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Francisca Pou, ITAM (México) Hybridity and constitutional taxonomy in Latin America

Talk of mixed constitutionalism has increased, as constitutions have gained a central place in the political landscape worldwide, as much in democratic regimes as in those with authoritarian or non-liberal inclinations. Yet talk of mixity or (more often) hybridity has been present in Latin America almost from the moment the first modern constitutions were enacted in the region, at the beginnings of the XIX century.

A first, historically recognized source of hybridity is the combination of background continental, civil law systems, with constitutional systems largely inspired by the constitution of the United States. A second source of hybridity is associated to the nature of the constitutionalism that progressively developed in the 19th century. (Roberto Gargarella distinguishes three major currents influencing constitutional developments at the time –liberalism, radicalism and conservatism–and contends that at some point constitutions come to upon a liberal-conservative “fusion” that continues to dominate constitutional dynamics up to this day). A third source of constitutional hybridity becomes salient in regional constitutions after the last wave of democratization, although it has antecedents, and it is linked to the adoption of models of judicial review that superimpose centralized, abstract channels and decentralized, concrete ones. Finally, at the beginning of the XXI century, a last instantiation of hybridity gains visibility, associated to the adoption of constitutional frameworks that give a foundational role to indigenous communities and recognize their legal systems.

My paper will describe these different layers of theoretically or doctrinally identified hybridity –which come roughly in temporal succession– and will try to clarify whether the “hybrid” label is currently helpful or in any way consequential. (Gila Stopler has shown, for instance, that elision of the mixed character of the Israeli constitution is indeed consequential in constitutional adjudication in Israel: because the Supreme Court fails to see that Israel has not a liberal, but a semi-liberal constitutional system, some of its decisions come out unfairly). I will suggest that in Latin America, talk of hybridity in the historic senses explored earlier is sometimes irrelevant or inconsequential, and sometimes inappropriate and geopolitically subordinating. The only space where it may retain a place is with regards the coexistence of indigenous and non-indigenous legal systems

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