-Op-Ed-
BUENOS AIRES — Days ago, the jurist Martin Loughlin, a professor of Public Law at the London School of Economics, published an important book entitled Against Constitutionalism. Curiously, or perhaps not, many of his written concerns are relevant to our own reflections about the current state of politics and legislation in Latin America.
The author refers to the “rights revolution,” which entered the public debate in Chile as the nation seeks to rewriting the Constitution, and makes sharp observations on what politicians do with these “new rights.”
Loughlin adamantly rejects a misleading idea that democracy and constitutionalism are the same. The supporters of the latter ultimately replace redistributive politics with the theoretical recognition of new rights whose implementation, in practice, ends up bogged down in the judiciary’s corridors.
He explains how the recognition of social and economic rights has come to usurp the place of legislatures actively putting into place ambitious, redistributive programs.
Zealously neo-liberal
What he shows is that the purported beneficiaries of these rights simply end up queuing for long periods outside the tribunals. In other words, individuals are forced to turn to a judge to order the implementation of the rights politicians have supposedly “granted” or recognized. The author lambasts this abuse of the discourse of rights by governments that are, in practice, zealously neo-liberal.
Take the Badaro case here in Argentina, where the government has effectively forced the elderly to go to court — which they have had to do individually, not in a class action — for a judge to order the payment of their adjusted pensions. In theory the government had acted to upgrade their pensions. In practice, this was a case of a deceptive replacement of redistributive policies with the ‘concession’ of new rights.
The aim is to insist on the unshakeable duties of democratic politics.
Invoking social progress, governments simply absolve themselves of the hands-on responsibility of implementing change, depoliticize social demands that are political, transform collective demands into individual complaints, and rechannel popular mobilizations toward private cases that must run their course in tribunals. Whatever the outcome, it’ll take you a good few years to access the rights a progressive government has given you!
Loughlin highlights how social change or effective reforms are undermined by being moved from the terrain of politics and legislation to that of litigation. His arguments have precedents in the works of another jurist, Samuel Moyn, who examined the disconcerting ties between political postures that urge for “new rights,” and practices that effectively promote economic liberalism and free-market inequalities.
Constitutional rights as bribes
Sadly Latin America provides good examples of this treacherous contradiction.
Take Mexico in 2011, when the (conservative) government successfully ratified an extraordinary reform of the constitution in terms of human rights, while implementing economic adjustment policies and waging a “humanitarian,” yet hideously brutal, war on the drug cartels.
In similar terms, the Australian jurist Rosalind Dixon considers the notion of “constitutional rights as bribes.” She mentions Ecuador’s leftist president Rafael Correa (2007-17), who used the concession of “new constitutional rights” to downtrodden sectors like Ecuador’s indigenous people, to bolster his power.
I should clarify, no jurist working in this field of research is touting constitutionalism with “fewer” rights.
On the contrary, many of us value and defend vigorous constitutions in terms of rights. The aim is to insist on the unshakeable duties of democratic politics, and denounce those governments that cynically use the rhetoric of rights to conceal social demobilization and boost their own powers and privileges.
*Gargarella is a lawyer and lecturer at the University of Buenos Aires and the Torcuato Di Tella University.
