Taking Inequalities to Court: Constitutionalism of Inequality in Latin America

The constitutionalization of international human rights law (IHRL) is a trend that has progressively taken place during the last two decades in Latin America, as product of constitutional reforms recognizing constitutional rank to human rights treaties, or through the adoption of the constitutional block thesis by the national constitutional courts. As a result, universal human rights standards can be invoked as national constitutional norms in several countries and social rights enshrined in international instruments can be domestically protected as constitutional rights. In contexts of high structural inequality (extreme land concentration, regressive systems of taxation, informalization and precarization of labor, etc.), where democratic institutional channels (e.g. Congress, city councils, etc.) and mechanisms of political participation are not effective enough to respond to major social claims of redistribution, non-political alternatives have been applied. For instance, we can observe the increasing reliance on courts for addressing social demands to combat structural inequalities. Such demands have been translated into the human rights language of international treaties and national constitutions. For the supporters of the use of tribunals as instrument for social transformation in contexts of high inequality, constitutional judges shall embrace a contextualized interpretive methodology when resolving a case; that is, they shall take into account the specific socio-economic conditions in which the sentence is pronounced. For Latin America, this means a special sensitivity to extreme inequality and several interrelated forms of discrimination. This is what I would call a “constitutionalism of inequality.”

In some national jurisdictions, as well as in the case law of the Inter-American Court of Human Rights, courts have been sensitive to these demands and have developed a case law protecting the right to equality and social rights beyond the individual case, which has compensated or decreased inequalities. Nevertheless, this recourse to the courts in order to put social inequality into question may produce new or exacerbate current inequalities. It is not exclusively a problem of differences in access to justice among social actors, but rather refers to substantial problems in the constitutionalization of international law, in particular, the use of essentialized identities. Translating political demands of redistribution in terms of IHRL has implied sometimes that the demanding social groups must adapt themselves to certain identities that make them rights holders: e.g. to access to land property as quilombolas in Brazil, garifunas in Central America or ethnic communities in the Colombian Choco. This rigid fixation of identities excludes a range of social actors unable to fit their demands into identity categories protected by international/constitutional law, which reinforces intra- and inter-group ethno-racial inequalities.

Beyond the traditional debates in the Anglo-Saxon and European literature on the legitimacy of constitutional judges to intervene in inequality issues (evaluated under the conditions of western democracies), the research project aims to explore the advantages and limits of incorporating inequality as central issue in the Latin American constitutional agenda, considering the specific conditions under which constitutional law has to operate in the world’s most unequal region.

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