Tuesday, September 22, 2009

Protective Constitutionalism, Aspirational Constitutionalism

Adam's post about the U.S. Constitution made me think of the work of one of my favorite Latin American legal scholars, Mauricio García-Villegas. García-Villegas is a Professor at the Universidad Nacional de Colombia (I have never met him or taken a class with him, so I am unable to nominate him for Master of the Universe). In different places, García-Villegas has advanced a distinction between protective constitutionalism and aspirational constitutionalism (in English, see here). Protective constitutions -as their name suggests- are characterized by an attempt to prevent abuses of power and by an effort to secure a present that is considered to be more or less just, a good present. This type of constitution is associated with countries of the developed world, such as the United States or Canada. Aspirational constitutions, in contrast, tend to emerge in places were there is a profound discomformity with the present and a strong belief in the possibility of creating a better future through law, especially through constitutional law (an idea exemplified in the present wave of constitution-making in Latin America).

Not surprisingly, a regime based on an aspirational conception of constitutionalism is characterized by a huge gap between the constitutional text and the social reality in which the constitution operates. This is a natural result of their 'futuristic' nature and it is why it is not uncommon to find that countries with important economic and political problems sometimes adopt the most 'pretentious' constitutions: while protective constitutions are characterized by the inclusion of a limited set of negative rights, aspirational constitutions are characterized by the inclusion of a (usually long) list of social and economic rights. Aspirational constitutionalism is also characterized by an indirect promotion of judicial activism (e.g. judges, at least in theory, are allowed to protect social rights even in the presence of specific legislation adopted to implement a positive right, if the judge considers that legislation to be insufficient). Finally, for an aspirational constitution to be effective and be able to overcome the institutional resistance to social change, it needs to be continuously supported by the social movements that brought it to existence (or that defend its application).

Of course, García-Villegas does not maintain that his distinction is an 'absolute' one: there are intermediate possibilities between a protective and an aspirational constitution. Although I agree with most of García-Villegas' analysis (and although I am generally not a fan of courts) I suspect that if one goes beyond the constitutional text and looks at the actual constitutional practice/adjudication in countries like the U.S., one will find ways of characterizing their approach to constitutionalism as an aspirational one, even if primarily protective at some historical moments.


  1. Joel, thanks for pointing us to the work of García Villegas - I didn´t know it and it seems very useful in understanding constitutional law and theory.
    I wonder whether García-Villegas´ distinction makes justice to - let´s call it - new wave of constitutionalism in Latin America. Actually, although these constitutions do provide rights to minorities, these constitutions share a feature: the Executive gets to decide too much, gets too much power. My sense is that this is also a very important feature of this new constitutionalism. Is this consistent with an aspirational account of onstitution-making? or would García-Vilegas say that these feature I mention is not as importat as I suggest?

  2. Yes, that is a good point. To be fair to García-Villegas, I must clarify that he does not directly connect his conception of aspirational constitutionalism to say, the constitutions of Venezuela or Bolivia: his main frame of reference is the Colombian Constitution of 1991. I made indirect reference to those constitutions because they share the main features of aspirational constitutionalism (e.g. there is a huge gap between the rights protected in the constitution and the reality in which the constitution operates, they are seen as tools to improve the future, etc.).


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