Critical Historicity of Latin American and Caribbean Constitutionalism/Historicidade Critica do Constitucionalismo Latino-Americano e Caribenho.
| Autor | Wolkmer, Antonio Carlos |
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Introduction
--When you deposed me, you cut in Saint Domingos only the trunk of the freedom's tree. It will sprout again by the roots, for these are numerous and deep!
Toussaint L'Ouverture
"That the Indians in their villages govern themselves (...) For me there is nothing more sacred than the will of the people (...) My authority emanates from you and it ceases before your sovereign presence (...) United intimately, we fight against tyrants who try to desecrate our most sacred rights (...) The people of South America are intimately united by ties of nature and reciprocal interests"
Jose Gervasio Artigas
This article intents to systematize some results obtained from the research on Latin-American and Caribbean constitutionalism from the perspective of the critical legal reasoning. Initially, it should be recognized that those are still the partial results of a series of debates, scientific investigations and collective reflections promoted by the Centre of Emancipatory Studies and Practices--CESP (NEPE--UFSC) (1) in partnership with the research group "Critical Legal Thinking in Latin America" (UNESC) (2), which have sought to critically investigate the constitutional historicity in Nuestra America (MARTI, 2005).
Therefore, this proposal for (re) construction of a Latin American and Caribbean Constitutional History will not be restricted to the formal analysis of the Constitutions. The perspective seeks to establish the connection between the region's insurgencies, resistances, rebellions and revolutions against the colonial-mercantilist-capitalist model, which occurred in the turn of the 18th century to the 19th century, and the constituent experiences deriving from these processes in the first two decades of the 19th century. (3)
Thereby, the aforementioned researches have as a common foundation the premise that one of the tasks of critical thinking on the continent is: "to dis-cover" this (these) history (histories) "co-vert" by the academic eurocentrism and by the coloniality that has spread among the various dimensions of the everyday life" (DUSSEL, 1993), reinforcing "[...] the existence of a Latin American liberating reasoning that is defined by a theoretical-practical struggle against a social-political situation of domination, oppression, exploitation and injustice" (WOLKMER, 2003, p. 24).
In this aspect, one of the objectives of this work is to redeem some of these "other" stories and (re) cognize their affiliation to a common past that comprehends a Latin American typical "nosotros" in all its complex diversity, from the struggle (s) of the oppressed, thereby composing a history from bellow (MALDONADO, 2015, p.28), since, as proposed by Thompson (NEGRO, 2001) in the same perspective of Walter Benjamin's VI11 thesis on history concepts: "[...] historical materialism, as far as possible [...] seeks to cut the history against the grain." (NT) (LOWY, 2005, p. 70).
In this sense, the theme that permeates the work is the matter of the need to (re)count and (re)cognize Latin American and Caribbean's constitutional history, focusing on the theoretical constitutional aspect from a transdisciplinary perspective which incorporates the contributions from sociology, political science and history, whereas only through the plurality of perspectives within the human sciences one may truly understand the practical experiences that occurred on the eve of the founding period of the National States in Latin America.
For this reason, the investigation regarding the constituent experiences in Latin America verifies a conceptualization of constitutionalism profoundly permeated by ideas such as people' sovereignty, liberation and complexity in the search for the democratization of social-political relations. However, this historical approach was covert by the Latin American's public life grounds of justification, after all, the traditional north-European conceptual matrices characterized by the liberal-conservative of monistic-positivist bias were prioritized.
Thereafter, the theoretical constitutional breaches of other Latin American and Caribbean constitutionalism's grounds of justification--in which the elements represent a theoretical proposal that emerge as a concrete hypothesis of transformation, so they must be rescued and recovered as a condition of critical intersubjectivity of the people's sovereignty in the context of their struggle for liberation--shall be demonstrated.
