Latin American Legal Systems

Latin American national courts increasingly make use of the pro persona principle of interpretation, both when dealing with international and domestic law. This principle is reconcilable with other methods. However, operating in a unidirectional manner as it does, it tends to fade out other rules of interpretation. The resulting interpretive work may be viewed as a threat to the integrity of international law, or as an enrichment of its development by judicial voices from the “global south”. Within the region, the underlying narrative of the “interpretive turn” is integration. This is strongly questioned here since there are some fundamental problems which are ignored by the eulogistic nature of the legal philosophy that underpins the pro persona, such as the alienation of the legal communities and cultures involved. I will analyse these developments in light of the case law of the Colombian Constitutional Court and the Mexican Supreme Court.

Once independent, new Latin America Nations needed to be reformed, they had to abolish and recreate new States, politics and governments. They must rebuild over new principles and develop new values. These new Nations rejected the legal system established by their ancient colonizer, and they were attracted by the revolutionary ideals and the similarities, they found to have, with French society. Therefore, to open Napoleon's Code  in America, is to feel the spirit of the Enlightenment and the great ideals from the end of the previous century. But above all, what most influence Latin American legal systems were, the French doctrine and jurisprudence which were directly used to develop the new republics' legal systems.

This paper aims to analyze the constitutions of Ecuador (2008) and Bolivia (2009) highlithing the legal meaning of Buen vivir, the native peoples’ cosmovision which permeates these texts. The Introduction provides an overview of the native cosmovision, which implies an harmonic life of individuals, communities, and nature. Section II gives an explanation of the concept of subaltern cosmopolitan legality; in the counter-hegemonic globalization, the law is conceived in terms of revalutation of the chtonic tradition and of the extension of legal pluralism. In Section III, the meaning of traditions and the values of the counter-hegemonic legal tradition are illustrated. Section IV is devoted to the analysis of the positivization of the Andean cosmovision in the constitutions of Ecuador and Bolivia. Section V illustrates the characteristics of the new Plurinational States. An analysis is carried out with regard to the explanation of the rights conferred to the Mother  Earth in Section VI. The final Section is dedicated to the illustration of the results of the comparative analysis and to the potential diffusion of the counter-hegemonic legal tradition from Ecuador and Bolivia to other legal systems.