Constitutional courts in transitions to democracy: Limits, critiques and possibilities in Brazil and Argentina

Abstract

After World War II, a court-centered model of democratization and transitional justice has developed and consolidated. Trough adjudication, courts could promote the consolidation of liberal democratic governance, protecting fundamental rights, limiting state power and promoting stability and predictability in the interpretation of the law, to attract investments. However, decades after the start of the third wave of democratization, analyses of the jurisprudence of these courts reveal a less convincing performance of its democratizing role. We ask whether the courts have effectively advanced the consolidation of liberal democracy, by analyzing its two fronts: the protection of fundamental rights and the consolidation of liberal economic policies. Based on case studies of key decisions made by the constitutional courts in Brazil and Argentina, of a qualitative nature, we argue that the performance of the courts does not match the high expectations of the model of court-centric democratization.

Keywords

• Transitional Justice
• Constitutional Courts
• Brazil
• Argentina