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Rabasa, Emilio. Historia de las Constituciones mexicanas en el derecho en México, Una visión de conjunto, México, UNAM. Robles Martínez, Reynaldo. En este sentido se expresa Emilio O. Rabasa: “Para mí que Cfr. Historia de las Constituciones mexicanas, 3a. ed., México, UNAM, Instituto de Investigaciones. Autres formes du nom: Emilio Òscar Rabasa Mishkin () Historia de las constituciones mexicanas / Emilio Òscar Rabasa,

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Someone might argue that the Supreme Court’s good intentions are just being blocked by a short-sighted group of congressmen. Consequently, in continental Europe the federal courts usually do not have “original jurisdiction” and are rather courts of final appeal. Theoretically at least, individual judges could tailor the law to the social, cultural, and even racial circumstances of their clientele.

See Vladeck, supra note 76, at And even those convicted of habitual drunkenness were allowed only two attempts at rehabilitation before laa transported. Aguirre, C, Buffington R.

Looking forward, looking back : judicial discretion and state legitimation in modern Mexico

It was perhaps for this reason that the Inter-American Court did not make further reference to the Amparo Law in the operative paragraphs of the judgment. This mixture of traditional and modern, liberal and positivist, concerns typified the self-consciously pragmatic nature of the new code. Hunter’s Lessee, 14 U. Conversely, this time around, an appropriate response would respect social realities including the need to modernize socially at least in a gradual, controlled fashion.

Based on events directly following the Supreme Court’s decision authorizing diffused constitutional review, it did not take long for the initial wave of excitement to prove unjustified or, in any case, highly exaggerated. The system established by the Constitution of was based on at least two fundamental misconceptions of the American system that came to influence the subsequent evolution of the Mexican rules of constitutional review.

As mentioned above, on July 14, the court reached a decision that introduced diffused constitutional review onto the Mexican legal system. Historia de las constituciones mexicanas Serie A–Fuentes. It is clear that even after the “Constitutional Reform on Human Rights” the trend in Mexico is still to rely increasingly on constitutional jurisdiction for tasks that in both the American and continental European models correspond primarily to lower courts.

No school, doctrine, or penal system can serve as the integral foundation of a Penal Code. The norms related to human rights will be interpreted in conformity with this Constitution and with the international treaties on the subject favouring at all times the widest protection to the persons.


In sum, these changes did not alter the prevailing notion of the role that specialized constitutional procedures should play in the enforcement of fundamental rights.

Though impossible to analyze in this work, specific reform solutions are needed to make of the Mexican system a coherent one. If those few judgments that could not be reviewed through Amparo e. Early on, Enlightenment-inspired works contsituciones crime and punishment had found a sympathetic ear in Mexico. For Michel Foucaultp. Second, if the case is ultimately admitted for revision, the review process is subject to strict deference rules towards the ordinary courts.

In other words, it is a mistake to act as if the fundamental rights conferred by a Constitution were for just a few and not universal. Historiaa for reasons that had more to do with judicial federalism than with the enforcement of fundamental rights, the senators’ bill that proposed the constitutional amendments to Amparo explicitly addressed this problem.

Historia de las Constituciones Mexicanas Emilio O. Rabasa | Maribel Marin –

See infra section III. As the Mexican system evolved, several mechanisms typical of the continental European model were introduced. This conservative tendency must be acknowledged.

If “diffused” constitutional review is eventually confirmed by the federal Congress, the so-called Amparo hietoria leyes” against statutes should be eliminated and the state’s highest court’s decisions regarding the constitutionality of a federal or local statute may only be challenged by individuals before the Supreme Court.

The Penal Code thus attacked the perceived essence of the colonial criminal justice system: See supra section III. So too, at least for the near future, is the paternalistic political system that produced it. First, the case showed historka there were no adequate mechanisms to provide for all other individuals convicted or accused bistoria to an article held unconstitutional to be released from prison.

Since the Supreme Court’s decision did not affect in any way the dependence position rabaasa the Mexican legal system had built upon the constitutional writ of Amparo the benefits of this supposed empowerment of lower courts to enforce fundamental rights were only apparent. See Dictamen de reforma constitucional en Amparo, supra noteat To support these changes, the commission revived the time-honored complaint about corrupting prisons.

First, the enforceability of fundamental rights is an essential element of the Rule-of-law. This proposal is currently being discussed in the Senate and, as it has support from the three major national parties, is very likely to be approved within the next few months. They did not foster the exemplary function of the constitutional jurisdiction with respect to fundamental rights protection.


Irrespective of whether the judge was right or wrong when he concluded the unconstitutionality of the local criminal code which is still debated and more a task for criminal law scholars21 that controversial ruling touched upon a far more important issue. For this reason the enforcement of fundamental rights must be guaranteed in spite of a careless legislative, a negligent administration, an arbitrary trial judge, or a combination of all of the above.

And, to ensure that judicial rationality was exercised in the national interest rather than in the personal or class interests of an individual magistrate, this system was deliberately formulaic.

The specialized constitutional procedures, on the other hand, serve rather an exemplary function given the authority conferred to the decisions of a constitutional court. Auteur Robert Buffington St. The measures could also include the establishment of discretional rejection powers in Amparo directo when filed against judgments of the supreme courts of emmilio states.

ComiXology Thousands of Digital Comics. The ideas just presented give a good basis to think about some of the measures that law makers should be considering.

This is independent of the fact that the constitutional amendments also introduced in the same paragraph an explicit duty for the state “to prevent, investigate, punish, and repair the violations to human rights, in the terms the law establishes. It is undeniable that in the United States the federal courts at that time had habeas corpus jurisdiction. However, it was not until that a group of senators actually introduced the court’s draft as a bill.

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It began to develop, understandably, substantive and procedural rules of its own. Clearly, this proposed “regulation on diffused constitutional review” will in effect open the gate to federal review of all judgments that could not have been formerly challenged before the federal judiciary.

University of Texas Press, First, by privileging an abstraction, criminality, over the more narrow category of lawbreaker it encompassed many more people.