Thus, the first part of this essay shall focus on the matter of (re)signifying the foundational milestones in the bicentenary' speech, mentioning, specially, that the celebrations for the emancipation's two hundred years anniversary have disclosed a hidden past of political insurgencies, which have resulted in constitutional experiences wasted by the epistemic coloniality of the constitutional reasoning.
From this framework, the second part of this essay shall be divided into two regional experiences--Haiti and the eastern band of the River de la Plata (now Uruguay) --that, in the first decades of the 19th century, indicate some important elements for the recovery of the constituents that were responsible for the transformation of the hegemonic relations with the metropolises on duty, as well as regarding the regional hegemonies that, at the time being, were already aiming to assert themselves, thus propagating the coloniality of power.
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The Fundamental Milestones of the Latin American and Caribbean Constitutionalisms Bicentenary: a critical approach
In the foundational period of Latin American and Caribbean States there can be found facts related to the construction of legal institutions in the region, political processes and social struggles, conflicts over impoverishment, concentration of power and income, deep social inequalities, violence, slavery, coloniality, cultural hegemony of the metropolis (or hegemonic centres of political and economic power) and their representatives. Therefore, the issue regarding the State, Law, and the society may be better outlined through the delimitation of the studies of constitutionalism and the constituent processes in the regional setting, especially when this phenomenon is analysed beyond the merely conceptual boarders of the legal field, verified as a result of a specific continental reality (with the inclusion of its complexities).
Thus, according to the Argentine constitutionalist Roberto Gargarella (2015, p.9), the Latin American constitutionalism is a significant rich field of study that has not yet been fully explored, which leads to an interest in deeper investigations concerning the distortions regarding the constitutional theory involved in this processes, amplifying the European or Anglo-Saxon matrices that influenced the constitutional phenomenon, since they are not the sole elements that should be considered; after all, these matrices' unfolding's must be adequate to the set of divergent movements that involved the various regional social strata in the dispute over power, or even in the dispute over the hegemony of local political power (VILLORO, 2010).
This last element is indicated by Gargarella (2015, p. 09) as a capital one, for the relation between the social problems and the constituent processes, as a rule, translated into the trust in a list of rights and guarantees as elements of transformation, with the verifying of the "engine room" (GARGARELLA, 2015), that properly involves the organization of this political power, being forgotten. Consequently, the investigative request aims to concretize a historical analysis of the regional constitutionalism in its own scope as a concrete reality of structural formation of the National States, crossed by ills and distortions that form a specific model of constitutionalism.
In this sense, the constituent theoretical conception adopted by the present study visualizes the State's and the constitutionalism's crisis in the democratic intersection against the offensive of the deconstituent processes (PISARELLO, 2014), caused by broad periods of interference by the so-called oligarchic constitutionalism, reflexion that takes on a global facet against the democratic constitutionalism in the last decades (PISARELLO, 2014). The current stage comprehends the democracy inside the central problem that does not limit itself just to the search for the insertion of more rights to the legal catalogues, but properly the powers' restructuring and the disintegration of the political hegemonies.
Therefore, the constituent power, investigated from the perspective of Geraldo Pisarello (2011; 2014), is a phenomenon that shall be interpreted according to the political convergence originated from the social convulsion in the confrontation between the democratizing tendencies in opposition to the deconstituents or legitimating oligarchies of the stable order.
This posture is considered as noteworthy, since the research purposes to resume the main problematics that involved the Latin American society, and that is not just another historic task, but properly a reflection about the political and the legal through their originating problems and most emblematic confrontations. These elements aid in the affirmation of the continental constitutional reasoning and determine the main matrices through which the said theme has been developed over its more than two hundred years of existence.
For that reason, the central issue that conducts the study is not only an approximation and a historical-structural survey of the socio-economic contradictions and their legal unfolding; it goes beyond, seeking the understanding of the constituent roots and their dimension of humanity, for the fundamentals which permeate these processes are found in the search for dignity through the requirement of non-deprivation to the satisfaction of basic needs. By understanding the constituent processes as political-legal struggles that are evidenced in several issues grouped by the...
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