Document Type

Book Chapter

Publication Date

2022

DOI

https://doi.org/10.1017/9781009201797.019

Abstract

This chapter explores the contrasting role of proportionality discourse in the USA and in Latin America. Although the USA provided an important constitutional model for Latin American countries, the latter does not share the former’s disinterest in the proportionality framework, which is considered foreign to the legal tradition of the country despite the fact it is arguably harmonic with the approach to law creation in the common law tradition. The chapter seeks possible explanations for the contrast in four elements: the importance in Latin America of centralized, specialized constitutional jurisdiction; the tradition of borrowing constitutional jurisprudence from abroad; the openness to constitutional change and innovation; and sensitivity to the egalitarian potential of rights review, even if that potential remains largely unrealized, which favors experimentation around proportionality. The USA sits at the opposite end of the spectrum along each of the dimensions that support proportionality analysis.

Disciplines

Comparative and Foreign Law | Latin American Studies | Law

Comments

This material has been published in "Proportionality and Transformation: Theory and Practice from Latin America," edited by Francisca Pou-Giménez, Laura Clérico, and Esteban Restrepo-Saldarriaga. This version is free to view and download for private research and study only. Not for re-distribution or re-use.

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