Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

The text explores the theoretical and methodological developments of the course “Gender and Constitutional History”, taught and created by professors Patricia A. Cain and Linda K. Kerber. There are two moments, one on a historical survey of courses in Gender and Law and the like; the other, with analysis of cases used in the course taught, always having as a background the intersections between history, Constitutional Law and feminist struggles. The first, Coger vs. North West Union Packet Co; the second, Coggeshall vs City of Des Moin; finally, Green vs Shama. When revisiting the history of the feminist movement, having Law and its nuances as an object, the authors found findings on the concealment of elements of feminist history. In addition, the text has an accentuated pedagogical character because it is always crossing theoretical findings with student feedback and classroom experience with the course. It also serves as an incentive for more courses in this style to be taught. Once, exploring the constitutional history of feminism has proved to be a very effective (and reproducible) way to be subversive. The work was published in 2002, but remains extremely current

For a long time, French constitutional history used to be dominated by a tradition of hostility to judicial activism. As a matter of fact, the French Revolution consecrated a definition of law which put judges in a situation of subordination to legislation. The Revolution thus condemned the claim of higher judicial courts who had tried to compel the royal legislation to abide by constitutional principles. From the Enlightenment to the Second Empire, attempts to impose the superiority of constitutional norms failed because of parliamentary sovereignty, which reached its zenith under the Third Republic. During the second half of the twentieth century, this tradition of parliamentary sovereignty progressively eroded, under the influence of constitutional justice’s expansion in Western European countries. Though, after the Second World War, the supporters of constitutionality review didn’t consider that such a task should be entrusted to a judicial body. Hostility to judicial activism hence led to the establishment of constitutionality review without constitutional justice. The progressive emergence of constitutional justice under the Fifth Republic ensued from a break with the spirit of the Constitution of 1958.  Initiated by the Conseil constitutionnel, this change was later confirmed by constitutional amendments, which consecrated the laborious adherence to constitutional justice by the French institutions.

The article seeks to analyze the construction of differences in Chilean constitutionalism from the problematic relationship between law and diversity. It starts from the tensions between different forms of social observation of diversity to rethink the problem of alterity in the Chilean constitutions from 1810 to 1980. From this perspective, the historical evolution of the constitution can be seen, in addition to its claims of formal equality, as a continuous process of building legal differences. Focusing on the differences constructed through Chilean constitutional history, one can rethink the transition from the ancien régime to modern constitutionalism not as an equality-oriented process, but as the construction and unfolding of new differences. Constitutional history shows that legal models have not produced a par tout equalization of the population. Instead, equality and difference were reconstructed and adapted to the societies that emerged from the dissolution of the ancien régime order.

This article discusses the recognition given to natural rights in the first Mexican Constitutions. It shows that the Mexicans debated two different models: the modern liberal model and the revolutionary ius naturalistic model. Law historiography often insists that this discussion originated in the 1842 Constituent Congress, or alternatively in the 1856 Constituent Congress. This text argues that the roots of this debate over rights had been present in Mexico since Independence in 1821.

Tradução: Maria Celina Monteiro Gordilho   Enquanto, por um lado, mantém seu interesse pela história dos regimes políticos após a Revolução Francesa, por outro lado a história do direito constitucional também se interessa pelo controle judicial da lei e pela proteção dos direitos e garantias fundamentais. Trabalhos de grande importância mostram a vitalidade dessa disciplina, alicerçada na história do direito.    

This essay, Veil of Ignorance and Constitutional History, could be titled otherwise by coining a neologism: Multicontractarianism and Constitutional History. The strong revival of the doctrine of social contract during the last decades, driven by John Rawls’ A Theory of Justice (1971) as foundation for equality between individuals tending a veil of ignorance over the diversity of conditions of any kind, has produced an unexpected chain reaction bringing into view deeply unequal social contracts in the plural. The trigger was, in 1988, Carole Pateman’s The Sexual Contract insofar as it fully challenged the principle of ignorance for the achievement of justice. She disclosed the meaning of family order as the political space in which women’s subordination is entrenched. Furthermore, she highlighted how classic contractarianism, since Locke, assumed and exposed the marital power as the first of the powers in contrast with the current contractarianism that, since Rawls, tends its veil of ignorance on the family conditionings of the woman’s status even in times of rights. Along these lines, Charles Mills continued in 1997 with his The Racial Contract, contrasting equally the transparency of classical contractarianism with the opacity of present supremacism regarding the whole set of a racialized subordination on a colonial basis. There is even more. In 2009, Pateman and Mills attempted to integrate their respective visions into a comprehensive category of Subordination Contract. Then, in 2015, Stacy Clifford-Simplican’s The Capacity Contract came contending that supremacist assumptions about the capacity of the individual are at the basis of all subordination contracts. Other contracts, such as the Generational Contract and the animal or Species Contract, have been added. Thus we finally have a multicontractarianism at the antipodes of contractarianism. This essay argues that mainstream constitutional historiography has been developed under the paradigm of monocontractarian blindness and that, therefore, the perspectives provided towards the past by multicontractarianism might open horizons no less unexpected.

The aim of this text is to debate some methodological issues that arise when thinking about the history of human rights. By using examples coming from different historical contexts, from the Antiquity to the twentieth century, the text intends to explore two central ideas. On the one hand, to question the idea of a transtemporal nature of the concept of human rights. In opposition to that idea, the text intends to stress that historical context existed where universal/human rights could hardly be conceptualized. The other idea has to do with the improbability of carrying on a linear and continuous history of human rights without incurring in anachronism and retro projection. Another target of the text is to identify some historiographical debates on the issue and different approaches to it.   

The article analyzes the historical process of legal codification during the liberal Triennium. The research examines the circumstances and constitutional conditions of elaboration, possible models and parallel texts, and the content of the Penal Code and the incomplete draft of the Civil Code. The article investigates the relationship between such codes, recalling the doctrinal proposals and the strategies followed during their elaboration process, as well as undertaking a cross-reading of their texts. Comparing the Spanish codes with other texts will make it possible to highlight their uniqueness in a legislative history that was not yet dominated by the Napoleonic Cinq codes.