutional hybridity as something left in the past, but something whose contemporary echoes and fingerprints are the key explanatory element of how regional constitutions operate.

As we saw, however, not everybody shares their views. While there are elements that support our colleagues’ theories, there are others—like those featured in Roa’s or Ginsburg’s analysis—suggesting that the tensions associated to our constitutional mixity cannot be taken to explain that much. There would be also grounds to vindicate the many Latin American hybridities that have worked well, or to underline how combinations of original and transferred elements have been (as in other places) sources of resistance, profitable innovation, or even emancipation.^[113] Against the backdrop of traditional narratives, one could, for instance, interpret the Colombian experience of the last 30 years as the triumph of public law over continental private law—yet a public law damped with local and European elements, more than U.S.’ ones.^[114]

Or one could reject the explanatory power of traditionally hegemonic hybridities and vindicate the explanatory potential of others. There is no chance to say more in the context of this article, except of course that the explanatory debate is crucial, to the extent its conclusions will prompt the identification of different goals as the ones to be promoted or resisted in the context of regional constitutionalism, and to the extent evaluation and prescription so naturally follow explanation in exercises of constitutional taxonomy and will be frequently determinative of proposals of constitutional design and interpretation.

Conclusion

The analysis in this article has pursued two main goals, one focused on Latin American constitutionalism, the other more methodological in kind. The first goal was to identify and bring in the narratives of constitutional mixity or hybridity that have been influential in Latin America, something that habilitates a comparative analysis with the uses of the mixed or hybrid constitutionalism label in other regions or scenarios. The second one was to explore what we may learn from looking into the narratives of Latin American mixity in our way to clarifying what do we do when we frame certain constitutions as mixed, and more broadly when we engage in exercises constitutional taxonomy—something we increasingly do because of the immense success of constitutions, as processes and products, in the more varied assortment of political and legal regimes.

The analysis has advanced, in a way, by reflexive equilibrium: the inquiry into the characterization of Latin American constitutions and the use of the hybrid label in its context has nurtured the clarification of the functions of constitutional taxonomy, and the inquiry into the methodological nature of constitutional taxonomy has helped clarify what are the stakes and possible disagreements with regards the description, explanation and evaluation of Latin American constitutionalism under the prism of constitutional hybridity, inviting adjustments on both sides along the way. Some preliminary conclusions have emerged: constitutional taxonomy is a way of organizing and generating knowledge which is useful to describe, but most meaningful when addressed not only to describe but to provide an explanation—which is often just the antechamber to engage in normative proposals of one or another kind. Whether a particular exercise of constitutional taxonomy makes sense in a particular scenario, however, is a different matter, and our analysis has suggested that describing, explaining and evaluating Latin American constitutions as hybrid—or, more precisely, as certain particular hybrids that combine traits from certain specific ideal types—is problematic in a number of ways. In any case, both this debate and the methodological one is set to find continuation in subsequent exercises of collective clarification.